alimu haji ngaponda vs the attorney general and 4 others 2023 tzhc 23548 22 november 2023

IN THE HIGH COURT OF TANZANIA (SONGEA DISTRICT REGISTRY)

AT SONGEA LAND CASK NG. 01 OF 2022 ALIMU HAJI NGAPONDA.............. .. ........... PLAINTIFF

VERSUS 1. THE ATTORNEY GENERAL 2= SONGEA MUNICIPAL COUNCIL 3. KIDANILE FUNGO 'DEFENDANT'S 4. SARAH NGAILA & MORIS HAULE

JUDGMENT 21st to 22N1November, 2023. E. B. LUVANDA, J. The Plaintiff named above is claiming against the Defendants above mentioned for unlawful trespassing to his farm land sixty acres located at Mwanamonga Street Lilambo Ward, Songea Municipality allocated to him by the Mwanamonga Village in 1982, along Edmund Dominic Ngatunga (PW4) and Kamaliza Hauls (deceased). According to the evidence presented by the Plaintiff (PW1), after being allocated the said land by the village allocation committee, he peacefully continued to occupy, cleaned by mowing heavy bush, planted trees surrounding his area, built a hut (ruins is still there), planted mango trees, and cultivating maize till in 1997 when he was jailed. It was the evidence of PWi that while imprisoned one Anriamaria Ngonyani was his caretaker i According to PW1 upon release on parole in 2007, he found his farm land trespassed by the Third, Fourth and Fifth Defendant along other people who were, evicted by the village council upon being willing to the option of re-allocation of the alternative plot, but the Third, Fourth and Fifth Defendant declined the offer of an alternative plot and refused to vacate, a fact which was supported by Fulgence Boniface Kom.b.a (PW2) who is an erstwhile Village Chairman at Mwanamonga Village and part of allocation committee (retired in 1987). PW1 stated that he sued the Third, Fourth and Fifth

Defendants at Lilambo Ward Tribunal in between 2008 or 2009, although a copy of judgment exhibit P2, reveal the trio were sued in 2015. PW1 stated that at the Ward Tribunal he was declare a winner before his victory was overturned by the. District Land and Housing Tribunal at Songea, for reasons of non joinder of a necessary parties, as per the copy of judgment exhibit P2. On defence, specificaly by the Third, Fourth and Fifth Defendants allege to have been allocated the suit land by Mwanamonga Village, on 5/7/2002, 6/7/2001 and 1980% respectively. In view of the above, I invited parties to address me as to whether the suit or claim is legally tenable under the limitation of time. 2 Mr, Zuberi Maulid learned Advocate for plaintiff on his submission stated that upon his release from jail in 2007 he learnt-that his land had been trespassed by the Third, Fourth and Fifth defendants. He submitted, that from 2007 to 2012 the Plaintiff was making same arrangement, arguing at that time there was no dispute, because even the Defendants were aware regarding ownership of the Plaintiff. He submitted that the dispute arose in 2012, after the defendants failed to honor their promise and contrary to what was agreed on the village meeting in 2011. He submitted, that the limitation period in ciaim for recovery of land is well stipulated under item 22 of Part I of the Law of Limitation Act,

Cap 89 R. E. 2002 to be 12 years. He submitted that the case at hand the right to sue accrued in 2012 when the 3rd, 4th, and 5th defendants claimed the ownership and revealed the facts into the knowledge of the plaintiff up to 2022 which is 10 years hence, within the time. He submitted that the evidence of the 3rd. 4th and 5th defendant who allege to have been allocated land in 2001 and 2002 argued has nothing to do on a plea of limitation for reason that on the alleged year the plaintiff was serving his sentence in jail, and therefore he had no knowledge on what had transpired to his land.

3. Mr. Egid Mkolwe learned State Attorney for First and Second Defendant submitted that the Plaintiff filed this suit on 26/02/2022 almost a period of seventeen years from 2007 when he discovered that the Third, Fourth and Fifth Defendants have trespassed allocated the suit land. He submitted that the time when the Plaintiff was pursuing the matter in a wrong forum did not stop time to run against him. He submitted that this matter is solemnly time barred, arguing it was supposed to be filed on or before 2019. Herein, the Plaintiff is suing the Defendants for trespassing his land, alleged lawfully allocated to him in 1982 by Mwanamonga Village Council. It is common ground that a period of limitation for suing to recover land is twelve years, see item 22 of Part I of the Schedule to the Law of Limitation Act, Cap 89 R.E.

2002. The Plaintiff is alleged to have been in prison, at the time when the Defendant's trespassed his land in 2001 and 2002. However the Plaintiff was released on parole in 2007. The Plaintiff did not sue until in 2015 when he sued the Third, Fourth and Fifth Defendants at Lilambo Ward Tribunal via Land Case No. 23/2015 as reflected in a judgment exhibit P2, In the plaint, the facts of being convicted or bonafide prosecuting with due diligence another civil 4 proceeding in court without jurisdiction, were not forthcoming or pleaded in the plaint, as. for the time spent thereat to be excluded, in terms of section 21(1) and (2) of Cap-89 (supra). Be as it may, even when the plaintiff initiated or sued in Land Case No. 23/2015 at Lilambo Ward Tribunal, it was beyond the prescribed period of twelve years, counting from when the trespass was committed in between 2001 and 2002. According to.the tew of limitation, the remedy for proceedings which are instituted after period of limitation, is dismissal, see section 3 of Cap 89 (supra). In that, regard, the plaintiff's suit is caught under the web of limitation. The suit is dismissed. However, taking a stance of the matter, I will not award any costs. \ . e.bJluvm^a MJM.E 2.2711/20.23 Judgment delivered through virtual court attended by th« ’ bird, Fourth and Fifth Defendant, Mr, Zuberi Maulid learned Counsel for the Plaintiff, Mr. Emmanuel Bakari learned State Attorney for F'st and Second Defendants. E. E LU VANDA

JUDGE 22/i 1/2023 1/ E