19920217 TZHC Dar es Salaam

~c... b~uYl LL~~ --------------·------- . - THE UNITED REPUBLIC OF ·TANZANIA ...;..,,..-.:,;;.-- ....... - : - - - IN THE HI(;H1 COURT OF TANZANIA AT OAR .ES SAtAAM ~ (PC) CIVIL APPEAL NO. 19 OF 1990 MTUMNA ATHUMANI SANZE • • • 0 0 0 0 0 0 0 O O O 0 O O 0 APPELLANT yersus RAJABU ABOALLAH SANZE • •• e O O 0 0 .. 0 0 0 • O O O • RESPONDENT ABDALLAH SANZE died in 1960 at the village of Ch~maai, leaving ntt child qf his own. 1.••tumwa Athumani sanze, the appellant herein, is the son of· Athumani Sanze 1 . his brother. The Respondent,. Rajabu Abdallah Sanze, is also a child of his brother. Following the death of·t~e Respondent•s father the deceased, Abdallah sanze went to Bunju, in Sagamoyo district, and took the Respondent and his three sisters to his borne at ·chal'nazi and lived at Chamazi village and cultivated the shamba originally owned by J\bdallah even after Abdallah' s death. He has been: living there ever since. In 1989 the Appellant went to the Mb_agala Primary court. and instituted P.robate and Administration Cause No,-62 of 1989 seeking to be appointed administrator of the estate of Abdallah Sanze.~· The estate of Abdallah sanze consists j_n th0 h('Use ·artc'l shamba occupied lSy the Respondent, Rajabu, ~ince 1960. The ,~Pr.:.mary Court of Mbagala heard the Probate and Administration cause and ruled tnat the house .and shamba occupied by the Respondent must be sold so that the Respondent and the other relatives inclucing the present Appeilant can get a shareo The-Respon~ent was aggrieved by this decision and appealed to the District Court of Temeke, at Kivukoni. The Principal District Magistrate who heard the appeql ruled that it was wrong for the trial court to entertain the matter as a probate and administration cause thirty years after the death of ;JJdall~h. He formed the view that the proper caurse was for an ordinary suit to challenge the occupier, Rajabu sanze, on the ownership of the shamba he now occupies. The lec;\rned Principal Di-strict Magistrate thus quashed the order of the Mbagala· Primary Court ann ordered that any interested party be allowed to file an orr1inary suit to establish the ownership of the house and shamba. The /\pp-2lla·n,t , Mtumwa I ...~h11:·,,. · e1---,~ •,,;- "'. -,~. :'": -:-~ - q__-__ .,, '>1ith , ··· -c+ .. 2 - It is not in dispute that the Respond~nt, Rajabu Abdallah Sanze 11-1ed with .the dece·a-s.ed Abdallah until his death in i960. It 1$ al.so not in dispute that after the death of /J:>dallah the Respondent ·has ~ontinued to live there and cultivated the sharnba to the present ~ay. All this time the Appellant and other rc:.:latives were aware of the fact that Abdallah had died and that the Respondent, who lived with him in that ,1~use, has continued to liv~ there and cult-ivated the shambet By any standards thirty years is a long time. In customary land holding, as was the case here, it is a long enough period for the person in oeeupation, _provided that certain conditions are fulfilled, to aequlr-e a good title to Land against a person who wou1d otherwise be eniitled. Among the important conditions is eontinuous uninterrupted, oecupation with the· knowledge of the other person but without protest, Whether one looks at it under the doctrine of ndverse possession or of long possession anti acquiescence the underlying principle is that 'f;t will be unreasonable ann unfair for the courts to disturb the occupier who has been developing the-lan1 fvr so long in favour of a person who has •at back for such a long time and now suddenly awak~ns a~-claims title to the land. see ·s,,LIKULIJE MPUNG:r v NZWILI M/,SHANGU [i962J. HCO 2~ and SAIDI MFAUME V RAJABU FtJKO. The principle is very·well illustrated by the Cale 'of BI JULIANA RWAKATARE v KAGiiNDA (1965) L~c.c.A 43/1963 reprodueed in R. w. James & G. M. 'Fi,mbo: "CUSTOMARY LANO LAW 'OF' TANZANIA, A SOUR~! BOOK", EALB pg.543. The case involved Haya law in Bukoba and the facts are set·out as follows: 0 This · appeal concerned a dispute over ownership of 1ande •.<i The parti~s are reiat~·d an<l ore uf the same cian, the ' ' .. appellant being the daughter of the respon~ent•s sister. When the responr:'fent•s fathe!r died in 1934 the t;spo~dent inherited the land and then allowed the 'appellant•s·mothet to live there~ The appellant.ts case •~as that it was her mother who in fact inherited the land hut this allegation· must be wrong sicne in 1934 women could not inherit clan land in Bukoba. The only important matter for the court•• consideration was whether the long occupation of the ~iece of lan~ by the appellant and her mother s~nce 1934 shoult1 be disturbed." In deciding this point Saini, J. (as he; then was) said: "All these years as it appears from the•evirlence, the respondent <li"'- n,.1t r~quire the :Land at all and it is not clear. as to why he wants it now~ Within so many years I pcc::upatii:m a lot: of dov~1or,ment Jlnit.st R•aV~ ·bean ... ': f'I •• ,' ••• 3 carried out on the land by the occupants anrl to ~ it appears that it w0uld be grossly unfair after suc:h a long time to aisturb them. It matters very little that the occupants are women and nut trtcm. Accoriiingly I allow this ·appeal and sat aside the judgment and decree of the learned P.egi0nal Local Courts offic•r of Bukoba. The land is declared to be the property of the appellant by virtue of long occupation Qf 28 years." I find this reasoning applicable to the rresent c;:;ase i~ which the Respondent•.s contirtUc>us anti unint(;rrupted occupation uf the lanc1 to be un'1isputen. Granted that the land wus thE:l property of the deeeased /J>,!allah sanze but the Respondent has been in continuous occupation of the lan~ since 1960 when Abrlallah sanze r1ied. All this time the Appellant was aware of the presence of the Re~pondent and saw him <1~Velop the lanr!. He neither protested nur applied for letters of ac,ministratiun of the estate of the cteccnsed until August 1989 whea he went to tha Mbagala Primary Court anc1 applie.d for ~ette~s of adm.inist,a- c tion Jf the estate. The Primary court ruled that the. Respondent should n,-:it be allowed to occupy the shambu and hous.e alone as. the J\Ppellant nnp other relatives . :., .. . . are ': .also entitled . to a share of the est&te. · · ' . '!'he learnen Principal . District,' Magistrate - ...who heart:! the appeal · from the Primary cc,urt hel~. that _it'.was improper to entertain the , .. probate end administration matter ~early thirty y~ars, after the death · of Ab~allah sAnze. He held •• ' that the issue is nolcmger OJ?.E:! of. succe.S'sion ",l now but of ownership. He therefore quo.shed the proceedings of the Primary Court and or~ered that any intcrest11d party is at liberty to institute .a fresh suit challenging the title~ of the Re~p~ndent, Rajabu san2e, over th~ shamba. :tt seems to· me that the· 1earned l?rincipal District' Magistrate \ had the -power to or~er as ·he hns done under the provisions of section . ~ ' 22 of the Magistrates• courts Act; 19C4. The fact that the R.e'spondentt R.ajabu Sanze, has been in occupation of the shamba for: a continuous ' • • I , • period of .29· to 30 years raises a presumption in his tavour and subject- to eviAence being a'1d1,1cea relating to knowledge ann any protestations by the Appellant the court may ~ecla~e the Respondent the owner of the shamba as was done in the case of BI JULI/.N'A RW/\.Rt,TARE v Kl\GANOA referrec1 to above. until such a s~it is instituteo the Respondent should not be disturbe~- in his occup·ation of the s:hamba and house. / - 4, .- In the result I upholr:1 the decision of the District court anq '11smis.s this appeal with costs. · Delivered in chambers at Dar es salc1am this .27th ~ay of February, 1992 in the presence of· both appellnnt anrl Respondeht i·n person •. AT OAR ES SALAAM 21TH FEBRUARY, 1992 JUDGE