20160919 TZHC Mwanza2

IN THE HIGH COURT OF TANZANIA .. . IN THE DISTRICT REGISTRY ·., ,, ,,,,f ...,,~-❖' . .- AT MWANZA LAND CASE APPEAL NUMBER 128 OF 2015 (From The District Land and Housing Tribunal of Mwanza District Court at Mwanza In Land Case Number 61 of 2015 Before Maganga, SOM} . MUSSA BAHELE (AS AN ADMINISTRATOR OFl_ . THE ESTATE OF THE LATE MUSA MASELE) s~ ..... APPELANT VERSUS ST . . DAUDI SELEMANI .................................. ~ ... 1 . RESPONDENT WILBERT SELEMANI .................................. 2No RESPONDENT VONA MATHAYO ....................................... 3Ro RESPONDENT JUDGMENT 27.06.2016 & 19.09.2016 MATUPA, J Mr Katemi has come up to contest the decision of the trial court that dismissed an application on the basis of limitation of time. In the case at hand the dispute has been in relation to the .__ land yvb.ich it was contended as bel_onging to one Musa Masele now . . deceased, ·who died in 1972. The dispute in relation to the land 1 --·· . . . _ · - ....!}~m~·~;&~~f~:it~~~i~~Yt~~4~i~~;~~-;.~11~~~.,.. . . _____ ~.,:~.'. _- :-· _,. ~~~~~~~~~:~~~;;1;,~.:·:•~:~·~_...\~--~~;~~i1.:.~~~~:;fS!~~·~-!· 1 happened in 2004 when the· same was sold to one Daudi Selemani 1st and Wilb~rt Selemani 2nd respondents herein, sold portions of land that was left in the estate of the late Musa Masele to Yona Mathayo the 3rd respondent. When the land was sold, it would appear and it is not seriously contended in the pfeadings that there was no person who had been appointed ·an administrator of the deceased person. The contention however as can be gathered from· pleadings is in relation to the ownership. The respondents averred 'I ,,' that the land was sold by one Masomi way back in 1973 to Selemani Musa Kaserelo. This later Selemani Musa Kaserelo in turn distributed the same to his children, who again sold the same to the said Daudi Selemani and Wilbert Selemani respectively, in 2004. The appellant was appointed the administrator of the Estate of the late Musa Masele in 2004 and immediately thereafter, he instituted a claim to recover the land from Musa Selemani and Daudi Selemani respectively. In the written statement of Defence the respondent Ms Nasra Songoro of De Souza Advocates, counsel ···for the"/esponderits raised a preliminary objection on a point of law to the effect that the claim is time barred. At the close of pleadings 2 the Tribunal was moved to dispose of the matter first after hear~ng ii 'I the parties. Who were contended to .proceed by way of written submissions, the tribunal sustained the objection and accordingly I dismissed the application. The· appellant was Aggrieved by the ·1 ·,! I decision, hence this appeal. . Mr Katemi advocate for the ·appellant has filed a three grounds petition of appeal. I find that the only issue that is raised in the grounds of appeal is when the period of limitation accrued in this case. As intimated, the appellants were represented by Mr. Katemi advocate and Ms Nasra Songoro acted for the respondent. Mr Katemi premised his argument on sectio'ns 4 and· 5 of the law of limitation Act. There vvas no sound legal elaboration on the matter. He contended that the period of limitation in this case accrued in 2004 when the land was sold to the respondents. M/s Nasra rebutted the contention by Mr Katemi relying on section 9(1) of the Law of Limitation Act for a proposition that since the appellant was claiming the land on account of the deceased person, . the pe.riqd of limitation accrued on the day of the death _of the . ~ deceased person, which is in this case in 1972. In a turn of events, 3 ~ Ms Nasra seemed to propose that matters in relation to when her clients entered into possession of the land are triable issues, which may not be entertained for the purposes of limitation. I have considered submissions of both counsel. It is true that the limitation of period in relation to land has to be reckoned on the day the period of limitation accrues. Mr Katemi proposed that the starting point is section 4 and 5. He is right. These sections provide as follows "4. The period of limitation prescribed by this Act in relation to any proceedings shall, subiect to the provisions of this Act herein after contained commence from the date on which the right of action for such proceeding accrue 5. Subject to the provisions of this right of action in respect to any proceeding shall accrue on the date on which the cause of action arise" the underline supplied It is apparent from the foregoing provisions of the law that the accrual of right of action is subjected to other provisions of the Act. One such provision is section 9 which according to the marginal 4 ~ i I '! notes it specifically deals with "accrual of rights of action in case of ;I persons interested in land". That section provides as follows: ll ' i ! i \ I "9 {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 1 : Ii • was the last person entitled to the land the right I I of action shall be deemed to have accrued on the date of his death. (2) where a person who institutes a suit to recover land, or some person through whom he claims, has been in the possession or has been 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 dispossession. (3) where the person institutes a suit to recover land being an estate of 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 passion of the land by virtue of the assurance that right of action shall be deemed to accrue on the date when the assurance took effect" L~t me pause to recapitulate the submission by Ms Nasra. If I understood her well, what she seems to suggest is that, the 5 4P- situation of the case falls under subsection (1) in relation to recovery of land of a deceased persons. Unfortunately, her · argument was premised at the middle of it. There is no denying that the argument starts where Mr Katemi started, that is the accrual of the right of action is subject to other provisions of the Act, including section 9 which, as said, specifically deals with land and sections 4 and 5 are not the end in themselves. Those in themselves are penumbra! sections. They have to be read with the definition sections like the section 9 of the Act. The latter section provides three instances of recovery of land. One is an instance of inheritance, two is an instance of claim . . through third party .tittle, where a party resists a dispossession and three is a case of assurance otherwise than a will. Ms Nasra contends that the case at hand falls within the first instance. She is in a way right. The claim is under a will definitely this would fall under the first scenario. But the case does not end there~ The .I . ii appellant is claiming that until 2004 there was no problem and there i iI ! ' wouldn't pe one had the respondents not come into picture. It was I J ll\: ., i' 6 their possession that prompted the move to recover. To this contention Mr Nasra replied that the issue now becomes triable. Before I come to that, let me introduce one more provision in the law of Limitation Act in relation to ~and. That is section 33 (1) which states that: ''33(1} A right of action to recover land shall not accrue unless the land is in possession of some other person in whose favour the period of limitation cari run {which possession in this Act referred to as ''adverse possession"} and where · on the date on which the right of action to recover any land accrues and no person is in adverse possession of the land, a right of action shall not accrue. unless and until some person takes adverse possession" (underline supplied) And here is the bone of contention. Mr Katemi is saying that the land was not in adverse possession on the day the deceased person died. Nasra is saying that the death itself is reckonable under section 9 (1). I am of the firm position that whichever way, proof of adverse . posse.$.sion was supposed to be reckoned. The position in this case ..j ; has been· complicated by the very fact of whether the first and 7 - - - - - - - - - - - - ,'""""-,---1:~~~~.-~~-"':.',.-.f_·_;,.,·•:· · -~-~-C'~~M.U.~t:·•~~-=-~--1, -: ~ ".'- .: .. · .. _· .. I 1/ 1 second respondents were in adverse possession against the /. appellant or some other third parties. Nasra again proposed that this is a triable issue. She is absolutely right. Under the circumstances of this case where it was arguable if at all the respondents were in adverse possession against the appellants or some other third parties, then the matter became triable and was not open for it to be disposed of by way of a preliminary objection~ Limitation would depend on the disposition either way, of this issue of adverse possession. In the result this appeal is allowed. The order of dismissal is hereby quashed and the matter is remanded back to the trial District Land and Housing Tribunal for it to continue with the trial from where it stopped. The trial shall be conducted by another set of Chairperson and assessors. The costs of this appeal shall form part of the suit. It is so ordered. S.B.M;(r.MA. TUPA JUDGE 8 ·.· .- '. . '~. ~ ( ◄'.: Date: 19.09.2016 Coram: Hon. S.B.M.G. Matupa, J Appeilant: Katemi Advocate for the Appellant Respondent: Nasra Songoro ·for the Respondent B/C: Kaijage Mr. Katemi the appeal is set for judgment and we are ready for the judgment. · Court: The judgment is read in chambers in the presence of the parties and Mr. Katemi Advocate as well as M/S Nasra Songoro for the Respondent this 19th day of September, 2016. S.B.M. ·. MATUPA JUDGE THAT THE FOREGOING IS I HEREBY CERTIFY PY OF i·HE ORIGINAL A TRUE AND CORRI:~--••····· •.•... .......................:i•·trki" Rag.\strar 11ln>fi~~ HI h Co~r{ of ianzania, Mwan._~ g . 9