20160929 TZHC Mwanza

6f.;i f.1 1 rJ AL-

IN THE HIGH COURT OF TANZANIA ·0 ,-;, ;, \.,

IN THE DISTRICT REGISTRY t ATMWANZA MISC.LAND CASE APPEAL NO. 173 Of 2015 · {From the Decision of the District Land and Housing Tribunal of Mwanza District at Mwanza. In Land Case Appeal No. 115 of 2013 and original Ward Tribunal of Mkolani Ward in Application No. 48 of 2013} BARTOLOMEO MISANA .......................... APPELLANT

VERSUS MSAFIRI KANOGE .................................... RESPONDENT

JUDGMENT 13.06.2016 & 29.09.2016 L. M. MLACHA, l The parties to this appeal are close relatives_. The appellant is the respondent's uncle (mjomba). The record shows that, the parties had very good relations in the past. They are now at longer heads and all efforts to reconcile them has failed. At the center of the controversy, there is a piece of land which is occupied by the respondent against the wishes of the appellant. It not disputed that the respondent was invited by the appellant in 1994 to live in the suit premises. But when the appellant demanded the plot back, he met resistance form the respondent who had made permanent -tiz developments. The respondent resisted to vacate hence a serious dispute between them. The appellant, being a special owner of the land, decided to send the respondent at Mkolani Ward Tribunal for redress. The tribunal heard the parties and their witnesses. It made the following decision: "Baraza limechunguza na kujiridhisha na maelezo ya mdai na mdaiwa pamoja na mashahidi. Baraza limeona kwamba kati ya mdai r:a mdaiwa mgogoro upo. Baraza limeamua kuwa mdaiwa amtafutie· kiwanja kingine mbadala ndani ya kata ya mkolani. ldha baraza linamuagiza kuwa awe amapata kiwanja hicho ndani ya mwezi mmoja kuanzia tarehe 24.09.2013... " The respondent could not honour this decision. He could not even return to the tribunal to show some efforts of complying with

what had been decided. The record are silent on his side. The appellant decided to lodge an appeal to the District Land and Housing Tribunal (DLHT). His appeal could not be successful. It was dismissed. In dismissing the appeal, the chairman of the DLHT had the following observation and decision: 2 "The appeal at hand suffers the consequence of requirement of the law of limitation of actions to recover the suit land. It is a principle of law that a person with a better title to land should assert his .claim to it within an acceptable period of time from the date when his right was challenged or from the date ·when the cause of action arose. . .. the respondent was given a disputed land only for temporary use but the appellant continued to in his right when he fails to claim back his land until lapse of more than 12 years now. .. the appellant has no room to claim back the land because he slept in his right for more than 12 years. I thus dismiss the appeal with costs.// The respondent took possession and ownership of the land on the principle of adverse possession and the Law of limitation Act. The appellant could not see justice in the decision. He has now appealed to this court on the following grounds: 1. That the district Land and Housing Tribunal grossly erred in law and in fact by misdirecting itself in adjudicating the matter basing on the· ground that the Appellant slept

over his right. While it was the issue of license which even if it takes 50 years the land in dispute is subject to return as long as the Respondent in his evidence agreed that he was · licensed the land in dispute. In this context however, the Respondent was not an adverse possessor who could use the term of 12 years undisturbed against the true owner as far as the law of limitation is concerned. 3 2. That the district Land and Housing Tribunal grossly erred in law and in fact by considering the Respondent and living no room for any compensation of Appellant unexhausted of his own premises. He requested this court to allow the appeal and make the following orders: i. That, the orders and Judgment of the Mwanza District Land and Housing Tribunal be set aside. ii. That the Appellant be declared a lawful owner of the disputed land located at Nyamalango Mkolani within Mwanza City. iii. That the costs for this suit be granted. iv. Any other .relief (s) that this Honourable Court may deem fit and just to grant. Parties appeared in person to argue the appeal. Having examined the record and the submissions made before this court closely, I have noted that the evidence on record does not support the decision of the two courts below. The evidence shows that the respondent came to Mwanza in 1985 to join his mother who was living and working in a pig project owned by the appellant. The

appellant who was by then working at Nyegezi Semina·ry had a pig project. It is said that he had 100 pigs and 100 chicken by then. The respondent stayed with her mother for some time. He grew up and got married. His wife developed some difficulties with his mother and the appellant had to interfere. He decided to separate them as a measure of 4 I ., restoring peace. He had two plots by then. One was owned by him and it had a foundation. The other plot was under his control as a caretaker. It was \..J owned by his friend, Pena Kilua who had been transferred to Tanga. It had nothing· and was in danger of being invaded. He decided to allow the respondent to erect a temporary structure and stay there. He could benefit by staying there but could act as a guardian to the plot. He was allowed to stay there on those arrangements. He built a temporary house (made of mud blocks and roofed with grass) and shifted to the house in 1994. The record show that the respondent started to build a permanent house sometimes later. Speaking on this aspect, the respondent had this to say before the Ward Tribunal: "Nikaanza ujenzl nilianza na slop ya chumba na sebule na wala sikusikia mgogoro wowote. Nikaanza ujenzi wa nyumba kubwa ya kuishi na familia yang~ nilipokamilisha ndipo mgogoro ulianza 2000. Niliitwa na wazee wa mtaa nilienda na kuamu/iwa kuwa nibomoe nyumba na niache Kiwanja. Sikukubaliana

na uamuzi-kwani eneo nilipewa na sikuvamia. //(Emphasis added). The evidence show that there was no dispute up to 2000. The dispute arose in 2000 after the construction of a. new permanent house. The respondent was stopped to proceed to build. He could not respect the s Jp decision of elders. He proceeded to build and is still in the suit premises to date. Currently, according to the submissions made before me, the plot has the small house and a big block house which is said to have 10 rooms. It has been roofed but has no doors and windows. It is a semi-finished house. The DLHT found that the respondent is protected by the principle of adverse possession and denied the appellant possession of the land. With respect, I don't accept that view. There was a lot of evidence from the appellant to show that the respondent was invited and occupied the land as a licensee. He was a temporary invitee to the land. He also agreed so in his defence evidence. The principle of adverse possession cannot be invoked in favour of a licensee. For a person to benefit from this common law principle, which is now part of our law, he must prove by evidence that he entered the land without invitation and occupied it for a period exceeding 12 years without resistance from the owner. In this case, apart from the fact that the respondent was living in the land under a license, but he was objected

soon after starting to build the permanent house. He did not live for any period exceeding 12 years without resistance from the owner. He built the disputed structure in 2000 and met resistance right from there. There was resistance from 2000 to date. He was ordered to demolish the structure but could not 6 do so. It is obvious that the respondent turned to be a trespasser to the land after the year 2000. I will in the upshot, declare the respondent a trespasser in the suit premises. He is ordered to vacate within 60 days from today. He shall be evicted and all structures be demolished at his costs, if he will not vacate within the said period. Appeal allowed with costs. _ ~------- L. M~lacha

JUDGE 29.09.2016 Court: Judgment delivered in chamber this 29 th day of September, 2016 before Hon. L. M. Mlacha, Judge in presence of both parties in person. Right of Appeal explained.

JUDGE 7