20161230 TZHC Mbeya

• IN THE HIGH COURT OF TANZANIA AT MBEYA LAND APPEAL NO. 39 OF 2015 (From the Application No. 49B of District Land and Housing Tribunal Mbeya) }I IJ4DA ARON KISTJC.A ............................................... .APPELIJ.AN'I' VERSUS 1 .CHRISTINA SIMBEYE Administratix of Estate of the late Alinani Kisunga ........................... RESPONDENTS 2. DAVID KATETE JUDGMENT Date of Last Order: 19.09.2016 Date of Judgment: 30.12.2016 DR. A.J. MAMBI, J. In the District Court the Appellant, Hilda Aron Kisunga was dissatisfied by the decision of Mbeya District Land and Housing Tribunal in Land Application No. 49B of 2014 which made judgment in favour of the second Respondent. The 2nd Respondent in the trial Tribunal successfully sued the Appellant and the 1st Respondent for recovery of house Ks/02 located at Mabatini in Mbeya City within Mbeya Region. . 1 13 Aggrieved, the appellant lodged a memorandum of appeal consisting ) of three grounds namely:- 1. The tribunal erred to hold that Alinani Kisunga (husband of 2nd Respondent) was given suit house by the late Amanyisye Kisunga. The tribunal erred by ignoring the undisputed fact that the estate of Amanyisye Kisunga had not been distributed to date. The tribunal erred in invoking the doctrine of adverse possession in favour of Alinani Kisunga and 2nd Respondent who wrongly disposed the suit house. In line with the grounds of appeal the appellant prayed for this Court to allow his appeal with Costs and the decision of the trial tribunal be reversed and set aside. As parties agreement and court order, both parties argued this appeal by way of written submissions. The appellant had the service of Mr. Mushokorwa learned Advocate and the Respondents had the service of Ms Magreth Antony from Mwakolo and Company Advocates. The appellant counsel Mr. Mushokorwa argued that there was no proof from the 1st Respondent that her husband was given the purported house by one Amanyisye Kisunga. Mr. Mushokorwa vehemently defaulted the decision of the learned Chairman that the principle of adverse possession was wrongly invoked as the same matter was once adjudicated before the Primary Court and subsequently the matter was brought to the High Court where the ) court ordered retrial. Mr. Mushokorwa further contended that the trial Chairman misdirected himself in holding that neither Amanyisye nor his wife and children claimed the house from Alinani. He argued that the learned Chairman ignored the fact that one Batiseba, the daughter of Amanyisye had ones sued the 1st respondent but they settled the matter. The learned Advocate for the appellant contended that since the suit house was part of undistributed estate of the late Amanyisye Kisunga, and since the 1St respondent failed to prove on uninterrupted adverse possession and how the suit house was allocated to her husband, it is obvious that she had no title to pass to the 2d respondent. Mr. Mushokorwa was of the view that the 1st respondent and her husband were mere invitees for the purpose of doing business in their father's house. He argued hat they occupied at the pleasure of the land lord who retained ownership. In support of his argument the appellant counsel referred the case of SAMSON MWAMBENE vs EDSON JAMES [20011 TLR. Mr. Mushokorwa reiterated that the trial tribunal ought to have considered some conducts and behavior of the its respondent before reaching a decision. He argued that the evidence indicates that the 1 st respondent illegally sold the suit house without involving the relatives. Mr Mshokorwa furher submitted that the 1st respondent secretly applied for letters of administration and there 3 S was no cogent reasons as to why among 5 children only the ) husband of 1st respondent was given the house. In reply to the appellant's submission, the learned Advocate for the respondents, Ms Magreth argued that the Trial Tribunal was right in its decision and he prayed this Court to adopt the decision of the trial Tribunal. The learned Advocate averred that the issue to be considered is the ownership of the land premise, a property purported to have been formerly owned by Amanyisye Kisunga who died in 1974. The learned Advocate further contended that before his death, Amanyisye Kisunga gave the disputed land to Alinani who renovated the disputed land and started using it as a bar and hotel. She argued that from 1971 to 1996, Alinani used such property without interruption but the conflict and dispute started immediately after the death of Alinani. The learned Advocate further submitted that the 1st respondent was appointed as administratrix of her husband's estate (Alinani Kisunga). She argued that by virtue of being adminstratix, the 1St respondent discharged her duties by disposing the suit house and the proceeds were shared among the legal heirs of Alinani Kisunga. Ms Magreth argued that before such disposition, the 1st respondent was responsible in paying the land property tax. Miss Magreth further submitted that the appellant is out of time to recover the suit house as it is already 40 years passed since the death of Amanyisye Kisunga. The learned Advocate cited the case of YUSUPH SAME AND ANOTHER vs HADIJA YUSUPH [1 996J TLR 4 347 where the Court held that right of action for recovery of land where owner is deceased person runs from death of deceased irrespective of when letter of administration granted. With regard to the appellant complaint that the respondent was just a mere invitee "the learned Advocate for the respondent firmly vowed that the appellant had nothing as a proof to such effect. In her opinion, the 1st respondent has never been an invitee of the disputed land and the same was legally disposed to the respondent. I have carefully considered the evidence on record. I have also perused the grounds of appeal along with the submissions addressed by the learned Advocates. As indicated under appellant first ground of appeal, the appellant defaulted the decision of the trial tribunal in the sense that it erred in holding that Alinani Kisunga, the then husband of 1st respondent was given the suit house by the late Amanyisye Kisunga. The records show that (at page 5 and 6 of the trial tribunal judgment), the learned Chairman was at large satisfied that the suit house belonged to the estate of Alinani Kisunga. Among the reasons advanced by the learned trial Chairman were that from 1971 to 1996, Alinani Kisunga used the suit land without interruption. The Trial Tribunal stated in his judgment that after his death that is from 1996 to 2013 the 1st respondent (the wife of Alinani) went ahead using the suit house without being interrupted. The records and evidence indicate that despite of conceding that the estate of late Amanyisye Kisunga had never been administered, 5 the appellant had never advanced cogent reasons showing why did they stay silent without appointing the Administrator of the estate left by their grandfather who demised in 1974. The appellant and her family just came to see the importance of appointing the administrator in 2013 after having seen that the suit house was under way to be disposed. This in my considered opinion shows that they were aware that such property did not belong to them. It was also instigated by the appellant and her Advocate that after the demise of Amanyisye Kisunga, the suit house was once supervised by the appellant's grandmother and later by the daughter of Amanyisye called Betiseba. With due respect to the learned Advocate for the appellant, neither the appellant's grandmother nor the said Betiseba were appointed as Administratix. In that situation the question is, how could they administer the estate which they had no locus standi. The evidence also shows that the appellant's grandmother was living in another house marked as Ks2 and not the disputed house. There is no such proof whatsoever on record that either the appellant's grandmother or the named Betiseba at any time paid the property tax or enjoyed the proceeds from the disputed house. This implies that apart from Alinani Kisunga and the 1st respondent no one had interests over the suit property. The evidence is clear from the records that at all times since the death of Amanyisye Kisunga, no one except the 1st respondent and her husband were in control of the suit property. 11 The point of limitation was also raised in this appeal. I wish to refer the Law of Limitation Act Cap 89. Under the law of limitation, the accrual of right of action in case of person interested in land is well canvassed under Section 9 (1) of the Act, which provides:- "Where a person institutes a suit to recover land of deceased person, whether under a will or intestacy and the deceased person was, on the date of his death in possession of the land and was the last person entitled to the land to be in possession of the land, the right of action shall be deemed to have accused on the date of death". Furthermore Section 35 of the Act provides in the following effect:- "For the purpose of the provisions of this Act relating to suits for recovery of land, an administrator of the estate of the deceased person shall be taken to claim as if they had been no interval of time between the death of the deceased person and the grant of the letter of administration or, as the case may be, of the probate". The above provision is very clear. If the appellant believed that the suit land belonged to Amanyisye Kisunga and considering the fact that Alinani Kisunga was in possession of the suit land since the death of Amanyisye Kisunga, the appellant ought to have claimed for recovery of land soon after the death of the deceased. However, the appellant just kept quiet. In terms of item 22 of Part one Column one of the Law of Limitation Act, the suit to recover the suit property was required to be instituted in twelve years from the date 7 of death of the deceased. Leaving the 1st respondent and her husband, Alinani controlling and enjoying the proceeds of the suit houses for more than 40 years suggests nothing except the fact the appellant and other family members accepted the truth that they were not owners of such house. In this regard I agree with the findings of the trial tribunal that the appellant was time bared. With regard to the issue as to whether the trial Chairman rightly invoked the doctrine of adverse possession, I wish to refer the case of MARO v SEBASTIAN, CIVIL APPEAL NO 84 OF 2004, CAT ARUSHA. In this case, the Court observed as hereunder:- "In adverse possession, there must be an act or conduct on or relating to the property which .is inconsistent with the rights of the owner and which is not authorized by the owner". Having carefully perused the trial tribunal judgment, there is no space where such doctorine was wholly employed except the fact the Tribunal Chairman was totally satisfied that the 1st respondent and her husband used the suit land for such long time without any interruption and there is no evidence on record to prove that they were mere invitees. For the foregoing reasons, it is my considered opinion that the land in dispute belongs to the appellant on the reasons I have given above. In the final event I find this appeal is non-meritorious and it is accordingly dismissed. The decision of the District Land and Housing Tribunal is uphold and stands. It is hereby declared that the appellant is the lawful owner of the suit land. In respect of 8 circumstance of this case, I make no orders as to costs. Each party to bear its own costs. Right of Appeal Explained. DR. A. J. MAMBI JUDGE 30.12. 2016 Judgment delivered in Chambers this 30th day of December, 2016 in presence of both parties. DR. A. J. MAMBI JUDGE 30.12. 2016