jafari swedy mjema as administrator of estate of the late swedy mjema vs mwanga district council and 2 others 2023 tzhc 16904 28 april 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOSHI SUB REGISTRY) AT MOSHI LAND CASE. NO. 09 OF 2022 JAFARI SWEDY MJEMA (As administrator of Estate of the Late Swedy Mjema) ......................................................................................... PLAINTIFF VERSUS MWANGA DISTRICT COUNCIL............................... 1st DEFENDANT ATTORNEY GENERAL.............................................. 2ndDEFENDANT ANTONY UTOUH......................................................3rd DEFENDANT RULING Last Order: 28th March, 2023 Date of Ruling: 28h April, 2023 MASABO, J.: - This ruling is in respect of a preliminary objection raised by the 1st and 2nd defendants. Briefly, the plaintiff herein who is a son and an administrator of estate of the Late Swedy Mjema has filed this case against the defendants, jointly. He is claiming ownership of a piece of land identified as Plot No. 63 Block F located at Mwanga District within Kilimanjaro region, which I shall refer as the suit land. According to the plaint, the suit land was first allocated to the late Swedy Mjema by the 1st defendant in 1990. Sometime in 2004, the late Swedy Mjema was informed that there was a conflict over the suit land and that he should no longer pay rent over the said plot. In 2017, a while after he demised, the office of the 1st defendant confirmed that the suit land was reallocated to Yoel Khago and later to the 3rd defendant. Page 1 of 10 In 2020, the plaintiff unsuccessfully instituted a land case in the District Land and Housing Tribunal for Same, Application No. 04 of 2020, against the 3rd defendant. Aggrieved by the decision of the tribunal, the plaintiff instituted an appeal before the High Court which was heard by Hon. Kingwele, RM with Extended Jurisdiction. The appeal was allowed on the ground of non-joinder of necessary parties and the plaintiff was instructed to file a fresh suit including all the necessary parties hence the present suit. Upon this suit being instituted and the defendants served, the 1st and 2nd defendants filed raised a preliminary objection that the suit is bad in law as it is filed out of time. As the request of the parties, the hearing proceeded in writing. The plaintiff was represented by Mr. Joseph Moses Oleshangay, learned counsel while the 1st and 2nd defendants were represented by Mr. Edwin Bayona Lusa, learned State Attorney. Submitting in support of the preliminary objection, Mr. Lusa argued that the dispute over the suit land arose in 2002 when the same was allocated to the 3rd defendant but this suit was instituted in 2022, after the duration of 12 within which to recover the suit land had lapsed. Thus, the suit is time barred as per item 22 of Part I to the Schedule to the Law of Limitation Act [Cap 89 RE 2019]. He argued that the only remedy for a time barred suit is dismissal as per section 3(1) of the same Act. Page 2 of 10 Mr. Lusa argued further that the Plaintiff and the late Swedy Juma were aware of the reallocation of the suit land to the 3rd defendant as evident under paragraph 8 of the plaint. He averred that despite knowing about the dispute, the late Swedy Mjema did not institute the suit to claim the plot in dispute. Moreover, he argued that according to the judgment of theDistrict Land and Housing Tribunal for Same, the late SwedyJuma died on 31/12/2008 which means this suit was filed14 years after his death and hence incompetent under section 9(1) of the Law of Limitation Act. He supported this argument with the case of Msamu Saidi (Administrator of estate of Said Mbwana vs Kisarawe District Council & 4 others, Land Case No. 177 of 2019, High Court Dar Es Salaam (unreported) here Maige J held; "Armed with the above authorities, I have no hesitation to hold that in term of section 35 of Law of Limitations Act read together with Section 9(1) of the same, the period of limitation between the death of the deceased and the appointment of administrator is not excluded in count the period of limitation." In reply, Mr. Oleshangay averred that in determining time limitation against the deceased estate, sections 9, 21, 24 and 25 of the Law of Limitation Act should guide the court. He further argued that in computing time for purposes of limitation, any time in which a party was diligently prosecuting the case should be excluded as provided under section 21 of the Law of Limitation Act. He directed the court to the case of Fortunatus Masha vs William Shija @ Another [1997] TLR 154. Also, Mr. Oleshangay gave brief details on time of accrual of cause of action. He argued that the computation of a deceased's claim commences Page 3 of 10 upon his death. The time from the alleged double allocation of the late Mjema's property to the date of his death should be excluded from the computation. He supported his argument with Yusuf Same and Another vs Hadija Yusuf [1996] TLR 347. He further argued that the time spent by the plaintiff in pursuit of letters of administration must also be deducted per Section 25(1) of the Law of Limitation Act. Further, Mr. Oleshengay averred that the dispute arose in 2015 when the plaintiff found out that the 3rd defendant had built a house on the suit land. Thus, the cause of action accrued on that date and not before the late Mjema's death. Therefore, the suit falls under the purview of section 24(1) of the Law of Limitation Act. He supported his stance with Shomari Omari Shomari (administrator of estate of Selemani Ibrahim, Maichila vs Esha Selemani Ibrahim and Another, Land Appeal No. 171 of 2018, High Court Land Division (unreported) as cited in Habiba Bushi (surviving legal personal representative of the late Bushi Mwinyibohar) vs Ramadhani Lila Gogo @ Jeba, Land Appeal No. 40 of 2020 High Court Land Division at Dar es Salaam. He further argued that the time from death of late the Swedy Juma to his death anniversary should also excluded aper section 24(1) of the Law of Limitation Act. Moreover, he argued that the time from the deceased's death to the appointment of the plaintiff as his administrator in 2017 should also be excluded according to section 25 of the Law of Limitation Act. He also prayed for exclusion of:- one year anniversary from date of deceased from 31/12/2008 to 31/12/2009 pursuant to section 24(1) of Law of Limitation Act; the time spent in pursuit of Probate Cause No. 229 of 2017 at Arusha urban Primary court as per section 25(1) of Law of limitation Act; 4 years Page 4 of 10 reckoned from 2018 to 2021 spent by the plaintiff while prosecuting Application No. 4 of 2018 and Appeal No. 30 of 2020 as per Section 21(1) of the Law of Limitation Act and the duration of 90 days during which he issued a notice of intention to sue the Government as per the Government Proceeding's Act, from September 2021 to institution of this suit. He concluded that, when all this period is excluded, it will make the suit tenable. In rejoinder, Mr. Lusa submitted that the relevant provisions are section 3(1), 9(1) read together with section 21 all of the Law of Limitation Act. He argued that section 21 of the Act is a general provision and cannot therefore be applied in this case as the 1st and 2nd defendants were not parties to suits mentioned. He also cited the case of Gumba Adamu Kasomo (the administrator of the Estate of late Adamu Selemani Kasomo vs Adamu Selemani Kasomi (unreported) Appeal No. 32 of 2020 to support his argument that the time for recovery of the suit land started to run from death of the deceased. Mr. Lusa argued that, the case of Yusuf Same & Another vs Hadija Yusuf (supra) is distinguished as in this case the plaintiff filed the suit 14 years after the death of Swedy Juma and 18 years from date of double allocation. I have considered the submissions by both parties as well as the plaint and its annextures. The sole question to be determined is whether this suit is time barred. It is trite that, the time limitation within which to institute a suit for recovery of land is 12 years reckoned from the date on which the cause of action arose. Thus, answering the above, requires me to interrogate the time at which the cause of action, defined loosely as Page 5 of 10 the right to bring an action/institute court proceedings accrued. As the plaintiff is suing not in his individual capacity but in the capacity of the administrator of the estate of a deceased person who was the owner of the suit land, Mr. Lusa, learned State Attorney, has argued that I be guided by the provision of section 9(1) and 35 of the Law of Limitation Act to find that the suit is time barred and dismiss it under section 3(1) of same Act. In rebuttal the plaintiff's counsel is of the view that the applicable law is sections 21, 24(1), 25(1) and 35 of the Law of Limitations Act. Before I proceed to the provisions of the sections above, it is to be noted that the following facts are undisputed. That, the suit land was originally owned by the late Swedy Mjema having been allocated the same by the 1st defendant in 1990. That, he enjoyed uninterrupted ownership until 2004 when he was notified of a dispute over the suit land and directed to stop paying land rent in respect of the said plot. That, he died in 2008 and in 2017, the 1st defendant confirmed to the plaintiff that the suit land was reallocated to one Yoel Khago and later to the 3rd defendant. From these facts, there can be no doubt that the cause of action in respect of the suit land accrued in 2004, about 4 years before the demise of the late Swed Mjema in 2008. It is similarly undisputed that the plaintiff took no action until in 2017, when he applied for letters of administration and having obtained the same, in 2018 he unsuccessfully sued for recovery of land in Application No. 4 of 2018 before the District Land and Housing Tribunal for Moshi the judgment and decree of which was reversed in Extended Jurisdiction Land Appeal No. 30 of 2020, hence the current fresh suit filed on 7th September 2022. Page 6 of 10 Therefore, in total, a period of 18 years lapsed between the date of the accrual of right of action in 2004 and 2022 when the plaintiff filed this suit. Also, in between the death of the late Swedy Mjema in 2008 and the institution of the present suit in 2022, there is a duration of 14 years. Turning to the provisions, cited by the parties, Sections 9(1) and 35 of the Law of Limitation Act which have been relied upon by the defendant's state thus; 9(1). 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. 35. For the purposes of the provisions of this Act relating to suits for the recovery of land, 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 of the deceased person and the grant of the letters of administration or. as the case may be, of the probate. Starting with the provision of section 9(1), as interpreted in Yusuf Same & Another vs Hadija Yusuf (supra), it entails that, the accrual of right is to be reckoned from the deceased's demise, which in the present suit is 2008 hence the argument by Mr. Lusa that, the suit is time barred as it was filled after 14 years has lapsed. He has argued that, when this provision is read in conjunction with section 35, it means that when the present suit was filed in 2022, it was time already barred. Page 7 of 10 Inversely, Mr. Oleshengay for the plaintiff's has argued that, I should not be moved by these provisions. They do not apply to the present case as the circumstances of this case are distinguishable from the one in Yusuf Same. He has argued that, I should apply the provision of section 24(1) and 25(1) of the same Act which state thus: 24.-(l) 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 25.-(1) Where a person dies after a right of action in respect of any proceeding accrues to him, the time during which an application for letters of administration or for probate have been prosecuted shall be excluded in computing the period of limitation for such proceeding Having carefully studied the provisions above, I am of the considered view that section 9(1) does not apply to the present case as the plaint, through paragraphs 8 and 9, credibly exhibit that the cause of action accrued in 2004, which was 4 years prior to the death of the deceased and not after his death a fact which would have rendered the provision of section 9(1) applicable to the case. As stated by Maige J (as he then was) in Msamu Saidi (Administrator of estate of Said Mbwana vs Kisarawe District Council & 4 others, Land Case No. 177 of 2019, High Court - Land Division; " ....section 9(1) of the LLA, is not, as contended for the appellant, relate with causes of action that arose before the death of the of the deceased. It relates to a situation where Page 8 of 10 a dispute had not, at the time of the demise of the deceased, accrued, Similarly distinguishable is the authority in Yusuf Same and Another v Hadija Yusuf (supra) because, in the said case, the cause of action accrued after the demise of Juma Abdallah Samanya who was until his death the owner of the suit property. The disposition of the suit property by his sons which was the cause of action took place after he had died hence the application of section of section 9(1) in resolving the dispute. The provision of section 24(1) of the Law of Limitation Act is also inapplicable to this case as it concerns situations where the cause of action accrued after the death of the deceased which is not the case here. As held by this court in Shomari Omari Shomari (administrator of estate of Selemani Ibrahim, Maichila) vs Esha Selemani Ibrahim and Another (supra) to which I fully subscribe, section 24(1) deals with a situation wherein the deceased person dies before the accrual of a right of action not otherwise. This leaves me with the provision of section 25(1) of the Law of Limitation Act which appears to be more relevant and applicable to the case at hand as it deals with the matters in which the cause of action accrued before the death of the deceased. It provides thus: 25.-(1) Where a person dies after a right of action in respect of any proceeding accrues to him, the time during which an application for letters of administration or for probate have been prosecuted shall be excluded in Page 9 of 10 computing the period of limitation for such proceeding. (Emphasis added^) Therefore, when a period of 1 year within which the plaintiff was in pursuit of the letters of administration is excluded from the period of 18 years reckoned from 2004 when the cause action accrued to 2022 when he filed the present suit, it would follow that, the suit was filed out time as 17 years has already lapsed. Also, even if I were to agree with him on the exclusion of the 4 years during which he was in pursuit of the defunct application before the DLHT and the appeal before the magistrate with Extended Jurisdiction, the suit will not sail as by the time he instituted the application before the DLHT, a period of 13 had already lapsed. In the foregoing, it is obvious that, the suit is hopelessly time barred. Accordingly, the preliminary objection raised by the 1st and 2nd defendants is sustained and suit is hereby dismissed under section 3(1) which, as correctly argued by Mr. Lusa, directs that a time barred matter should be dismissed as it is hereby done. The parties shall bear their respective costs. DATED and DELIVERED at Moshi this 28th day of April 2023. x J.L. MASABO JUDGE 28thApril 2023 Page 10 of 10