kassian mbelege vs haridi kuhowa 2005 tzhc 167 26 july 2005

IN THE HIGH COURT OF TANZANIA AT PAR ES SALAAM PC. CIVIL APPEAL NO. 161 OF 2004 KASSIAN S/O MBELEGE..................APPLICANT VERSUS HARIDI S/O KUHOWA................RESPONDENT Date of last order - 17/5/2005 Date of Judgment - 26/7/2005 JUDGMENT MLAY, J.: The appellant was successfully sued by the respondent in the IFAKARA PRIMARY COURT for the ownership of two acres of land purchased by the respondent from one MWANAISHA PALLANGU JAMAL. Being aggrieved by the decision of the Primary Court; the appellant unsuccessfully appealed to the District Court of Kilombero. He has now come to this court on a second attempt to dislodge the decision of the Ifakara Primary Court. It is common ground that the land in dispute is part of six acres of land which belonged to the late ABDALLAH NAMANJI and which was sold to the respondent by the deceased's wife, MWANAISHA PALANGU in 1998. It is also a common ground that the respondent l was shown the boundaries of the 6 acres of land in the year 2000 by JAMAL ABDALLAH NAMANJI, PW 3 the son of the deceased and MWAISHA PALLANGU, who testified as PW 2, in the presence of the appellant and a Village official RASHIDI MIUMO, who testified as appellant's PW 4. It was the appellant's case that he had been given the two acres of land which are in dispute, by the late ABDALLAH NAMANJI in 1992 and that when the respondent came to be shown the six acres of land, the appellant was living on the land and cultivating it. Having given consideration to the grounds of appeal and the submissions by both parties at the hearing of this appeal and also after carefully going through the record and the judgments of the two courts below, this court agrees with the decisions of the two courts below that the appellant did not prove any legal title to the land in dispute. Although the appellant was in occupation of the land at the time it was sold to the respondent in 1998, being in occupation did not give title over the land to the appellant. The Primary Court did not believe the appellant and his witnesses that the land was given to him by the late Abdallah Namanji. This court being a second appellate court is not better placed to fault the Primary Court on that question of credibility of the witnesses and having scrutinized the record of the proceedings and judgment of the Primary Court, we have no reason to think that the Primary Court was wrong in not believing the appellant and his witnesses. In the absence of credible 2 evidence that the appellant was given the land in dispute by the late Abdallah Namanji, the issue is whether the appellant can rely on the principle of adverse possession of land. Unfortunately for the appellant, the limitation in customary law for land claims, is twelve (12) years. If the appellant was in possession of the land for 11 years as he claims or for ten years as it would seem to be the case counting the period between 1992 when he alleges to have been given the said land and the year 2000 or even 2002 when the respondent was shown the land, the appellant did not therefore acquire title for the land by being in adverse possession, because the limitation period to claim the land had not lapsed. In the circumstances and for the reasons given above this appeal must fail and it is accordingly dismissed, with costs. The decisions of the two courts below are confirmed. 1;1 • t JUDGE The appellant has the right of appeal to the Court of Appeal upon obtaining a certificate that there is a point of law for consideration by the Court of Appeal. JUDGE 26/7/2005 3 I Delivered in the presence of the Appellant and the respondent this 26th day of July 2005. 26/7/2005 678 Words 4