LAND APPEAL NO 18395 SCANED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 18395 OF 2024 (Arising from District Land and Housing Tribunal of Temeke vide Application) No. 175 of 2022) ISMAILY NAM KA LAVA.......................................................... 1st APPELLANT KINDAMBA A. MPATILA.......................................................2nd APPELLANT VERSUS JOSEPH KISARO....................................................................... RESPONDENT JUDGMENT 21/10/2024 &22/11/2024 GWAE, J The appellants are before the Court challenging the decision of the District Land and Housing Tribunal for Temeke in Application No.175 of 2022 dated 20/6/2024, where the respondent was claiming for an order that, the appellants to vacate the land in dispute and demolish anything built on the area in dispute. He also sought a declaratory order that, he is the owner of the whole land in dispute and that, the appellants are the trespassers of the same. The respondent also prayed for costs of the i application. The brief facts of the case are as follows: Sometimes in 1990, the respondent bought unsurveyed piece of farm situated at "Charambe kwa Mbiku", Temeke Municipality in Dar es Salaam Region from one Hamis Kipende for a consideration of Tshs. 13,000/=. The respondent paid the agreed sum in instalments and he subsequently started to develop the same. According to the respondent, it was until 2020 when he noted that, there were trespassers in some parts of his property and upon inquiry he discovered that, the appellants trespassed in the property in dispute. On the other hand, the 1st and 2nd appellant that, they were in possession of their pieces of land since 1980 and 2002 respectively and that they had built residential houses thereof. At its conclusion, the Tribunal decided in favour of the respondent. Aggrieved, the respondents have approached this court armed with four grounds of appeal as hereunder: 1. That, the Hon. Tribunal erred in law and fact to allow the Application while the Applicant failed to describe the area in dispute. 2. That the hon. Tribunal erred in law and fact for failure to evaluate the evidence adduced by the 1st and the 2nd 2 appellants that they lived peaceful in the area in dispute in 1980 and 2002 hence come with uncertain and unjust decision. 3. That the hon. Tribunal erred in law and fact for shifting burden of proof to the appellants who was the Respondents in the trial tribunal. 4. That the hon. Tribunal erred in law and fact for giving judgment without evaluate the features identified after visiting the locus in quo." Hearing of the appeal proceeded by way of written submissions, the appellants were represented by Ms. Martha M. Mohamed, learned advocate, whereby the respondent enjoyed the service of Ms. Amina Mohamed Mkungu (adv). From the grounds of appeal, I have noted a legal issue in the second ground of appeal, which I think it is pertinent to address first. The second ground of appeal is to the effect that, the Hon. Trial Tribunal erred in law and fact for failure to evaluate the evidence adduced by the 1st and the 2nd appellants that they lived peacefully in the area in dispute in 1980 and 2002 hence come with uncertain and unjust decision. In this ground, the counsel for the appellants submitted that, the trial Tribunal did not consider the evidence adduced by the first 3 appellant that, he purchased the land in dispute since 2002 and started to live peaceful in the area in dispute since 2004 whilst the second appellant started living in the area since 1980. It was argued that, as per paragraph 6 (a) and (b) of the respondent's application, the respondent bought the land in 1990 and discovered trespass in 2020. Therefore, the respondent has abandoned the disputed property for 30 years. To bolster his argument, he cited the case of Moses vs. Lovegrove, (1952) and Hughes vs. Griffin, (1969) 1ALL ER 460. In his reply submission, Ms. Amina submitted that, when he bought the suit land in 1990, the father of the second appellant was a witness in the sale agreement. He further stated that, the respondent was using the same for cultivation on various occasions as he was living and working outside Dar es Salaam and visited it sometimes in 2020 when he found the appellants to have made developments in the suit property. Having dispassionately gone through the submissions by the counsel for the parties, the issue for determination is whether this matter is time barred. It is a settled position of law that under Item 22 Part I of the schedule of Law of Limitation Act, Cap 89 R.E 2019 and Section 3 (1) of 4 the same Act that, the time limit for recovery of land is 12 years from when the cause of action arose. It is the version of the respondent bought the suit land in the year 1990 and he became aware of the appellants' trespass in 2020. However, according to the records of trial Tribunal and the submission by the counsel for the appellants, the first appellant bought the suit land in 2002 and started living peacefully in the area in since 2004, while the second appellant was living in the suit land since 1980. It is also in record that, the respondent referred the matter to the Ward Tribunal for statutory mediation and at the trial Tribunal in 2022, which is almost 18 years. Accrual of the right of action has been provided under section 9(2) of the Law of Limitation Act, Cap 89, Revised Edition, 2019 (LLA) which states that:- "P (2) Where the person who institutes a suit to recover land, or some person through whom he claims, has been in possession of and has, while entitled to the land, been dispossessed or has discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance." Guided by the above provision, since the respondent bought the 5 suit land in 1990 and the appellants have been occupying the same for more than twelve (12) years uninterrupted until in 2020. It is also clear that, the respondent when cross-examined by advocate Martha Mohamedi admitted that he was regularly visiting his land. For the sake of clarity parts of his response to the questions paused by the appellants7 counsel are reproduced herein "Eneo langu nilikuwa nalitembelea mara kwa mara. Ukubwa wa nyumba zao wadaiwa zipo kwangu. Waliongeza nyumba zao." If the appellant was regularly visiting his parcel of land as portrayed, his evidence that, he became aware of the trespass when he visited the suit land and found developments therein is an afterthought. The respondent is barred from recovering the suit land by virtue of Item 22 Part I of the schedule of Law of Limitation Act, Cap 89, Revised Edition, 2019 and Section 3 (1) of the same Act. The Court of Appeal of Tanzania in the case of Registered Trustees of Holy Spirit Sisters Tanzania vs January Kamili Shayo and 136 others, Civil Appeal No. 193 of 2016 held that for there to be adverse possession, the adverse possessor must establish the following: 1. That there had been absence of possession by the true owner through abandonment. 6 2. That the adverse possessor has been in actual possession of the piece of land; 3. That the adverse possessor had no color of right to be there other than his entry and occupation 4. That the adverse possessor had openly and without consent of the true owner done acts which were inconsistent with the enjoyment by the true owner of the land for purposes for which he intended to use it; 5. That there was a sufficient animus to dispossess and an animo possidendi elapsed 6. That there had been no interruption to the adverse possession throughout the aforesaid statutory period; and 7. That the nature of the property was such that, in the light of the foregoing, adverse possession would result" Also this Court in Thomas Matondane vs. Didas Mawakalile & 3 Others (1989) TLR 210 held; According to the Customary Law (Limitation of Proceedings) Rules GN. No. 311/1964 item No. 6 in the Schedule, any proceeding to recover possession of land should be filed within 12 years from the day the right accrues. Since it is contended that the appellant was in adverse possession of that piece of land since 1966, then the four respondents or the dan council should have sued the appellant within 12 years from 1966. But that was not done and so the appellant acquired a title to that piece of land after the expiry of the 12 years. 7 On the basis of the position of the law and evidence adduced by the parties before the trial tribunal as well as the foregoing reasons, I am satisfied that that, the matter was filed out of the prescribed time as correctly submitted by the appellants' counsel. Having found as herein, I do not see any reason to be curtailed determining other grounds of appeal In the event, I proceed allowing the appeal with costs. It is so ordered. DATED at DAR ES SALAAM this 22nd November 2024 8