nestory komba ngpasingu vs frorence ndumba others 2023 tzhclandd 16608 30 june 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT SONGEA LAND APPEAL NO 19 OF 2023 (Originating from Land Application No. 45/2022, Songea District Land and Housing Tribunal) BETWEEN NESTORY KOMBA NGOPASINGU (As Administrator of the Late VICENT KOMBA NGOPASINGU).......................................... APPELLANT VERSUS FRORENCE NDUMBA ALENSIAN MAMBI BONIFACE TEMBO WENDELINE TEMBO CHRISTOPHA MAPUNDA RESPONDENTS SHUKURU TEMBO SALOME KOMBA CRENEST MAPUNDA ANTON HENJEWELE REGINA NDONDE JUDGEMENT .20-30 June, 2023 E.B LUVANDA. 3. In this appeal, the Appellant named above is challenging the decision of the trial tribunal dismissed his claim on the ground that it was time barred for almost forty two years counting form 15/9/1979 when the late Vicent Komba Ngopasingu (owner of impugned land) passed away to 2021 when a dispute arose. In the petition of appeal, the Appellant grounded that: One, the trial tribunal erred in law when he held that the application was time barred by misdirecting itself on the proper interpretation of the law on the time limitation on land issues involving the administration of estates; Two, the trial tribunal erred in law by deciding the matter contrary to the law. Mr. Vicent Kassale learned Counsel for Appellant argued by consolidating both grounds, but technically abandoned ground number two. The learned Counsel for Appellant submitted that it is not in dispute that section 9 of the Law of Limitation Act, Cap 89 R.E 2019 provides for the period of limitation, to when the cause of action arise and when to recovers the land of the deceased person. That the provision of section 9, Part III of Cap 89 (supra) provides for the period of right of action based on each circumstances. He submitted that the only part which provides as to when to start counting the said period of action and when its period of limitation ends is Part IV of Cap 89 (supra), which provides the computation of period of limitation. He submitted therefore that for purpose of counting period for an action, Part III of Cap 89 (supra) shall not be irrelevant. He submitted that the application before the trial tribunal was not time barred, because it is clearly stated that the cause of action arose in 2021. He submitted that, there are two position of the High Court, the first fold is of a view that section 9 & Cap 89 (supra) is 2 very clear that if the deceased was the last person to own land in dispute, time shall run from the date of death of the deceased, as in the case of Yusuph Same and Others Vs. Hadija Yusuph, (1996) TLR 347. The second fold which to him is a proper interpretation and argued the Court to go with it, suggesting it being popular and recent decided in 2020 and 2021. To this end he cited the case of Habiba Bush (legal representative of Bushi Mwinyibohari) Vs. Ramadhani Lila Gogo @ Jeba & Another, Land Appeal No. 40/2020, M.C. Land Division at Dar es Salaam; Dema Makalo & 8 Others Vs. Sulla Timla Makalo, Land Appeal No. 23/2018 H. C. Shinyanga; Shomari Omari Shomari Vs. Esha Seleman Ibrahim & Others, Land Appeal No. 171/2018; H.C. Land Division, Rashid Togwa Vs. Peabea Village Council, H.C. Land Division Land Appeal No. 60/2020, to support his proposition that the cause of action arose in 2021 when the dispute on the deceased land started and not 1979 since nothing had happened by then. In reply, Mr. Nestory E. Nyoni learned counsel for the Respondent, supported the appeal as submitted by the learned counsel for the Appellant, arguing that the trial tribunal decided the matter contrary to the law for the reasons that the application reveals that the trespass of land by Respondents occurred in 2021 and the Appellant further died in 1979, hence it is undisputed that the cause of action accrued after the death of the deceased and it was at that time the cause of action accrued. He submitted that, in circumstances the trial tribunal it was supposed to direct itself on section 24(1) Cap 89 (supra) which deals with a situation where the right of action accrues after the death of the deceased person. He cited the case of Dema Makalo & 8 Others Vs. Sulla Timla Makalo, Land Appeal No. 23/2018, H.C. Shinyanya District Registry. It is to be noted that the point which lead to a dismissal of the Appellant's claim and subject of this appeal, was taken by the trial tribunal at his own accord. For appraisal, I reproduce the said point goes, thus, I quote in verbatim, "Baada ya kupitia ombi MHopo hapa barazani baraza Hnaona/kugundua kuwa ombi hilt iiko nje ya muda miaka arobaini na mbiliimepita tangu kifo cha marehemu Vicent Komba. Pand zote mbifi zinatakiwa kuja kueiezea hoja hii mbele ya baraza" Going through this passage, I have grasped two things; Foremost, the trial tribunal had already taken a position and made a verdict that the suit (application) was time barred, even prior hearing the arguments from both sides. Therefore, an invitation to the learned Counsel to address the trial tribunal afterwards was a mere academic exercise and fishing expedition. Nowonder the trial tribunal after hearing a long submission from both learned counsels, in fact, as it transpired in this appeal, the where the Respondent is not opposing this appeal, at the trial tribunal the learned Counsel for both sides had presented unfeigned opinion, that in the prevailing circumstances the matter was not time barred. But still the learned trial chairman skewed and stole the show went on ignoring the unanimously opinion, and stick to his guns and reinstated his verdict above quoted holding that the claim was time barred. For anything thing, in the point raised by the trial tribunal, its wording, the learned trial chairman was in fact holding an opinion that the claim was out of time for forty two years, alleged counting from the demise of the proprietor on 15/09/1979 to the year 2021 when the dispute arose. One could wonder as to how and why the learned trial chairman forceful counted time limit reckoned at forty two years retrogressively between when trespass was alleged committed in 2021 backward to the date of demise of the proprietor in 1979. Although the learned trial chairman disguised to insert the year of trespass that is 2021 in computing time limit, but technically he was faulting letters of administration granted to the Appellant. I am saying so, because letters of administration were granted on 15/07/2022, while the proprietor dead on 15/09/1979, mean while trespass was alleged to be in 2021, which was a period of less than one year up to 15/10/2022 when the respondents were sued. In the case of Dema Makalo (supra), at page 15 this court speaking through Hon. Mkwizu, J at pages 15 to 16 had this to say, I quote, 7/7 the present case the cause o f action arose after the death of Makalo Sitta. The exclusion therefore applicable under such a situation is that explained under section 24(1) above. Any one claiming title under Makolo Sitta could have instituted a suit, under the circumstance o f this case after accrue of the right ofaction. In quisitevely, one would ask as to when did the right o f action arose in this matter. It is not indicated in the record that there was any dispute in relation to the ownership of the suit land until when the appellants were alleged to have encroached onto the suit land. The right o f action thus, deemed to have accrued on the date of the dispossession of the land in question" A similar position was taken by this court in Habiba Bush (supra), Rashid Togwa (supra) and I also took the same position when deliberating on a similar issue in the case of Ester Bora Mbilinyi 6 (Administrator of the Estate of the Late Bora BalamaN Mbilinyi vs. Elia Mwiname and Six Others, Misc. Land Appeal No. 5/2023, H. C Songea District Registry, where I ended up setting aside a similar verdict entered by the trial tribunal on similar grounds as above. Of interest, is the obiter dictum that there is no law which set time limit for petitioning and granting letters of administrator or probate. And also when adjudicating on the provisions of sections 9 and 24, Cap 89 (Supra), one need to make a distinction between the position of the executor and an administration granted with letters of administration or probate, regarding their validation and as to when time commence running against each other. While the former who is a ceature of a will, a title vests on him upon the death of the testator. On the contrary, the administrator is a creature of the order of the court and a title vests upon him on the grant of letters of administration or probate. Therefore, it was wrong for the trial chairman to hold a view that the Appellant to sue as an administrator of estate of the late Vicent Komba Ngopasingu who passed way on 15/09/1979, after fourty two years, was time barred. Similarly it was wrong to hold a view that the matter was time barred purportedly counting from 2021 when trespass is alleged to have been committed, retrospectively to the time of demise of the proprietor on 15/09/1979. Therefore, a ruling and decision of the trial tribunal dated 27/01/2023, is reversed and set aside. The matter is remitted back to the trial tribunal for continuation of hearing on the merit of the application. For avoidance of doubt, the matter should proceed with events slated to happen on 19/12/2022. The appeal is allowed. I make no order for costs for reasons that both litigants were on disagreement with the cause taken by the trial tribunal. i. B^Mvand "JUDGE 30/06/2023 8