Lesusu Lesilale Saiduraki vs Melayeki Saiduraki Laizer (Civil Appeal No. 529 of 2021) [2024] TZCA 1283 (13 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: NDIKA. J.A.. KITUSI. 3.A.. And MASHAKA. J.A.) CIVIL APPEAL NO. 529 OF 2021 LESUSU LESILALE SAIDURAKI...................................................APPELLANT VERSUS MELAYEKI SAIDURAKI LAIZER (Administrator of the Estate of the Late Lekimboyipoi Saiduraki)........................................RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Arusha) fGwae. J.l dated the 28th day of February, 2020 in Land Case No. 14 of 2016 JUDGMENT OF THE COURT 10th & 13th December, 2024 MASHAKA. J.A.: The High Court of Tanzania in Civil Case No. 14 of 2016 at Arusha entered verdict in favour of the respondent declaring that the land measuring 77 acres located at Meserani village, in Meserani Ward, Losingira sub village in Dukabovu area within Monduli District (the suit land) to be part of the estate of the late Lekimboyipoi Saiduraki. Also, the appellant was declared an invitee to the suit land, and was ordered to vacate it and allow the respondent to manage the estate of the said deceased. Aggrieved by the decision, the appellant is contesting the decision in this appeal.

Before going into the merits of the appeal, Mr. Gwakisa Sambo, learned counsel representing the respondent informed the Court that Sanai Lekimboyipoi, the respondent passed away on 21s t October, 2024, and Melayeki Saiduraki Laizer was appointed administrator of the estate of the late Lekimboyipoi Saiduraki on 6th December, 2024. Mr. Sambo moved us under rule 105 (4) of the Tanzania Court of Appeal Rules, 2009 to substitute the administrator of the estate of the late Lekimboyipoi Saiduraki from the late Sanai Lekimboyipoi to Melayeki Saiduraki Laizer, the newly appointed administrator. Having satisfied ourselves of the prayer which was not resisted by Mr. Lengai Nelson Merinyo, learned advocate appearing for the appellant, we granted the prayer and substituted late Sanai Lekimboyipoi with Melayeki Saiduraki Laizer. We now proceed with the substance of the appeal. The late Lekimboyipoi Saiduraki owned, occupied and used the suit land from the 1960's. Following his demise on 25th May, 2002, his descendants and relatives continued to use the entire suit land until 2008 when the appellant (DW1) approached the late Sanai Lekimboyipoi (PW5) seeking permission to use the suit land. Being relatives, the late Sanai in his capacity of being the elder son

of the late Lekimboyipoi, allowed the appellant to use the suit land on condition that he only cultivates seasonal crops. In 2014, PW5 discovered some permanent developments by the appellant. He asked him to vacate the suit land so that he distributes it to the heirs. But the appellant did not honour the request and did the same when he was implored by the clan leaders. In 2015, the late Sanai had in his personal capacity, successfully filed a complaint in the Meserani Ward Tribunal, which declared the suit land to be part of the estate of the late Lekimboyipoi Saiduraki. The appellant appealed to the District Land and Housing Tribunal of Arusha, where the proceedings and decision of the Ward Tribunal were quashed and set aside for want of pecuniary jurisdiction. Undaunted, the late Sanai Lekimboyipoi was appointed administrator of the estate of the late Lekimboyipoi Saiduraki on 12th February, 2016 (exhibit 3) and filed Civil Case No. 14 of 2016 in the High Court at Arusha. In that suit, the subject of the present appeal, the late Sanai Lekimboyipoi had prayed for a declaration that the suit land is among the estates of the late Lekimboyipoi Saiduraki, an order evicting the appellant, a permanent injunctive order restraining the appellant, his agents, workmen or any other person acting 3

under his instructions from doing any activities and or disturbing the respondent with peaceful enjoyment of the suit land, payment of TZS. 20,000,000.00 as mesne profits from 2008 when the appellant occupied the suit land to the date of institution of the suit, payment of general damages, and interests. The suit was resisted by DW1 who claimed ownership of the land under customary right of occupancy and tendered customary certificate of title (exhibit Dl) as proof of ownership. DW1 also asserted that he has been in possession of the suit land for quite a long time without being disturbed and thus raised a notice of preliminary objection on a point of law that, the suit was time barred. He amplified that 12 years within which the late Sanai Lekimboyipoi as a legal representative could have taken legal action had lapsed and therefore the matter was time - barred per sections 3 (1) and 9 (1) of the Law of Limitation Act [CAP 89 R.E. 2002] (the LLA). The preliminary point of objection was disposed of by way of written submissions. The appellant had submitted that; the time limit started to run from the date of the death of the late Lekimboyipoi Saiduraki who passed away on 25th May, 2002. It was argued that, the Land Case No. 14 of 2016 was instituted on 22n d March, 2016, beyond the 12 years and thus the suit was

hopelessly time barred contravening sections 3 (1) and 9 (1) the LLA. He nailed his argument under section 9 (1) of the LLA and stressed that the time limitation to recover the land of the deceased is twelve years and the right of action accrued on the date of the death of the original owner. He bolstered his position with the case of Yusuf Same and Another v. Hadija Yusuf [1996] TLR 347; a decision of the High Court. The trial court overruled the objection that under section 9 (2) of the LLA, the right of action accrued when the appellant dispossessed the heirs to the suit land in 2014. Thereafter the trial proceeded to its finality and the trial court was satisfied that the appellant was an invitee to that suit land. It held that he could not claim adverse possession, as he was an invitee, nor could he claim ownership because his documents were not valid for want of being properly signed and stamped by the proper authority thus not properly acquired. Aggrieved, the appellant preferred this appeal before the Court predicated on six grounds challenging the impugned decision. We will address ground one that, the Honourable Judge o f the High Court erred in law and fact to determine a suit that was time - barred.

Pursuant to rule 106 (1) and (8) of the Rules, the appellant and respondent respectively filed their written submissions for and against the appeal. Both learned advocates adopted their written submissions and expounded for and against all grounds of appeal. However, bearing in mind the course we have taken in resolving the appeal, we are of the view that reference to the parties' submissions in full will not serve any useful purpose. We shall, in the circumstances, revert to their respective submissions relevant to the issue under our consideration only. In support of ground one, Mr. Merinyo claimed that the matter before the trial court was time barred in terms of section 9 (1) of the LLA which sets time within which to recover the deceased's land and the time is reckoned from the date of death. He recounted that, the original owner died on 25th May 2002 and the former administrator was appointed in 2016 and filed the suit to claim the suit land on 22n d March 2016, which was almost 14 years from the date of death of his father. It was his view that the matter was time - barred. He bolstered his arguments by referring section 35 of the Law of Limitation Act and the case of Yusuf Same and Another (supra) emphasising that the time to recover the land of the deceased is within twelve years after the death of

the deceased. And that the time taken for the appointment of the late Sanai Lekimboyipoi will not waive the requirement of section 9 (1) of the LLA. Mr. Merinyo amplified that Land Case No. 14 of 2016 was the first and only case filed by the legal administrator in relation to the estate of the late Lekimboyipoi Saiduraki. He added that the case instituted before the Ward Tribunal of Meserani (exhibit P4) had no relevance to the estate of the late Lekimboyipoi Saiduraki because by then the late Sanai Lekimboyipoi sued in his own capacity and was yet to be appointed a legal representative of the said estate in question. Responding to this ground of appeal, Mr. Sambo supported the findings of the trial court. He maintained that the suit was timely filed in line with section 9 (2) of the LLA. He elaborated that the provision of section 9 (1) of the LLA and the case of Yusuf Same and Another (supra) were not relevant to the appeal at hand. He stressed that at the time the original owner the late Lekimboyipoi Saiduraki died in 2002, the suit land remained in the hands of the heirs. He claimed that the appellant entered that land in 2008 after being invited by the late Sanai Lekimboyipoi and made reference to PW5's evidence to support the claim that, the appellant was invited to use the land by the late Sanai Lekimboyipoi and not the late Lekimboyipoi Saiduraki, hence the time

should not be reckoned from the date of the demise of Lekimboyipoi Saiduraki. He concluded that the right of action accrued in 2014 when the appellant breached the oral agreement with the respondent, thus the suit was not time - barred. Having heard the parties and scrutinized the record of appeal, it is undisputed that, the late Lekimboyipoi Saduraki died on 25th May, 2002 while the late Sanai Lekimboyipoi was appointed on 12th February, 2016 to administer the estate of the late Lekimboyipoi Saiduraki and the suit land subject of this appeal was instituted on 22n d March, 2016. It is also undisputed that the said suit land was the property of the deceased, whose recovery time is regulated under item 22 of the 1s t column to the 1s t Schedule of the Act read together with section 9 (1) of the Law of Limitation Act, which provides: "Item 22. Suit for the recovery o f land is twelve years. Section 9 (1) Where a person institutes a suit to recover land o f a deceased person, whether under a will or intestacy and the deceased person was, on the date o f his death, in possession o f the land and was the last person entitled to the land to be in possession o f the land, the right of action shall be deemed to have accrued on the date o f death". 8

[Our emphasisJ In the light of the above provisions, the right of action or right to sue to recover the land of a deceased is within twelve years and the time is calculated from the date of his demise. The argument by Mr. Sambo that the right of action accrues from the date of dispossession of the land pursuant to section 9 (2) of the LLA is, with due respect, not fitting in the circumstance of this case. We are justified with the import of section 35 of the LLA which reads: "For the purposes o f the provisions o f this Act relating to suits for the recovery o f land, an administrator o f the estate o f a deceased person shall be taken to claim as if there had been no interval o f time between the death o f the deceased person and the grant o f the letters o f administration or, as the case maybe, o f the probate" In line of the above provision and being fully aware of the fact that the origin of this dispute is a claim of the suit land of the late Lekimboyipoi Saduraki, whose estate was under the administration of the late Sanai Lekimboyipoi and now Melayeki Saiduraki Laizer, the import of the above provision is of utmost relevance. Going by its plain meaning, it does not exclude the time from the date of death of the deceased to the date of appointment of the administrator. It is settled that the time will start to run 9

from the date of death of the deceased and not at the pleasure of the heirs. The law requires the heirs to be vigilant and take action timely for the recovery of the deceased's land. As we uphold Mr. Merinyo's submission, we wish to quote with approval from Yusuf Same and Another (supra) where the High Court interpreted and applied sections 9 (1) and 35 of the LLA: - "Applying these provisions to the present case respondents right o f action accrued from January, 1977 were the deceased died. The computation o f this period still begins from that date despite the fact that respondent was granted letters o f administration on 25th February 1992, that is about twelve years after death o f the deceased. In fact, what actually happened is that by the time when respondent was granted the letters o f administration her cause o f action had already been time barred. And at the time she filed the suit on 8th July, 1993 respondent was /ate by over two years. The arguments o f Mr. Raithatha on the issue o f limitation are valid hence it is held that the suit against the appellant was incompetent as it was time barred." Taking into account the excerpt above and the facts of this appeal, we agree that when the late Sanai Lekimboyipoi was appointed as the administrator of the estate of the late Lekimboyipoi Saiduraki in 2016, the 10

twelve years for the recovery of the deceased's land who died in 2002 had already lapsed. Hence there could be no competent suit instituted to recover deceased's land; the suit land subject of this appeal. Perhaps we should stress that the High Court strayed into error by applying section 9 (2) of the LLA to this case. In our view, the said provision regulates accrual of the right of action where a person who institutes an action to recover land to which he or she is personally entitled, the cause of action would be deemed to have arisen on the date of his dispossession or discontinuance of possession of the land in issue. In the present case, the respondent was not suing upon a personal claim of title to the land in dispute. He was actually seeking to recover the land in dispute of the deceased, acting as the administrator of the estate of the deceased, and that the deceased possessed it at the time of his death. On this basis, section 9 (1) of the LLA was the proper provision, stipulating that the right to sue must be reckoned from the date of deceased's death. With the finding that the High Court lacked jurisdiction to entertain the suit, we think determination of the rest of the grounds of appeal will not serve any useful purpose. We shall not therefore delve onto them. ii

For the foregoing reason, we allow the appeal and since the suit was time - barred, we hereby quash the proceedings and the judgment of the High Court and also set aside the consequential orders for being a nullity. Regarding costs, since the parties are related and, in that spirit, we make no order as to costs. DATED at ARUSHA this 12th day of December, 2024 G. A. M. NDIKA JUSTICE OF APPEAL I. P . KITUSI JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL Judgment delivered this 13th day of December, 2024 in presence of M r. Lengai Nelson Merinyo, learned Advocate for Appellant also holding brief for the M r. Gwakisa Sambo learned Advocate for the Respondent is hereby certified as a true copy of the original. J. J. KAMALA DEPUTY REGISTRAR COURT OF APPEAL