salum almasi jaza administrator of the estate of the late mlangamba binti mwichande vs tatu omar kitambo another 2019 tzhclandd 6 27 september 2019

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 82 OF 2017 (From the decision o f the District Land and Housing Tribunal o f Morogoro at Morogoro in Land Case No. 171 o f 2016) SALUM ALMASIJAZA (administrator o f the estate o f the late MLANG'AMBA BINTIMWICHANDE)...................APPELLANT VERSUS TATU OMARI KITAMBO..................................... 1st RESPONDENT JUMA ATHUMANI KISUNGURA...... .................. 2nd RESPONDENT Date o flast Order: 10/07/2019 Date o fJudgment: 27/09/2019 JUDGMENT A. MOHAMED. J: This is an appeal from the decision of the District Land and Housing X. Tribunal for Morogoro, where the appellant had instituted a suit for recovery of land from the respondents. Upholding a preliminary objection raised by the respondents at the early stages of the proceedings, the tribunal Chairman found the suit was time barred under section 9 (1) of the Law of Limitation Act (Cap 89 RE 2002) and accordingly dismissed it. l Aggrieved by the decision, the appellant filed a memorandum of appeal containing the following three grounds: 1. That the trial tribuna/ erred in dismissing the appellant's case on the ground it was time barred when the cause of action arose in 2015 after the 1st respondent illegally sold the disputed land to the 2nd respondent Thus the 12 year prescribed period for recovery of land had not lapsed. 2. That the trial Tribunal erred in holding that the cause o faction arose in 1914 upon the demise of its owner o f Mlang'amba Binti Mwichande, its owner, but at that time the parties were not adverse to each other and were even born. 3. That after properly finding the appellant was appointed administrator of the estate o f the late Mlang'amba Binti Mwichande in 2016 vide Probate Cause No. 7 o f 2016 of the Mvuha Primary Court of Morogoro, the trial tribunal erred by failing to take into account the period commencing from the date of death of the deceased person until the date the appellant was appointed as her legal representative as required by law. At the hearing, the applicant was unrepresented and whilst Mr. Ladislaus Michael, learned advocate appeared for the respondents. By consent, the appeal was disposed of by way of written submissions. Culling from the record, the brief facts of the case are as follows. One Mlang'amba Binti Mwichande (hereinafter "Miang'amba") owned the disputed parcel of land measuring some 5.5 acres and died intestate in 1914. Her heirs tranquilly occupied and used the suit land until 2015 when the 1st respondent, who claimed a portion that was owned by his late father, sold it off to the 2nd respondent. Incensed by the sale, in 2016, the appellant applied and was granted letters of administration of the estate of the late Mlang'amba by the Mvuha Primary Court at Morogoro vide Probate Cause No. 7 of 2016. He then filed the suit that was dismissed by the trial tribunal leading to this appeal. In support of his three grounds of appeal, Mr. Adolf Mahay, for the appellant essentially argues that according to section 25 (1) and (2) of the Law of Limitation Act, (Cap 89 RE 2002), in computing the period of limitation for a proceeding such as the instant one, the period commencing from the demise of the deceased until the date of appointment of his legal representative should be excluded. He therefore faulted the trial tribunal's finding that the accrual of the cause of action commenced upon the demise of Mlang'amba in 1914. It was his view, the cause of action accrued in 2015 when 1st respondent without consent of other heirs, illegally sold the land in dispute to the 2nd respondent. It was his opinion, that the parties became adverse to the other, as prior to that year, all Mlang'amba's heirs amicably occupied the estate of the deceased. He referred this Court to the unreported case of Sungura Hamisi v. Frank Kikongore & Others, Civil Appeal No. 145 o f2002, High Court of Tanzania at Dar es salaam, where Shangwa, J 3 observed that time in a land dispute ought to run when parties become adversary to each other and not otherwise. In reply, Mr. Ladislaus Michael for the respondents submitted, he fully supported the tribunal's judgment based on the law. In his view, under section 9 of the law of Limitation Act, the cause of action arose in 1914 upon Mlang'amba's demise. As construed by the counsel, the provision applies where person institutes a suit for recovery of land of a deceased person whether under will or intestacy in a situation where the deceased was in possession of such land at the time of his death, the right of action accrues from the date of decease. He were surprised on how the appellant was able to obtain letters of administration some 102 years after the death of Mlang'amba. In his rejoinder submission, Mr. Adolf Mahay's, essentially reiterated his earlier submission. In addition, he insisted the Sungura Hamisi v. Frank Kikongere case he had cited earlier in his submission in chief is relevant to the facts obtaining in this case. Having carefully considered the parties' rival arguments and examined the record, I will now ponder over merits of the appeal. Apparently, this appeal hinges on the date of accrual of the cause of action. Did it, according to the appellant, accrue after appointment of Mlang'amba's legal representative in 2016 or did it, in the respondents'view, accrue immediately after her death in 1914? The appellant relies on the provisions of section 25 (1) of the Law of Limitation Act which I take liberty to quote hereunder: 4 "S,25(1) Where a person dies after a right ofaction in respect o f any proceeding accrues to him, the time during which an application for letters o f administration or forprobate have been prosecuted shall be excluded in computing the period o f limitation for such proceeding." As aforesaid, Mr. Mahay is of the opinion that section 25 (1) of the Law of limitation excludes the period from demise of the deceased until appointment of his legal personal representative. In this case, the period from Mlang'amba's demise in 1914 to the date of the appellant's appointment as her personal legal representative in 2016 vide Probate Cause No. 7 of 2016 should be excluded. Conversely, on their part, the respondents rely on the provisions of section 9 (1) of the Law of Limitation that reads as follows: "s: 9 (1). Where a person institutes a suit to recoverland o f 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 lastperson 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." With the proper perspective of the parties' contentions in cavalcade, I will now address the question whether the period from the demise of 5 Mlang'amba in 1914 to 2016 when the appellant was granted letters of administration of her estate should be excluded as claimed by the appellant? A similar question was ably canvassed by my learned brother Maige, 3 in the unreported case of Shomari Omari Shomari (administrator of the estate of Selemani Ibrahim Maichila v. Esha Selemani Ibranim and another, Land Appeal No. 171 of 2018, HC Land Division, where he observed; "Admittedly, (the) time limit for pursuing an action for and against an estate o f the deceased is not without exclusion. The exclusion is dealt with under sections 24 and 25 o f the LLA. Section 24(1) deals with a situation wherein the deceased person dies before the accrual of a right o faction. In such a scenario, the period o f the first anniversary from the date o f death o f the deceased or the period before the accrual o f right o f action, whicheveris a laterperiod, shallbe excludedItprovides as follows:- 24(1) Where a person who would, if he were living, have a right o f action in respect ofany proceeding, dies before the right o f action accrues, the period o f limitation shall be computed from the first anniversary o f the date of the death o f the deceased or from the date when the right to 6 sue accrues to the estate o f the deceased, whichever is the iater date. Section 25 (1) addresses a situation where the deceased dies after the accrual of the right of action. In such a circumstance, it is only the period wherein the plaintiff was prosecuting an application for letters of administration or probate which shall be excluded. For the avoidance of doubt, I reproduce the relevant provision here below:- 25(1) Where a person dies after a right of action in respect o f any proceeding accrues to him, the time during which an application for letters o f administration or forprobate have been prosecuted shall be excluded in computing the period o f limitation for such proceeding. In view of the foregoing passage, I associate myself with the learned Judge's finding that it is only the period during which the appellant was prosecuting for grant letters of administration vide Probate Cause No. 7 of 2016 under the provisions of section 25 (1^ of the Law of Limitation Act that should be excluded. To be precise, the exclusion begun from the date of filing Probate Cause No. 7 to the date when the appellant was granted letters of administration. In addition, the one year period commencing from Mlang'amba's demise in 1914 is excluded under section 21 (1) of the same Act. In sum, the period of two years is excluded from 7 1914 to 2016 when the appellant filed his Land application No. 171 of 2016 at the trial tribunal. In the result, I agree with the learned trial Chairman's finding that the accrual of the cause of action commenced after Mlangamba's demise in 1914 pursuant to section 9 (1) of the Law of Limitation Act. This was the position taken in Yusuf Same & Another v. Hadija Yusuf (1996) TLR 347 where it was held; "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 After the above discourse, I agree entirely with Mr. Mohay that the appellant's suit at the trial tribunal was hopelessly time barred being filed in 2016 some 120 years after Mlang'amba's death in 1914. I need not address the other argument advanced by the appellant claiming the parties became adverse to each other in 2015 when the 1st respondent sold off the disputed parcel of land to the 2nd respondent in 2015 as it would be an exercise in futility. For the above reasons, I find the appeal bereft of merit and it is accordingly dismissed with costs. The trial tribunal's decision and orders are upheld. It is so ordered. A. MOHAMED 3. JUDGE 27/09/2019 8 The right of appeal duly explained. A. MOHAMED J. JUDGE 27/09/2019