20090108 TZHC Singida

THE UNITED REPUBLIC OF TANZANIA. IN THE DISTRICT LANI) AND HOUSING TRIBUNAL OF SINGIDA \ AT S1NGIDA. LAND APPLICATION NO.45 OF 2007. ATHUMANT MOHAMED & OTHERS..................................APPLICANT VERSUS MIPIRO VILLAGE COUNCIL...................................RESPONDENT JUDGMENT. On 1 " November 2007, the one called Athumani Mohamed and two others herein after referred to as the Applicants instituted this case against one Mipiro Village Council herein after referred to as the Respondent, The Applicants claims for the ownership of 50 acres that alleged was taken by the redistributed the same to other peoples (Villages). In there written statement of the defence along with prayer for ds!missal of the Application with costs, the Respondent stated that there is no any dispute with the Applicant, and ask the area was when acquired? And for what purpose? From the pleadings filed herein the following issues were framed:,- Whether the Respondent has taken by force the suit land from the Applicant. Whether the suit land is the property of the Applicant. Whether the Applicant has any cause of action against the Respondent. Relief (s) the parties are entitled to. Both parties appears in person, and the village council of Mipiro is represented by the village Chairman one called Fanuel Ntandu in term of S. 30 of the Land Disputes Court, Cap 216 (R.E 2002), and The Applicants appointed one called Athuman Mohamed to argue the case on behalf of his fellows. Now, let me start with the 1st issue, that require me to determine if the suit land is belongs to the Applicants, that according to the evidence adduced by PW1 (Ismail Sima) and PW2 (Ramadhani Soa) clearly shows that the Applicant and his family they born at that land in dispute and grown to, and even during the operation vijiji (Villagerization), when were transferred to Merya, the Applicants and family continue to cultivate to the suit 1and. Therefore, the first issue is answered in Affirmative that the suit land is belongs to the Applicants. 2nd issue, whether the Respondent has taken the With regards to the suit land by force, As I said earlier that the Applicant's family together with other villagers were transferred to Merya Village during Operation vijiji, but still used their previous land for cultivation and the same was testified even by the defence witness one called Frank Nyekehe (DW2) when; cross examined by the Applicant, the witness testified that:- "Mliishi eneo hilo, Mkahama 1974, Mlitakiwa kuomba kurudi katika maeneoyao From the above quotation, clearly show that even DW2 (Frank Nyekehe) knows that the Applicant has used the suit land after villagerization. It is improper, the village Government has no power to take away land from Applicant's and allocated to other villagers or people without first sought the consent of the Applicants or without compensating them for alternative parcel o the land. It is a defence case that the area was declared to be an industrial area by virtue of the village by laws of 1991, (Sheria ya maendeleo ya Kijiji cha Mipiro, Maendeleo ya Kijiji ya 1991), which was approved by the District council on 29th1 May 1995, this by laws is a retrospective effects can ot be used to blessed the action of 1976. Therefore, this issue answered in favour of the Applicant's, Let me turn to the last issue, It is a crucial issue in this case, I am tried to be very careful when dealing with this issue. The 3rd issue is whether the Applicant has cause of action agaihst the Respondent, According to the Evidence on records, It is undisputed that the suit land was acquired by the village Government in the year 1976, and the year 1984 respectively, when counted the years from 1976 up to date when this case filed at this Tribunal, That is 22' November 2007, It is almost to 31 years from when the case of action arises. Therefore, in term of the 1St schedule, part A of the law of limitation Act, 1971 Cap 89 (R.E 2002), items 22 provide for limitation of action for filing a suits to recover the land to be 12 years from when the cause of action arises. According to the S. 5 of the Law of limitation Act, Cap 89 (R.E 2002) provide:- "Subject to the provision of this Act, the right of action in respedt of any proceeding shall accrues on date on which cause ofactioifi arose" As I said earlier that the cause of action arises on the year 1976 when the Respondent acquired the suit land, and the right of action started to run against the Applicant, It is my settled view that the Applicant's ApplIcation was time barred in law, the same will be instituted within 12 years frcm the date when cause of action arises. As provided for under I st schedule, Part A item 22 of the law of 3rd issue is answered in limitation Act, Cap 89 (R.E 2002), therefore the favour of the Respondents. Therefore, I am joining my mind partly with the opinion of the Assessor who opined in favour of the Respondent, since in the disputes land there is a graves and dilapidated structure which is originally belongsi to the Applicant's relatives, is hereby declared to be their properties. II Finally, this TriFna1 enter Judgment that the Respondent has a' better it1e over (44) forty foui acres and remain is the properties of the Applicant. It is so ordered, lasing on the above observation and founding of this Tribunal. No order to css mention. Vincent A. Lingwentu Chairman I 22/12/2008. 81h January 2009. Delivered in presence of parties this pal .......... ... ......... ...... I VincentA. Liq ... Chairm ...... 8/01/200. ' Tribunal: Right of Appeal is explained. 'p Assessors: 1 .AKisenge Signed 2.Ekindulu J GION