Land Appeal No

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT PAR ES SALAAM LAND APPEAL NO. 6986 OF 2024 (Originating From Application No. 16/2009, Kinondoni District Land and Housing Tribunal) CORNEL NAIMAN MATERU..................... APPELLANT

VERSUS CORDIAN MATERU AKARO......................................... RESPONDENT

JUDGMENT 24/07/2024 to 22/10/2024 E.B. LU VAN DA, J The Appellant named above is appealing against the decision of the Tribunal which dismissed his claim, on the account that the suit was time barred. In the memorandum of appeal, the Appellant raised three grounds of appeal: One, the trial Tribunal erred in law for failure to afford parties the right to be heard; Two, the trial Tribunal erred in law by declaring the Respondent adverse possessor on a registered land; Three, the trial Tribunal erred in law and fact for failure to determine the ownership of the disputed land according to the evidence adduced by the parties; Four, the trial Tribunal erred in law by giving decision without considering the opinion of assessors as required by the law Ms. Stela J. Manongi learned Counsel for Appellant submitted that the trial Tribunal erred in law for failure to accord the parties right to be heard on the issue raised suo motu. She submitted that the trial Tribunal during the i preparation of the judgment raised the issue suo motu that the suit before it was time barred and proceeded to dismiss the case without calling parties to address the new raised issue in the case. She submitted of the view that this was legally wrong as parties were not given time or opportunity to address the court on whether or not the suit was time barred before the court make decision. She submitted that it

is well established that parties are entitled to the right to be heard before any decision issued against them, argued that failure to do so amount to the infringement of the fundamental principle of natural justice. She cited Said Mohamed Said vs Mohsen Amiri and Another, Civil Appeal No. 110 of 2020, CAT. In response to this ground, Mr. Rajabu Mrindoko learned Counsel for Respondent submitted that the issue as to whether the suit was time barred was not a new issue suo motu raised by the trial Chairperson. He submitted that the issue was born from the evidence on record and thus the matter was left to the Tribunal for decision though it was not among the issue whom were specifically framed for the trial Tribunal's determination. He submitted that going through the proceedings of the Tribunal specifically page 24 and 25 of the typed proceedings, the Appellant when cross-examined admitted that he discovered trespass by the Respondent since 1988 and until he decided to institute this matter it was about nineteen years. He submitted therefore that, 2 the issue that this matter is time barred is born out of evidence of the Appellant himself and it was left for decision and not new issue as submitted. Arguably there was no specific issue which was framed for determination as to whether the suit was time barred. When the Appellant was testifying under oath, in his testimony in chief

he asserted that in 1988 he visited at the suit property and found that the Respondent constructed a three roomed shack. When the Appellant was cross-examined by the learned Counsel for Respondent, stated that from 1988 to 2009 when he sued, is nineteen years. It is in evidence that the Appellant asserted to had involved into fatal accident in 1987 and was bedridden for three months at Aga Khan Hospital where he failed to afford the facility's bill or invoicing, thereafter referred to Muhimbili where he stayed for six months. However, when was cross-examined by the learned Counsel for Respondent, he stated that from 1988 to 1989 he got relief of his ailment. Therefore, I node with the argument of the learned Counsel for Respondent that the question whether the matter was time barred or not, was tested vide evidence. Meaning that, it was upon the Tribunal to decide. The situation could be different if that fact did not feature anywhere in the evidence. To my view, it will be a phantom argument to remit the matter at the Tribunal with directives that parties should be heard while everything is reflected in the testimony of the parties. To my view, the right to be heard and framing a 3 specific issue for determination are two distinct phenomenal. While the former entail parties to be heard prior any adverse decision is handed out against parties, the latter entail the court to

narrow down the scope of the matter on contention in furtherance of making the trial more focused. However, when it comes to the question of time limit the law is very clear, it can be raised at any time. Section 3(1) of the Law of Limitation Act, Cap 89 R.E. 2019, with marginal notes, dismissal of proceedings instituted after period of limitation, provides, "Subject to the provisions of this Act, every proceeding described in the first column of the Schedule to this Act and which is instituted after the period of limitation prescribed therefor opposite thereto in the second column, shall be dismissed whether or not limitation has been set up as a defence' To wrap up, it can be said generally that the issue of time limit was not a new issue, nor raised by the learned Chairperson proprio motu at the time of crafting the impugned judgment, rather was born from the testimony adduced by parties during the trial. For ground number two, the learned Counsel for Appellant faulted the learned Chairperson that it was legally wrong to declare the Respondent adverse possessor on a registered land, citing section 37 Cap 89 (supra). She submitted that the law is clear that the declaration is not automatic as decided by the trial Chairperson. She cited Hon. Attorney General vs Nwahezi Mohamed 4 (Administrator of the Estate of the Late Dolly Maria Eustance) and Others, Civil Appeal No. 392 of

2019, CAT. She submitted that according to the evidence adduced by the Appellant concerning the disputed land, it is clearly that he was registered as the rightful owner, arguing there is nowhere in records or evidence by the Respondent at the Tribunal showing that he applied to the High Court and had been declared adverse possessor over the suit land. In response, the learned Counsel for Respondent conceded that it was wrong for the Tribunal to declare the Respondent as owner by adverse possession for explanation that the Respondent has never pleaded that relief. He submitted that after finding that the suit was time barred basing on the evidence of the Appellant, the Tribunal ought to have ended up dismissing the suit only. He submitted further that the error is not fatal, argued it is curable under section 45 of the Land Disputes Courts Act, Cap 216 R.E.

2019. He invited this Court to correct the judgment by quashing the judgment and setting aside such un­ solicited relief which was wrongly granted in favour of the Respondent. On my part, I am in agreement with the learned Counsel for both parties, that the Tribunal slept into an error to decare the Respondent as the rightful adverse possessor of the suit land. It is common ground that the land subject for adjudication at the Tribunal was a surveyed and registered land under a long term of right of occupancy, described as Plot No. 807 Block A Kijitonyama Area 5 kwa Ali Maua, as per the letter of offer exhibit Pl. Section 37(1) Cap 89, provides, 'Where a person claims to have become entitled by adverse possession to any land held under a right of occupancy or for any other estate or interest, he may apply to the High Court for an order that he be registered under the relevant law as the holder ofthe right ofoccupancy or such other estate or interest, as the case may be, in place of the person then registered as such holder, and the High Court may, upon being satisfied that the applicant has become so entitled to such /and, make an order that he be registered accordingly, or may make such other order as the High Court may deem fit' Therefore, declaring someone as entitled to adverse possession to any land held under a right of occupancy, fall under the exclusive domain of the

High Court. In that regard, the Tribunal has no jurisdiction to grant such relief. Presumably, the Tribunal granted such relief by virtue of a fact that the Respondent had raised a counter claim claiming ownership of the suit premises. However as alluded by the learned Counsel for Respondent, even in the counter claim there was no relief which was specifically pleaded for entitlement to be declared adverse possessor of the registered land. Indeed, that relief could not be available to the Respondent, for reason that his claim was based on a fact that he purchased orally the suit land from the Appellant in 1987 for a consideration of TZS 80,000/=, which fact was supported by the erstwhile wife 6 of the Appellant one Mary Leandry Mapunda who testified for the Respondent as DW3. Therefore, as said above, a relief for adverse possession was not available for the Respondent. A proper cause was for dismissal of his counter claim and is accordingly ruled. Ground number three, the learned Counsel for Appellant submitted that going through the proceedings of the Tribunal it is in records that during the trial the Appellant adduced evidence-letter of offer with Ref. No. D/KN/A/27014/2/SQM dated 7/11/1986, site plan where the suit land lies, land rent for payment up to 2008 which were admitted as exhibit Pl. She submitted that such evidence proved that the Appellant is the rightful owner

of the suit property. She submitted that there was no evidence adduced by the Respondent to prove ownership, rather gave mere words that he bought the suit land from the Appellant without any evidence regarding the sale agreement. In reply, the learned Counsel for Respondent submitted that the Tribunal raised the issue of law from the evidence which touch the jurisdiction of the court that the matter was time barred, argued that the Tribunal was legally required to determine that issue of law first. He submitted that since the said issue had effect of disposing the matter, the Tribunal had no jurisdiction to entertain the alleged issue of ownership of the suit land. 7 On my part, I go along the argument of the learned Counsel for Respondent, that the Tribunal having raised the issue of time limit and ruled the matter to be time barred, in law the same Tribunal ceased to have jurisdiction to determine the issue of fact regarding ownership of the suit land. As much the issue of law determined the matter conclusively to its finality, there is no leeway for the Tribunal to sneak into determining issues of facts. Ground number four, the learned Counsel for Appellant submitted that the law is settled regarding composition of the Tribunal, that it requires the Chairperson of the Tribunal to sit with not less than two assessors who shall be required to give their opinion before the

judgment, citing section 23(1) and (2) Cap 216 (supra), regulation 19(2) of the land Disputes Courts (the District Land and Housing Tribunal) Regulations, GN 173 of 2003. She submitted that the learned Chairperson omitted to inquire the assessor's opinion. She submitted that failure to record and read out assessors opinion vitiate the trial, citing Peter Makuri vs Michael Magwega, Civil Appeal No. 107 of 2019; Elilumba Eliezel vs John Jaja, Civil Appeal No. 30 of 2020. In response, the learned Counsel for Respondent conceded that the proceedings indicate that after closure of the trial, the learned Chairperson did not require the assessors who were involved in the trial to give their opinion in writing. However, he argued that irregularity was not fatal to vitiate the judgment of 8 the Tribunal, for explanation that the matter was determined on legal issue that the suit was time barred. He submitted that there is no requirement of law that the trial Chairperson in determining issues of law require opinion from assessors. He submitted that opinion of assessors is necessary on determination of issue of facts not on issue of law. I entirely agree with the argument of the learned Counsel for Respondent that the matter at hand was determined on a pure point of law. There is no law which require the presiding Chairperson to ask assessors to give their opinion on a point of law. To my

understanding all questions and issues involving point of law are to be determined by the presiding Chairperson and at that juncture assessors normally retire. Members of the Tribunal (assessors) only assist the presiding Chairperson when determining on issue of facts only. Regulation 22 of GN 173 of 2003 (supra), with its marginal notes special power of the Chairman, provides, 'The Chairman shall have powers to determine (a) preliminary objections based on points of laws; (b) application for execution of orders and decrees; (c) objections arising out ofexecution of order and decrees; (d) interlocutory applications' Therefore all matters on point of law, the law requires to be determined by presiding Chairperson in exercise of special powers conferred by the law. 9 Above all at page two third paragraph from the bottom of the impugned judgment, the learned Chairperson commented that, 'Unfortunately the presiding comrade assessors of the bench did not proceed to the end of this matter as a result, their opinions will be missing' According to section 23(3) of Cap 216 (supra), provided, 'Notwithstanding the provisions of subsection (2), if in the course of any proceedings before the Tribunal either or both members of the Tribunal who were present at the commencement ofproceedings is or are absent, the Chairman and the remaining member (ifany) may continue and conclude the

proceedings notwithstanding such absence' Therefore, as alluded by the learned Counsel for Respondent, the omission if any, is not fatal, rather curable one. Save for ground number two where the verdict by the Tribunal conferring the Respondent title to the suit land by way of adverse possession, which has been faulted. The rest grounds of appeal are unmerited. The appeal is dismissed. Because the parties are close related as brothers, each will foot own costs. XojlHoX E-B-1 luVANE^T JDGp^ ■A’/ 22/ W/2024 y V \ /£/< / / / 10 Judgment delivered in the presence of Mr. Karitas Malawa learned Counsel holding brief for Mr. Jimmy Kisamo learned Counsel for Appellant and Mr. Alfred Kintu holding brief for Mr. Rajabu Mrindoko learned Counsel for Respondent. R.E. Kangwa

DEPUTY REGISTRAR 22/10/2024 11