halima adamu nilongo administratrix of the estate of the late adamu rashid nilongo vs yusuph aliza nchimu and 3 others 2023 tzhc 16862 25 april 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SONGEA DISTRICT REGISTRY (LAND DIVISION) AT SONGEA LAND APPEAL NO. 09 OF 2023 (Originating from the District Land and Housing Tribunal for Songea at Songea in Land Application No, 06 of 2019) HALIMA ADAMU NI LONGO (Administratrix of the Estate of the Late Adamu Rashid Nilongo).... ............... APPELLANT VERSUS YUSUPH ALIZA NCHIMU ........... ............... ............ ......... 1st RESPONDENT ISMAIL JAIBU NILONGO................................................ 2nd RESPONDENT OMAR MOHAMED NILONGO .................... .......... ......... . 3rd RESPONDENT DAHARI JAIBU NILONGO................... ............ ............. . 4th RESPONDENT JUDGMENT Date of Last Order: 05/04/2023 Date of Judgment: 25/04/2023 U. E. Madeha, J. To begin with, this appeal originates from the decision of the District Land and Housing Tribunal of Songea in Land Application No. 06 of 2019. The Appellant is an administratrix of the estate of her late farther one Adam Rashid Nilongo. Before the Tribunal she filed an application for the declaration that the Respondents are trespassers in the land which is the property of her late father. i As a matter of fact, on 14th November, 2022, when the Application was called for the continuation of the hearing, the Trial Tribunal in its sup moto raised a preliminary objection that the application was time barred and ordered the learned advocates to address the Tribunal on that issue. In fact, the Appellants learned advocate that is none other than; Mr. Makame Sengo submitted that the application is not time barred, as it was within the time limit since the dispute arose in 2008 and the Application was filed In 2019. He referred to section 24 (1) and (2) of the Law of Limitation Act (Cap. 89, R. E. 2019), which reads as follows: "24,-(i) 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, (2) Where a person against whom, if he were living, a right of action would have accrued, dies before the right accrues, the period of limitation shall be computed from the date when there is a legal representative of the deceased against whom such proceeding may be instituted or from the date when the right of action accrues against the estate of the deceased, whichever date last occurs." 2 In his response the Respondents' advocate, Mr. D.P. Ndunguru conceded to the arguments of the Appellant advocate. The objection was sustained by the Trial Tribunal. Aggrieved by that decision the Appellant preferred this appeal on the sole ground that; the Tria/ Tribunal erred in taw and in facts by holding that the Appellant's application was time barred without considering when the cause of action arose between the parties. Following the order of this Court this appeal was argued by way of written submissions. The Appellants were represented by none other than; Mr. Makarne Sengo the learned counsel whereas the Respondent was represented by Mr. D.P. Ndunguru the learned counsel. Notably, Mr. Makarne Sengo submitted that the Trial Tribunal erred in law and facts by holding that the Appellant's application was time- barred without considering as to when the cause of action arose between the parties. Besides, he contended that it is clear that the provision of section 9 of The Law of Limitation Act (Cap. 89f R.E. 2019) provides for the period of limitation but computation of time as to when the cause of action arose is governed under the provision of section 24 (1) and (2) of the Law of Limitation Act (Cap. 89, R.E. 2019). Section 24 (1) reads as follows: 3 "24 (I) Whether a person who would, if he were living, have a right of action in respect of any proceedings, 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." To put in a nutshell, he made reference to the case of Habiba Bush (Surviving legal personal representative of Bush! Mwinyibohari) Versus Ramadhani Lila Gogo @ Jeba & Another, Land Appeal No. 40. Of 2020, High Court of Tanzania (Land Division) at Dar es Salaam (unreported) the Court held that: "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" As a matter of fact, he further argued that from the application in which this appeal originates, it is clear that the late Adam Rashid Nilongo died in 1989 while possessing the said piece of land. Basically, the same remained on the hands of the deceased family without any interference from any person until in the year 2008 when the second Respondent, third Respondent and fourth Respondent invaded the 4 disputed piece of land. Thus, the application was timely filed before the Trial Tribunal. On the other hand, Mr. D.P Nd unguru the Respondent's learned advocate conceded that the Trial Tribunal wrongly dismissed the application on the ground that it was time barred, in that regard, he concurred with the submission made by the Appellant's learned counsel and further stated that on account of the facts of this case, time to recover the land began to accrue in the year 2008 when the dispute arose and the Appellant could not institute an application before 2008 as there was no dispute on the disputed land. For that reason, he prayed for this appeal to be allowed and the matter be remitted to the Trial Tribunal for the continuation of trial. From the submission made by each part's counsel, the issue is whether the application was filed out of the time limit. Principally, I have thoroughly seen that both parties in this case at the Trial Tribunal conceded that this case was filed within the time limit but the Trial Tribunal dismissed the application. There is a common saying that says "Don't judge a book by looking at its cover". This expression reminds us that we must determine the case after receiving the testimony of both sides and their exhibits. 5 To put it in a nutshell, considering the circumstance of the case at hand, I find the advocates of both sides had agreed that this application is within the time limit prescribed by the law. The Respondents' advocate has conceded to the submission made by the Appellant's advocate and prayed for this matter to be remitted to the Trial Tribunal for the continuation of the hearing. As a matter of fact, the issue of time limitation was raised by the Trial Tribunal. I find the Trial Tribunal was required to hear and determine the application and not dismissing the same on the ground that it was time barred. X find the Trial Tribunal wrongly dismissed the application as it was supposed to be heard and determined on merit in order to decide whether it was within time limit prescribed by the law or not. Conclusively, in view of what has been stated above, I strongly agree with the Appellant and the Respondent's learned counsel submission and I order retrial and proceed to quash the proceedings from 14th November, 2022 and ruling of the Trial Tribunal. The proceedings in respect of the service of summons and hearing of the Appellant's case are salvaged. This is because they have not been affected by the omissions. I hereby order that the case records in respect of Land Application No. 06 of 2019 be remitted to the District 6 Land and Housing Tribunal for Songea at Songea to be determined on merit as directed above. Appeal partly allowed. I give no order as to the costs. Order accordingly. COURT: Judgment delivered on this 25th day of April, 2023 in the presence of the Appellant's advocate and in the absence of the Respondents' advocate. The Respondents' advocate to be notified. Right 7