Judgment Zuhura Athuman v FARAJA SUDI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA THE SUB-REGISTRY OF MWANZA AT MWANZA LAND APPEAL NO. 17633 OF 2024 (Arising from Land Application No. 33 of 2022 of the District Land and Housing Tribunal of Ukerewe at Ukerewe date on 9th November, 2023 before Hon. Kato C – Chairman) ZUHURA ATHUMAN MUSTAFA (Administrator of the Late ATHUMAN MUSTAFA MABENGA) ………………..…………………..APPELLANT VERSUS FARAJA SUDI……………..………………………………………....………RESPONDENT JUDGMENT 23rd September & 1st November, 2024. ITEMBA, J. This is an appeal against the decision of the District Land and Housing Tribunal of Ukerewe (the Tribunal) in Land Application No. 33 of 2022 which was held in favour of the respondent. The brief background of the appeal is that; the appellant alleges that the suit plot belonged to her great grandfather named Mustafa Mabenga who died in 1984 and had an offer of the plot. That, Mustafa Mabenga was survived with 2 daughters Khadija Mustafa Mabenga and Zuhura Mustafa Mabenga. Zuhura gave birth to Athumani Mustafa who is the appellant’s father and now the deceased. The appellant claims that the said Mustafa Mabenga was living with his grandson Athuman Mabenga on the suit plot. That, Mustafa Mabenga 1 invited the mother in law of the respondent at the suit plot and she built a house at the suit plot. It was until the death of Athumani Mustafa Mabenga in 2022 when the respondent started to renovate the suit plot and collect rent thereof. On the other side, the respondent maintained that in 1956 her mother in law bought a sub-plot from Mustafa Mabenga at TZS 800/-. The tribunal after hearing both parties, dismissed the appellant’s claims but in some way, went on issuing an order for subdivision of the suit plot for both parties to remain on the suit plot as they used to when Mustafa Mabenga and the respondent’s mother-in-law were alive. The appellant was aggrieved by the decision of the trial tribunal. She filed this appeal which is based on six grounds as follows: 1. That, the Honorable District Land and Housing Tribunal erred in law and in fact in not properly evaluating the evidence adduced and tendered by appellant thus rely on the weak evidence from respondent hence arriving at wrong conclusion and decisions. 2. That, the District Land and Housing Tribunal erred both in law and in facts in declaring that the disputed land is entitled to sub-division in total disregard of the adduced evidence showing that the suit Land is the single plot and is the property of the late Athuman Mustafa Mabenga. 2 3. That, the District Land and Housing Tribunal erred both in law and in facts in holding that as he did that before his death late Athuman Mustafa Mabenga gave the suit land to the respondent mother in law without any proof and in total disregard of the documentary evidence tendered by the appellant, which shows that the suit land is not part of the respondent land. 4. That, the District Land and Housing Tribunal erred in law and in fact in concluding and later holding that the land in dispute belongs to both appellant and respondent without any justifiable ground. 5. That, the Honorable District Land and Housing Tribunal erred in law and in fact by giving orders which cannot be executable to the third party, allocating authority who is not party to the case in tribunal. 6. That, the honorable District Land and Housing Tribunal erred in law and in fact to restrict the appellant to exercise powers and duties vested under the Probate and Administration of Estates Act, as legal representation for all purposes of the deceased person. At the hearing of appeal, both parties fended for themselves. Roling the ball, the appellant expressed dissatisfaction with a tribunal's decision to subdivide her plot of land, claiming it rightfully belongs to her. She stated that the suit plot has been surveyed since 1971 and was originally issued to Mustafa Mabenga, now deceased. The current official records recognises Athuman Mustafa Mabenga, his father as the owner. The appellant argued 3 that there have been no changes to the survey and that the respondent failed to provide evidence of ownership by her deceased relatives. She also referred to the documents she submitted at the tribunal supporting her claim of ownership including the ‘offer’. In reply, the respondent stated that the appellant is simply trying to bully her because her mother-in-law acquired the plot in 1950’s from the appellant’s great grand father. That, during those years, although the respondent was not present, the house existed. Therefore, there is no invasion of land that has been owned by his father since 1956. He explained that since 1956, the appellant's great grand father never complained over the suit plot. She claims that the appellant is acting this way because she sees her as a widow but insists that her mother-in-law purchased the plot for 800 shillings and built it gradually since colonial times. She questions as to why would the appellant sue her in 2022 after all that time? She requested that, if possible, the court should visit the locus in quo to see the disputed plot. She also referred letters produced at the tribunal titled "Kuwekewa wa Mipaka," dated September 9th, 2011. In rejoinder, the appellant explained that before this dispute reached court, there were probate disputes twice which were never contested by the 4 respondent. Upon further inquiry by the court, the appellant also mentioned that, currently she is living at Musoma Road within Nansio which is close to the disputed plot; that, she grew up seeing the suit plot and her father lived there until his death. He added that, the suit plot was their land and her father had conflicts with the respondent over it; even a land officer asked for them to vacate. On her part, however, the respondent denied these claims stating that it is not true as she has never fought with anyone over this plot and resides in Nansio at Nabugo instead; furthermore, it's actually her tenants living on that disputed plot. In the course of composing this judgment, upon a keen perusal to the records, I had noticed an aspect which drove both court’s courtesy and caution. As the principle of abundans cautela non nocet entails that there is no harm done by great caution. I did ask myself on the competency of this appeal because it appears that when the appellant filed his application for the very first time at the District Land and Housing Tribunal, she was out of time. Secondly, if a suit for recovery of a parcel of land is against the respondent’s deceased husband, it ought to have been instituted against an administrator of the estate and not the respondent in 5 her capacity. At the tribunal, this second issue was raised as a preliminary objection but it was overruled. Thus, the exercise of composing the judgment had to be paused and both parties were afforded an opportunity to address the court on the competency of the application in respect of the Law of Limitation Act and whether the appellant sued the right party. The appellant submitted that; her father had on-going dispute with the husband of the respondent for a long time. That, the respondent’s family were just tenants not owners. The owner who is recognised is only one who is Mustafa Mabenga and the suit plot is just small. That, the respondents were ordered by her father to vacate the suit plot but they did not. That, her father became sick that is why he could no longer make any follow up on the suit plot. That, the respondent’s family kept on renovating the suit plot and that is why she had to initiate a case. On her part, the respondent stated that it was the appellant who sued her in 2022, but she have never heard any conflict before that. That, she was married in 1984 and started to live in that suit plot. She questioned as to what is the proof that the appellant’s father has been 6 fighting with her husband? That, if his father was sick why didn’t the appellant assist him at that time? I have carefully considered the grounds of appeal in the light of the records of the Tribunal which I have thoroughly read alongside the submissions by the parties. There are two issues to be determined. The first issue is whether the application was time barred and the second is an issue on locus standi of the respondent. I have studied the record to ascertain what transpired. I will start with the issue of the time limitation. The law on limitation as stipulated under item 22 of Part I of the Schedule to the Law of Limitation Act, Cap 89 RE 2022 states that the time limitation for suits for recovery of land is 12 years. Accordingly, a person seeking recovery of a parcel of land trespassed into by another person has to do so within 12 years counting from the alleged date of trespass. The failure to institute the suit within that time would render the claim time barred and the suit so instituted becomes incompetent and liable for dismissal under section 3(1) of the Law of Limitation Act. In the present case, the appellant told the Tribunal that her grand father Mustafa Mabenga owned the suit plot until his death in 1984. The respondent, in her reply admit her mother in law to have 7 owned the suit plot since 1956 but she explained that, the respondent’s mother-in-law Zainabu Juma Maguno bought it from the applicants’ great grand father. Thus, it was legally owned. The appellant did not point out when the trespass occurred but relying on her testimony, she admits that sometimes in the past, her great grandfather Mustafa Mabenga invited the respondent’s family to live in the suit plot. It is noted that there is no dispute that the appellant’s great grandfather lived on the suit plot as well, together with the respondent’s family before his death in 1984. Based on the above, the cause of action arose in 1956 when the respondent’s family moved in the suit plot and therefore, it (cause of action) survived the deceased. Records reveal further that, the appellant was aware of the alleged trespass because she explained in her testimony that that her grandmother Khadija Mutafa Manga and even her father Athumani Mustafa Mabenga used to fight with the defendants over the suit plot. She even repeated the same version when given a chance to submit on the competency of the suit. Therefore, by the time the appellant was instituting her claims for recovery of the suit land in 2022, 66 years had already lapsed. Hence her claim was time barred. Even if I were to assume that the trespass occurred 8 after the demise of the appellant’s father in 1984, the verdict would not change as a duration of 38 years counted between 1984 and 2022 is beyond the 12 years established by law. Hence the claim was time barred. For this reason and since the only remedy for a time-barred matter is dismissal as per section 3(1) of the Law of Limitation Act, Cap 89 RE 2019, it is this court’s findings that, when the appellant filed her application before the trial tribunal, it was hopelessly time barred and the proceedings therein were, therefore, a nullity. Consequently, I hereby quash the proceedings of the Tribunal and set aside the orders thereof. In the foregoing and considering that the finding above disposes of the appeal, I dismiss the appeal with costs for want of competency. L. K. J. ITEMBA JUDGE 1/11/2024 9