habiba bush administrator of estate of bush mwinyibohari vs ramadhani lila gogo and another 2021 tzhclandd 495 29 september 2021

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 40 OF 2020 (Arising from Land Application No. 195 of 2016 in the District Land and Housing Tribunal for Kibaha at Kibaha) HABIBA BUSH (Surviving legal personal Representative of the late BUSHI MWINYIBOHARI)...............................................................APPLICANT VERSUS RAMADHANI LILA GOGO @ J EBA............................. 1st RESPONDENT OMARI MFOLEA...................... 2nd RESPONDENT JUDGMENT ON APPEAL Date of Last Order: 30/8/2021 Date ofJudgment: 29/9/2021 A. MSAFIRI, J The appellant, having been aggrieved by the Ruling of the District Land and Housing Tribunal for Kibaha, she is now appealing before this Court on the following grounds; 1. That the trial Tribunal erred in law and fact by predicating the findings that the appellant's application was time barred without adherence to the actual time and facts surrounding the cause of action. 2. That the trial Tribunal erred in law and fact by delivering and sign the Drawn Order before the Ruling has been delivered. i 3. That the trial Tribunal erred in law and in fact by dismissing the Land Application instead of striking out for allegedly being time barred. She prayed for this Court to quash and set aside the proceedings, Ruling and Drawn Order of the trial Tribunal, uphold of appeal and costs of the appeal. By consent of the parties and leave of the Court, the appeal was argued by written submissions. Both parties were represented whereby the appellant was represented by the learned advocate Faraji Mangula while the respondents had the legal service of the learned advocate Frank Ntutta. The brief background of this appeal is that the appellant instituted a suit against the respondents before the District Land and Housing Tribunal for Kibaha (herein as trial Tribunal), for trespass in the suit land. When the matter was brought for hearing before the trial Tribunal, the respondents raised two preliminary objections that; first, the trial Tribunal was improperly moved as the application is brought by wrong title; and second, that the application was time barred. The hearing of preliminary objection was by way of written submission whereby the trial Tribunal sustained the 2nd objection and dismissed the Application. After embarking on a journey to appeal, i.e. firstly filing an application for extension of time to appeal, which was granted, the appellant filed this appeal. In the submission by Mr. Mangula, counsel for the appellant, started by consolidating the first and third grounds and argued them as one. He stated that the appellant is in administratix of estate of the late Bush MwinyiBohari who died on 21 June 1997. That the respondents encroached and trespassed into the suit premises on 04/8/2009 and 05/5/2010. On 19th October, 2010, the appellant was appointed as the administratix of the late Bush Mwinyi Bohari. Mr. Mangula stated that, when dismissing the Application, the trial Tribunal based its decision on sections 9(1) and 35 of the Law of Limitation Act Cap 89 R.E 2019. He argued that the trial Tribunal's Chairman was wrong to base his argument only on sections 9(1) and 35 of the Law of Limitation Act because basing the argument on the cited provisions alone is like reading and interpreting the law in isolation of other sections that provides further interpretation of the particular matter. That, the trial Tribunal should have based its findings on when the right of action accrues and basing on that, should have decided the case basing on sections which he has cited i.e. Section 9(2), Section 24(1) and Section 25(1) of the Law of Limitation Act. To cement his argument the counsel cited the case of Dema Makalo & 8 Others vs. Sulla Timla Makalo, Land Appeal No. 23 of 2018. HC Shinyanga( unreported). He pointed that in the cited case, the Court went further to elaborate on Sections 24(1) and 25 (1) of the Law of Limitation Act that provides for time limitation in matters relating to administration of estate. He argued further that, section 24 (1) deals with a situation where the right of action accrues after the death of the deceased person. In this, a period of one year from the date of the death of the deceased or a period before the accrual of the right of action or whichever is later period is to be excluded in computing time limitation. He said that, section 25 provides for circumstances when accrual of the right of action arises before death of the deceased and thus the only excluded time is when the plaintiff was prosecuting the letters of administration. That, in the present matter, the right of action accrued after the death of the deceased i.e. in 2009 and 2020 as Section 24 (1) of the Limitation Act exclude only one year as explained. Mr. Mangula submitted further that, the encroachment into the suit land occurred before the appellant was appointed as administratix and it was until 19th October, 2010 when she acquired the letters of administration. So it will not be fair to her as no one has trespassed into the land until 2009 and 2010, and it is trite law that the right of administrator of the estate commences from the date of appointment. He again cited the case of Martin Godfrey (legal representative of Godfrey Ole Martin - Deceased) vs. Fanuel Loishooki Moah, Civil Application No. 1 of 2009, CAT Arusha (unreported). He avers that the trial Tribunal erred in law and fact to dismiss the application as it was not time barred. That the dismissal of the case amounts to the case being a res judicata and it was never heard on merit. Thus what the trial Tribunal was to do was to strike it out. On the second ground, Mr. Mangula argued that it is quite evident on the face of record that the ruling of trial Tribunal indicates that it was delivered on 6th June 2017 but the drawn order indicates that it was signed on 1st June 2017. This means that the drawn order was signed five days before the ruling. He claimed that this illegality shows ill motive that the trial Chairman has reached the decision before delivering the ruling, and this illegality should be considered as it prejudiced the rights of the appellant. Replying, Mr. Ntutta vehemently opposed the appeal, and argued the three grounds of appeal jointly. He submitted that the law is clear that where a person institutes a suit to recover land of a deceased person and for which the deceased was last person to possess it, the time limit is computed from the date of death of that deceased. He cited the position set by the provisions of Section 9(1) (2) and section 35 of the Law of Limitation Act. He argued that, in the instant case, there is nowhere in the original application to recover the suit land where it was stated that after the death of the original owner, the suit land was in possession of another person. That it is not disclosed as to what happened to the suit land until the appellant applied for letters of administration of the estate in 2010, and started claiming the suit land in 2016 while the deceased died in 1997. He pointed that as per section 3(1) of the Law of Limitation Act, the remedy for the proceedings instituted after a lapse of 12 years is dismissal of the same as it was done in the instant suit. Mr. Ntutta submitted on the ground of appeal regarding the signing of Drawn Order before the Ruling was delivered, that the error could not change the 5 position of the decision as it could have been rectified. He prayed for this Court to dismiss this appeal with costs as it has no merit. On rejoinder, Mr. Mangula reiterated his submissions in chief and added that it will be improper for the Court to base its decision on the cited provisions i.e. Sections 9(1) and 35 of the Law of Limitation Act because doing so will be prejudicing the rights of the appellant together with the beneficiaries of the late Bush Mwinyibohari. He stated further that, in considering this appeal, the main issue is to determine when the cause of action accrued. Having heard and considered the submissions by both parties and also considering the Court records concerning this matter, the issue for determination is whether this appeal has merit. In determination of the grounds of appeal, I will consolidate the 1st and 3rd grounds of appeal as they are both centered on the issue of time limitation which is major issue of this appeal. At the trial Tribunal, the Hon. Chairman based his findings on Section 9(1) and Section 35 of the Law of Limitation Act. The provisions provides that the limitation of time of a suit to recover a land of a deceased person is 12 years which starts to be counted from the date of his death. I agree that this is the position of the law as set by the above said provisions. However, as rightly put by the counsel for the appellant in his submissions, Sections 9 (1) and 35 of the Law of Limitation Act cannot be read in isolation as they provide general rule which has some exceptions. This was rightly put in the case of Shomari Omari Shomari (administrator of the estate of Selemani Ibrahim Maichila vs. Esha Selemani Ibrahim and Another, Land Appeal No. 171 of 2018, High Court Land Division (unreported) where the Court observed that; "Admittedly, time limit for pursuing an action for and against an estate of the deceased is not without exclusion. The exclusion is dealt with under Sections 24 and 25 of the Law of the Limitation Act. Section 24(1) deals with a situation wherein the deceased person dies before the accrual of a right of action. In such a scenario, the period of the first anniversary from the date of death of the deceased or the period before the accrual of right of action, whichever is a later period, shall be excluded......"( emphasis mine). In the present appeal, the accrual of right of action arose after the death of the late Bush Mwinyibohari so, this matter falls under circumstances explained under section 24 (1). One would ask as to when did the right to sue accrues to the estate of the late Bush Mwinyibohari? The prompt answer is that the right of action accrues on the date of the encroachment of the suit land since there is no any evidence that there was dispute before the death or after the death of the said Bush Mwinyibohari. Apparently, the dispute arose when allegedly the respondents trespassed into the suit land. According to the records particularly the joint written 7 statement of defence of the respondents, the respondents claimed to be the owners of the suit land since 2009 by 1st respondent and since 2010 by the 2nd respondent. The suit was instituted at the trial Tribunal in 2016, so the Application before the Tribunal was within the time. In this matter, the very important question was "when did the right of action accrues". I am of the firm view that if the trial Chairman had determined this, he could have found that the matter before him was within the time. For this reason, I allow the first and third grounds of appeal. Having found that the said two grounds of appeal has merit, the second ground need not detain me. From the foregoing, I think this matter must be determined on merits and I thus allow the appeal with costs. The Ruling of trial Tribunal dismissing Land Application No. 195 of 2016 is set aside. I hereby order that the file in respect of Application No. 195 of 2016 be remitted to the District Land and Housing Tribunal for Kibaha at Kibaha to be determined on merits before another Chairman. I also direct that the matter be finalized within six months from the date of this order. Order accordingly. Right of appeal explained. 8