maneke keya malegeli administrator of late malegeli chagunyas estate vs bagaile muganga 2022 tzhc 15075 8 december 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF MWANZA AT MWANZA LAND APPEAL NO. 42 OF 2022 (Arising from the District Land and Housing Tribunal for Ukerewe at Ukerewe in Application No. 17/2016) MANEKE KEYA MALEGELI {Administrator of Late MaiegeiiChagunya's Estate}---------------------------------- - APPELLANT VERSUS BAGAILE MUGANGA------------------------------------------------- RESPONDENT JUDGMENT Nov. 9h, 2022 & Dec. ffh, 2022 Morris, J This appeal is preferred to challenge the decision of the District Land and Housing Tribunal (DLHT) for Ukerewe in application number 17 of 2016. The application was filed on November 8th, 2016 by the appellant herein claiming that the respondent had trespassed on his grandfather-given plot of unsurvey land in 1998. The respondent raised a preliminary objection (PO) with a couple of grounds. In the course of determining the PO, the Tribunal found that the application was time-barred; thus, dismissed it. i Aggrieved by the foregoing dismissal order, the appellant is now before this Court marshalled with three grounds of appeal. He claims that; 1. The trial tribunal erred in law and fact not to consider the fact that, the time for recovery of land of a deceased, starts to run after the appointment of the administrator of the deceased. 2. The trial tribunal erred in law and fact not to consider efforts made by the appellant and his relative on redeeming the suit land. 3. The trial tribunal erred in law and fact not to consider that the appellant was a minor when the right of action accrued incapable of instituting legal actions. Both parties appeared for and against this appeal in person without legal representation. The appellant submitted for the first ground that in 2014, he filed the first application only to be struck out for want of locus standi. He then gave it another try in 2016 after being appointed the administrator of Late Malegeli Chagunya's estate. The latter was dismissed for being filed out of time. He faulted this decision for, to him, he should have been heard now that he had the requisite capacity to sue. The respondent countered this ground by arguing that it is undisputed that he filed the application after over 18 years of the alleged trespass. To 2 the respondent, the appellant then was of age of majority because he was born in 1975. For the second ground of appeal, the appellant argued that his grandfather passed on when he was just 10 years old. However, the respondent never enjoyed quiet enjoyment of the suit premises because the appellant's relatives kept fighting for the rights on his behalf. On his part, the respondent, submitted that the family which the appellant claims to had been protecting his interest was that of Keya Mlangi and not the appellant's family allegedly known as Keya Mlegeli. The third ground was argued by the appellant reiterating that he was a minor when the respondent invaded on his land. So, he was unable to commence proceedings to challenge the trespass. The respondent, however, maintained his stance that by 1998, the appellant was an adult already. Whereas the appellant prayed for the appeal to be allowed, the respondent craved for its dismissal with costs. The Court is now being invited to determine whether or not the appellant-applicant was still in time to file and pursue application no. 17 of 20016 before the DLHT. In answering this issue, the court will, to a great extent, consider the laws regarding limitation of actions in line with the raised grounds of appeal. That is, though the first appellate court has the mandate 3 to re-appraise, re-assess and re-analyse the evidence on the record before it arrives at its own conclusions \Saium Mhando r R (1993) TLR 170; Paulina Samson Ndawavya v Theresia Thomasi Madaha, Civ. Appeal No. 45 of 2017; and Kaimu Said v R Crim. Appeal No. 391 of 2019; (all unreported)]; in this case trial was not conducted at DLHT. The first ground of appeal is that the trial Tribunal erred in law and fact by failing to consider that the time for recovery of land of a deceased starts to run after the appointment of the administrator of estate. According to the pleadings, the late Malegeli Chagunya occupied the suit land uninterrupted from 1974 to 1994 when he died. The respondent allegedly trespassed thereon in 1998. The appellant, without necessary mandate, instituted proceedings on 2014. He failed. On 08/11/2016, after being appointed administrator of the estates on 18/1/2016, he filed the application subject of this appeal. To the appellant, vide this ground and submissions in support, the time for recovery of land started to run after his appointment as an administrator. That is on, 18/1/2016. Section 35 of the Law of Limitation Act, Cap 89 R.E. 2019 (elsewhere 'the Act or 'Cap.89 interchangeably) reads as follows; 4 'For the purposes of the provisions of this Act relating to suits for the recovery ofland, an administrator of the estate ofa 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'(emphasis added) Reading the above section in isolation of other sections, it is obvious that time starts to run after appointment of legal representative of the deceased. However, the Law of Limitation /let has a number of provisions to be considered on time limitation. In this case at hand section 24 (1) is also relevant. It reads as follows; 'Where a person who would, if 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 of the date of 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.' According to record, the respondent was given letter of offer of the suit property after the death of the deceased - Malegeli Chagunya. That was on 19/11/1998. As the deceased passed away in 1994, the cause of action 5 accrued to his estate on 19/11/1998. In other words, if the deceased was alive his right to sue the respondent would have accrued thenceforth. Section 24(1) of the Act, cited above, sets the time limitation from latest of either the first anniversary of the date of death of the deceased (herein 1995) or from the date when the right to sue accrues to the estate of the deceased (1998). As rightly submitted by the respondent and according to the pleadings the time started to run on 19/11/1998 when the right to sue accrued. The appellant, however, seems to be labouring on the impression that the time started to run after he was appointed as an administrator the estate. This perception is both incorrect and illegitimate. In the case of Mshamu Saidi (Administrator of the estate of Saidi Mbwana v Kisarawe District Council and 4 others, HC Land Appeal No. 177/2019, (unreported); cited with approval in Aioysius Benedicto Rutaihwa vs EmmmanueiBakundukize Kendurumo and9 Others, HC Land Appeal No. 23 of 2020 (Unreported), this Court held that, . I have no hesitation to hold that, in terms ofsection 35 of LLA read together with section 9(1) of the same, the period between the death of the deceased and the appointment of an 6 administrator is not excluded in counting the period of limitation...' Guided by the above authority; and pursuant to sections 9(1), 24 (1) and 35 of Cap 89\ it is a settled law that the time is either counted from the day the deceased passed on; or a year later; or when the cause of action accrues. However, the time spent for applying for and granting of letters of administration is to be excluded if the cause of action precedes the death of the deceased. That is, duration from when probate and administration of estate proceedings are initiated to the grant of probate or letters of administration, as the case may be, is to be excluded if a person dies after the cause of action has accrued. That is in accordance with section 25 (1) of the Act. The logic behind the foregoing exclusion is; firstly, the appreciation that the procedures in pursuit of appointment for administration usually take some considerable time and may sometimes delay in court. Secondly, the proceedings are out of the petitioner's domain. Thirdly, upon being appointed, the executor or administrator partly operates as the officer of the court in administration of the estate. However, for the case in which the person dies before accrual of cause of action, the grace period is covered 7 within the 'first anniversary7 duration or the actual accrual of the cause of action per section 24 (1) of the Act. Back to the present appeal, item 22 of part I of the Schedule to the Act, provides that a suit for recovery of land should be filed within 12 years only. The appellant herein applied for and got the letters of administration in 2016. By then, 18 years had passed since the right of action accrued. Therefore, he was time barred then, notwithstanding his wishful argument of exclusion of the time he spent to pursue for grant of letters of administration. That is, even with such exclusion - which is inapplicable in his situation, he still was already time barred. The appellant also argued in alternative that he had pleaded the facts entitling him to exclude the time during which he was timely prosecuting another case before the Tribunal in 2014 (Application No. 12/2014). This application, as shown earlier, was dismissed for lack of locus standi. In accordance with Order VII Rule 6 of the Civil Procedure Code, Cap 33 R.E. 2019; which is applicable to the Tribunal vide section 51 of the Land Disputes Act, Cap 216 R.E. 2019; a party who seeks to rely on exemption from time limitation has an obligation to plead grounds for such exemption. Reference is made to the case of M/S P &O International Ltd vs. The 8 Trustees of Tanzania National Parks (TANAPA), CAT Civil Appeal No. 265/2020 (pages 11 and 12- unreported). Grounds for exemptions are specified under sections 20, 21, 22 and 23 of the Act. Precisely and relevant to the case at hand, section 21 (1) provides; 'In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting, with due diligence, another civil proceeding, whether in a court of first instance or in a court ofappeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause ofaction and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is incompetent to entertain //-'(bolding rendered for emphasis). It is true that the appellant spent some time prosecuting another land case against the respondent in 2014. Therefore, the time from when the matter was instituted until its dismissal for lack of locus standi would have been excluded. However, this argument is also not helpful to the appellant for a couple of reasons. One, in his case, he had no capacity {locusstandi} to prosecute. So, he cannot be said to had been actually prosecuting. Two, even with such exclusion, when the appellant instituted the said proceedings 9 in 2014; the time had already lapsed. That is, 16 years had passed after the right of action accrued on 19/11/1998. The appellant might have genuine triable case as against the respondent before the District Land and Housing Tribunal; but it is cardinal principle that the court can do justice only in accordance with the law not otherwise. This position is restated in the case of Hadija Masud (as a legal Representative of Late Halima Masudi) vs. Rashid Makusudi, Civil Appeal No, 26 of 1992 (Unreported). Indeed, the law on time limitation has no sympathy or equity. This was stated in the case of John cornel vs. A. grevo (T) Limited, civil case No. 70/1998 (unreported) quoted with approval in the case of M/S P &O International Ltd {supra) that; 'However unfortunate it may be for the plaintiff; the law of limitations is on actions knows no sympathy or equity. It a merciless sword that cuts across and deep into all those every who get caught in its web.' Therefore, the first ground of appeal is devoid of merit. It is accordingly dismissed. Regarding the second ground of appeal as to whether the trial Tribunal erred in law and fact not to consider efforts made by the appellant and his io relative on redeeming the suit land; in my humble view; the same also faces the wrath of falling. Irrespective of the efforts made by the appellant and/or his relatives on redeeming the suit land it is the law that, negotiations out of court can never be a ground for exemption of time limitation. So long as these relatives did not prefer the matter to a judicial forum for adjudication, their alleged efforts cannot be said to had stopped the time from running. Reference for the above position is made to Consolidated Holding Corporation v Rajani Industries Ltd and Another, Civil Appeal No. 2 of 2003 and Makamba Kigome and Another v Ubungo Farm Implements Ltd & PSRC, Civil Case No. 109 of 2005 (both unreported). Further, in M/S P &O International Ltd {supra) it was held at page 10, inter alia, that pre-court action negotiations constitute no good ground for stopping the running of time. The second ground fails too. The last ground of appeal relates to a question whether or not the trial Tribunal erred in law and fact not to consider that the appellant was a minor when the right of action accrued incapable of instituting legal actions. I hasten to opine that, the cause of action for or against a person is not affected by time. The law allows minor to have their interests protected through their guardians. It is law that ignorance of law has never been an li excuse on time limitation. In Emmanuel Lohay & Another Vs. R, CAT Criminal Application No. 3/2013 (Unreported) which was cited with approval in the case of Wambura N. J. Waryuba v The Principal Secretary Ministry of Finance and Another, CAT Civil Application No. 320/01 of 2020 (Unreported) it was held that ignorance of law is no excuse and cannot amount to sufficient cause tor extending time to take a certain step. The principle of ignorance of law not being an excuse developed from the criminal justice system. But now it is applicable in civil matters too. One of the cases in this line of holding is Zella Adam Abrahaman and 2 Others vs. The Attorney General and 6 Others, CAT Consolidated Civil Revision Nos. 1,3, &4 of 2016 (especially page 39 -unreported). In the present appeal, so long as there were other relatives of the deceased, they ought to have had timely applied for letters of administration in order to protect the suit land against trespassers awaiting the appellant to attain age of majority for his necessary actions. Even if one was to assume that there was no right person for appointment as an administrator apart from the appellant himself; according to the appellant's own pleadings, the deceased died when he was 10 years old (see paragraph 6 (a) (iv) of the amended application). Therefore, he attained age of majority on 2002; just 12 four years after the respondent was given letter of offer of the suit land. Therefore, his argument that he was under age is immaterial. Upon attaining the age of majority, he was supposed to take action and the same would have not faced the time-bar huddle herein. Further, his relatives, if they were that enthusiastic to protect his interest in the suit land; as portrayed by the appellant in the foregoing ground, they should have taken timely action in the capacity as the appellant's guardian. In the case of Miraji Salimu Nyangasa vs. Ramadhan Omary Sewando (Administrator of Estate of Lake Hussain Omary Sewado), HC Civil Appeal No. 1 of 2021 (unreported), my brother-his Lordship Ngwembe J, held that; 'It is a trite law that no one may claim ignorance on his/her own right...once a person sleeps on her own rights... she cannot later claim protection from the court of law, rather may be allowed to continue sleeping /brererXemphasis added). The last ground of appeal is equally unmerited. All said and done, this court could have otherwise advised the appellant to apply for grant of extension of time from the Minister responsible under s. 44 (1) of the Act. However, the Minister can only enlarge the time by a 13 period not exceeding one half of the period of limitation prescribed by the Act. In the case of Rajab Hassan Mfaume (the Administrator of the Estate of the Late Hija Omary Kipara vs. Permanent Secretary, Ministry of Health, Community Development, Gender, Elderly and Children and3 others, Civil Appeal No 287/2019 (unreported); the Court of Appeal at pages 18 and 19 interpreted s. 44(1) of the Act Xq mean one half of the period of limitation prescribed which starts to run from the end of prescribed time limit. Therefore, in the matter between parties herein the Minister only has power to extend the period to 6 years. Even so, therefore, the extension will land the appellant to the limitation bar on 19/11/2016. In the upshot, I hold that the appeal lacks merits. The trial Tribunal was justified to find as it did. The matter before it was indeed time barred. This appeal is accordingly dismissed. Each party to bear own costs. December 8th, 2022 14 Judgement delivered in the presence of Mr. Maneke Keya Malegeli, the 15