20170228 TZHC Mwanza

. ·:;. ';j !-; IN THE HIGH COURT OF TANZANIA xjl 0 .,,. IN THE DISTRICT REGISTRY I ATMWANZA ,. ;<> LAND APPEAL NUMBER 54 OF 2015 {From The Decision of the District Land and Housing Tribunal of Musoma District at Musoma in Land Case Number 52 of 2012} 5 THE REGISTERED TRUSTEES OF ROMAN 1 T APPELLANT CATHOLIC CHURCH NYEGINA EDWARD KAMENGE 2ND APPELLANT VERSUS MARIAM MANYAMA.~ ................................... RESPONDENT JUDGMENT 14.02.2017 & 28.02.2017 Matupa, J. Before the land and housing Tribunal of Musoma at Tarime, the respondent successfully sued the appellants for the ownership of a certain piece of land that is situated at Nyagina parish. The appellants have claimed that the land belongs to the church and the respondents 1 have claimed that it belongs to them. The trial Tribunal gave judgment to the respondent. The appellant has enlisted services of Mr. · Nasimiire to pursue this appeal which contains the following grounds 1. That the learned trial chairperson erred in entertaining the above mentioned application which ...' . j a. was instituted in the names of wrong parties b. Was time barred 2. That the judgment appealed against is against the weight of evidence on the record. As intimated, the appellants were represented by Mr. Nasimiire advocate and Mr. Tuguta advocate, represented the respondent. Counsel for the respective parties have invested industry and great efforts in their respective submissions. I earnestly thank them all. Mr Nasimiire started by faulting the failure by. the learr~ed trial chairperson to disallow the suit against the first appellant who does not exist. It was his submission that Nyagina Parish is a constituent of Musoma Diocese of Roman Catholic Church, under whose trusteeship 2 it falls. The Diocese has registered trustees which are vested with the assets and affairs of the appellant parish. It was his contention therefore that the suit against the non-existent trustees was wrongly instituted; it was therefore supposed to be dismissed. l I was referred to the cases of Daudi Lusombangija and 15 others 'I versus the Registered Trustees of Roman Catholic Church of Geita Diocese civil case number 61 of 1997 Mwanza Registry unreported, Mathias Kaselele versus Archdiocese of Mwanza Catholic Church civil case number 43 of 2005 (Mwanza Registry) (unreported) and the cas~ of Twela Alikwekwela Registered Trustees and another versus SS Gilla and another civil case number 6 of 2003 (Bukoba registry) (unreported) and Andrew Mukeni v. Rev Emanuel Msaki pc civil _appeal number 33 of 1999 (Moshi registry) ( unreported) as an authority for the proposition. As to the second appellant, it was his submission that he only acted as a mere catechist. It was wrong therefore to join him in the suit; he should have been none suited. 3 -~ ·. ·, .'·'<. I -; ... ·. t' . ' On the second ground of appeal, it was the contention of the learned counsel that occupation of the land was done in either in 1976 or at the latest in 1984. This was according to the respective testimonies of Father Leo Kazeri and the second respondent. Either way, it was the submission of Mr Nasimiire that by the time the suit was instituted in court in 2015 the suit was hopelessly out of time. Lastly, Mr Nasimire pointed a number of contradictions in the testimonies of the. witnesses for the respondent. The sum total of the contradictions was to render incredible, the claim of ownership of the land in dispute by the respondents. Mr Tuguta challenged _the first complaint on the competence of the first appellant. It was his contention that, since the objection as to the · legal personality of the first appellant was not taken at the earliest opportunity; it was late tC? introduce it on appeal. He cited the case of Hotel Traventine Ltd versus The National Bank of Commerce as an authority (2006) TLR 143 as an authority for the objection. As to the second appellant, it was the contention of the learned counsel that he was 4 ! I OU· l • \." ·_-,.1 . ~ . :...! ,.(••· l .. - properly impleaded in his personal capacity from his conduct, which prejudiced the interests of the respondent. There was no evidence ,-,'1'. '.,::,1· . ,, t,,·' ' that the second appellant was acting under instructions. As such, it . ~~~; .··.·.ti '·.! -~. ! was correct to sue him in his personal capacity. On the issue of limitation, it was his contention that the dispossession of the land happened in 2008 when the right of burial of the father of the respondent was denied. The learned counsel introduced section 4 of the Law of Limitation Act Cap 89 of the Revised Edition of the Laws of Tanzania as an attempt to substantiate the claim of the accrual. However, when he was asked to comment on the import of sections 9 and 33 of the Act, he prevaricated. The learned counsel persisted in his claim that the land was given to the church by the father of the respondent, and that she continued to live on the donated land. When he was asked how come that the father was in the occupation of the land in dispute or that he owned it and yet on his death, the family had to seek permission or even a ' space on the same land to bury him, again there was no explanation t I 5 • I '. . . --- -,:._~•. ·--1-•-· -"--·er~_; _r,._·:.q·_:~,-::.>ttt· for that. However, it was his submission that since the land was formally allocated to the church in 2014 it could not belong to the appellants since 1976 or 1984 for that matter, as it is claimed by the appellants. 1 The learned counsel conceded though, that the land belonging to ·•: the church is demarcated with a boundary, and that land inside the boundary belongs to the church and it is not the subject of this dispute. However, he contended that the land in dispute is outside the boundary. Mr Nasimiire countered the faulting of raising the issue of a wrong · party on appeal, by saying that in fact the case of Andrew Mkeni versus Father Msaki, the objection was sustained at the appellate · stage. It was his submission that trial tribunal would have safely invoke order I rule 10 (2) to join the necessary party. Thrs he did not do, even in the light of evidence by Father Leo Kazeri that the party was a mere parish catholic. It was his contention that section 33 (1) 6 demolishes the case for the respondent on adverse possession, which ·v in this case occurred in 1984 at the latest. In answer to a further question by the court on the locus standi of . \t .. '-1 the respondent to claim in her own name, the land which is all ,_ ·-:l .. l -rl through described as belonging to the father, it was claimed that she l I was appointed as the administrator of the deceased father. Mr Tuguta conceded that the respondent had no locus standi to sue on her own 1 l name; and Mr Nasimiire described her locus standi as neither here nor there, notwithstanding that she produced letters of appointment in court; she was not therefore entitled to sue in her own name but rather, in her official capacity as an administrator of the estate of her deceased father. This ground alone was enough to dispose of the appeal. However, for the sake of completeness I will deal with the other objections. On the first ground of appeal the contention that the appellant was not a legal personality and therefore it was not in order for it to be sued is founded both, on the evidence and the law. 7 -- . - - The issue is whether on the available evidence, was it appropriate -1 ~ to sue the appellants without first ascertaining that they were a --! corporation as such. For the church, the first appellant, summons was issued to the parish priest. This service was patently in error. Order XXX rl of the civil procedure Code directs that "1. In all suits concerning property vested in a trustee, executor or administrator, where the contention is between the persons beneficially interested in such property and third persons, the trustee, executor or administrator shall represent the persons so interested and it shall not . ordinarily be necessary to make them parties to the suit, but the court may, if it thinks fit order them or any of them to be made parties. 3. Where there are several trustee, executors or administrators they shall be made parties to a suit against one or more of them." This rule has to be read together with sections 8 and 13 of The · Trustees Incorporation Act, cap 318 of the 2002 Revised edition of the laws of Tanzania which provides as follows: 8 "8. (1) upon grant of a certificate under section 5 the trustee or trustees shall become a body corporate by name described in the certificate, and shall have (a) Power to sue and to be sued· in such corporate name; ( c) Subject to the conditions and direction contained in the said certificate to hold and acquire and by such common seal to transfer, convey assign and demise any land or any interest therein in such and iike manner, and subject to the ·1ike restrictions and provisions as such trustee or trustees might without such incorporation hold or acquire, transfer convey therein, assign or demise any land or any interest. 13. All trustees incorporated under this Act shall, notwithsta_nding their incorporation, be ·chargeable for such property as shall come into their hands or which might by the exercise of due diligence have come into their hands and shall be answerable and accountable for their own acts receipts, neglect and default in the same manner and to the same extent as if no such incorporation had been effected" 9 ;fl Ir ! , ..·t The foregoing underlined provisions of section 8 (1) (c) an·d 13 u of the Trustees incorporation Act, hold trustees once incorporated, severally responsible for the holding of any property, movable and l I~ immovable. As such, under order XXX r. 1 a suit against one is a suit 1 i l against all. Thus, a suit against a body of trustees under the order has to include all trustees and not one of them as was done in the case of Daudi Lusobangija and othersversus The Registered Trustees of The Roman Catholic Church Diocese of Geita. Also, it is not enough to sue the body corporate but the individual trustees, and the mischief is as apparent as is shown in this case. On this point I am further inspired by an Indian case of Adiraja Versus Patu A 1922 M 405 which is referred in the book of Sarkar on Civil procedure, 11th Edition, (Sudipto Sarkar V.R. Manohar) volume 2 at page 2092 to the effect that in a suit against a temple, all trustees are necessa·ry parties although there may be an agreement between them authorizing one of them ·to represent the temple.· My reading of . the phrase ".. .in such and like manner, and subject to the like 10 restrictions and provisions as such trustee or trustees might without such incorporation hold or acquire, transfer convey therein, assign or demise any land or_ any interest... " appearing in subsection ( c) has the purport of charging individual trustees with the liability over trust property notwithstanding the incorporation under subsection (b). Further that, section 23 of cap 318 which echoes this intent. But the rule does not operate where the trust institutes a suit, where subsection (a) would apply independent of Order XXX of the Civil Procedure code. The present case is even more confounded in that, the body of trustees itself does not exist. The mischief behind this rule is not distant to appreciate. In the present case for example, where the respondent chose t~ sue a body of trustees which was not so proved to be in existence, would have been obviated had the respondent taken trouble to search for the current office bearers and would have sued them severally, in the name of the trust Had this occurred, the tribunal and the respondent would have found the correct body and 11 its office bearers, this would have obviated the eventuality of chasing a wild goose. This ground is therefore sustained. u On· the objection taken on the ground of ·limitation, Father Leo Kazeri again suggests that the accrual could not be later than in 1996 when he came to the parish and was handed over the assets of the church. There is no evidence of any dispute as to the adverse possession before then. The only dispute arose not from the denial to bury the father, but when the license to cultivate the· land was revoked by the church in 2008. Mr Nasimiire has directed me to the testimony of father Leo Kazeri, which is to the effect that he came to the parish in 1996 and was handed over assets of the parish, including the land. Some parishioners including the family of the -respondent were allowed to cultivate· Part of the land. It was his further testimony that the parish land was demarcated, as it was planted with sisal around it. _This fact was not seriously controverted by Mr Tuguta, counsel for the respondent. M_r Tuguta 9dmitted here in court that the dispute 12 cannot be in relation to the fenced land, but some other land outside v the fence. He also did not have a serious explanation as to how a grave yard which is the property of the church could also belong to his clients and yet when the time for burying their father came, they could be required to ask for permission, were denied and were forced to bury him elsewhere. To this I am aware of the submission by the learned counsel that what the family did was not to seek permission, but to inform the church that they were burying their father. I don't see any difference between the information and permission. This is because the _information was not an open license as It was open to · denial, which was as good as a permission. The very fact that the family was required to ask for a permission to bury, was a proof good enough of adverse pos$ession against it. The issue is since when did the adverse possession rec.konable. I am satisfied that as far as the fenced land is concerned, the church was in the possession of it ever since it was fenced, an_d therefore the land was in adverse possession by the church as against 13 .i ,I the whole world ·thenceforth. The cultivation of the land by invitees ~ could not be the source of the dispute, as the respondent in her claim was clear that the dispute was occasioned by the denial-of the church to bury the deceased father. When this happened, already the church was in adverse possession. As a matter of law under sections 4 and 5 of the Law of limitation Act guide provide a guide to us. As it was correctly pointed out by Mr Tuguta, the right of action accrued on the date the cause ·of action arose. This section has to be read together with section 9; and also, section 33 is also of essence. Fo·r clarity, let me reproduce them: Section 9 (1) reads as follows "9 (1). Where a person institutes a s~it 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 t~ the land to be in possession of the land the right of action shall be deemed to have accrued on the date of the death." 14 i Mr Tuguta seemed to suggest that the right of action only 1 I ,, I ,1 ( ': accrued upon the death of the father. This is could only be correct ""=" had the land been claimed in the name of the father. The evidence is to the contrary. The land was in fact given to the church long before the death of the father, and his dea~h only precipitated the dispute, and not adverse possession. In the present case, it was claimed by the respondent that the land in dispute was in fact given to the church. The church on the other hand claims that the land was demarcated for the church and some members of the congregation were invited to cultivate it. The issue is was the deceased or somebody else in the possession of the land. I asked the parties, who is in the occupation of the land inside the boundary as of today. I was.frankly told that in as far as the land which is demarcated is concerned; there is no dispute that it belongs to the church. The dispute relates to the land outside the boundary. It is clear therefore that the land in dispute was not occupied by the father of the respondent as of right If anything, I am satisfied that 15 the land was occupied by the respondents family as invitees. This u--- holding is bone out of independent evidence that was received by the tribunal upon visiting the locus in quo. Section 33 of the aw of imitation Act provides as follows "A right of action to recover land shall not accrue unless the land is in possession of some person whose favor the period of limitation can run (whi_ch possession. .is• in this Act referred to as "adverse possession") and where on the date on which the right of action to recover land accrues and no person is in adverse possession of the l'and, a right of action shall accrue unless and until some person takes adverse possession of the land" In this case it has been shown that the church was in _possession of the land and that, the same was fenced and no person could enter and work on the land without permission. Then in so far as the 1a·nd · which was alienated by fencing, the church is an adverse possessor. It has been agreed that the possession could not be later than 1994 and this has come. from both sides, but the only dispute is the size of the 16 I I l· i !. fenced land, I take that the church is not contesting land outside the ~ fenced area or that on which trees have not been planted, this land has been so occupied as of 1976 at the earliest and 1994 at the latest. The land was not in the occupation by the respondent's father at the time, as the use of the land was subject to permission; and not as of right. As ~uch, neither section 9(1) nor section 33(1) avails relief to the respondent. The suit was therefore time barred under section 3(1), it was bound for dismissal. It is unfortunate that the tribunal was moved by· father Kazeri on this point of limitation, who ably argued the point and the tribunal was moved to the locus in quo, where additional evidence was taken, which confirmed that the land in question was in fact given to the church in 1984 by Philipa Magina the peer to the r~spondent's family~ Still the matter was left hanging and no decision was made on the complaint. This matter was therefore fit for dismissal as such it could have been dismissed there and then. 17 - . . In the result this appeal is hereby allowed. The appellants were (.• 0-~ non suited and the suit is hopelessly time barred was supposed to be dismissed the appellant shall be given. costs of this appeal and the I tribunal belo_ . Cq~~ ·1··r- (,D ~j ·~ /~ ( ;:,..,,, tz?· S.~TUPA, • /k:/. JUDGE \~~~I\ \ ~!I;·, . .......,_:;\., ....... 18 ... Date: 28.02.2017 Coram: Hon. S.B.M.G. Matupa, J Appellants: 1st and 2nd - Mr Nasimire for the appellant Respondent: Mr Tuguta for the respondent C/C: Ignas Mr Nasimire: This case is set for judgment and we are ready. Mr Tuguta: We are ready to receive the judgment. Court: The judgment of the court was read in open court in the . I I 28th February, 2017 ) ' 19