Judgment Said Luhaga Final 1

Page 1 of 9 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB-REGISTRY AT GEITA CIVIL APPEAL NO. 30583 OF 2024 (Originating from the Land Application No. 42 of 2020 before the District Land and Housing Tribunal for Geita at Geita) SAIDI LUHAGA MAHUSHI (Administrator of the Estates of the late LUHAGA MAHUSHI).…………………………………...APPELLANT VERSUS 1. JOSEPH M. MSWAHILI…………………………………………1ST RESPONDENT 2. BERNADETHA MICHAEL (Administrator of the Estates of the late SANNE MAHUSHI)……………….……....…….. 2ND RESPONDENT JUDGMENT Date of last Order: 12/12/2024 Date of Judgment: 17/12/2024 MWAKAPEJE, J.: Aggrieved by the decision of the District Land and Housing Tribunal for Geita in Land Application No. 42 of 2020, the appellant has lodged this appeal seeking redress from this Court. The facts underlying this appeal are straightforward: the appellant filed Land Application No. 42 of 2020 in the District Land and Housing Tribunal for Geita, seeking recovery of land allegedly belonging to his late father, Luhaga Mahushi, who passed away in 1992. During the hearing, the 1st Page 2 of 9 respondent raised preliminary objections, asserting that the application was time-barred and that the disputed area was not adequately described in the application. The 1st respondent contended that since the death of Luhaga Mahushi, 28 years had elapsed without any action taken by the appellant to reclaim the disputed land. In response, the appellant argued that the application was not time-barred. He stated that his younger brother, Saanane Luhaga, who had been appointed as the administrator of their late father's estate, had managed the land until his passing in 2014. The appellant further claimed that he became aware in 2017 that the 1st respondent had taken possession of the land. Consequently, in 2020, he filed the Land Application, which was dismissed, prompting this appeal. The appellant has advanced a single ground of appeal: That the trial Tribunal erred in law and fact in holding that Land Application No. 42 of 2020 was filed outside the statutory limitation period, while the cause of action arose in 2017, and the application was filed within the permissible timeframe in 2020. The appeal was argued viva voce. The appellant appeared in person, as did the 2nd respondent. The 1st respondent was represented by learned counsel, Ms. Elizabeth Msechu. Page 3 of 9 In his submission, the appellant stated that the application to the District Land and Housing Tribunal was filed on time as the person taking care of the land in dispute was farming and renting the area passed away in 2014, and before that, there were no disputes regarding the property. The appellant argued that the trial tribunal erred by dismissing the application, as it had been filed within the prescribed time. The appellant prayed for the dismissal of the decision by the District Land and Housing Tribunal (DLHT) and for an opportunity to be heard. In reply, Ms Msechu contended that the individual alleged to have died in 2014 had not been named by the appellant. She argued that the appellant merely stated that this individual was overseeing the land, making it evident that the individual was not the land owner but an overseer. Furthermore, she pointed out that this individual was not the administrator of the estate of Luhaga Makushi. She further stated that the appellant, Saidi Luhaga, was officially appointed administrator of the estate in 2018. Ms. Msechu noted that the registered owner of the premises passed away in 1992, at which point the cause of action accrued, as stipulated under Section 9(1) of the Law of Limitation Act. Page 4 of 9 Ms. Msechu highlighted that the appellant filed the case in 2020 at the District Land and Housing Tribunal, approximately 28 years after the death of the late Luhaga Makushi. She pointed out that the appellant had acknowledged the limitation period for land recovery to be 12 years, as specified under Part I, Item 22 of the Schedule to the Law of Limitation Act. She questioned where the appellant had been during those years and why no action was taken within the limitation period. Ms Msechu further argued that the 1st respondent had been using the disputed land since 1993 without interference until 2018 when the appellant sought letters of administration for the estate of Luhaga Makushi. She emphasised that the appellant had failed to provide a plausible explanation for their inaction during all those years. To support her argument, Ms. Msechu cited the case of Busumabu Kisandu Busumabu (Administrator of the estate of late Busumabu Kisandu) vs Tunga Busumabu & 9 Others (Land Appeal 60 of 2021) [2022] TZHC 12987 (22 September 2022). She also referenced the case of Aloysius Benedicto Rutaiwa vs Stanislaus Mutahabarwa and Seven Others, Land Appeal No. 22 of 2020, High Court at Bukoba, where it was held that a matter that Page 5 of 9 is time-barred could not be entertained by the Court. In light of the said principles, Ms. Msechu prayed for the dismissal of the appeal with costs. The second respondent, for her part, had nothing substantial. However, she stated that she was not involved in selling the farm. In his rejoinder, the appellant reiterated what he stated in his submission in chief. After considering the parties' rival submissions, I now address the merits of this appeal. The main issue I will deal with is determining whether the present appeal is meritorious. It is not disputed that the last owner of the land was Luhaga Mahushi, who passed away on 09/12/1992. According to section 9(1) of the Law of Limitation Act, the cause of action arises upon the death of the landowner. The said section provides that: 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 was the last person entitled to the land to be in possession of the land, the right of action shall be deemed to have accrued on the date of death. This section is to be read in conjunction with item 22 of Part I of the Schedule to the Law of Limitation Act, which prescribes a limitation period Page 6 of 9 of 12 years for suits involving the recovery of land. The essence of section 9(1) of the Law of Limitation Act lies in its role as a legal anchor, ensuring certainty and predictability in matters of land recovery. By tying the commencement of the limitation period to the specific event of the landowner's death, the law avoids ambiguity and provides a precise reference point for all parties. Even in cases where no immediate dispute arises following the owner's death, the provision nonetheless applies to establish a definitive start date for the limitation period, ensuring uniformity in its application. Furthermore, this provision serves a dual purpose: it safeguards the rights of heirs and other potential claimants by clarifying when their right to sue begins while simultaneously promoting legal finality. Requiring actions to be initiated within the prescribed timeframe prevents the indefinite hanging of unresolved claims, which could disrupt social and economic stability in one way or another. However, failure to act within the stipulated period results in the forfeiture of the right to recover the land, even when conflicts over ownership might arise belatedly. This Court emphasised section 9(1) of the Law of Limitation Act in the case of Yusuph Same & Another v. Hadija Yusuf (1996) TLR 347 that: Page 7 of 9 "The limitation period in respect of land, irrespective of when letters of administration had been granted, is 12 years as from the date of the death of the deceased" This position has also been underscored in many decisions of this Court, of which I am persuaded, including the cases of Busumabu Kisandu Busumabu (Administrator of the estate of late Busumabu Kisandu) vs Tunga Busumabu & 9 Others (supra), Shomari Omari Shomari (as an administrator of the Estate of the Late Seleman Ibrahim Maichila) vs Mohamed Kikoko, Land Appeal No.171 of 2018, and Helena Mwaipasi v. Philip Mwambungu & 2 Others, Land Case No. 10 of 2012 HC, to mention a few. In the context of the present appeal, it is clear that any claim concerning the disputed land ought to have been filed by 2004, calculated from the date of the death of Luhaga Mahushi in 1992. The appellant's argument that the person (Saanane Luhaga) overseeing the land passed away in 2014 does not extend or reset the statutory limitation period. This is because the said Saanane was not the legal owner of the land but merely a caretaker or overseer. Legal ownership, for purposes of a cause of action, Page 8 of 9 remained vested in the estate of the deceased, and the limitation period is tied to the date of the original owner's death. Similarly, the appellant's appointment as administrator of the estate in 2018 does not restart or extend the limitation period. Section 9(1) of the Law of Limitation Act provides no leeway for such an extension, as the cause of action is deemed to have accrued upon the death of the landowner in 1992. Administrative appointments that occur long after the accrual of a cause of action cannot be used to circumvent or revive claims that have already lapsed due to statutory time limits. Furthermore, the first respondent's continuous and undisputed possession and use of the land since 1993 significantly weakened the appellant's claim. In my opinion, the appellant's 28-year delay in filing the application undermines the validity of the claim and confirms that it is time-barred, as far as the pleadings are concerned and as rightly objected to and upheld by the trial Court. See the case of Ali Shabani & Others vs Tanzania National Roads Agency (Tanroads) & Another (Civil Appeal No. 261 of 2020) [2021] TZCA 243 (10 June 2021), where it was stated that: “At any rate, we hold the view that no preliminary objection will be taken from abstracts without reference to some facts plain on the pleadings which must be looked at Page 9 of 9 without reference examination of any other evidence. Under the circumstances, we are satisfied that the learned trial judge rightly held that the preliminary objection was based on a pure point of law and dismissed the suit for being time-barred." Consequently, in the present case, the District Land and Housing Tribunal (DLHT) correctly ruled that it lacked jurisdiction to entertain the matter as the same was time-barred. I, therefore, proceed to dismiss the appeal in its entirety with costs. It is so ordered. Right to appeal explained. DATED at GEITA this 17th day of December 2024. G.V. MWAKAPEJE JUDGE