LAND APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB-REGISTRY AT ARUSHA LAND APPEAL NO. 176 OF 2022 {Arising out of Land Application No. 134 of 2018 before the District Land & Housing Tribunal for Arusha at Arusha.) LOSARUNI SHUWAKA NGUNGATI (As Administrator of the Estate of the late SHUWAKA NGUNGATI)APPELLANT VERSUS JOHNSON KASAINE NGUNGATI 1ST RESPONDENT MELITA SHUWAKA NGUNGATI 2nd RESPONDENT JUDGMENT 4/06/2024 & 19/07/2024 BADE, J. This Appeal has its genesis from the District Land & Housing Tribunal for Arusha at Arusha (herein referred as "the tribunal")/ in Application No 134 of 2018 whose judgment was delivered on 21/09/2022 by Hon. G. Kagaruki. The factual background as per the record of this file is that the Appellant who is administrator of the estate of the late Shuwaka Ngungati instituted the Land Application before the tribunal claiming that the second Respondent pledged the suit land which belonged to the late Page 1 of 18 Shuwaka Ngungati who died in 1978 to the first Respondent without Shuwaka Ngungati's family consent. The Appellant sought an order to declare the Respondents trespassers in the suit land which is located at Olevolos Village, Kimnyaki Ward within Arumeru District. The Appellant claimed that on unknown year the second Respondent who was using the suit land pledged it to the first Respondent, when they discover that the suit land was pledged, they gave the second Respondent two years time to pay back what he took from the first Respondent so that the suit land could be returned and included in the property of the late Shuwaka Ngungati for the administration. However he failed to return those properties back. As it happened, the family of late Shuwaka Ngungati donated it to the first Respondent who in fact refused it, causing them to believe that he does not have an intention to return it back. On the other side, the first Respondent conceded to the fact that the suit land was pledged to him by the second Respondent in 1980 for 4 bulls of cows, 8 sheep, 1 goat and TZS 500,000. He claimed further that it was agreed that the suit land will belong to him until he pays back his properties but the second Respondent did not pay it to date. After a full hearing, the tribunal ruled that despite the finding that the suit land belonged to late Shuwaka Ngungati, the Application before it 2 of 18 was time-barred and that the Applicant then should have instituted their Application within twelve years from 1994 when it came to their knowledge that the suit land was pledged to the first Respondent, the tribunal dismissed the Application with cost on this basis. Being aggrieved by the said decision the Appellant preferred the instant Appeal on five grounds: i. The trial tribunal erred in law and in fact for failure to properly assess, analyze and evaluate the evidence on record hence reached to an erroneous decision. ii. The trial tribunal grossly erred in law and in fact for failure to consider the Appellant's evidence and his witness that, the property in dispute form part of the estate of late Shuwaka Ngungati hence arriving to an erroneous decision. iii. The trial tribunal erred in law and in fact for holding that the 1st Respondent is the owner of the suit property basing on the illegal mortgage transaction entered between the 1st Respondent and the 2nd Respondent. iv. The trial tribunal grossly erred in law and fact for invoking wrongly the doctrine of adverse possession and proceed to declare the 1st Page 3 of 18 Respondent lawful owner of the suit land despite clear admission made by the Respondents that they were thieves in the suit land belonging to the estate of the late Shuwaka Ngungati. v. The trial tribunal grossly erred in law and in fact for failure to consider the time in which the Appellant was appointed as lawful administrator of the estate of the late Shuwaka Ngungati of which time should start to run from the date of appointment, hence applying the doctrine of adverse possession was erroneous and a misconception of law. This appeal was argued of by way of written submission. The Appellant is represented by Simon E. Mbwambo, a learned advocate while the first Respondent was represented by Arnold A. Tarimo, also a learned advocate. Arguing the 1st ground of appeal Mr. Mbwambo submitted that if the chairperson of the tribunal could have analyzed and evaluated the evidence properly, she could not have reached this particular decision. He adduced that because the 1st and 2nd issues that were framed by the tribunal were both answered in favor of the Appellant, that is the suit land forms part of the estate of the late Shuwaka Ngungati; and that there was no legal mortgage entered between the 1st and 2nd Mge 4 of 18 Respondents. Surprisingly still, the chairperson of the tribunal entered judgment in favor of the Respondents based on the doctrine of adverse possession. In his view, this is a poor evaluation and analysis of evidence; and a misconception of the law, for which he invites this court to step into the shoes of the tribunal and re-evaluate the evidence. To support his position, he cited the case of Stanslaus Rugaba Kasusura and the Attorney General vs Phares Kabuye [1982] TLR 338, as well as the case of Yasin Ramadhan Chang'a vs R [1999] TLR 489. Mr. Mbwambo added that there was also a vital piece of evidence that was left by the trial chairperson to be analyzed and evaluated. The evidence clearly shows the Appellant was appointed in 2017 and brought an action in 2018, so it is a surprise to see the tribunal invoke the doctrine of adverse possession and proceed to dismiss the Application. On the 2nd ground of appeal, Mr. Mbwambo argues that the trial tribunal holds that the suit land forms part of the estate of late Shuwaka Ngungati which is legally administered by the Appellant. He referred this court at page 9 paragraph 1 of the judgment. So, in his opinion, it is surprising when the tribunal dismissed the Appellant's Application on the ground of time limitation. Page 5 of 18 Submitting on the 3rd ground of appeal, Mr. Mbwambo argues that the transaction between the 1st and 2nd Respondents was illegal, null and void ab initio and therefore declaring the Application time barred based on the illegal transaction is to open a pandora's box for trespassers and frauds to take advantage and take other's properties illegally. He referred this court at page 9 paragraph 2 of the tribunal's judgment. In his opinion, this habit should be barred and highly discouraged. He discerns that as long as the mortgage transaction was illegal between the Respondents, then no good title could pass to the 1st Respondent. In his view, the property ought to be returned to the hands of the administrator of the estate of the late Shuwaka Ngungati, and the 2nd Respondent be ordered to pay what he has illegally received from the 1st Respondent. Arguing the 4th ground of Appeal, Mr. Mbwambo contends that for the doctrine of adverse possession to prevail or be invoked there are elements to be fulfilled as the adverse possession is a legal doctrine that grants a title to someone who resides in someone else's land as long as all the required elements are met, and not some of them. He maintains that the actual residing may be intentional or unintentional and for it to manifest there must be dispossession or discontinuation and unlawful entering, citing the case of Mukyemalila & Thadeo vs Luilanga [1972] HCD NO. 4 to support his position. In further argument, he maintains that for the doctrine of adverse possession to be invoked the adverse possessor among other things had to prove unlawful entry and animus possidendi; which simply means the intention to possess land against the will of the land owner. He insisted that the trial tribunal erred in law in invoking the doctrine of adverse possession because it was not established that the intention of the 1st Respondent to possess the land as he was intentional and willing to return the land after he was paid back the 4 bulls of cow, 8 sheep, 1 goat, and TZS 500,000 which he gave to the 2nd Respondent during their illegal mortgage transaction. Therefore 1st the Respondent had no intention to possess the land, so, the doctrine of adverse possession cannot stand. To buttress his position, he cited the case of Tanzania Electricity Supply Company vs Hellen Byera Nestory, Land Appeal No. 113 of 2021 HC at Bukoba (unreported) as well as Bhoke Kitang'ita vs Makuru Mahemba, Civil Appeal No. 222 of 2017. That, the disputed land was not abandoned, but it was placed under the hands of the 2nd Respondent who illegally mortgaged it to the 1st Respondent, hence the principles in the case of Bhoke Kitang'ita ige 7 of 18 (supra) were not proved. That adverse possessor must not be disturbed or interrupted for a period of 12 years consecutively, bolstering his position with the case of Salim vs Boyd & Another [1971] EA 550. In further argument, he contends that the 1st Respondent did not possess the land on either of the above elements since he was not only aware of the real owner but also both he and the 2nd Respondent were using the said land illegally until the family members realized that the said land was mortgaged without their consent. It was at this moment that they communicated with both Respondents to return the land to no avail. He insists that this cut off the point of undisturbed use because the Respondents knows the real owner of the suit land. To cement his position, he cited the case of The Attorney General vs Mwahezi Mohamed & 3 Others, Civil Appeal No. 391 of 2019. He discerns that the 1st Respondent did not occupy the land, but rather, the land was mortgaged to him as he declared before the tribunal. The fact the he possessed the land through mortgage marks the initial entry which is unlawful, making him a person with future interest over the land rather than a person who has acquired the land to make him an adverse possessor. He further added that there is no evidence that the suit land was abandoned before the lapse of 12 years as the 8 of 18 requirement of item 22 of the first schedule of the Law of Limitation Act since the relatives made various meetings to resolve the issue of how to redeem back the disputed land from the 1st Respondent, who refused to do so on the condition that he should be paid back 4 bulls of cows, 8 sheep, 1 goat and TZS 5,000,000 that he gave the 2nd Respondent during their illegal mortgage transaction, insisting that it is cardinal principle of law that a person cannot dispose what he does not have. Regarding the last ground of Appeal, the counsel argues that for the limitation of time for adverse possession to take over, it is important to consider when time begins to run. Expounding, he explains that the trial tribunal grossly erred in law as it failed to consider the time when the Appellant was appointed administrator of the estate of the late Shuwaka Ngungati. Time should begin to run after the appointment of administrator and that is from the year 2017. Hence Rule 22 of the first schedule and section 3 (1) of the Law of Limitation does not apply and it is irrelevant in the circumstances of this case. Opposing the Appeal, Mr. Tarimo submitted on those grounds conjointly. He argues that the trial tribunal did not determine the matter at stake on merit. Rather, the matter was determined on technical ground to the effect that it was hopelessly time barred. It is Mr. Tarimo's e 9 of 18 contention that the trial tribunal found as a fact that the disputed land belongs to the family of the late Shuwaka Ngungati. He referred this court at page 9 of the trial tribunal's judgment. Mr. Tarimo further argues that the doctrine of adverse possession was never invoked by the trial tribunal. In his view the only thing to be determined are one, whether Application no. 134 of 2018 was time barred, and two, whether the period of limitation commenced after the death of the deceased or after appointment of the administration of the estate of the deceased. He submitted further that as correctly argued by the Appellant's counsel, the period of limitation in land matters is twelve (12) years as per item 22 of part 1 of the first schedule to the Law of Limitation Act. That, the evidence available in court record as per the evidence of PW1 and PW3 shows clearly that the 1st Respondent was in full control, occupation and possession of the disputed land as from the year 2005. That, the matter at stake was triggered in the year 2018, that is to say 14 years after. He referred this court at page 14 of the typed proceedings. Mr. Tarimo further contended the evidence of the 1st Respondent at page 20 of the typed proceedings shows clearly that the Appellant and the family of late Shuwaka Ngungati knew that he was in possession and occupation of disputed land, which was the finding of the trial tribunal. He referred this court at page 10 of the judgment of trial tribunal. That, counting from 1994 to 2018, it is 25 years. He insisted that the dispute was triggered in the trial tribunal out of the required period of 12 years. That, he was supposed to file his suit against the Respondents within 12 year mark, but this was not done, and without any justifiable reasons. In his opinion, the suit was hopelessly filed out of the required statutory period, in absence of leave from the Minister of Constitutional and Legal Affairs contrary to section 3 (1) of the Law of Limitation Act and as such the tribunal properly dismissed the suit with costs for being filed out of time and in absence of leave. It is Mr. Tarimo's contention that there is no dispute the late Shuwaka Ngungati passed away in the year 1978. Correspondingly, there is no dispute that the Appellant applied for letters of administration in the year 2014 and was appointed as administrator of the estate of late Shuwaka Ngungati in the same year. There was no reason given as to why there was such delay regarding application for letters of administration of the estates of the late Shuwaka Ngungati. In his opinion, the Appellant possibly applied for the letters of administration not for the reasons of administration of estate but to fight the Respondents. z Page 11 of 18 It is further contended by Mr. Tarimo that by virtual of section 9 (1) of the Law of Limitation Act, where the deceased was the last person entitled to the land and was in possession of the land then the time limit starts to run on the date of his/her death. To support his position, he cited the case of Aloysius Benedicto Rutaihwa vs Emmanuel Bakundukize Kendurumo and Others, Land Appeal No. 23 of 2020. He added that in terms of section 35 read together with section 9 (1) of the Law of Limitation Act, the period between the death of the deceased and the appointment of an administrator is not excluded in counting the period of limitation. That, according to the evidence of PW3, at the time when the late Shuwaka Ngungati passed away, he was in possession of the disputed land and the disputed land was left to the second Respondent. He referred to this court on page 14 of the typed proceedings. In his view, the time limit started to run after the death of the deceased because, at the time he died, he was in possession of the disputed land. The situation would have been different if at the time of his death the disputed land was in possession of another person. He insisted that by the time the Appellant was granted letters of administration in the year 2014, he was already time barred because it P3ge 12 of 18 was after the expiry of 41 years, discerning that the suit was time barred regardless of the grant of letters of administration in 2014. Having carefully considered the rival arguments advanced by the counsel for the parties and examined the record of the appeal, the task before me is to determine whether this appeal is meritorious. Now, I will start answering 1st and 2nd grounds of appeal as both are about evaluation and consideration of the evidence, Counsel Mr. Mbwambo argues that the trial tribunal did not properly evaluate the evidence and consider the Appellant's evidence that the disputed land forms part of the estate of late Shuwaka Ngungati. He added that the trial tribunal answered the framed issues in favor of the Appellant but surprisingly she entered judgment in favor of the Respondents based on the doctrine of adverse possession. Going through the judgment of the tribunal, it is clear that the Chairperson ruled that the evidence before it proved that the suit land belonged to the late Shuwaka Ngungati. However, she dismissed the Application for being incompetent before it as it was time-barred. Consequently, the argument by the counsel that the trial tribunal ruled in favor of the Respondents based on the doctrine of adverse possession is a stretch and certainly misconceived. Page 13 of 18 Regarding the 3rd ground of appeal, Mr. Mbwambo argues that the chairperson of the tribunal erred by holding that the 1st Respondent is the owner of the suit land based on the illegal mortgage transaction entered between the 1st and 2nd Respondents. Again, going through the judgment of the trial tribunal I cannot find a single paragraph declaring the 1st Respondent as the lawful owner of the disputed land. The chairperson of the tribunal put it clearly that the transaction between the 1st Respondent and the 2nd Respondent was illegal, but proceeded to dismiss the Application as it was brought after the expiry of time required by the law. See page 9 and 10 of the tribunal's typed judgment. Back to the 4th ground of appeal, Mr. Mbwambo is faulting the judgment to the trial tribunal for invoking wrongly the doctrine of adverse possession and proceeded to declare the 1st Respondent as the lawful owner of the disputed land. With due respect to Mr. Mbwambo, nowhere in the judgment had the Chairperson of the tribunal invoked the doctrine of adverse possession and declared the 1st Respondent as the lawful owner. As correctly argued by Mr. Tarimo, this argument is misconceived as already pointed out that trial tribunal dismissed the Application as it was time barred and not on the basis of the doctrine of Page 14 of 18 adverse possession. The cases cited by Mr. Mbwambo are irrelevant to this matter since the cited cases are all about the doctrine of adverse possession and when it is supposed to be invoked, while in the matter at hand, there is no application of that doctrine. On the last ground, Mr. Mbwambo faulted the decision of the tribunal for failure to consider the fact that time started to run from the time the Appellant was appointed as administrator of the estate of late Shuwaka Ngungati and not on his death. On the contrary, Mr. Tarimo argues that time starts to run upon death and not when the administrator is granted letters of administration. This ground raises an important issue on whether Application No. 134 of 2018 which was filed before the tribunal on 19/06/2018 was time-barred as ruled by the Chairperson of the tribunal. For easy reference, I wish to reproduce section 9 of the Law of Limitation Act which provides: "P (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 Page 15 of 18 possession of that land, the right of action shall be deemed to have accrued on the date of death. (2) Where the person who institutes a suit to recover land, or some person through whom he c/aims, has been in possession of and has, while entitled to the land, been dispossessed or has discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance. (3) Where a person institutes a suit to recover land, being an estate or interest in possession and assured otherwise than by will, to him or to some person from whom he claims, by a person who, at the date when the assurance took effect, was in possession of the land and no person has been in possession of the land by virtue of the assurance, the right of action shall be deemed to have accrued on the date when the assurance took effect." Going with the above provision of the law, it is certain that time accrued from 1978 when the late Shuwaka Ngungati died. So, by the time when the Appellant was granted letters of administration in 2014, by virtue of the above provisions, he was already time barred to claim the land. Counting from 1978 to 2014 it was already expired 36 years. The Application was instituted in the tribunal in 2018 which was^40 years / Pane ls of 18 after death of the Shuwaka Ngungati. For the sake of argument, even if we assume that the time accrued after the Appellant/family of late Shuwaka Ngungati acquired the knowledge that the suit land was pledged to the 1st Respondent without their consent, still the Application would have been hopelessly out of time. When the Appellant was asked a clarification question by the assessor, one Mrs. Irafay, as to when it came to their knowledge that the suit land was pledged to the first Respondent, he responded that they knew the suit land was pledged to the 1st Respondent in 1994. Counting from 1994 to 2018 when the Application was instituted, 24 years had already expired. Section 3 (1) of the Law of Limitation Act, read together with Item 22 of Part I of the schedule of the same Act requires the suit to recover land to be instituted within 12 years from the time the right of action accrued. Section 35 of the same Act does not exclude time used by the administrator of an estate when he petitions for letters of administration in counting the period of limitation. "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 of 18 grant of the letters of administration or, as the case maybe, of the probate." It is my finding that the argument by Counsel for the Appellant Mr. Mbwambo that time starts to run when the Appellant was granted letters of administration is misconceived. Having said so, this Appeal is dismissed with costs for lack of merits. It is so ordered. DATED at ARUSHA this 19th day of July 2024 A. Z. Bade Judge 19/07/2024 Judgment is delivered in the presence of the Appellant and the Respondent / their Representative in chambers on the 19th day of July 2024. A. Z. BADE JUDGE 19/07/2024 Page 18 of 18