imam salim galamboadministrator of the estate of the deceased salim said galambovs hindu maryani galambo 2023 tzhclandd 16886 24 august 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 235 OF 2023. (Originating from Land Case Appiication No. 160 of2022 ofthe District Land and Housing Tribunai for Temeke District at Temeke) IMAM SALIM GALAMBO (administrator of the Estate of the deceased Salim Said Galambo) APPELLANT VERSUS HINDU MARIJANI GALAMBO RESPONDENT Date oflast Hearing: 24/08/2023 Date ofJudgment:24/08/2023 JUDGMENT I. ARUFANI,3 This judgment is for the appeal filed in this court by the appellant to challenge the decision of the District Land and Housing Tribunal for Temeke District at Temeke (hereinafter referred as the tribunal) delivered in Land Application No. 160 of 2022 dated May, 2023 which dismissed the appellant's application for being time barred. The appeal is premised on the following grounds: - 1. That the chairman of the District Land and Housing Tribunai of Temeke erred in iaw and fact by dismissing the appiication for being time barred. 2. That the Chairman of the District iand and Housing tribunal of Temeke erred in iaw and fact by faiiure to consider disposition ofthe deceased's property came to the knowiedge ofthe appeiiant after being appointed as administrator ofthe estate his iate father Saiim Said Galamho. When the appeal came for hearing the appellant was represented by Mr. Benjamin Kalume, learned advocate and the respondent was represented by Mr. Benjamin Marwa, learned advocate. The appeal was argued orally and the counsel for the appellant prayed to consolidate the raised two grounds of appeal and argued them together. He started his submission With a brief background of the matter and told the court the respondent is the step mother of the appellant. He said the respondent married the appellant's father in 1986 and the appellant's father died in 2004. He said after the death of the appellant's father, the respondent was left to live in the house left by the father of the appellant after his death and the respondent continued to live In the said house with her six children together with the appellant and his sibling. He said they lived peacefully and later on the appellant went to establish his own home while leaving the respondent in the house left by their late father with the children of the deceased. He said In 2015 and 2016 the appellant and his relatives discovered the respondent had demolished the house left to her by their late father and changed the same into a warehouse and leased it to a tenant who is occupying the same untii today. The counsei for the appellant stated that, after the appellant discovered the sated situation, he asked the respondent what was going on and the respondent toid the appeiiant the house is her property. He said thereafter the appellant and his relatives convened several family meetings to try to settle the issue of ownership of the stated house. He said after failing to reach amicable settlement the appellant and his sister namely Nuru Said! Gaiambo were appointed to apply for letters of administration of the estate of their late father. He said in 2020 the appellant and his relative were appointed by Temeke Primary Court and granted letters of being joint administrators of the estate of their late father. He went on stating that, after the appeiiant and his relative being appointed joint administrators of the estate of his late father, the appellant filed the above stated Land Application No. 160 of 2022 in the tribunal seeking for a declaratory order that, ownership of the respondent to the house in dispute be declared null and void. He said after lodging the application in the tribunal, the chairman of the tribunal raised suo moto the issue of the application to be time barred. After hearing the submission from the counsel for the parties, the tribunal dismissed the application for being time barred. He argued that, the Chairman of the tribunal based on sections 9(1) of the Law of Limitation Act, Cap 89 R.E 2019 and item 22 of Part 1 of the Schedule to the same law to find the application was time barred. He submitted he has no quarrel with what is provided in the cited position of the law. He however submitted the tribunal's Chairman erred in reiying on the foregoing cited provisions of the law alone to arrive to its decision without considering what is provided under section 35 of the law of Limitation Act. He argued that, although section 9(1) of the Law of Limitation Act states the right of action to recover iand of a deceased person is deemed to have accrued on the date of the death of the deceased person, but section 35 of the same law states the interval of time between the death of the deceased and the date of grant of letters of administration or probate as the case may be, is supposed to be excluded from the time of claiming for recovery of land of a deceased person. He supported his submission with the case of Rodha Sobe (As Administratrix of the Estate of the iate Sobe Masirori) V. James Ffedy Sagaria (As Aditiinistrator of the Estate of the late Wilson Wanusu, Land Appeal No. 69 of 2019, HC at Mwanza (unreported) where the court stated the Interval of time from the death of the deceased to the date of grant of letters of administration of the estate of a deceased person is supposed to be excluded from the period of time of claiming for recovery of land of the deceased. He based on the above decision to argue that, as the appointment of the appellant to administer the estate of his late father was made in 2020, the chairman of the tribunal erred in basing on section 9 (1) of the Law of Limitation Act to find the application filed in the tribunal by the appellant In 2022 was time barred. He submitted the limitation of time was supposed to be counted from the date when the appellant was granted letters of administration of the estate of his late father and not from when his father died. He prayed the court to base on the above stated subrhisslon to allow the appeal, quash the decision of the tribunal and order the application be heard on merit. In his reply the counsel for the respondent told the court he has no problem with the provisions of the law cited to the court by the counsel for the appellant. He however argued that, the submission by the counsel for the appellant that the appellant discovered the respondent had changed the use of the house into warehouse in 2015 and 2016 is not ; V'""' 1 ; . true because as stated in the decision of the tribunal the appellant stated to have knowledge of the house to be changed its use in 2004 and 2005. He went on arguing that, although the appellant was appointed to administer the estate of his late father in 2020 but he had knowledge of change of use of the house of his late father for long time but he didn't challenge the same. He argued it is trite law that under the principle of equity the appellant did not go to the tribunal with clean hands. He submitted the appellant move to claim for the house of his late father after passing of such a long period of time from 2004 is an afterthought. He sitated the appellant decided to claim for the house after seeing the huge investment which has been done by the respondent in the house in dispute. He finalized his submission by arguing the appellant should not be allowed to claim for anything from the respondent. in his rejoinder the counsel for the appellant argued that, the appellant became aware of the change of the use of the house in 2015 and 2016 and riot in 2004 and 2005 as argued by the counsel for the respondent He stated the marriage of the appellant was celebrated in the house in dispute , in 2007 and by that time the house had not been demolished and changed into warehouse. He stated the act of the chairman of the tribunal to state in the decision of the tribunal, the -5 , appellant became aware of the changes of the house in 2004 and.2005 is a-mere slip of a pen. , He argued that, after the changes done to the house in dispute being discovered there are several family meetings which were convened for the purpose of settling their dispute. He said after failing to reach settlement, the process of getting administrators of the estate of their later father started and the appellant and his relative were granted letters of administration of the estate of their late father in 2020. He argued that is What caused the appellant to delay to filed the matter in the court for the whole' period of the dispute. In his conclusion he reiterated his prayer in chief that the appeal be allowed, the decision of the tribunal be quashed arid the court be pleased to order the matter to be heard and determined 'bh merit. After considering the submission from the counsel for the parties and after going through the grounds of appeal filed in the court by the appellant and perused the record of the tribunal the court has found there is no dispute that, the respondent is the appellant's step mother. It is also not disputed that the appellant's father died in 2004 and the appellant was appointed to be administrator of the estate of his late father in 2020. The court has also found there is no dispute that the application filed in J . .. I the tribunal by the appellant was dismissed for being found it is time barred. The dispute is whether the tribunal erred in dismissing the application of the appellant on ground of being time barred. The court has found as rightiy argued by the counsel for the appellant, the tribunal's chairman based on section 9 (1) and item 22 of Part I of the Schedule to the Law of Limitation Act to find the application filed in the tribunal by the appellant in 2022 while the appellant's father died in 2004 was time barred. Section 9(1) of the Law of Limitation Act relied upon by the chairman of the tribunal to arrive to the impugned decision states as follows: - "Where a person institutes a suit to recover iand ofa deceased person, whether under a wiii or intestacy and the deceased person was, on the date ofhis death, in possession of the iand and was the iast person entitied to the iand to be in possession ofthe iand, the right ofaction shaii be deemed to have accrued - on the date ofdeath." The above quoted provision of the law shows clearly that the right of action for a suit to recover land of a deceased person who on the date of his death was in possession of the land and was the last person entitled to be in possession of the land is deemed to have accrued on the date of his death. That means the right of action to recover land which its cause of action accrued at the time when the deceased was alive and he was in possession of the land in question or was entitled to be in possession of the same is supposed to be counted it has accrued from the date of death of the deceased. The court has found the counsel for the appellant argued the tribunal's chairman failed to take into consideration the provision of section 35 of the Law of Limitation Act. He argued the cited provision of the law requires the time from the date of the death of the deceased to the date of grant of letters of administration of the estate of the deceased is supposed to be excluded frorri computation of the period of limitation. For clarity purposes the cited section 35 of the Law of Limitation Act states as follows: - "For the purposes of the provisions of this Act reiating to suits ■'for the recovery of iand, 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 ofthe deceased person and the grant ofthe letters ofadministration or, as the case may be, ofthe probate." The court has carefully read the above cited provision of the law and gone through the case of Rhoda Sobe (supra) cited to the court by the counsel for the appellant. The court has also read other cases determined , » .f ^4 A r ^ '4-' a,*.. ;- f'. ■, _ '.'■.'I- by this court and interpreted the above cited provision of the law and find there are two school of thought in respect of how limitation of time for recovering a land of a deceased person is supposed be counted. The court has found while the court stated in the case of Rhbda Sobe (Supra) that the tirhe from the death of the deceased to the date of grant of letters of 'i administration of estate of a deceased person is supposed to be excluded from computation of limitation of time for recovery of land of a deceased person, there are other cases which states the stated period of time is not required to be excluded from computation of limitation of time for institution of the stated suit in court. The later stated interpretation of the cited provision of the law which I am subscribing to can be seeing in the case of Yusuph Same & Another V. .Madija Yusuph, [1996] TLR 347 where it was stated the limitation period in respect of land is twelve years Irrespective of when letters of administration is granted. The position of the law stated in the above cited case was followed by this court in the case of Shomari Omari Shomari (as Administrator of the Estate of the late Seleman Ibrahim Malchila) V. Mohamed Kikoko, Land Appeal No. 171 of 2018 and Mshamu Said (Administrator of the Estate of Saidi Mbwana) V. Kisarawe District Council & FOur Others, Land Appeal No. ' 177 of 10 2019, HC Land Division at DSM (Both unreported) where it was stated that, the period between the death of a deceased and the grant of letters of administration of the estate of the deceased shaii be counted as if the deceased was alive. From the interpretation made by the court in respect of applicability of section 35 of the Law of Limitation . Act the court has found that, although it is true that it is provided under section 9 (1) of the Law of Limitation Act that claim for recovery of land of a deceased person who on the date of his death was in possession of the land and was the last person,erititied to be in possession of the land, the right of action shall be deemed to have accrued on the date of his death but to the view of this court it cannot be said the cause of action of the suit instituted in the tribunal by the appellant accrued on the date of death of his late father so that it can be said the suit was time barred as found by the chairman of the tribunal in the impugned decision of the tribunal. The court has come to the stated finding after seeing section 5 of the law of Limitation Act states the right of action in respect of any proceeding accrues on the date on which the cause of action arises. Since the counsel for the appellant said when the cause of action in the matter filed in the tribunal by the appellant arises the appellant's father had already died it 11 ' rr -f ~ 4 I' - *> cannot be said the right of action in respect of the alleged cause of action of the change of use of the house of the late father of the appellant arose on the date of his death. to the view of this court to say so it will be illogical as the right of actipn cannot start being counted before the cause of action has arisen. In other words, the right of action in respect of changes of the use of the house in dispute between the parties in the instant appeal is supposed to start being counted from the date when it is alleged the respondent changed the use of the house in dispute and not on the date of the appellant's late farther who died before the right of action arose. The stated view of this court is getting support from section 24(1) of the Law of IJhiitation Act which states that: - "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 oflimitation shall be computed from>the first anniversary ofthe date ofthe death ofthe deceased orfrom the date when the right to sue accrues to the. estate of the deceased, whichever is the later date/'(Empasis added) From the wording of the above cited provision of the law and ,specifically the boided part it is crystal clear that, where a person who would have right of action in respect of any proceeding dies before the 12 righit of action accrues the period of limitation is supposed to be computed from the first anniversary of the date of his death or from the date when the right to sue accrues in respect of his estate. The law states it wiii depend on which date'comes later. That being the position of the law the court has found that, as it was stated the alleged changes of the use of the house in dispute occurred after the death of the appellant's father the period of limitation is required to be counted from when the alleged changes occurred and not from the date of the death when the father of the appeiiant occurred. Haying arrived to the stated view the court has found the next issue to determine in this appeal is when the alleged right of action in respect of the house in dispute occurred, the court has found while the counsel for the appeiiant argued the appeiiant discovered the alleged change of the use of the house in 2015 and 2016, the counsel for the respondent argued the proceedings and ruling of the tribunal shows the counsel for the a'ppeliaht stated the appellant became aware of the stated changes in 2004 and 2005. the court has also found the counsel for the appellant stated the year 2004 and 2005 stated in the proceedings and ruling of the tribunal is a mere slip of. a pen as the appeiiant became aware of the stated changes in 2015 and 2016. 13 After seeing the stated rival arguments, the court has gone through the record of the tribunal and find it is true that the record of the tribunal shows the counsel for the appellant was recorded to have said the appellant became aware of the changes of the use of the house in dispute in 2004 and 2005 and not in 2015 and 2016. After seeing what is recorded in the proceedings of the tribunal as to when the appellant became aware of the changes of the house in dispute was a submission of the counsel for the appellant and not evidence from anybody, the court has found it cannot rely on the same to determine when exactly the appellant became aware of the alleged changes of the use of the house in dispute. To the contrary the court has found the stated contention is a matter which can only be determined after receiving evidence from the parties to ascertain whether the appellant became aware of the stated changes of the use of the house in dispute in 2004 to 2005 or 2015 and 2016. The court has come to the stated finding after seeing the position of the law as stated in number of cases one of them being the case of Rosemary Stella Chambe Jairo V. David Kitundu Jairo, Civil Reference No. 6 of 2018, CAT at DSM (unreported) submission made to the court by an advocate is not evidence. 14 It is because of the above stated reasons the court has found the appeal of the appellant is meritorious and deserve to be upheld. Consequently, the appeal is allowed, the ruling of the tribunal which dismissed the appellant's application for being time barred is hereby quashed and set aside. The court is ordering the file of the tribunal be remitted to the tribunal and the appellant's application be heard by another chairman with competent jurisdiction. Each party to bear his own costs in this appeal. It is so ordered. Dated atJDaLgs Salaam this 24'^ day of August, 2023 o o \ I. Arufani JUDGE )k- 24/08/2023 A" Court: Judgment delivered today 24^^^ day of August, 2023 in the presence of Mr. Benjamin Kalume, learned advocate for the appellant and In the presence of Mr. Benjamin Marwa, learned advocate for the respondent. Right of appeal to the Court of Appeal Is fully explained. COVHT O I. Arufani H JUDGE ★ 24/08/2023 -f O/viS^ 15