Abdallah Malamla vs

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA MOROGORO SUB REGISTRY AT MOROGORO LAND APPEAL NO. 123 OF 2023 (Appeal from the decision of the Decision of the District Land and Housing Tribunal for Kilombero/Ulanga District in Land Application no. 10/2020) BETWEEN ABDALLAH MALAMLA APPELLANT VERSUS AGIL MKOLOKOTI RESPONDENT JUDGMENT MRUMA,3 This matter has a checkered history. It started as Land Dispute No. 84 of 2013 at Sofi Ward Tribunal where the Respondent herein Agil Mkolokoti, unsuccessfully instituted a dispute against Abdallah Malamla (the appellant herein and one Haruni Shabani (not party of these proceedings). Aggrieved by the decision of the Ward tribunal Agil Mkolokoti was successful in his appeal to the District Land and Housing Tribunal in Land Appeal No. 87 of 2013. The Appellant was aggrieved by the decision of the District Land and Housing Tribunal and appealed to this court vide Miscellaneous Land Appeal No. 139 of 2016. This court (Maige, J, as he then was) quashed the proceedings of the lower tribunals and set aside judgments of both lower tribunals for lack of locus standi on the ground that the present herein sued on his personal capacity instead of suing as an administrator of the estate of his late father. The court gave option to the Respondent file a fresh suit upon obtainignlocus standi. After a grant of letters of Administration the Respondent did in 2020, instituted Land Application No. 10 of 2020 at Kilombero/Ulanga District Land and Housing Tribunal for:- 1. A declaration that a piece of land measuring approximately 20 acres located at Sofi Majiji Village in Malinyi District Morogoro Region is part of the estate of the late Kristantus Mkolokoti; 2. An order against the Respondent (the Appellant herein) to give vacant possession to the Respondent (the Applicant therein) 3. An order restraining the Respondent (the Appellant herein) to do anything in the suit land; 4. Orders that the Respondent (Appellant herein) pay the Respondent (the Applicant therein) shillings 45,000, 000/= as general damages and 5. Costs of the Application to be borne by the Respondent (Appellant herein) The trial tribunal entered judgment for the Applicant there in (i.e. the present Respondent) and declared the disputed land to be part of the estate of late Krisantus Mkolokoti. The tribunal ordered the present Appellant to give vacant possession of the disputed and restrained from dong anything in the farm. The Appellant was aggrieved by that decision and he has come to this court armed with the following grounds of appeal:- 1. That, the District Land and Housing Tribunal erred in law and fact in hearing and determining the Respondent's Land Application No. 10 of 2020 when the same was filed out of the prescribed limitation period as the judgment of the lowest tribunal were set aside and the [proceedings thereof quashed by the High Court of Tanzania, Land Division at Dar es salaam on 23'"'^ September 2019 (Hon. Maige, J as he then was); 2. That,the amended Land Application no. 10 of 2020 which was filed on 31 March 2023 and removing the Respondent one Haruna Shabani (a.k.a Baroba) who died sometimes between December 2022 and Januaty 2023, is unlawful since the deceased had participated in all sessions from the Sofi Ward Tribunal , the District Land and Housing Tribunal in Appeal no. 87 of 2013, the High Court of Tanzania (land Division in Misc. Land Appeal no. 139 of 2016 as wetl as the Original Land Application no. 10 of 2020; 3. That,the Honourable trial Tribunal Chairman erred both in law and in fact for holding/dedaring that the Respondent is the lawful owner of the disputed suit/ land when the same was not proved on the balance of probability the standard of proof as required in civil cases. 4. That, the trial Tribunal Chairman was biased in favour of the Respondent in admitting the evidence of the Respondent and disputing the evidence of the Appellant which is credible evidence to determine the suit/ case in favour of the appellant. 5. That, the trial Tribunal chairman erred in law and fact in holding that the Respondent is an Administrator of the Estate of his late father one Chrisantus Mkolokoti without full proof of his appointment to be administrator. On those grounds the Appellant prayed this court to allow the appeal, quash the judgment of the trial tribunal and set aside the ensued decree. At the hearing of this appeal Appellant was represented by Mr Steven Kosi Madulu learned advocate while the Respondent appeared in person. The appeal was argued by way of written submissions. Submitting in support of first ground Mr Stevens Kosi Maduiu submitted that the contested issue was whether Land Application No 10 of 2020 was instituted within the prescribed time. Mr. Madutu submitted that after the proceedings of the lower tribunals were set aside by this court time to file fresh suit would be expected to run from the time cause of action arose that is in 2003 when the Appellant and his co respondent were allocated the disputed land by the village land committee. The learned counsel contends that since the prescribed limitation period in respect of the suit to recover land is twelve (12) years as provided by section 3 of Part 1 item 22 column two of the Schedule to the Law of Limitation Act[ Cap 89 RE 2022], by instituting the present proceedings in 2020, which is seventeen years after the accrual of cause of action, the same was hopelessly time barred. Arguing the second ground of appeal, the learned advocate stated that omitting the Respondent's name one Haruna Shabani (deceased) in these proceedings was an error because before his death he participated in all sessions from the Ward Tribunal, the District Land and Housing Tribunat and High Court before Mige J (as he then was). He said that there is no evidence showing that legal representative of the deceased was summoned to appear in court to show cause before removing the name of the deceased. The learned counsel contended that in the circumstances like the one at hand the trial tribunal could have proceeded with the hearing and enter an ex-parte judgment against the deceased as per Rule 6 Order XXII of the Civil Procedure Code. Submitting jointly on the remaining grounds of appeal Mr. Madulu submitted that the issue of ownership of the disputed land was not properly decided because the Respondent's claim of ownership was successfully controverted by the Appellant who proved that they were allocated an abandoned bush land the evidence which was supported by village leadership. He submitted further that the said allocation was effected in 2003 in presence of the Respondent's father who was still alive and the Appellant occupied and used the land undisturbed till 2013 when surprisingly dispute arose, it is the appellant submission that the dispute arose ten years after the land was allocated to him and the Respondent's father was alive but did not dispute the Appellant's allocation if the allocation was illegal the dispute which would have involved the village council as the allocation authority. In his reply submissions the Respondent submitted that the Appellant's grounds of appeal are vague as the appellant failed to explain how the suit was filed out of time. He said that the assertion that the cause of action arose in 2003 is without any proof. The Respondents avers that even if we assume that cause of action arose in 2003, the dispute was first instituted in 2013 vide land application No 84 of 2013 of Sofi Ward Tribunal and until 2019 when the proceedings and judgment were quashed and set aside the matter was still being litigated in a court of law. Submitting against the second ground, the Respondent contended that for a legal representative to enter on behalf of the deceased the tribunal had to be moved by an application as per Order XXII Rule 4 of the Civil Procedure Code, the act which was not done and the period of limitation lapsed. Arguing against the 3'"'^ ,4^^ and 5*^^ grounds jointly the Respondent submitted that there was no evidence to support Appellant's ownership of the disputed land and that it is a settled principle of law he who alleges must prove. He said that he was able to prove his claim of ownership on behalf of his deceased father as he was able to demonstrate how his late father acquired the disputed land by way of clearing a virgin bush and summoned witnesses who supported his story. Starting with the first ground the Appellant is faulting the trial tribunal that it entertained a matter which was time barred. The law is settled that the question of limitation is fundamental and it had an impact on the jurisdiction of the case. In the case of Tanzania Fish Processors Limited vs. Christopher Luhanguia, Civil Appeal No 161 of 1999 where the Court of Appeal held that:- The question of limitation is fundamenta/ issue involving Jurisdiction. It goes to the root of dealing with civii daims. Limitation is materia/ point to speedy administration ofjustice. Limitation is there to ensure that a party doesn't come to coun when he chooses. The accrual date as provided for under Section 5 of the Law of Limitation Act which provides that:- 5. Subject to provisions ofthis Act the right ofaction in respect ofanyproceeding,shaiiaccrue on the date on which the cause ofaction arises. This means that the right of action accrues when the wrong complained of occurs. The question here is when did the cause of action accrue? In our case there is evidence on record that the Respondent discovered that Appellant had trespassed onto his land in 2013 That is the time when cause of action accrued and not in 2003 when the land was purportedly allocated to the Appellant. The assertion that cause of action occurred in 2013 is also reflected under paragraph 6(d) of the Applicant's amended Land Application No. 10 of 2020. Accordingly I find that ground No one lacks merits and I dismiss it. Reverting to the second ground, the record shows that in the amended application filed on March 2013 the Applicant omitted the name of the one Haruna Shaban who was the first Respondent before amendment. I note that in its judgement in land appeal no. 139 of 2016 this court (Maige J, as he then was) gave the Respondent therein Agili Mkoloti an option to file a fresh suit. The court did not order for a retrial of the same case, the Respondent therefore had right to sue any person who he believed he had cause of action against. The 2"^ ground therefore, has no merits. As to who was the owner of the suit land according to the law the person whose evidence is heavier than that of the other is the one who must win (see Said Hemed Vs Mohammed Mbilu[1984]TLR113]. During the trial the Respondent led evidence to the effect that his late father acquired the land in dispute by clearing a Virgin bush/Land. In support of his case Respondent in addition to himself called one witness Mr. Eusebius Severine Lingalangala who swore that his father and the Respondent's father acquired the land by clearing Virgin land. He told the trial tribunal that the Respondent father portion was encroached by the Appellant. On his part the Appellant testified that he was ailocated the suit land by the Village Council of Sofi Majiji following its public announcement in 2003 that it would allocate land to the villagers. He did not produce any documents relating to the land allocations or announcement to the public inviting people in the village to apply for land. He did not call any witness to substantiate his clairhs. Thus, when one measures the weight of the evidence of the parties in this case, it is obvious that the evidence of the Respondent was heavier than that of the Appellant and as it was held in the case of Said Hemed (Supra) in a civil case evidence of the parties cannot tie a party whose evidence is heavier than that of the other must win. That said I find that the Appellant's appeal was preferred without any substance. It lacks merits and I dismiss it with costs. Of o -1. . MRUMA C -y a: > LU JUDGE 24.10.2024. 10