20170215 TZHC Mwanza3

IN THE HIGH COURT OF TANZANIA AT MWANZA LAND APPEAL NO. 59 OF 2015 {From the Decision of the Land and Housing Tribunal of the Musoma, at Musoma, In Land Case No. 59 of 2014} MIYASI CHANG'ANG'A NYAMOKO .............•.............. APPELLANT VERSUS JUSTINE RUKAKA & OTHERS ................... ;~ ......... RESPONDENT JUDGMENT 15/12/2016 & 15/02/2017 GWAE, J The respondents named herein above when were served with the appellant's copy of application filed before District Land and Housing · Tribunal for Musoma at Musoma (trial tribunal-DLHT) raised a preliminary objection based on four points of law however the trial tribunal upheld one point of the respondents' objection to wit; that the application was hopelessly time barred. The appellant's dispute being found time barred, it .was consequently ~ dismissed with costs. 1 Feeling aggrieved by the order of DLHT dismissing the application on limitation of time, the applicant opined to filed an appeal to this court ' however he found himself out· of prescribed period, he thus filed an application for extension of time vide Misc. Land Application No.92 of 2015 which was granted by this court (Mlacha, J) on 9th May 2016. Following this court order granting an extension of time, the appellant filed this on 18th May 2016 containing three grounds of appeal, namely; 1. That, the DLHT' Chairperson grossly erred in law and fact for not observing that he (sic) raised preliminary objection were not pure points of law but the points to be decided after the facts and evidence had to be decided on merit 2. That, the honorable trial Chairperson grossly erred in law and facts for failure to observe that the suit was not timed barred. 3. That, the honorable trial Chairperson grossly erred in. law and facts fo_r failure to observe that by virtue of paragraph 6 the time to computed on 2nd July 2012 when the cause of action arouse · At the hearing of this appeal, the appellant and respondent were represented by the learned advocates known by names of Julius ~ 2 Mushobozi assisted by Mr. John Chama and Mr. Fidelis Mutewele respectively. Regarding the 1st ground, Mr. Mushobozi submitted that in this matter there was requirement of proving or disproving whether the matter was time barred or not instead of relying on the documents attached in the application, Mr. Mushobozi vigorously added that in the present matter the point raised needed to be ascertained. He then referred this court to a famous case Mukisa Biscuit Ltd v. West Distributor Ltd (1969) EA 70 where it was emphasized that preliminary objection should raise a pure point (s) of law. Mr. Mushobozi argued ground 2 and 3 together by stating that the appellant, administrator of the estate of his late father was administering the estates and while the continuous process he received information about the alleged fact the house in dispute was sold by his father to his late grandfather, Nyamoko Maisi. Mr. Mutewele strongly objected the appellant's appeal by submitting that the appellant's case was time barred for the reason that the appellant was · appointed administrator in 1998 he ought to have collected and distributed~ 3 ', the estates of his late father within a year pursuant to Rule 5 of Magistrate . w Court Act, Cap 11, R. E, 2002 adding that the appellant, administrator . while the respondents were living therein~ Mr. Mushobozi rejoined to the submission by the respondents' counsel that the facts of the case need proof, thus preliminary objection would not be sustainable. In order to justly and fairly determine the appeal at hand, it is apposite to have brief background of the dispute between the parties which not · complicated, it is as follows; that the suit premise is a situated at Mugeta area on unsurveyed area within Bunda District, that the appellant was appointed an administrator of estates of his late father, one Chang'ang'a Nyamoko who died in 1991, the letter of administration was granted by Bunda Urban Primary Court on 7 th September 1999 vide Probate Cause No. 6 of 1998. It is also that this matter between the family members arouse due the meeting conveyed by the family of · Nyamoko Maisi (appellant's grandfather) on 2 nd July 2012 where among things nullification· of the ~ . 4 ,· · grant of administration of the estate of the late Chang'ang'a and ownership of the suit house were main issues in the meeting. Having given the brief history of the dispute between the parties, I should now determine this appeal herein. Regarding the 1st ground of appeal, it is trite law that whenever the point of law on limitation or jurisdiction is raised before the matter is heard on merit, the preliminary objection must be disposed of first before going into the merit of a case simply because PO if argued it is capable of disposing of the case at earlier stage. Hence it saves time and money and therefore growth of our economy. It follows th_erefore if the suit filed before this court, subordinate courts or DLHT that suit must be dismissed for being time barred (see section 3 of Law of Limitation Act, Cap 89, R. E, 2002 and Stephen Masato Wasira v Joseph Sinde Warioba (1999) T. L. R at ·page 335), the Law of · Limitation, on actions/suits, knows no sympathy or equity or it is merciless 'lmmt · swo~. . · · 5 However, in order the preliminary objection on limitation of time to be capable for determination at that earlier stage (before trial) there must not be facts to which require ascertainment or proof/ evidence. In Mukisa Biscuit Manufacturing Company Ltd. v. West End Distributors Ltd (supra) Sir Charles Newbod P. had this to say at page 701:- "Preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or what is the exercise of judicial discretion". See also a judicial decision of Court of Appeal in Shahida Abdul Hassanali Kasam v. Mahed Mohamed Gulamali Kanji, Civil Application No. 42 of 1999 (unreported) In our instant dispute, I have looked at the parties' pleadings accordingly filed in the DLHT and observed that ~t paragraph 6 of the written statement of defence the respondent are contending as rightly submitted · by the appellant's advocate that the house in dispute was owned by their beloved late husband, Nyamoko Miasi and that the same is allegedly bought from the appellant's late father (Chang'ang'a), it goes without~ 6 ' saying that para 6, 7, and 8 together with paragraph 6 of the appellant's application, they absolutely need a strict proof thereof. It is evident from parties' pleadings paragraph 6 in particular which is all about, whether the appellant's father was owner of the suit premise, or whether the suit premise was lawfully owned by the appellant's grandfather (2 nd , 3rd and 4th respondent's late husband) or whether the appellant's mother (Wambura w/o Chang'ang'a) bequeathed the house in question from her late husband or whether the 2nd , 3rd and 4th respondent were mere invitees to one the appellant (invitor/host in the· capacity of administrator), see relationship between invitee and host in the case Swalehe v. Salim (1972) HCD 140. Moreover issue whether the time started accruing at the time the appellant was appointed administrator or whether times started accruing against the appellant when he became aware of the alleged transaction between his late father and his late grandfather. These really, to my considered view, require evidence for judicial analysis. Since a preliminary objection is comprised of a point of law pleaded or which arises by clear implication .out of the pleadings and if argued as objection based on point of law, is capable of disposing of the case and since in our ~ 7 case it is plainly clear that there are facts which are to be proved or established during trial by the DLHT. Issues revealed herein above certainly require proof or disproof by the parties during trial as the same is clearly centered on claims of adverse possession bearing in mind that both sides are related. In the light of these observations, with due respect with the learned trial chairperson and the respondents' counsel, I think facts depicted above require proof by evidence, thus the preliminary objection on limitation of time would not be sustainable for that reason. I have also carefully looked at the jurisdiction of the DLHT in respect administration of estates, the DLHT has no jurisdiction to entertain probate and administration matters, particularly the intended nullification of the appointment of the appellant as administrator, if the respondents and other still desirous to pursue that they may go to the primary court (Bunda Urban Primary Court) which granted the letter of administration to the appellant by way of fiHng an objection proceeding. In the ~te'nt 0f-.·a dispute o~er".:_, ownership of the suit house, either of the party would file it in the DLHT as is the case here. In the final event, this appeal would be allowed, the DLHT's decision is hereby set aside and the matter is hereby remitted for its hearing on merit ~ 8 I, before DLHT, only on dispute based ownership and not on administration .~ of estate. In the circumstances· of this matter, particularly relationship that exists between the parties, I shall make no order as to costs. It is so ordered. M.'~ JUDGE 15/02/2017 Court: Judgment delivered in the chambers in the presence of Mr. Chama (adv) for the appellant and Mr. Fidelis Mutewele for the respondent as well as in the presence of the appellan~t and absence of the respondents I . · M. R. e, JUDGE 15/02/2017 . Court: Copies of the judgment, decree and proceedings are obtainable today upon as IJ.er order xxxix : . ~ . JUDGE 15/02/2017 9