IBRAHIMU BONIFACE VS MKATANGA VILLAGE COUNCIL AND ANOTHER

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA LAND CASE NO. 44 OF 2023 IBRAHIM BONIFACE .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS MKATANGA VILLAGE COUNCIL AND ATTORNEY GENERAL .............................. RESPONDENT / DEFENDANT RULING J. NKWABI, J, Date: 25/06 & 30/10/2024 The plaintiff is suing the defendants with intention of obtaining the following reliefs: 1. The disputed land be declared the lawful property of the late James Mfipa. 2. The 1st defendant be ordered to vacate the land in dispute. 3. The 1st defendant be ordered to pay costs of the case. 4. An order permanently restraining the 1st defendant, their agents, and or servant from interfering the ownership of the suit land. 5. Any other relief the honourable Court deems just and equitable to grant. The written statement of defence of the defendants was accompanied with preliminary objection to the effect that: 1. That, the case is hopelessly bad in law for being time barred thus contravening section 9(1) and Item 22 Part I of the First schedule to the Law of Limitation Act, Cap. 89 R.E. 2019. 2. The plaintiff has no locus standi to institute the suit. The preliminary objection was heard by way of oral submissions. The plaintiff appeared in person, unrepresented while the defendants were represented by Mr. Nixon Tenges, learned State Attorney. Page. 1 Addressing this Court on the preliminary objection on point of law in chief, Mr. Tenges, regarding the 1st limb, contended that the suit ought to have been filed since (accrual) the death of the deceased. He added that, time for seeking letters of administration cannot be excluded. He explained that in the plaint at paragraph 1 the plaintiff is claiming for the property of the deceased and beefed up that the deceased (James Mfipa) died in the year 2004 as per 5th paragraph of the plaint. Mr. Tenges further maintained that the suit was lodged on 27/10/2023 which is more than 12 years since the death of the deceased. So, Part 1 item 22 of the Schedule to The Law of Limitation Act is violated. It is claimed that in the year 2017 when the 1st defendant trespassed on the piece of land. In paragraph 10 another trespass was done in the year 2020 and 2021. Mr. Tenges referred this Court to Gumba Adam Kasomo v. Luca Mlagala, Land Appeal No. 32/2020 at page 13. He prayed the suit be dismissed with costs under section 3(1) of the Law of Limitation Act. In reply submission the plaintiff maintained that they started owning the land in the year 1960 and that the problem started in the year 1996 when the residents were removed, other persons bought the area. In the year 1991, the District Commissioner came and found that the area was sold to other persons, and ordered that the piece of land be returned to his father. He said that his father acquired the piece of land customarily. He added that it is in the year 2017 when the dispute flared up. It was further explained by the plaintiff that the case was resolved in the year 1990 and he has a piece of evidence to prove that. It is in the year 2017 when a dispute arose again. They went to the District Commissioner where they asked for compensation. The District Commissioner did not agree and said the government may acquire any piece of land, the plaintiff elaborated. He further argued that it is him who was appointed to administer the estate of his late father and he is the only administrator of the estate. He was born in the year 1984 and the deceased died in the year 2004. He said that when he distributed the estate is when the village claimed that the piece of land is the property of the village. He prayed the Court to overrule the preliminary objection because it is baseless. He insisted that he has the evidence to prove the ownership of the piece of land to be James Mfipa. Mr. Tenges had a short rejoinder submission in which he stated that in Haji Shomari v. Zainab Rajab, Civil Appeal No. 91 of 2021, the Court of Appeal of Tanzania said that, the appeal was allowed because, the appellant had not attained the age of 18 but in this suit, the appellant was born in the year 1984 while the deceased died in 2004 when the plaintiff was 20 years old. He pressed that the plaintiff has filed the matter out of time. Mr. Tenges pointed out that the plaintiff also claimed to have distributed the estate, thus he has no locus standi to sue and added that, after being appointed administrator of the estate, he ought to have applied for extension of time to sue. Page. 2 I have considered the submissions of both parties to this suit regarding the preliminary objection on point of law that the suit is time barred. In my determination I find it opportune to cite the relevant section which provides for the limitation of time in suits like the one at my hand. I quote section 9 (1) of the Law of Limitation Act: “Where a person institutes a suit to recover land of a 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 accrued on the date of death.” Under paragraph 5 of the plaint, as pointed out by Mr. Tenges, it is indicated that the disputed land was lawfully owned by the late James Mfipa till he died in the year 2004. This suit was filed in the year 2023 which is 18 years or so from the demise of the owner of the piece of land. The plaintiff was appointed administrator of the estate of the deceased in 2022 which proves that up to 2022 the piece of land had no other owner other than the deceased James Mfipa. Indeed, the piece of land has been allegedly trespassed by the 1st defendant in 1990, 2017, 2021- 2022. Faced with an akin situation, this Court in Gumba Adam Kasomo v. Luca Mlagala, Land Appeal No. 32/2020 at page 13 ruled that: “The law above cited particularly section 9(1), given that the land to be recovered was of the deceased person at the time of his death, regardless that there has been no encroachment to that land soon thereafter, the cause of action is deemed to have accrued from the date of his death.” In the above referred case, there was cited with approval the decision in Yusuf Same & Another v. Hadija Yusuf [1996] T.L.R 347 where it was held that: “The limitation period in respect of land, irrespective of when letters of administration had been granted is 12 years from the date of death of deceased.” Truly, this suit has to meet the same fate as in Gumba’s case supra. The cause of action started to run 18 years or so ago. Recovery of land has the limitation of 12 years. So, this suit is well over the prescribed time within which to lodge a land case to claim for a land which is the property of the deceased. Therefore, I entirely accede to the arguments of the learned State Attorney for the defendants while I reject the explanation of the plaintiff in total because they are not relevant to the situation at hand, I rule that this land case is bad in law and unmaintainable in Court for being time barred under section 3(1) of the Law of Limitation Act read together with section 9(1) and Item 22 Part I of the First schedule to the Law of Limitation Act, Cap. 89 R.E. 2019. Page. 3 In the circumstances, I need not discuss the 2nd legal point of objection because the 1st one disposes of the suit. I dismiss the suit with costs. It is so ordered. Dated at KIGOMA ZONE this 30th of October 2024. J. . NKWABI, J JUDGE OF THE HIGH COURT Page. 4