20160916 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY _,...._ ATMWANZA MISC. LAND CASE APPEAL NO. 132 OF 2015 (From the Decision of the District Land and Housing Tribunal of Geita District at Geita in Land Case Appeal No.5 of 2015 and original Ward Tribunal of Nkome Ward in Application No. 18 of 2014.) CHOGELO MNYANGA -------------------------------------- APPELLANT VERSUS MAGRETH MAMBO KIJUNGU -------------------------- RESPONDENT JUDGEMENT Ebrahim, J.: This is second appeal. The appellant, having been unsuccessful twice, at the Ward Tribunal and at the District Land and Housing Tribunal, has preferred this appeal. The respondent, Magreth Mambo Kijungu filed a case against the appellant, Chogelo Mnyanga at the Ward Tribunal of- Nkome. She claimed that the appellant had encroached into her landof four acres that she acquired in 1969. She explained to the Ward Tribunal that she moved from the village in 1974 during operation vijiji, however she continued to use the land together with her husband who died in 1993. Her son made follow up on .the invasion of the appellant into her land year 1 2000. She called three witnesses to prove her case. The appellant on the I l other hand evidenced at the Ward Tribunal that he inherited the land from I his father who was allocated the land by the Village Council of Nkome in i@ l 1980 and they have been living on the disputed land ever since.He called I ·1 one witness to prove his case. The Ward Tribunal after hearing the evidence of both parties, decided in favour of the respondent. The appellant was aggrieved by the decision of the Ward Tribunal and appealed at the DLHT for Geita at Geita. The first appellate Chairman after hearing the appeal decided the case in favour of the respondent, the decision that was unanimously supported by members of the Tribunal. The basis of his decision was that the appellant failed to prove as to how he acquired the disputed land; and that he has been in occupation of the suit land for only 5 years. Aggrieved again he lodged an appeal to this Court raising the following grounds of appeal; 1. That, the trial Ward Tribunal erred in law for recording evidence of witnesses who were not sworn before their testimony 2. That, the appellate tribunal erred in. law and in fact to rely the fact that appellant stayed in the suit land for 5 years and not 34 years 3. That, the appellate tribunal erred in law and in fact for failure to consider and address· the contradictory evidence of the respondent and her witness regarding the neighbours who surrounded the disputed land.- · 4. That, the trial tribunal erred for failure to summon some neighbours · of the appellant to get even clarification on the land in dispute ,2 despite the contradiction arose and despite the trial tribunal· to visit locus in quo something which appears to be intended to favour the respondent. V 5. That, the appellate District Land Tribunal erred in law to proceed with appeal un-procedural by proceeding with it without the respondent reply my petition of appeal in writing. On 14th June 2016 when this matter came for hearing, this court ordered the appeal to be disposed of by way of written submission and set the schedule thereto. Both parties adhered to the set schedule. In this appeal both parties appeared in person, unrepresented. In his written submission, the appellant began faulting the proceedings of the Ward Tribunal that the witnesses were not sworn in before the reception of their testimony hence renders their testimony to be unworthy of credit. Responding to the argument, the respondent in her submission stated that there are no rules in the Ward Tribunals in the conduct of their proceedings. She cemented her argument by citing the provisions of Section14 (1) (2) (3) (4) of the Land Disputes Courts Act No.2 of 2002, Cap 2016 (R. E. 2002) '(Vhich provides for the procedure for mediation in Ward Tribunals and that the section does not provide for the swearing of witnesses. · She was therefore of the view that, that ground of appeal is unfounded. Undoubtedly, I agree with the respondent that this ground of appeal is devoid of merits. I am saying so because, the law clearly states that the proceedings. at the Ward Tribuna·I shall not be bound by any rules of evidence or procedures that are used in other courts but rather shall 3 -regulate its own procedures. Section 15 of the Ward Tribunal Act, Cap 206 states: "15 (1) The Tribunal shall not be bound by any rules of evidence or procedure applicable to any court. (2) A Tribunal shall, subject to the provisions of this Act, regulate its own procedure. (3) In the exercise of its functions under this Act q Tribunal shall have power to hear statements of witnesses produced by parties to a complaint, and to examine any relevant document produced by any party. Therefore, the Ward Tribunal regulate its own procedure and the argument by the appellant that the Ward Tribunal contravened the procedure is baseless and I accordingly dismiss it. In further submission, the appellant faulted the District Land and Housing Tribunal in holding that the appellant lived in the disputed land for only five (5) years instead of 34 years. He stated that the fact has been proved by the appellant when the respondent replied to the question that the appellant has been there since 1979 which shows that the appellant has been i~ occupation for more than 35 years. The_ respondent has not made any specific response in this line of argument in her written submission. As correctly submitted by the respondent in her submission, this is second appeal. The general rule is -that an appellate court should not disturb the concurrent findings of facts of the lower courts unless there has been a misapprehension of the evidence, a miscarriage of justice or violation of some principles of law or practice. I cement my stance with the 4 holdings in the cases of Issa Mgara@ Shuka V Republic, Criminal Appeal No.37 of 2005 (Unreported); and Dickson Joseph Luyana and Another V Republic, Criminal Appeal No.1 of 2005 (Unreported), to ~ name but a few. The appellant herein has been raising the argument that he has been occupying the disputed land undisturbed for more than 34 years since -at the first appellate Tribunal. The appellate Tribunal dismissed the claim on the basis that the respondent said that the appellant has been in the occupation of the suit land for only 5 years. Since that line of argument touched on the issue of time limitation, it prompted me to carefully revisit the evidence of both parties on record. The respondent claimed at the Ward Tribunal that the appellant encroached into her land of four acres that she acquired in 1969. She explained to the. Ward Tribunal that in 1974 during operation vijiji, they moved to another village but continued to use the land together with her husband who died in 1993. That devastated her and she stopped farming the land and that was the beginning of the invasion by the appellant into her land. She evidenced further that in year 2000 her son made follow up on the invasion of the appellant but died before the case was finalised. When the respondent was cross examined by the appellant as to when the disputed land was invaded, she replied that it was 1979. She replied further that the last time she farmed the land was in 1994; The respondent apart from saying that her son initiated the proceedings in year 2000 and . died, there is no any other evidence to substantiate that her late son really initiated those proceedings in that year and when did he die. That kind of 5 evidence is not even found on the testimonies of the witnesses of the respondent. Therefore her testimony is merely unsubstantiated story that lacks proof. Thus cannot be relied by the court. Further, neither the respondent nor her witnesses evidenced at the trial Tribunal that the i.. appellant has been using the land only for five years. All that the witnesses of the respondent said was that they know the land was bought by the respondent's further who came into the village in 1968 and they then moved during operation Vijiji vya Ujamaa, in 1974. The appellant on the other hand evidenced before the trial Tribunal I 1. ., that he has been occupying the suit land since 1980 when his father was ; allocated the same by the Village Council. The trial Tribunal as well as the appellate Tribunal dismissed his claim on the basis that he has not produced any proof that he was allocated the land by the Village Council. However, even the trial Tribunal did not negate that he has been occupying the disputed land. Nevertheless, the trial Tribunal as well as the appellate Tribunal failed to appreciate the issue of law that the appellant is actually bringing the issue of limitation of time that respondent has filed her claim after a lapse of 12 years. From the evidence on record, I find overwhelming evidence that the appellant has been in uninterrupted occupation/ control over the disputed land since year 1993 when the husband of the respondent died and respondent admitted that she has not used the land ever since. The law, i.e. item 6 of the Schedule to the Magistrates' Courts (Limitation of Proceedings Under Customary Law) Rules, GN. No 311 of 1964 provides for time limitation on proceedings to recover possession of land to 6 be 12 years. According to the evidence on record, the appellant invaded the disputed land year ·1993 after the respondent admitted that she stopped using the land.She even admitted that the invasion of their land started in 1979. It means that all that time even when her husband was alive, they were aware that there were people who had encroached into their land. This also shows contradictions on the respondent's stories. Counting from 1993 to the day when the respondent initiated the proceedings in 2014, it is apparent that 21 years have lapsed before the respondent took action. The law has put limitation on claims so that litigations could come to an end. See the case of Marcky Mhango (on behalf of 684 Others) v Tanzania Shoe Company Limited andAnother, Civil Application No. 90 of 1999 (unreported).This is to discourage endless litigations to parties who sit on their rights and decide to pursuit later as an afterthought. Therefore, the long possession/stay in the land by the appellant gives him recognition over the disputed land and he acquires ownership of the said land by adverse possession. I fortify my stance with the principle applied by Mziray, J (as he then was) in the case of Registered Trustees of Holy Spirit Sisters Tanzania V January Kamili Shayo and 136 Others, Land . Case No 11 of 2012 where he cited .the case of Nassoro Uhadi V Mussa Karunge 302 [1982] TLR, in which Mnzavas. J. K citing with approval the cases of Shabani Nassoro V Rajabu Simba [1967] HCD-233, and Balikulije Mpunagi V Nzwili Mashengu [1968] HCD 20, held that:- 7 "where a person occupies another's land over a long period and develops it and the owner knowingly acquiesces such a person acquires ownership by adverse possession'~ It was held in the case of Shabani Nassoro (Supra), that:- "The court has been. reluctant to disturb persons who have occupied land and developed it over long period. The respondent and his father have been in occupation of the land for a minimum of 18 year~ which is quite a long time. It would be unfair to disturb their occupation.... " I fully subscribe to that position. With that, I agree with the appellant that he has been in occupation of land for a long time. Again as per the law more than twelve years had passed when the respondent opted to claim the disputed land. Having said so, I find the issue of limitation suffices to dispose of this appeal and I need not belabor with other grounds of appeal. In the upshot, save for the ground of appeal that I specifically dismissed, I find that appeal has merits and I accordingly allow it with costs. I further declare the appellant to be a rightful owner of the disputed land. Judge 8