20180823 TZHC Mwanza

;_··_:__ ; .•; · · 1 : ; , ,_.•-_::··,.• -.··. IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA .__...,. IN THE DISTRICT REGISTRY OF MWANZA 1, ATMWANZA LAND APPEAL NO. 10 OF 2017 {From the decision of the District Land and Housing Tribunal for Mwanza District at Mwanza in Land Case No. 266, 267, 268, 269, 270 & 271 of 2016} PHILIPO K. METHUSELA (Administrator of Estate of Enock Buzwenge Nadilla)................. APPELLANT VERSUS 1. GABRIEL MFOE 2. FAIDA YOHANA 3. MATHIAS KOMANYA 4. REG. TRUSTEES OF MORAVIAN CHURCH ...... RESPONDENTS 5. KEDES MHIBA FEDES 6. AUGUSTINO K. MACHO JUDGEMENT . Ebrahim, J.: The appellant filed six Land Applications at the District Land and Housing Tribunal for Mwanza at Mwanza claiming that the above respondents have trespassed into the estate of the late Enock Buzwenge (the deceased) whom the appellant has been appointed to administer his estate. The disputed land is at Nyahingi Mkolani - Mwanza City. ~s 1 ., could be gathered from the facts of the case, the deceased died on f. (;·, G . ·28.08.1995 and the appellant was appointed as the administrator of the 4 deceased estate on 13.08.2013 (exhibit Pl). Upon agreement by parties, during the trial on 18th June 2016 all six applications were consolidated as they formed the same cause of action. At the trial the appellant adduced his own evidence and the defense side called 10 witnesses. The appellant basically claimed that in the course of distributing the property of the deceased as an administrator of his estate, he realized that the respondents have grabbed the disputed plot. He claimed further that the suit belongs to the deceased because he is the nephew of the deceased born in the suit land and it was not sold to the respondents. Responding to cross examination questions he told the trial Tribunal that the deceased died testate and left a Will. . All six respondents tendered purchase agreements exhibits D1 to · D6 showing that they bought their pieces of land from Ernest Madila the son of the deceased on different dates. They also called Sub-Ward Chairman who witnessed the purchase to substantiate their claim. The trial Chairman together with the assessors who sat with him after hearing the evidence from both parties decided that the respondents are the rightful owners of the disputed properties. 2 Aggrieved by the decision of the trial Tribunal, the appellant ~ appealed before this court raising two grounds of appeal as follows: 1. That, the Trial Court erred in both law and fact for failure to correctly evaluate the evidence on record and consequently arriving to a wrong finding. 2. That, the Trial Court erred in both law and fact in entering judgment in favour of the respondents without any justifiable proof against the weight of evidence. When the matter was called for hearing parties prayed to dispose of the appeal by way of written submission; the prayer was granted by the court. This court set a schedule which both parties adhered to, I commend them. The appellant was represented by Mr. Elias Hezron and the respondents preferred the services of Mr. Nasimire, both Learned Counsels. Mr. Hezron argued both grounds of appeal generally. He argued i i. ' t. that in so far as the estate of the deceased is concerned, no person had I i mandate to dispose of the disputed property prior to the appointment of the appellant as an administrator. Therefore any transaction or disposition prior to his appointment made was illegal. 3 He challenged the validity of the sale agreement dated 31.01.2003 - between Venance M. Songoma and one Ernest Enock Madella that there was no proof that Mathias Komanya the 3rd respondent is the same person as Venance M. Songoma, the buyer. Hence the 3rd respondent ought to have called Sub-Ward Chairman to prove that he is one and the same person failure of which should benefit the appellant as per the cited case of Hemed Said Vs. Mohamed Mbilu (1984) T.L.R 115. He also cited the case of Ms. Sara Davis Vs. Afriline Transport Ltd, Misc. Land Application No. 66 of 2011(unreported) on the absence to tender an affidavit or deed poll to verify or confirm his name. He thus prayed for the appeal in respect of the 3rd respondent be allowed. Mr. Hezron, in citing the case of Charles Lugu V Rahel Bukwaya and 14 Others, Land Appeal No. 85/2010 (unreported) argued that Charles Paulo a person who claimed to have bought the disputed land from Ernest Enock Madilla and sold to the 6th respondent (Land Application No. 271/2015) failed to tender in court a written sale agreement and he had no title tb pass. He finally submitted on the rest of the respondents that despite the sale agreements that the respondents tendered in court, the seller had no capacity to sell hence the sales were illegal. He prayed for the appeal to · be allowed with cost. 4 Responding to the submission by the counsel for the appellant, Mr. Nasimire counsel for the respondent raised two points of objections. The first objection is that the appeal is not accompanied by a copy of judgement of the Tribunal contrary to Order XXXIX r.1(1) of the Civil Procedure Code, Cap 33 and the principle stated in the case of Kotak Ltd Vs Kooverji ( 1967) EA 348 and Fa rook Vs Shera Ii ( 1970) E.A. 241. Secondly, the appeal is time barred having been filed on 3rd February 2017, four months after the judgement which was delivered on 20 th September 2016. Mr. Nasimire argued that apart from the attached ERV receipt that was obtained on 25 th January 2017, there is no explanation as to when the appellant requested for the copy of judgement and decree as there is no endorsement on the decree that the same was ready on some other dates than 20 th September 2016. He submitted therefore that the present appeal has been filed in contravention of Section 41(2) .of Cap 216 as amended by The Written laws (Miscellaneous Amendments) (No. 2) of 2016) and it cannot be saved by the provisions of section 19(2) and (3) of the Law of Limitation Act, Cap 89 RE 2002. Mr. Nasimire responded on the aspect of the written agreement of disposition of land that sections 61 and 64 of the Land Act, Cap 113 RE 2002 do not apply to un-surveyed land as it is in the present 5 case. He was therefore of the view that the cited case of Charles · Lugu(supra) has been referred out of context. Mr. Nasimire contended that the appellant did not tender evidence to show that the disputed land belonged to the late Enock Madila. He contended also that much as the appellant claimed that the deceased died testate, but he did not tender any will to support his assertion. Referring to section 9(1) of the Law of Limitation Act, Cap 89 RE 2002, Mr. Nasimire was of the strong view that the appellant's case at the Tribunal was time barred by 21 years as the deceased died in 1995 and the appellant was appointed as an administrator in 2013. Hence the case should have not been entertained. He concluded his submission by arguing that in any event much as the appellant had a duty to prove that Vebance M. Songoma was not Mathias Komanya, still the names do not divest Mathias Komanya of his title over the disputed land and vest to the appellant. In rejoinder Mr. Hezron submitted on the issue of attachment of a copy of judgement to the petition of appeal that section 41 of Written laws (Miscellaneous Amendments) Act No. 2 of 2016 does not put a requisite to attach a copy of judgement. He stated that a decree i ;. was enough hence there is no lacuna in Cap 216 to require the recourse 6 of CPC under O.XXXIX Rl (1). He submitted in the alternative that the _ petition of appeal filed in court contains a copy of judgement. As for the issue that the appeal is time barred, Mr. Hezron responded that the appellant requested a copy of judgement and decree through a letter of 4th October 2016 and another letter of 23 rd January 2017 as reminder. It was on 25 th January 2017 when he was supplied with a copy of judgement and decree. He insisted further that in the absence of the date indicating when the decree was ready for collection, one cannot say it was ready on the same date when judgement was delivered. Citing the case of Charles Rick Mulaki V William Jackson Magero, High Court Civil Appeal No. 69/2017(Unreported), he argued that time starts to run from the date when the appellant was supplied with a copy of decree. As for the argument that the disposition of land must be in writing, Mr. Hezron insisted on his earlier contention in his submission in chief. As for the issue of time limitation, Mr. Hezron stressed that since the matter has already been dealt with at the Tribunal, counsel for the J respondent ought to have filed a cross appeal. Otherwise raising the . ' issue at this stage is incompetent and improper. Arguing in the alternative he referred to section 15 of the Law of Limitation Act, Cap 89, RE 2002 on the pretext that the law does not state time 7 - limitation to apply for letters of Administration where the deceased dies - intestate. He added that before being appointed as an administrator of the estate, the appellant had no locus to sue, hence a legal disability and time is excluded under section 15 of the Law of Limitation Act. As for whether Mathias Komanya is Venance M. Songoma, he reiterated what he submitted earlier in chief. Before addressing the grounds of appeal, I would firstly determine two points of objections raised by the counsel for the respondent. Beginning with the attachment of a copy of judgement, as stated by the counsel for the appellant, court records reveal that the petition of appeal was accompanied by a copy of judgement and decree. However, I would like to comment on the assertion by Mr. Hezron that Section 41 of the Written Laws (Miscellaneous Amendments) Act No. 2 of 2016 does not put a requirement to attach a copy of judgement in a petition of appeal. Indeed _that section does not provide for the mode of presenting petition of appeal including what to be attached but only where to appeal from· decision of DLHT on its original jurisdiction. However and with respect to the counsel for the appellant on how should the appeal be presented, then reference is made to Civil . Procedure Code as rightly stated by Mr. Nasimire. The amendment of section 41 of Cap 216 was to re-designate section 41 as section 41(1) 8 and add a new subsection (2) which provided for the time limit within which to lodge an appeal under subsection (1) which is 45 days. Thus it did not oust the relevance of section 51{1) of the Act on the application of the Civil Procedure Code, Cap 33 RE 2002. As for the aspect that the preferred appeal was filed out of time, I perused the entire court records and find ~ut that counsel for the appellant applied for a certified copy of judgement and decree in respect of consolidated applications numbers 266-271 on 4th October 2016. The said letter was endorsed by the DLHT on 11 th October 2016. A certified copy of the judgement was ready for collection on 13.10.2016. As for the decree, the same does not bear the date that it was certified by the Tribunal. Therefore in the absence of an earlier collection of a copy of a decree by the respondents, this court cannot say with certainty that a copy of decree was ready for collection on the same date of judgement i.e. 20.09.2016. Definitely, had the same been ready by 13th October 2016, I see no reason why the appellant would not have been issued with the same. With that I hold that a copy of decree which is of the essence was not extracted on 20.09.2016 as assumed by the counsel for the respondents. As for the grounds of appeal, the main issues here are whether the appellant's application was on the face of it time barred and also 9 · whether the appellant managed to prove to the trial Tribunal that the . disputed land was indeed the property of the deceased. I wish to point out on the outset that this being the first appeal, this court is under obligation to subject the entire evidence into scrutiny and come up with its own findings of facts, if any. I am fortified by the principle held by the Court of Appeal in the case of Charles Mato Isangala and 2 Others V The Republic, Criminal Appeal No. 308 of 2013. Mr. Hezron vigorously objected the issue of time limitation on the basis that the same was addressed by the trial Tribunal. However going through the proceedings, I find that the issue was withdrawn. That notwithstanding being an issue of limitation of time limit, this court is not precluded from addressing it again at this stage. Mr. Nasimire cited the provisions of section 9(1) of_ the limitation Act, Cap 89 RE 20.02 that the· right to recover an immovable property that was in possession of the deceased immediate before his death is deemed to have accrued on the date his death. He contended that since the period to recover land is 12 years, then the appellant's case before the Tribunal was out of time by 21 years. I must state out rightly here that, counsel for the respondents has misconstrued the provisions of the law by reading section 9(1) of Cap 10 89 in isolation with section 9(2) and section 5 of the Act. For the purpose of clarity I shall reproduce the said provisions which read as \._/ follows: "9(2} - where the person who institutes a suit to recover land, or some persons 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 of action shall be deemed to have accrued on the date of dispossession or discontinuance." "5- Subject to the provisions of this Act the right of action shall in respect of any proceeding, accrue on the date on which the cause of action arises. " Thus in my reading of the above provisions of law, it is not automatic that instituting a suit to recover land after passage of 12 days from the date of the death of deceased divest the right of a person over the said land. The same is true only if it can be proved that there has been a dispossession or discontinuance over the period of 12 years from the date of death. In that case tailoring the facts of this case with the above law cause of action shall accrue on the dates when each of the respondents or any other person took possession of the disputed land vis a vis the date when the suit was instituted. Following my holding above, the question now comes as to whether time limitation applies in this case. 11 Looking at the court records, the appellant filed all six applications . on 27 th August 2015. Thus, save for the third respondent who evidenced to have purchased the disputed land on 28.02.2003 (exhibit D3) which goes beyond time limit of 12 years to claim land; other applications were filed within the spun of 12 years. Therefore they were not time barred. That being said, I can safely say that the suit against the 3rd respondent Mathias Komanya was time barred. Having found that the remaining five applications were filed within time, the issue now comes as to whether the appellant managed to prove ownership of the disputed land. However before address the evidence on merits, I find it apt to address the issue of legal disability as raised by the counsel for the appellant. Section 15 of the Law of Limitation Act, Cap 89 RE 2002 provides as follows: ''If on the date on which a right of action for_ a suit or an application for the execution of a decree accrues/ the person to whom it accrues is under disabilif½ the action may be broµght at any time before the expiry of the period of limitation prescribed for such action computed from the date when the person ceases to be under a disability or dies/ whichever event first occurs. " 12 The term disability has not been defined in the Act. Black's Law Dictionary {Online Legal Dictionary, 2'1d Edition} defines disability as "the want of legal ability or capacity to exercise legal rights/ either special or ordinary, or to certain acts with proper legal effect or to enjoy certain privileges or powers of free action/~ From the above definition, legal disability is the incapacity or inability to exercise legal rights or actions. What I could gather from the definition of legal disability, the same can be attributed by various factors. Thus in claiming legal disability one must prove with evidence. Counsel for the appellant claimed that the appellant could not sue in respect of the deceased estate because he had no locus before being appointed as an administrator. However, the court has not been availed with any evidence or information as to why he did not make an application to be appointed to administer the estate earlier before lapse of time. Else, if there was any impeding legal issue or. circumstance that made him an unable to either be appointed as an administrator in good time or make an application at all. The mere saying that the appellant was not yet appointed as an administrator does not qualify him for a shed under the umbrella of section 15 of the Act. 13 As intimated earlier, this being the issue of ownership, proof of ownership of the disputed land by the deceased when the appellant started claiming the land is paramount. The appellant claimed before the court that he knows that the land belonged to the deceased because he was born on the disputed land. In essence his claim towards the land is in all sense geared towards dispossession of the same from respondents. The question now comes would the mere assertion that he was born on the disputed land proves ownership of the land by the deceased? Out rightly no because being un-surveyed land strong evidence is needed from a person who claims possession and aims at dispossessing the other party. Moreover, one cannot prove ownership of land by a mere assertion. I am abreast to the rule of the law of evidence under Section 119 of the Evidence Act, Cap 6, RE 2002 that: "When the question is whether any person is owner of anything to which he is shown to be in possession, the burden of proving that he is not the owner is on the person who assert that he is not the owner// The essence of this legal point has been commented by M.C.Sarkar and S.C. Sarkar in Sarkar's Law of Evidence in India, Pakistan Bangladesh, Burma & Ceylon, at page 2003, 17th Edition, volume 2 that: 14 • "This section embodies the well-known principle that possession is prima facie evidence of ownership. Possession of property movable or immovable/ affords prima facie presumption of ownership as men generally own property they possess. Possession is a good tittle against anyone who cannot prove a better (tittle; ✓/ Fitting the above comment by the scholars and the position of our law with the facts of this case, it is obvious that the appellant had a duty to prove that the respondents are not owners but the deceased. There is a notable remark from the appellant when responding to cross examination questions (pg 8 of the typed proceedings) that the deceased died testate and he left a "Will". However no such Will was tendered as evidence in court. That left a lot to be desired considering there is evidence that the respondents were sold the land by one Ernest Madila. The "Will" would have at least proved ownership of land by the deceased. Or else the appellant ought to have called the purported beneficiaries to confirm that the disputed land was their father's and when he started to possess the same, or how he acquired it. On the other hand the evidence adduced by the respondents at the trial Tribunal established in the required standard that they 15 purchased the disputed land and have been in possession of the land for • a considerable time and even developed it. They brought independent witnesses including sub-ward chairman who witnessed the sale and confirm their possession and use of the said land. That being the position therefore the appellant failed to accomplish his legal duty as required under section 110(1) read together with section 119 of the Evidence Act, Cap 6 RE 2002 that "whoever desires any court to give Judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove those facts exist/~ On my part respondents' evidences were more. persuasive and strong to their occupation and possession of the disputed land. From the foregoing, I find that the appeal lacks merit and I ~~~'S!i1\miss it with costs. ~- ..._. I / 4!,, -·.,: ... ... ~ Judge Mwanza 23.08.2018 16