SELYA NTABO LYAJIGA vs Joseph Nkilijiwa Time barred 12 years1 final final final

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

SHINYANGA SUB REGISTRY

AT SHINYANGA LAND APPEAL NO. 30121 OF 2024 (Arising from Land Application No. 04 of 2024 in the District Land and Housing Tribunal for Kahama before AMAMARIA F. KAPINGA-CHAIRPERSON dated the 5th November,2024) SELYA NTABO LYAJIGA…………..…………………………APPELLANT (Administrator of the Estate of Late Lyajiga Lulyeho Mveke)

VERSUS JOSEPH NKILIJIWA ………..………………………..1ST RESPONDENT LUSOLOJA MABONESHO……………………………2ND RESPONDENT CHENGE LUBINZA…………………………………….3RD RESPONDENT KULA WEJA…………………………………………….4TH RESPONDENT LULA BUSANDA ……………………………………….5TH RESPONDENT NKALANGO BANGILI…………………………………6TH RESPONDENT KASHINDYE JEREMIA……………………………….7TH RESPONDENT SENI NKILIJIWA……………………………………...8TH RESPONDENT NYANGO BUNELA…………………………………….9TH RESPONDENT BUJIMU WASHA…………………………………….10TH RESPONDENT JOHN MASEMBA…………………………………….11TH RESPONDENT NKWABI BULUBA…………………………………...12TH RESPONDENT PAUL HEGE……………………………………………13TH RESPONDENT NYADO SHIMBA…………………………………….14TH RESPONDENT MAKANISA JILANGI……………………………….15TH RESPONDENT NDILA LUKELESHA…………………………………16TH RESPONDENT JIGEMELO JING’WENDI………………………….17TH RESPONDENT MBAZU MTONGWA………………………………….18TH RESPONDENT LUTEMA JIYABO…………………………………….19TH RESPONDENT NYAZOBE MALUGUJA………………………………20TH RESPONDENT HAMIS LUJEGI……………………………………….21ST RESPONDENT 1

JUDGMENT 10th February, & 10th March, 2025. Massam, J: - The briefs facts of the case are that the appellant being an administrator of the late Lyajiga Lulyeho Mveke who died on 29/04/1979 filed the Land Application No.03/2024 at Kahama District Land and Housing Tribunal claiming over the ownership of the disputed land about 100 acres located at Izuga hamlet, Jana ward, Msalala District Council the property of the late Lyajiga Lulyeho Mveke. The appellant claimed that the disputed land is the property of the late Lyajiga Lulyeho who acquired it through cultivating but the respondents trespassed over it and refused to vacate the same on the reasons that they bought the suit land from deceased children who were the lawful owners of the same. During hearing of the application, the respondent raised preliminary objections that the application is time barred and the tribunal has no jurisdiction to entertain the probate matter. In its findings the trial tribunal upheld the preliminary objection that the application is time barred and dismissed the same. Dissatisfied with the said findings of the trial tribunal, the appellant has preferred this appeal armed up with one ground of appeal, namely: 2 1. That, the District Land and Housing Tribunal erred in law and fact to hold that the Land Application No. 3 of 2024 was time barred. When the matter was called for hearing, it was argued by

way of oral submissions, whereas the appellant enjoyed a legal service of Mr. Samwel Boniface Learned advocate while Mr Mark Angelo for all respondents except respondent No. 3,7,9,13-20. Arguing in support of the appellant, Mr. Boniface Advocate argued that the appellant became aware that the respondents have trespassed their land in 2013 .Also Mr. Boniface submitted that it is a trite law that the limitation period of the dispute of land is 12 years, but the issue is when the said time starts to run. Again, Mr. Boniface said that the trial tribunal chairman used Section 9 of Law of Limitation Act to determine the matter, but the said section meant that if there was any dispute of the land which was possessed by the deceased the dispute will start after his death but if the dispute started after the death of the deceased this meant that time will start to be counted after the arise of the dispute. Moreover, he said that in present case the dispute arises on 2013 and the word accrue of right of action is defined under Section 5 of the Law of Limitation Act. Also the same was insisted in the book named'' 3 Theoretical foundation of Land Law in Tanzania at page 269 elaborated the word accrue of cause of action. The time starts after the arise of the dispute and when deceased passed away. Also the same was insisted in the case of Leonard Kurwa who was administrator of estate

of Mahenge Ngakuba vs Clemence Lukanda, and Two others, Land Appeal No. 56 of 2021 at page No 7 the said principle came from section 24 (1) of the LLA so the said section elaborate two situation before or after the death of the deceased. More on that, he argued that section 9 (1) of LLA required to be read together with section 9(2) and section 24 (1) and section 27(1) para a of LLA. Also in the case of Laurent Mwang’ombe Vs. Tatu Haji Mwambishile, Civil Appeal No. 358 of 2019 at page No 10 and 11 said that ‘’We don’t think that continuous use of land as an invitee or by building a permanent house on another person’s land……. would amount to assumption of ownership of the disputed plot by the appellant’’ Finally, he said that the appellant knew that their land was trespassed on 2013 so the time started that time, and the 12 years was not elapsed it was just 10 years and prayed that the decision of the trial court be quashed and order the matter to be heard on merit. On his side, Mr. Angelo advocate for some of the respondents argued that in the appellant application revealed that deceased died on 4 1979 while the respondents claimed that they bought it from the children of the deceased in different years between 1990, and 1998. Also, Mr. Angelo said that it is not true that the dispute arose on 2013, because respondents are living and using that land for long time since they

bought the same and there was no proof that the appellant came to that land on 2013. Again, he argued that deceased died on 1979 but appellant went to the court to apply for administration of his estate on 2024 and filed the suit as per the section 9 (1) of LLA appellant was right as the law gives time for counting of the time of filling the case after the death of the deceased. He cemented his argument by referring the case of Yusuph Same and others vs Khadija Yusuph TLR 1996 at page No 347 the court held that the time for limitation in respect of land is when the letter of administration has been granted and 12 years as from the date of death of the deceased. That case supports section 9 (1) of LLA and that was the law which used by trial chairman to dismiss the case, as from the death of the deceased to the year when this case was filled was 45 years as per section 3(1) of LLA it required the case filed out of time to be dismissed. Moreover, Mr. Angelo said that there was no proof that appellant was not aware but also he was living at Nzega and time start to accrue 5 when the deceased died and respondents stayed there for more than 12 years since they bought the same. He argued that the case of Leonard Kurwa at page No 9. Appellant did sue respondents alone without suing their fathers who sold that land to respondents. Finally, Mr. Angelo said that the trial tribunal was

right to dismiss the case as was filed out of time and appellant if wishes to proceed with the case may file application for extension of time. In the way of rejoinder, Mr. Boniface advocate said that respondents are trespassers and the trial court was required to hear this matter in order to know if the respondents were the owners of that land or not. Additionally, Mr Boniface contented that there was no proof that appellant came to suit land on 2013 from Nzega, and prayed this matter to be heard on merits in order to know all issues. Again, he said that death and appointment of the administrator does not affect the cause of action, the case of Yusuph Same is distinguishable, as the dispute does not arise when the death occurred but after acknowledgment of the trespass, so the dispute arose on 2013 and not 1979. 6 Finally, Mr. Boniface said that there was no need of the appellant to join his father because respondents are trespassers and not appellant’s father and the respondents were required to return the land. I have systematically crossed through the trial tribunal records on the evidence given, and the arguments by both parties at the appeal level, and the issue for consideration is whether this appeal has been brought with sufficient cause. In determining the same this court will be guided with provisions under Section 110 and 111 of the Evidence Act, Cap. 6 R.E

2019 provides that, 110.-(1) 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 that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. On whom burden of proof lies, 111. The burden of proof in a suit proceeding lies on that person who would fail if no evidence at all were given on either side. The above principle of law was also stated by the legendary authors of Sarkar on Sarkar's Laws of Evidence, 18 Edn. M.C. 7 Sarkar, S.C. Sarkar, and P.C. Sarkar, published by Lexis Nexis, posted the following comments at page 1896, "... the burden of proving a fact rest on the party who substantially asserts the affirmative of the issue and not upon the party who denies it, for negative is usually incapable of proof” Also the same principle cherished in the case of Anthony M. Masanga vs Penina (Mama Mgesi) & Lucia (Mama Anna) Civil Appeal No. 118 CAT (unreported) it was held that “Let’s begin by re- emphasizing that the ever-cherished principle of law that generally, in civil cases, the burden of proof lies on the party who alleges anything in his favour. We are fortified in our view by provision of section 110 and 11 of the Law of Evidence Act Cap 6 Revised Edition, 2002’’ Moreover, the same was emphasized in

Hemed Said vs. Mohamed Mbilu [1984] TLR 113 to the effect that "the person whose evidence is heavier than that of the other is the one who must win’’ Responding to ground of the appeal that the trial tribunal erred in law and fact to hold that the land Application No. 3 of 2024 was time barred. Mr. Boniface advocate told this court that the appellant became aware that the respondents have trespassed their land in 2013 and 8 cause of action starts when the dispute arose on the same year and hence 12 years has not elapsed. However, Mr. Angelo advocate argued that in the appellant application revealed that deceased died on 1979 but appellant went to the court to apply for administration of his estate on 2023 and filed the case in 2024 hence time barred as per the section 9 (1) of LLA. Now, before I respond to this ground, I wish to quote section 9 (1) of LLA which reads that; Section 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. From the above extracted provision of the law, it is undoubted a suit to recover land of a deceased person accrue on the date of death. Also under Item 22 of Part

I of the schedule to the LLA provides that a period of limitation for suit to recovery land is 12 years only. I am aware that, in suits involving the deceased’s estate, time starts ticking different depending on whether the cause of action arose before or after death of the land owner. I will add that if the land owner dies before the cause of action accrues the period of limitation starts to 9 run on different dates or time depending on whether the administrator is suing or defending the suit. If the legal representative or the administrator is suing time starts to run one year from the date of the landed owner’s death or from the date when the right to sue accrues to the estate of the deceased, whichever is the later date. This position provided under section 24(1) of the LLA. I wish to reproduce it here as follows 24(1) Where a person who would, if he were living, have a right of action in respect of any proceeding, dies before the right of action accrues, the period of limitation shall be computed from the first anniversary of the date of the death of the deceased or from the date when the right to sue accrues to the estate of the deceased, whichever is the later date. (Emphasis is added) In a situation where the owner of the landed property dies before the cause of action arose, time starts to tick against a person who intends to sue an administrator the deceased estate,

the date when there is a legal representative of the deceased against whom such proceedings may be instituted or from the date when the right of action accrues against the estate of the deceased, whichever date last occurs. This is what section 24 (2) of the LLA says. It reads. 24 (2) Where a person against whom, if he were living, a right of action would have accrued, dies before the right accrues, the period of limitation shall be computed from the date when there is a legal representative of 10 the deceased against whom such proceeding may be instituted or from the date when the right of action accrues against the estate of the deceased, whichever date last occurs. Now, from the above legal proposition. I find logic in the subsection (1) to apply to situation and cause of action starts to run one years from the date of the landed owner’s death or from the date when the right to sue accrues to the estate of the deceased, whichever is the late date. In present case, the deceased died on 29/04/1979, but the appellant was appointed as administrator on 2023 and filed the case 2024, it is 45 years after the death of the deceased and after elapse 12 years. In the premises I agree with the respondent’s counsel that the cause of action accrue after the death of the deceased hence the suit was time barred as per section 9 (1) of LLA and the proper remedy was to dismiss the same as per

section 3(1) of LLA. Again, I disagree with Mr Boniface that the cause of action started to run 2013 because there was no evidence to prove that the appellant became aware of the said trespass in 2013 rather starts to run after the death of the deceased in 1979 which is undisputed. Moreover, on the issue that no invitee can exclude his host whatever the length of time the invitation takes place and whatever the 11 un exhausted improvements made on the land which was invited and the claims of the respondents that they bought the suit from the deceased children and stayed there for long time. In my view I think this cannot be discussed at this juncture but during the hearing of the case on merit which will determine who is lawful owner between the appellant and respondents. Consequently, I uphold the DLHT’S findings that the suit or application was time barred. I find that the appeal is meritless. I dismiss it with costs. It is so ordered. DATED at SHINYANGA this 10th day of March, 2025. R.B Massam Judge 12