ester bora mbilinyi administrator of the estate of the late bora dalamali mbilinyi vs elia mwiname and 6 others 2023 tzhc 18297 22 june 2023

IN THE HIGH COURT OF TANZANIA (SONGEA DISTRICT REGISTRY) ATSONGEA MISCELLANEOUS LAND APPEAL NO. 5 OF 2023 (From Land Case No. 48 of 2018, Songea District Land and Housing Tribunal) ESTER BORA MBILINYI (Administrator of the Estate of the Late Bora Dalamali Mbilinyi) ............................. APPELLANT VERSUS ELIA MWINAME .......... .......... 1st RESPONDENT DOMINICUS MBILINYI.................... ......2nd RESPONDENT SEBASTIAN MBILINYI........ ................. ..3rd RESPONDENT SALVIUS DANDA .............................. .........4™ RESPONDENT JOSEPHAT MSIGWA ................. .....5th RESPONDENT MAGRETH MBILINYI......... .6™ RESPONDENT ANASTASIA FUSSI ............ .....7th RESPONDENT JUDGMENT 26/05/2023 & 22/06/2023 E. B. LU VAN DA, J. The Appellant above named is appealing against the ruling of the trial Tribunal dismissing the Appellant's claim on the ground raised by the trial Tribunal proprio motu that the suit is time barred on account of lapse of forty-five years counting from the demise of Bora Dalamali Mbilinyi on 4/5/1973 to the time when the Appellant was granted letters of administration on 5/2/2018. Grounds of the appeal: One, the trial Tribunal erred in law and fact to dismiss the application on the ground that the Appellant's right to sue i over the disputed land accrued since 1973 while since the demise of her father there was no dispute up to 2017 when the disputed farms were sold; Two, the trial Tribunal erred in law and fact to dismiss this application without considering that the Appellant is an administrator of the deceased estate; Three, the trial Tribunal erred in fact and law to dismiss this application without deciding on the merit as to who is the lawful owner. It is pertinent to recap some facts giving raise to this appeal. The Appellant is suing as an administror of estate of the late Bora Dalamali Mbilinyi who passed away on 4/5/1973 while in actual possession of the suit land alleged to had acquired in 1961. The Appellant obtained letters of administration on 5/2/2018, thereafter on 9/3/2018 the Appellant sued the Respondents named above for trespassing the deceased's land measuring four acres situated at Lukandagano Area Magingo Village within Songea District. The Appellant pleaded a trespass to have been committed in January 2017. The Sixth Respondent (aunt to the Appellant) disposed the impugned land in piece meal by vending and handing over two acres to the First Respondent on 25/10/2016 for a consideration of 100,000/=; Second Respondent on 23/9/2016 a quarter acre for TZs. 400,000/=; Third Respondent on 14/10/2016 for TZs. 300,000/=; while The Fourth Respondent purchased one and 2 quarter acre for TZs. 1,400,000/= from the Seventh Respondent, the later alleged was acting under the instructions of the Appellant, when the later was admitted (bed ridden) following a motorcycle accident, The Seventh Respondent alleged to had handed over the whole sum of proceed of sale to the Appellant, although the later disowned and dispelled it on explanation that she was on critical condition. On the other hand, the Sixth Respondent, averred that after the demise of her grandfather (the late Bora Dalamali Mbilinyi) in 1973, who was the owner of a disputed land, the same was inherited by Petro Bora Mbilinyi (deceased's son and Sixth Respondents father) who passed away in the year 1995, where she (Sixth Respondent) inherited the disputed land and disposed or vended to the First, Second and Third Respondent as aforesaid. It is undisclosed if the Sixth Respondent was appointed or granted letters of administration to administer the estate of her father the late Petro Bora Mbilinyi. This appeal was argued orally, and all parties were unrepresented. The appeal proceeded exparte against the Second and Fifth Respondent who defaulted to appear. The Appellant submitted that after the demise of her father in 1973, the farms remained in possession of her mother till in 1994 when her 3 mother passed away, where farms remained the father of the Sixth Respondent including other siblings. In 1995 the father of the Sixth Respondent passed away. Thereafter the Appellant invited Eliza Mbilinyi as caretaker, who passed away in 2016z where she personally took over supervision of those farms. That in August 2016, she encountered a motorcycle accident, where she was admitted at Peramiho, while under critical conditions the Sixth and Seventh Respondents who were also nursing her took an advantage to dispose farms measuring four acres. In response, the First Respondent opposed the appeal on account that the trial chairman ruled that it was out of time, counting from 1973 to 2018. The Third Respondent, seconded the argument of the First Respondent, adding that he purchased a piece of quarter acre in 2017. The Fourth Respondent supported the decision of the trial chairman. He submitted that he purchased a piece of land from the Seventh Respondent who promised to handover money a sum of TZs. 1,400,000/= to the Appellant. The Fourth Respondent was surprised to hear that the Seventh Respondent was not assignee of the Appellant instruct. 4 The Sixth Respondent submitted that after demise of her grandfather in 1974 those farms were handed to her father. That when her father passed away in 1995 her mother remained there who owned those areas till 2011 when she was chased away by the Appellant. That her mother and the Appellant devided all assets which were acquired by her father. Thereafter her mother fall sick and passed away while at her parents' home. Thereafter her aunt one Eliza relocated at her father's home. That the Appellant sold a piece of land for TZS. 50,000 and spend it alone. That the Appellant instructed the Seventh Respondent to sell land white the former was bedridden. That what she (Sixth Respondent) sold is a share of her father. The Seventh Respondent submitted that She was instructed by the Appellant to sell a piece of land and proceed of sell were handed over to the Appellant. I rejoinder, the Appellant submitted that she did not chase away the Sixth Respondent's mother, rather clan members argued and asked the Appellant to let her go, because no dowry was paid for her. She submitted that the First, Third Respondents are mere purchasers and trespassers, and have nothing to do with her family issues. She submitted that about four acres have been sold and remained three or two and half acres, which are still under her control. 5 It is to be noted that in deciding the issue of time limit, the learned trial Chairman invoked the provision of section 9(1) of the Law of Limitation Act, Cap 89 R.E. 2019, to gauge a period between the death of the owner of the disputed land in 1973 to 2018 when the Appellant obtained letters of a administration to administer the estate of the deceased. The learned trial Chairman said nothing regarding as to whether a claim was for recovery of the deceased land trespassed prior or post the demise of the possessor. The learned trial Chairman limited the scope of the letter of the provision of section 9, by leaning to subsection (1.) solo. To my view the provision of subsection (1) to section 9 cannot be read in isolation, in particular where facts of this case suggest the disputed land was disposed later after the death of the deceased, to wit sometimes between 2016 and 2017. To my opinion the provision of subsection (2) to section 9 Cap 89 (supra), also ought to come into play. The said sub section (2) of section 9, provide, I quote 'Where the person who institutes a suit to recover land, or some person through whom he claims, been dispossessed or has discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.’ 6 The above stance is amplified further under the provision of section 33(1) Cap 89 (supra), I quote, "A right of action to recover land shall not accrue unless the land is in possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as "adverse possession") and, where on the date on which the right of action to recover any land accrues and no person is in adverse possession of the land, a right of action shall not accrue unless and until some person takes adverse possession of the land." Herein, the deceased who owned the land since 1961, passed away in 1973. From 1973 there is no evidence if there was any adverse possession (apart from here and there allegations by the Sixth Respondent that it was inherited in between) of the disputed land till in between 2016 and 2017 when the Sixth and Seventh Respondent disposed it to the First, Second, Third and Fourth Respondent, respectively. To my view, it cannot be said therefore that the right of the Appellant to recover a suit land alleged trespassed in 2017, accrued respectively counting from the death of the deceased in 1973. It is elementary knowledge that a suit or case cannot be instituted where there is no cause of action. To me, it sound awkward to say the right of action to recover land automatically accrued upon the demise of 7 the possessor even in the circumstances where is: no dispossession by a strange party or adverse possession was made. To my view, reading in between lines of the letter of the provision of section 9(1), implies institution of a suit to recover land of a deceased where the deceased person was on the date of his demise in possession of the land and was the last person entitled to the land to be in possession of the land, the last proceding part by implication connote a situation where the right of action accrued during the life time of the deceased. The provision of section 24(1), speak more louder, regarding circumstances under which the deceased dies before the right of action accrues, I quote, ' Where a person who would, if he were living, have a right of action in respect of any proceeding, dies before the right of action accrues, the period of limitation shall be computed from the first anniversary of the date of the death of the deceased or from the date when the right to sue accrues to the estate of the deceased, whichever is the later date.' Herein, the later date is when the right of action accrued in 2017 when the Respondents alleged occupied the deceased land. This position was also taken by this court speaking through Hon. Shangwa, J (as he then was) in the case of Sungura Ham is vs Frank Kikongore & Others, 8 Civil Appeal No. 145 of 2002, High Court of Tanzania at Dar es Salaam (unreported), where he observed that time in a land dispute ought to run when parties became adversary to each other and not otherwise. It is to be noted that the position in section 9(1), there is no mention of the administrator. However, section 35 of Cap 89 (supra), provide for a somehow challenging scenario which seems to contravert section 9(1). The said section 35 provide, I quote, 'For purpose of the provisions of this Act relating to suits for the recovery of land, an administrator of the estate of a deceased person shall be taken to claim as if there had been no interval of time between the death of the deceased person and the grant of the letters of administration or, as the case may be, of the probate.’ This position it also contradict with the wording under section 25(1) Cap 89 (supra), which require only the time during which an application for letters of administration or probate was prosecuted, to be excluded. When canvassing along the provision of section 9(1) and 35, in the case of Rodha Sobe vs James Fredy Sagaria, Land Appeal No. 69/2019, this Court speaking through Hon. Mgeyekwa, J (as then she was), had this to say, I quote, 'Guided by the above provision of the law, a suit to recover landed property must be filed within 12 years. Moreover, in 9 cases related to recovering land an administrator of the estate can file a claim in court as if no interval of time between the death of the decease person as stated under section 35 of the Law of Limitation Act, Cap 89 [R.E. 2019]. According to section 35 of the Law of Limitation Act Cap 89 [R.E. 2019] the time taken to apply for the administration of the estate of the late Sobi is excluded. Thus time started to run against the Appellant after obtaining letters of administration. Therefore, in computing time, the days started to run from the date when the administrator of the estate was appointed that is 2016, thus, the application falls within time/ In the case of Aloysius Benedicto Rutaihwa vs Emmanuel Bakundukize Kendurumo & Nine Others, Land Appeal No. 23/2020, High Court of Tanzania Bukoba Registry, Hon. Kilekamajenga, J distinguished Rod ha Sobi (supra) and took a path of this Court in Helena Mwaipasi vs Philip Mwambungu and Two Others, Land Case No. 10/2012, HC at Mbeya (unreported); Mshamu Said! Administrator of the Estate of Saidi Mbwana vs Kisarawe District Council and Four Others, Land Appeal No. 177/2019, HC-'Dar es Salaam (unreported); Shomari Omari Shomari (as Administrator of the Estate of the Late Seleman Ibrahim Match i la) vs Mohamed Kikoko, Land Appeal No. 171/2018. io However, facts in Aloysius Rutaihwa (supra) are distinguishable from the facts herein narrated above. Therein, the proprietor died testate in 1978 and named the Appellant therein as executor. The Appellant therein was appointed as administrator in 2014 and subsequently sued the Respondents therein alleged trespassed the deceased land in 1981 and 1992. Therefore, therein this Court was legally sound to hold a view that the action was barred by limitation, by inferring to the doctrine of adverse possession. Essentially my point of departure is grounded on a fact that herein the deceased occupied the disputed land peacefully from 1961, till his demise in 1973. Thereafter the land in dispute allege to have been under control of the Appellant and sibling till in 2017 when the Sixth and Seventh Respondents disposed it to the First, Second, Third and Fourth Respondents, at the time when the Appellant alleges was bedridden. The Appellant obtained letters of administration in 2018 and sued the Respondents on the same year. To my view, to say that a cause of action accrued on 4/5/1973 when the deceased passed away, is unrealistic. Equally to say the Appellant is barred to sue the Respondents because she obtained letters of administration after expiry of forty-five years, is legally untenable. This is because the Respondents are sued for trespassing alleged committed in 2017. For another things, ii computing time limit from the death of the proprietor in 1973 up to the time of obtaining letters of administration in 2018, at the same time disregarding a fact that trespass was alleged to have occurred in 2017, to my view, this will be akin as invalidating letters of administration or probate, as the case might be, on the back door, bearing in mind that this is not a proper forum by virtue of being not a probate court. Again, in the law governing administration of estate, there is no express provision of the law which prescribe or set time limit to petition for a letter of administration or probate. Indeed, under probate rules, only the administrator of estate can sue or be sued on behalf of the deceased. In the persuasive decision from India, the case of Ramcharan Singh vs Mst. Dharohar Kuer, Patna High Court [AIR 1954 Pat 175] on 22 October, 1952 Reuben, C.J. had this to say at page 12, 'There is ample authority for the proposition that applications for probate are not governed by the law of limitation' Herein letters of administration of estate Form No. IV (exhibit Pl at the trial Tribunal), is made under rule 2 of the Fifth Schedule to the Magistrates7 Courts Act, Cap 11 FLE. 2022, neither therein nor The Primary Courts (Administration of Estates) Rules G.N. No. 49 of 1971 or The Magistrates7 Courts (Limitation of Proceedings Under Customary 12 Law) Rules, G.N. No. 311 of 1964, set the time limit for petitioning or granting letters of administration Or probate. In Ramcharan (supra) At pages 8 and 9, his Lordship Reuben, CJ went on to make a distinction between the position of an executor and an administrator regarding their validation and when time commence running against each other, 'Having considered these provisions of the Succession Act of 1952 there seems to me to be no doubt that an executor is a creature of the will and that his title as such vests in him when the testator dies. This was the view taken in - 37 Bom 158 (A)', a decision under the Succession Act, 1865, the relevant provisions of which were substantially similar to those of the Act of 1925. An administrator, on the contrary, is a creature of the order of the Court and his title vests oh the issue of letters of administration. This distinction between the respective positions of an executor and an administrator was drawn by Lord Parker in - 'Meyappa Chetty v. Subramanian Chetty', AIR 1916 P. C.202 (H), and was applied to the Straits Settlements. In that case one Subramanian Chetty died at Singapore in 1904, having by will appointed Ramasamy Chetty as executor. Probate in the Straits Settlements not having been taken out by Ramasamy Chetty, one Meyappa Chetty, on behalf of the testator's widow, obtained letters of administration pendente Ute' 13 and filed a suit in March, 1911, in that capacity in the Supreme Court at Singapore relying, for saving limitation, on a provision similar to Section 17 Sub-section (i), Limitation Act. Their Lordship of the Judicial Committee held that the will was capable of probate in the Straits Settlements, that the vesting of the title of a testator as such was independent of the grant of probate and occurred when the testator died, and, therefore, within the terms of the provision relied on, limitation ran from the date of the death of the testator and the suit was barred. They explained the difference in the respective positions of an executor and an administrator in the following words: "It is quite clear that an executor derives his title and authority from the will of his testator and not from any grant of probate. The personal property of the testator. Including all rights of action, vests in him upon the testator's death, and the consequence is that he can institute an action in the character of executor before he proves the will. He cannot, it is true, obtain a decree before probate, but this is not because his title depends on probate, but because the production of probate is the only way In which, by the rules of the Court, he is allowed to prove his title. An administrator, On the other hand, derives title solely under his grant, and cannot, therefore, institute an action as administrator before he gets his grant. 14 To my view when deliberating the applicability of section 9(1) and (2) Cap 89 vis-a-vis section 24(1) Cap 89 (supra), a distinction must be drawn between the mandate of executor of a will and the administrator granted with letters of administration or probate. In the former, the title is vested in the executor from the moment of the testator's death. In other words, the executor comes into existence as soon as the will becomes an operative document, that is to say, when the testator dies, and time commence running from the death of the testator. On the other hand, an administrator comes into existence when there has been grant of letters of administration, and time will run from the date of a grant. In Ramcharan (supra) at page 8, it was held, I quote, 'Under the terms of Section 211 the executor is the legal representative of the deceased person from the date of his death and limitation would run against him from this time. In contrast limitation would run against the administrator from the date of grant of fetters of administration' I therefore hold a view that letters of administration granted to the Appellant are valid and therefore her cause of action in this suit arose when letters of administration were granted on 5/2/2018. 15 That said, the ruling of the trial Tribunal dated 30/12/2022 is set aside. The matter is remitted back to the trial Tribunal for continuation of event as scheduled on 8/11/2022. To be precisely, the trial Tribunal should proceed composing and drafting a judgment on the merit docket. The appeal is allowed, costs for this appeal will be shared because parties (Appellant and Sixth Respondent) are siblings, wrangling over 16