Land Appeal No

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 15380 OF 2024 (Originating From Application No. 10 of 2023, Ilala District Land and Housing Tribunal) MUHAJAMU SELEMANI MUHAJAMU (Administrator of the Estate of the Late Tunu Fundi).................................. APPELLANT VERSUS THE REGISTERED TRUSTEES OF CHAMA CHA MAPINDUZI..... .............................................................. RESPONDENT JUDGMENT 28/08/2024 to 6/09/2024 E.B. LU VAN DA, J The Appellant named above sued the Respondent above mentioned claiming for a declaration that the late Tunu Fundi is the lawful owner of Plot No. 234 Block A Kipawa Area, Kiwalani Ward, Ilala District within Dar es Salaam. When the Appellant was testifying as PW1 at the Tribunal, asserted that the Respondent trespassed into the suit property sometimes in 1990 after her trees hut was demolished by strong wind. Amdumbotela Seif (PW2) who bragged as among who orchestrated the invasion and grabbing of the suit land in favour of the Respondent, asserted that they committed the trespass in around 1983/1984. i The late Tunu Fundi passed away on 27/09/1999 at the age of seventy, as per certificate of death exhibit KM1. The Appellant was granted letters of administration to administer her estate on 16/09/2005, as per Form No. IV exhibit KM2. In view of the foregoing, the learned Chairperson invited Tully Kaundime learned Counsel for Appellant to address the Tribunal as to whether the suit was within time. The learned Counsel was of the view that the cause of action arose in 2018 after the Respondent refused to pay an amount of money as purchase price for the suit land. The Tribunal after long deliberation on this subject, eventually ruled the suit to be time barred. In the memorandum of appeal, the Appellant raised three grounds of appeal: One, the trial Chairperson erred in law and fact by failure to evaluate properly the facts and evidence adduced by the Appellant concerning the accrue of time which rise the cause of action during the hearing of the suit; Two, the trial Chairperson erred in law and fact by dismissing the suit on the ground that it was time barred while the cause of action accrued in 2018 within the time of limitation for recovery of the suit property which is twelve years; Three, the trial Chairperson erred in law and fact by contravening itself in the issue of trespass and the issue of accrue of time in which cause of action arise thus by the trial 2 Chairperson to regarded and determined them as one resulting to the judgment and decree which was unreasonable and unjustifiable. The learned Counsel for Appellant submitted that a suit for recovery of land should be instituted not later than twelve years from the time when the dispute arose, citing section 3(1) together with item 22 Part I of the Schedule to the Law of Limitation Act, Cap 89 R.E. 2019. She submitted that this suit was filed within time for the explanation that the accrue of action arose in 2018 when the Respondent refused to pay the Appellant the agreed amount of money as consideration to sale the disputed land to the Respondent, citing exhibit KM5 collectively, also ID1. The learned Counsel cited exhibit KM7 being a letter from Ilala Municipal Council dated 18/05/2018 that it declared the late Tunu Fundi as a rightful owner of the suit property. She faulted ID1 being inconsistence with exhibit KM7. On the ground number two, the learned Counsel submitted that exhibit KM7 is popped up for the Appellant to commence legal action against the Respondent, arguing that prior that there was negotiations pending between the parties regarding the payment of money as consideration so as the Respondent could be on the possession of the disputed property and the Appellant could not institute the case by then as there were some negotiations pending which made him to have no cause of action against the Respondents. 3 For ground number three, the learned Counsel submitted that from the date the Respondent alleged to trespass into the disputed land be it 1983 or 1990's by then the Appellant could not file any case in the court of law as there was no dispute between the parties, for explanation that the Respondent acknowledge to that trespass, argued they agreed to pay the Appellant some money so as to be lawful owner of the disputed land, citing KM5 collectively. She cited the case of Elizabeth Sambulisingi Ngowo vs Arthu J. Mwanri, Land Appeal No. 38 of 2022. In reply, Mr. Paul Joseph Mkenda learned Counsel for Respondent, submitted that in determining the cause of action of the suit specifically for recovery of the deceased property, it has been the law that the accrue of cause of action takes place from the death of the deceased, citing section 35 Cap 89 (supra). He submitted that the accrue of cause of action is reckoned from the date of the deceased death and the interval between the death and the grant of the letter of administration of the estate of the deceased should be excluded. He cited Elizabeth Sambulisingi Ngowo (supra). He submitted that the Respondent was in the disputed property before the death of Tunu Fundi on 29/09/1999. He submitted that from 29/09/1999 to date is almost twenty three years with no suit or claim instituted against the Respondent to claim the ownership. He submitted that the letters of administration was granted on 4 16/09/2005, arguing since the grant it is almost nineteen years no claim or suit was ever preferred against the Respondent. He submitted that the cause of action cannot arise in 2018 while the Appellant admitted to have made a communication with the Respondent's Ward Office in 2006 claiming ownership of the suit property. He submitted that from 2006 to 2018 muted till 2022 where he instituted Land Application No. 10 of 2023. He submitted that there was no any negotiation between the Appellant and the Respondent to make payment as compensation. He submitted that the Appellant allegation to have been promised by the Respondent since the deceased was alive to 2022 cannot be accommodated by Cap 89, for the explanation that there was no communication or commitment ever made by the Respondent in respect of the said plot in dispute. Frankly speaking this appeal is lacking in merit. According to the pleadings in particular the application which initiated a suit at the Tribunal, specifically paragraph 6(iv) and (v), the Appellant pleaded that, '(iv) That during her survival Chama cha Mapinduzi (CCM) requested the said Plot to establish their ward office with intent to compensate her later, the fact of which was not fulfilled until her death on 27/09/1999. (v) That upon the application for letters of administration on 16/09/2005 the Primary Court of Terneke appointed the 5 Applicant to be the administrator of the estate of the late Tunu Fundi' When was adducing evidence, PW1 asserted that the Respondent trespassed into the suit property sometimes in 1990, while PW2 stated that they committed the trespass in around 1983/1984. Therefore, counting from 1984, twelve years expired in 1996 when the late Tunu Fundi was still alive. For the sake of the argument, the Appellant asserted that trespass was committed in 1990, the late Tunu Fundi dead in 1999 while still awaiting compensation. A claim for compensation will also be caught by limitation of time. It is common knowledge that after the Appellant was appointed by the Temeke Primary Court on 16/09/2005, immediately commenced his mandate of administering the estate of the deceased, where on 8/07/2006 he crafted a letter to the Katibu wa CCM Kiwalani Ward, regarding Plot No. 234 Block A Kipawa Area hosting a structure/offices of CCM Yombo Branch, pleaded at paragraph 6(vi), I quote, 'That soon after appointment the applicant started to make the follow up over the disputed property, whereby he wrote several letters to the office of Chama cha Mapinduzi (CCM), Kiwalani Ward, claiming to be compensated with amount of money or for the office to vacate so that the property to be sold to another interested buyer who was ready to buy the property. 6 Unfortunate, there was no positive outcome from the respondent' Therefore, by invoking the provisions of section 35 Cap 89 (supra) as proposed by the learned Counsel for Respondent, by counting from 2005 when the Appellant was appointed to administer the estate of the deceased, still the suit will be caught under limitation. In a sense that counting from 2005, twelve years expired in 2017. Meaning that when the Appellant was suing in 2023 by virtue of being an administrator of the estate of the late Tunu Fundi, the suit was time barred. The argument by the learned Counsel that there was an ongoing negotiation The learned Counsel for the Appellant was attempting to twist a claim for compensation by substituting with the wording that it was agreed amount of money as consideration to sell the suit land to the Respondent. These amounted to introduction of new set of facts not born from pleadings. In the amended application, nowhere pleaded facts showing the said payment of agreed amount as consideration for sell of the suit property. The alleged pre-contractual negotiations, communication, commitment or promise, on itself cannot operate to waive operation of time limit. In the case of M/S P & O International Ltd vs The Trustees of Tanzania National Parks (TANAPA), Civil Appeal No. 265 of 2020, the Court of Appeal (Tanga) at page 10, commented, 7 "It is trite that pre- court action negotiations have never been a ground for stopping the running of time... We draw a similar inspiration from a decision of the High Court at Dar es Salaam in Makamba Kigome & Another v. Ubungo Farm Implements Limited & PRSC, Civil Case No. 109 of2005(unreported) whereby Kalegeya, J (as he then was) made the following pertinent statement: "Negotiations or communications between parties since 1998 did not impact on limitation of time. An intending litigant, however honest and genuine, who allows himself to be lured into futile negotiations by a shrewd wrong doer, plunging him beyond the period provided by law within which to mount an action for the actionable wring, does so at his own risk and cannot front the situation as defence when it comes to limitation of time" (at page 16" Therefore, the negotiations or agreement for payment of money or compensation which took place post trespass around 1980'5 or 1990's when the late Tunu Fundi was still alive, and which were revived by the Appellant soon after grant of letters of administration of the estate of the late Tunu Fundi, on 16/09/2005, to my view did not amount to stoppage of time for action. With that remark, this appeal is without merit. The decision of the Tribunal is upheld. 8 . No order for costs. E.B. LUVANDA JUDGE X/09/2024 Judgment delivered in the presence of the Appellant and in the absence of the Respondent. 9