Martin Lameck Mwaipaja Administrator of Estate of the late Zaina Lameck Mwaipaja vs Ephrahim Mazengo

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (IRINGA SUB REGISTRY) AT IRINGA LAND APPEAL NO. 8587 OF 2024 (Arising from the ruling of Iringa District Land and Housing Tribunal in Application No. 100 of2023) MARTIN LAMECK MWAIPAJA {Administrator of Estate of the Late Zaina Lameck Mwaipaja)................... ... ........ APPELLANT VERSUS EPHRAEM MAZENGO........... .................. RESPONDENT JUDGMENT Date of last order: 31/07/2024 Date ofJudgment: 01/10/2024 NDUNGURU, J: - The appellant in this appeal one Martin Lameck Mwaipaja, is appealing against the ruling of the District Land and Housing Tribunal (hereinafter "the tribunal") of Iringa District at Iringa dated 2nd day of February 2024 in Land Application No 100 of 2023. Before the trial tribunal,’the appellant sued the respondent over a piece of land measuring 1 and quarter acres (hereinafter" the suit property") located at Mtwansikalala hamlet, Pomelini Village and Ng'uruhe Ward in the District and Region of Iringa. The background of the dispute is that; the alleged suit property belonged to the late Zaina Lameck i Mwaipaja who passed away intestate way back on 08/02/1994. That the suit property was allocated to the deceased way back in 1974/5 during the so called Operesheni Vijiji', The allegation is that since then, the suit land has been used by the deceased and his family. That, upon the demise, the deceased family continued enjoying the suit land uninterrupted until 2017 when the respondent invaded the suit land. That on 19/09/2023, having been appointed as the Administrator of the estate of the late Zaina Mwaipaja on 13/02/2023 in Probate Cause No. 22 of 2023, the appellant filed the suit against the respondent. At the trial tribunal, the appellant sought for the judgment and decree against the respondent as follows: A declaration that the appellant and his family are the lawful owners of the suit property, compensation to the tune of TZS 12 million for the loss of income which would have accrued from the harvest of timber and fruits planted in the suit land, general damage to the tune of TZS 25 Million, costs of the suit and any other relief as the tribunal would deem fit to grant. In reply, the respondent filed written statement of defence denying the allegation. The respondent contended that he is a lawful owner of the suit property. He averred that he purchased the same from one Tomu Tengelekwi on 27/8/2005. That on 2014 he measured it and was issued with 2 customary right of occupancy. The respondent contended further that he had used the suit land for agriculture and in 2006 he planted Pines and Cyprus trees which he harvested in 2014 and replanted adding avocado plants. Together with the written statement of defence, the respondent lodged a Notice of preliminary objection on point of law that: Z The application was time barred as was filed in contravention of the period of limitation for probate cases; (Kwamba, m/eta maombi amekosea hakika na kisheria kufungua madai ambayo yana ukomo wa muda wa Mirathi.) Having heard the parties, the learned trial Chairperson resolved that the point of objection regarding limitation period was decisive. The trial tribunal held that the period of limitation for recovery of land of the deceased arises upon the death of the said person. The tribunal relied its holding on section 9(1) of the Law of Limitation Act [Cap. 89 R.E 2019] (henceforth "LLA"). With that observation in mind, the trial tribunal held that, since the late Za'i.na Lameck Mwaipaja passed away in 1994 and the Land Application was filed in 2023, the Application was filed after 29 years which is beyond the prescribed period of limitation under section 9(1) of the LLA. The trial tribunal proceeded to dismiss the application under section 3(1) of the LLA. 3 Dissatisfied by the findings of the trial tribunal, the appellant is before this court on appeal. His petition of appeal is armed with only one ground of appeal as reproduced herein below: 7, That, the trial tribunal erred in law and fact by ruling that Application No. 100 of2023 was time barred while the same was filed within time. In the present appeal, the appellant was represented by Mr. Noah Utamwa, learned counsel whereas the respondent appeared in person unrepresented. On the date the appeal was called for hearing, parties requested the appeal be disposed by way of written submission. In his submission in support of appeal, the learned counsel was of the contention that the trial tribunal's findings that the Application was time barred was because it took the view that the right of action accrued from 8/2/1994 when the late Zaina Lameck Mwaipaja passed away. That the tribunal relied on section 9(1) of the LLA and the case of Dominicus M. Mvamba vs Thadei & Another, Land Appeal No. 10 of 2016, TZHC at Iringa(unreported). The counsel was of the opposite view. His view was that the accrual of right of action in land cases is deemed to start when the parties become adversary to each other. The counsel fortified his argument by referring the case of Israel Marco vs. Paul Bambo, Land Appeal No. 09 of 2023 TZHC, (unreported) where this Court had this to say: 4 "The same was decided by this court in the case of Sungura Harm's v. Frank Kikongore & Others, Civil Appeal No. 145 of 2002, HC at Dar es Salaam (unreported) where it was observed that, time in land dispute ought to run when the parties become adversary to each other and not otherwise" The counsel went on submitting that when the person dies before right of action accrues, the limitation period is calculated a year after the date of his death or from the date when the right to sue accrues to the estate of the deceased as provided under section 24(1) read together with section 9(2) of the LLA. He said since the respondent trespassed the suit property sometimes in October, 2017 the right of action would have accrued by then. But since the appellant was appointed: as administrator of estates of Zaina Lameck Mwaipaja in 2023, then the right of action accrued in 2023 after the appellant has obtained the right to sue in respect to the suit property as provided under section 24(1) of the LLA, The counsel substantiated his position by referring the case of Mwanahamis Abdallah Nassoro Swavila (As administratrix of the Estate of the Late Abdallah Nassoro Swavila) vs. Israel Toba Elia (Land Appeal No. 14 of 2023) TZHC, at Iringa (unreported). With that submission, Mr. Noah Utamwa commended the court to allow the appeal with costs so that Application No. 100 of 2023 be heard on merit as it was filed on time. 5 Responding to the submissions of the appellants counsel, the respondent was of the contention that he purchased the suit property from Tomu Tengelekwi who is the husband of the late Zaina Lameck Mwaipaja sometimes on 27/8/2005. That, he has been peacefully enjoying the suit property for 18 years until when the appellant started to claim it in 2023. He said, the appellant is neither living in that village nor using the said suit land. He went on to submit that, the appellant has never claimed the land in dispute since the death of his beloved sister who died in 1994. He has started to claim the same after expiry of 29 years from the death of Zaina Lameck Mwaipaja. In his submission, the respondent told the court that according to item 22 of Part I of the schedule to LLA, the time limitation of filing a suit for recovery of land is 12 years. Thus, the filing of suit after expiry of 29 years is unjustifiable and unmaintainable in the eye of law. The counsel referred the case of Helena Mwaipasa vs. Philipp Mwambungu and 2 Others, Land case No.10 of 2012 HC (unreported) where this Court said: "item 22 of the part 1 of the first schedule to the Law of Limitation Act, provide in clear term that a suit for recovery of land limitation period is 12 years" ■6 It was his further contention that since the matter involve the recovery of land by the administrator of estate the proper provision is section 9(1) of LLA. That implies that the appellant was supposed to institute a suit for recovery of land from the respondent immediately after the death of Zaina Lameck Mwaipaja which means the cause action accrued in 1994 when she died and not 2023. He cemented his contention by referring the decision of this court in the case of Dominicus M. Mvamba vs Thadei Mwangunga and the Registered Trustees of SDA, Land Appeal No, 10 of 2016 HC at I ringa( unreported) Finally, the learned counsel prayed that the appeal be dismissed in its entirety with costs entailing that the decision of the trial tribunal be upheld; The appellant did not file a rejoinder. Having considered the records and the rival submissions of the parties, I now turn my attention to the determination of the ground of appeal. To start with, I think it is worth noting that the respondent miscrafted the raised point of objection. I say so because there is a marked difference between limitation period for filing probate proceedings and limitation period for recovery of land of a deceased person. But I believe he meant limitation period for recovery of deceased's land. 7 In accordance with the notice of preliminary objection filed to the trial tribunal on the 24th September, 2023, the point of objection, which was written is Swahili, read as follows: "Kwamba, m/eta maombi amekosea hakika na kisheria kufungua madai ambayo yana ukomo wa muda wa mirathi." The above point of objection may be literary translated to mean "That, the applicant erred in fact and law to file a suit which has limit in filing a probate case". That is to say, the suit has been filed in contravention of rules for filing probate matters. However, instead of arguing on the limitation for filing probate issues, the respondent made submissions regarding time limitation for recovery of land of the deceased person. From what I understand, the two subjects are completely different. Had the trial tribunal considered this it would have properly guided the parties. This takes me to the issue in controversy, that is whether the trial tribunal was right in holding that Land Application No. 100 of 2023 was filed beyond the limitation period prescribed under the LLA. Relying under section 9(1) of the LLA the respondent's contention is that the application at the trial tribunal was time barred because the suit was filed almost 29 years from the death of Zaina Lameck Mwaipaja, the owner. The appellant, on the other 8 hand, believes that the matter was lodged within the prescribed limitation period computed from the time of dispossession of the suit property. She relies on section 9(2) of the LLA. For ease of reference the respective section is reproduced hereunder: "P. - (1) Where a person institutes a suit to recover land ofa deceased person, whether under a will or intestacy and the deceased person was, on the date ofhis death, in possession of the land and was the last person entitled to the land to be in possession of the land, the right ofaction shall be deemed to ha ve accrued on the date of death. (2) Where the person who institutes a suit to recover land, or some person through whom he claims, has been in possession of and has, while entitled to the land, been dispossessed or has discontinued his possession, the right ofaction shall be deemed to have accrued on the date of the dispossession or discontinuance." The two sub sections cited above regulates the effect of death on or before the accrual of the right to sue. Under section 9(1) where a person who would, if he were living, have a right to institute a suit or make an application dies before the right accrues, or where a right to institute a suit or make an application accrues only on the death of a person, the period of limitation shall be computed from the time of his death. This, therefore, means that where a deceased person, at the time of his death, was entitled 9 to be in possession of the land, then the right of action to recover the land shall be deemed to have accrued on the date of death. Thus, a person seeking to recover such land be it under a will or intestacy shall be precluded from instituting a suit or application after the lapse of 12 years from the death of such a person. My understanding of section 9(1) of the LLA is, therefore, that the section covers accrual or rights before the death of the deceased. The situation is however different where a person against whom, if he were living, a right to institute a suit or make an application would have accrued dies before the right accrues, or where a right to institute a suit or make an application against any person accrues after the death of such person. Under such circumstances, the period of limitation shall be computed from the time of accrual of the cause of action. This is what is covered under section 9(2) of the LLA. Under the respective section, where a person has been in possession of a piece of land, or, while entitled to the land, has been dispossessed or his possession has discontinued, the right of action to recover such piece of land shall be deemed to have accrued on the date of the dispossession or discontinuance. With that in mind, I shall proceed to consider the circumstances in the present case. There is no dispute that the deceased, Zaina Lameck 10 Mwaipaja, whom the appellant claims ownership from, passed away in 1994. The appellant alleges that, at the time of his death, the deceased was enjoying a peaceful possession of the suit property. She alleges further that, after the death of the said Zaina Lameck Mwaipaja, his family continued to enjoy the property uninterrupted for several years till 2017 when the respondent invaded. From the above set of facts, it is clear that, at the time of the passing of the late Zaina Lameck Mwaipaja, in 1994, there was no dispute over the ownership of the suit property. Although the respondent, in his submission said to have purchased the suit property in 2005, at this stage, it is premature to suggest that a dispute over the property arose in that year because the appellant's contention has a different story. Off course, this matter would require evidence to be resolved. Suffice to say that, if the learned trial chairperson had considered this, he would not have entertained this matter as a preliminary objection for it required evidence to be adduced to make a just determination. In view of the above factual dispositions, and going by the submissions of the parties, I agree with Mr. Noah Utamwa, learned counsel that the correct applicable provision of the law in the present circumstances would have been section 9(2) of the LLA and not section 9(1) of the LLA. Thus, li applying the provisions of subsection 2 of section 9 of the LLA, I am satisfied that the cause of action, in the instant case, arose in 2017 when the respondent asserted ownership over the suit property. That said, the period of limitation ought to have been computed from the time of the alleged dispossession or discontinuance of ownership of the suit property. I am supported in this view by the decision of the Court of Appeal in the case of Maigu E.M. Magenda vs Arbogast Maugo Magenda [2018] TZCA 214 (4 October 2018TANZLII) where the.Court at page 12 stated: "On the point of law whether the respondent was barred by the twelve (12) year limitation period, the second appellate Judge is correct to find the answer from item 22 ofParti ofthe Law ofLimitation Act which prescribes the twelve years limitation period within which to institute actions to claim back land, read subject to section 9 (2) of the same Act, which prescribes when the right of action accrues in land disputes." Regarding when does the cause of action arose the Court, at page 13, stated: "It seems to us that the respondent's right of action finally accrued and the tweive-year limitation period began to run against him in 2010, when upon returning back to settle on his land when he retired from the army in 2010, he found the appellant staking his own exclusive claim of ownership over the same Plot of land." 12 The above decision was followed by the Court in the case of Barelia Karangirangi vs Asteria Nyalambwa [2019] 1 T.L.R. 142 [CA]; [2019] TZCA 51 (1 April 2019 TANZLII) where the Court at page 11 and 12, remarked as follows: "Another issue of consideration is the appellant’s contention that the suit was time barred by the time it was instituted. The record reveals that, the respondent's father was given the disputed plot in 1957. It is not indicated in the record that there was any dispute in relation to the ownership of that piece of land until 2007 when the dispute arose. The right of action is deemed to accrue on the date of the dispossession of the land in question. Item 22 of Part i of the Law of Limitation Act, Cap. 89 R.E. 2002 prescribes the twelve years limitation period within which to institute actions to claim back the land. Section 9 (2) of the same Act, prescribes when the right of action accrues in land disputes.z/ Having quoted and expounded on the provisions of section 9 (2) of the LLA the Court stated further that: "The right of action in this present case, accrued when the respondent claimed to have found the appellant and her children cultivating the suit land which according to the record, it was in 2007. The respondent had then immediately instituted the suit in the Ward Tribunal The suit was hence instituted within the prescribed time of twelve years. In the premises, we find that the appellant’s contention that the suit was time barred has no merit." 13 For the above cited reasons, I allow the appeal. Consequently, I quash and set aside the ruling and drawn order of the trial tribunal dated 2nd Day of February 2024 in Land Application No. 100 of 2023. In the circumstances, I order that the matter be reverted to the District Land and Housing Tribunal for Iringa District for it to proceed to determine the merits of the application before another Chairperson sitting with new set of assessors. Given the circumstances of the present case, I make no order as to costs. It is so ordered. D. B NDUNGURU JUDGE 01/10/2024 14