Land Appeal No

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 21511 OF 2024 (Originating From Application No. 86/2020, Bagamoyo District Land and Housing Tribunal) AISHA MBEGU (As Administratrix of the Estate of the Late Ally Mbegu)................ ........APPELLANT VERSUS MWANAHAMISI SELEMANI......................................................... 1*t RESPONDENT MUSSA ALLY MBEGU.................................................................... 2nd RESPONDENT JUDGMENT 9th to 18th October, 2024 E.B. LU VAN DA, J The Appellant named above is unhappy with the decision of the Tribunal which dismissed her claim on the ground that it was time barred and declared the First Respondent as the lawful owner of the un-surveyed suit premises of quarter an acre located at Kitopeni "A" Kiromo Bagamoyo District. In the memorandum of appeal, the Appellant raised five grounds of appeal, however for purpose of this appeal, I will consider ground number one alone. That the Honorable Chairperson erred in law and fact in: (a) its interpretation of the law by holding that the application was time barred as it was filed after twelve years; (b) basing its decision in (a) above on trespass while the basis of the First Respondent's occupation as per evidence was not trespass but alleged i purchased from the Second Respondent; (c) misdirecting itself on reckoning the time from 2007 or 2008 to 2020 without considering previous litigation it was aware of, hence occasioned injustice. Mr. Amin M. Mshana learned Counsel for the Appellant prefaced his argument that parties are bound by their own pleadings, citing Yara Tanzania Limited vs Ikuwo general Enterprises Limited, Civil Appeal No. 309 of 2019. He submitted that the decision of the Tribunal does not accord with pleadings, for reason that the findings of the suit to be time barred is not derived from pleadings as well as evidence on record, citing paragraph 6(a) of the application filed at the Tribunal. He submitted that the suit was not based on adverse possession but at first, a claim of ownership of kibanda only based on purported sale in 2009 and fresh trespass on the remained area in 2018 which lead to Shauri la Madai ya Ardhi Na. 28 of 2018 and Appeal No. 70 of 2019. He submitted that the evidence of the First Respondent and her witnesses was backed by the sale agreement which was mentioned but not attached. He cited paragraph four of the Second Respondent written statement of defence, argued it brings to the unavoidable conclusion that there was an allegation of trespass based on a claim of sale and purchase which take the whole matter away from any claim of adverse possession based on long, open uninterrupted occupation or abandonment. He submitted that counting from 2007 as the Tribunal did 2 without any basis to 2018, it arrive at eleven years. He submitted that from 2008 to 2018 it is ten years. He submitted that counting from 2009 when the First Respondent started claiming ownership through purchase in 2009 to 2018 or even 2020, it is nine or ten years far from the twelve years derived from the law. He submitted that the First Respondents stay at Kibanda in the suit land beginning in 2003 was blessed as she was an invitee. He submitted that the trouble began when she first claimed to be the owner and by then she had not constructed any structure thereon apart from repairing thatches and plastering mud. In reply, Mr. M.R. Kiondo learned Counsel for the First Respondent submitted that in the written statement of defence the First Respondent pleaded that she purchased the suit land from Mussa Ally Mbegu on 14/01/2003 and that the suit is time barred, citing paragraph four and seven of the First Respondent's written statement of defence. He faulted the argument by the Appellant that the issue of time limitation has not been raised or pleaded, being misconceiving and misdirection. He submitted that the First Respondent was in peaceful occupation since 14/1/2003, the Appellant filed the application subject to this appeal, on 24/06/2020, a lapse of almost seventeen years, argued the First Respondent is protected by item 22 of part 1 of the First Schedule to the Law of Limitation, 3 Cap 89 R.E. 2019. He submitted that the argument that the First Respondent was invitee or tenant has not been proved in accordance with the law. On rejoinder, the learned Counsel for Appellant submitted that the First Respondent appear to be in error in thinking that its allegation of purchase in 2003 rather than the Appellant's statement that the same claims to have purchased in 2009 would form the basis of raising an issue as to time limitation. He submitted that the Tribunal did not count the period from 2003 but from 2006 Or 2007 when alleged construction was noticed to 2020 when the application the subject of appeal was filed. The Second Respondent supported the appeal. To my view, a fact that the suit is time barred was born from both pleadings and evidence presented. The main complaint by the Appellant was that the First Respondent trespassed into the suit premises and pleaded specifically that the cause of action arose in 2009, see paragraph 6(a)(ii) and (iii). At paragraph seven of the written statement of defence, the First Respondent plaeded that the suit is time barred. When Aisha Ally mbegu (PW1) was testifying she stated the same facts that the trespass by the First Respondent occasioned ahuge loss. Shabani Ally Mbegu (PW2) in 2008 it is when he saw the First Respondent constructing foundation of shops at the suit land. Ezekiel Kibetu (DW2) who is the Mwenyekiti wa Kitongoji, asserted that in 2017 when TANROADS visited 4 thereat for a project of expansion of road, the First Respondent stood on the suit land while the family of Mzee Ally Mbegu stood nearby. According to item 6 of Part 1 of the First Schedule, Cap 89 (supra), a period of limitation for a suit founded on tort, is three years. Herein the First Respondent was accused to have intruded into the suit land around 2008 (by PW2) or 2009 (as pleaded in the pleading or application). Therefore, when the Appellant was suing the First Respondent on 22/06/2020, the suit was already hopeless time barred. This because counting from either 2008 or 2009, the period of three years for suing for trespass ended in either 2011 or 2012. Indeed, even in the substantive reliefs, the Appellant prayed for the First Respondent to be declared a trespasser. In other words, there is no relief for ownership of the suit property. In the case of Sixmund Luambano vs Vodacom Tanzania Limited & Others, Miscellaneous Land Case Appeal No. 2/2020, High Court Songea, this Court speaking through Honorable Moshi, J as she then was, had this to say at pages 6 and 7, 'The Court of Appeal in the case of Avit Thadeus Massawe vs Isdory Assenga (supra), defined the concept of trespass to mean; 5 "entering, remaining or causing an object to fall on the premises/iand in the possession of another without permission and/or withoutjustification cause'" This Court went on to say, at page 7, 'The ingredients of the tort of trespass are entering (physical or through an object) or remaining on the land, possession of premises. In the case of Avit Thadeus (supra) the Court of Appeal held that trespass to land is a tort and the remedies available to the claimant are perpetual injunctions and monetary compensation' Therefore the available to sue for tort of trespass is three years. In that regard, the argument of the learned Counsel for Appellant that the issue of time limit was raised by the learned Chairperson proprio motu, is misleading. As indicated above, the question that the suit is time barred was pleaded by the First Respondent in her written statement of defence, only that the Appellant neglected to respond and counter, as she did not bother to file a reply to the written statement of defence by the First Respondent. Again, even in the testimony in chief by PW1 she asserted facts of trespass, PW2 asserted as to when the cause of action arose to wit in 2008. Therefore, to my respective view, it was left for the Tribunal to decide. The argument that previously there was Shauri la Madai ya Ardhi Na. 28 of 2018 and Appeal No. 70 of 2019 between the same litigants, the same was not 6 specifically pleaded in the plaint or application as the base for exemption of time limit. Therefore, a defence of bonafide prosecuting another suit to a wrong forum, is also not available to the Appellant. Order VII rule 6 of Civil Procedure Code, Cap 33 R.E. 2022, provides, 'Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed' In view of the above, the learned Chairperson slept into an error when it ruled that the suit is time barred and in between delved in determine the merit of the docket and concluded that the First Respondent is the lawful owner of the suit premises. The learned Chairperson is faulted for reason that the First Respondent did not plead a counter claim, there was no issue which was specifically framed covering the First Respondent. The sole issue was whether the suit land of quarter an acre at Kitopeni Bagamoyo was a lawful property of the late Ally Mbegu. Again, as alluded above, having prefaced its judgment for an issue of time limit, it was wrong for the learned Chairperson to sneak into deliberating the merit of the docket instead of concentrated on the context of time limit which showeth capable of disposing the matter. In that regard, the decision of the Tribunal is upheld. 7 The appeal is dismissed. Given the situation and circumstances of the matter, it is desirable for each one to foot own costs. 8