Court name
High Court of Tanzania

Yusuf Same & Another vs Hadija Yusuf () [1996] TZHC 7 (01 August 1996);

Law report citations
1996 TLR 347 (TZHC)
Media neutral citation
[1996] TZHC 7

Msumi, J:
In the original case respondent Hadija Yusuf successfully sued the appellants for vacant F possession of the suit house. Upholding the suit, the learned Trial Resident Magistrate held that the suit property belongs to the respondent and also upheld her claim of Shs 30,000/= per month as specific damages. Being dissatisfied with these findings, the two appellants Yusuf Same and Hawa Dada, with the assistance of Mr Raithatha, advocate, G decided to file the present appeal.
The unchallenged facts of this case are that the suit house originally belonged to the late Juma Abdallah Samanya who died in Moshi in 1979. Among the heirs of the deceased are his two sons namely Haruni Juma and Abdallah Juma. Respondent is disputably H claiming to be the deceased widow hence one of the legal heirs. On 4 August 1981 the Kariakoo primary court appointed Haruni Juma administrator of the deceased estate. Prior to this on 17 July 1981 Haruni Juma and his brother Abdallah Juma describing themselves as the legal representatives of the deceased, sold the suit house to Omar I Mansur and Salmin Said. However, transfer of the said house

to the buyers was effected on 2 September 1981 when consent of the land officer was A obtained. Through a deed of transfer executed by Oman Mansur and Salmin Said and consented by the land officer on 29 August 1986, the suit house was again sold to the two appellants. They bought it for a sum of Shs 150,000/=. B
In August 1991 respondent opened in this court Probate and Administration Case No 64 of 1991 in which she applied for letters of administration in respect of the deceased estate. In her petition respondent asserted, among other facts, that there had been no previous proceedings for grant of probate or administration in respect of the deceased C estate. She was accordingly granted letters of administration on 25 February 1992. Armed with this grant, respondent applied to the Land Office for the transfer of the suit house in her name. On receipt of this application the land office cancelled the two previous transactions vide which the suit property was transferred to Omar Mansoor and D Salmin Said and later to the two appellants. And instead, by a transfer deed consented by the land officer on 23 October 1992, ownership of the suit house was vested in the respondent. It is on these facts that the learned Trial Resident Magistrate made a finding that the suit house belongs to the respondent. E
The memorandum of appeal contains 11 grounds. However, essentially the appeal is against two main findings which are that the trial Resident Magistrate refused to entertain the issue of limitation because it was not raised in the pleadings and secondly that he declared null and void the two transactions vesting ownership of the suit house to F Omar Mansoor and Salmin Said, and the appellants. Let me start with limitation.
Out of the three issues framed by the Trial Court, the first issue is whether the suit is time barred. In dismissing this issue the learned Trial Resident Magistrate said: G
   `At the outset I must say issue No 1 does not feature in the whole case. Nothing has been said on this issue. Further to that the issues are framed from and based on the pleadings. Going by the pleadings in this case I have not been able to see anywhere the issue of limitation raised. The first H issue is therefore struck out.'
Attractive as it might appear to be this view is respectfully wrong. It is evident that the learned Resident Magistrate is not aware of the provision of s 3(1) of the Law of Limitation Act which says: I
   `Subject to the provisions of this Act, every proceeding described in

A    the first column of the First Schedule to this Act and which is instituted after the period of limitation prescribed therefore opposite thereto in the second column, shall be dismissed whether or not limitation has been set up as a defence'. (Emphasis supplied)
Thus in the present case the fact that appellants did not raise as a defence in his B pleadings the issue of limitation was not a bar against raising it at a later stage. Whether the issue was raised as a defence or not limitation is a relevant issue at any stage of the proceedings. The Trial Magistrate was thus wrong in striking out as he did. Having said this, the question in this case is whether the respondent's suit is time barred. C
The suit filed in the Trial Court is for recovery of land hence the limitation period is 12 years. As for the determination of accrual of right of action and computation of period of limitation for this suit the relevant provisions are ss 9(1) and 35 of the Law of Limitation D Act. Section 9(1) says:
   `Where a person institutes a suit to recover land of a deceased person, whether under a will or intestacy and deceased person was, on the date of his death, in possession of the land and was the E 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.'
And s 35 says:
   `for the purposes of the provisions of this Act relating to suits for the recovery of land, an administrator F of the estate of a deceased person shall be taken to claim as if there had been no interval of time between the death of the deceased person and the grant of the letters of administration or, as the case may be, of the probate.' G
Applying these provisions to the present case respondent's right of action accrued from 14 January 1979 when the deceased died. The computation of this period still begins from that date despite the fact that respondent was granted letters of administration on 25 February 1992, that is about 12 years after death of the deceased. In fact what H actually happened is that by the time when respondent was granted the letters of administration her cause of action had already been time barred. And at the time when she filed the suit on 8 July 1993 respondent was late by over two years. The arguments I of Mr Raithathaon the issue of limitation are valid hence it is held that the suit against the appellants was incompetent as it was time barred.

On the issue of who is the lawful owner of the suit house, the learned Trial Resident A Magistrate resolved it in favour of the respondent. His flow of argument starts by faulting Haruni Juma for entering into sale agreement with Omar Mansur and Salmin Said for the suit house on 17 July 1981 before he was granted letters of administration on 4 August B 1981. He argued that the purported sale was unlawful as at that time Haruni Juma had no interest in the suit house which he could validly pass. With respect this argument is unsupportable. The transfer of the suit property was effected on 2 September 1981 well after Haruni Juma had obtained the letters of administration. The sale agreement by C itself had no legal effect of vesting the property in the buyers. Its effect was to bind the parties, subject to obtaining the consent of the land officer, to abide with the terms of agreement. But the actual passing of the property was effected after the consent was obtained. Since at the time when the land officer consented to the transfer Haruni Juma D had already been appointed administrator, the transaction was legally proper.
Furthermore the learned Trial Magistrate held that Haruni Juma's appointment by Kariakoo primary court as administrator of the deceased estate was fraudulent hence the High Court in the Probate and Administration Case No 64 of 1992 declared the said E appointment null and void. Fortunately I was able to get the record of Probate and Administration Case No 53 of 1992 and nowhere is it shown that the court made the alleged nullification. In fact respondent falsely stated in her petition that there had been no previous proceedings for probate or administration in respect of the deceased estate. F The High Court was not aware of the appointment of Haruni Juma hence it could not have declared it null and void. It is evident that had it been aware of this fact, the court would not have upheld the respondent's petition for letters of administration. Thus if there is anybody to be accused of fraud it is the respondent. G
As noted earlier, the order granting the respondent letters of administration was improperly made in so far as there was already another grant made to Haruni Juma. If respondent had any grievances against the said appointment she should have raised it H in the proceedings vide which the appointment was made. For this reason her appointment which was made by this court in Case No 64 of 1991 cannot be left to stand simultaneously with the preceding grant made by Kariakoo Primary Court. In the exercise of court's inherent power as provided under s 95 of Civil Procedure Code, the I appointment of respondent made by this court in Case No 64 of 1991 is set aside.

In conclusion this appeal is allowed with costs. Appellants are declared to be the lawful A owners of the suit house. Thus they are entitled to be refunded the rents they had been paying to the respondent. B

C