20100930 TZHC Mbeya

• IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

ATMBEYA LAND CASE APPEAL NO.2 OF 2009 (From the Decision of the District Land and Housing Tribunal of Rungwe District at Tukuyu in Land Case No. 12 of 2008) EDINA ADAM KIBONA ........................ APPELLANT

VERSUS ABSOLOM SWEBE (SHELl) ............... RESPONDENT

JUDGEMENT 22/9/10 & 30/9/2010 LUKELELWA, J. The appellant Edina Adam Kibona filed an Application in the District Land and Housing Tribunal for Mbeya against the Respondent Absolom Swebe (Shell), claiming for compensation at the tune of shs.7,000,000/= for demolishing of a three room mud house and kitchen at Makandana village in Tukuyu, Ruñgwe Di strict. Although the application was filed in the District and Housing Tribunal for Mbeya at Mbeya the same was received on 1/9/2008 in the District Land and Housing Tribunal for Tukuyu at Tukuyu. It is likely that the appellant used wi6ng forms to file her application. It was the appellant's case at the trial that in 1966 she was a Nurseiy school teacher at Tukuyu. In the same year, the appellant bought a plot of Land from PW2 Mwangoka Kabigi. She contracted the latter to build her a three room mud U his late mother one Angobile Ngomile having bought the same from DW2 Christina Motela, at T.shs.350,000/= on 7th September 2004. ) DW3 Livingston Anyalwisye deposed that in the year 2001 he went to see one Mosses Nyemba who was sick. The latter gave him a letter to take to one Mwangosi who was a ten cell leader so that he could sell a plot belonging to the said Mosses Nyernba. The ten cell leader got a buyer named Anas Sernwaba who was the daughter of DW2 Christina Motela. She bought the house at shs.300,000/= which she paid in two

installments of shs.270,000/ and shs.30,000/. DW3 Livingstone Anyalwisye went on to depose that he took the shs.270,000/= first installment to his father, who told him that the money belonged to his sister, (the appellant) to whom he had communication. DW3's father then bought some cows using the money, which he kept for the appellant who is his sister. DW3 saw a dilapidated building on the plot, it was made of mud bricks and old corrugated iron sheets. According to DW3, his father sold the house after sensing that the plot could have been taken by the government, after he had soJd his own homestead when he moved to Ileje to inherit his father's homestead. DW2 Christina Motela deposed that after the death of her daughter Anas Semwaba she decided to sale the plot to Angabile Ngomile so that she could pay for her grand child's school needs. Before selling the plot she cleared the same by pulling down the old dilapidated building with a roof of corrugated iron sheets with holes. She therefore sold an empty plot to Angabile Ngornile. The trial District Land and Housing Tribunal framed four issues for determination of the application namely - "(1) Whether the applicant is the lawful owner of the household. (2) Whether the respondent trespassed into the household. 3 (3) Whether the respondent demolished the applicant's worth T.sh s.7,000,000/=. ) (4) Whether respondent built a house

worth T.shs.48,850,000/=." The trial District Land and Housing tribunal answered the first issue in the affirmative. It proceeded to answer the second issue in the negative. The third issue was also answered in the negative. The trial tribunal observed that, the appellant had left her household in 1976 when she was transferred to Dar-es-Salaarn. She assigned the care of her household to her father Adam Kibona who died in 1980. The appellant was not in care of her household from 1980 to the year 2007 when she found her house demolished and started complaints to various ten cell leaders, a period of twenty six years. The trial District Land and Housing Tribunal reached a conclusion that the appellant had been extra-ordinary negligent. The appellant's claim was time-barred in terms of item 22 and section 38 of the Law of Limitation Act 1971. This was because a period of Limitation of twelve years in which to institute a suit for recovery of Land had expired, and given the fact that the appellant had not authorized Mosses Nyemba to sell the house. The learned tribunal Chairman differed with the honourable Tribunal assessors who had opined that DW3 Livingstone Anyalwisye pay compensation to the appellant for her house she sold, together with her costs. The trial District Land and Housing Tribunal made no order as to costs. The appellant was aggrieved by the above judgement, and

through the services of Messrs Mwakolo and Company advocates filed a memorandum of appeal in this court raising five grounds of appeal viz:- I. The trial tribunal after finding as a matter of fact land belonged to the Appellant erred both in law and facts when it did not hold that the disputed ) Land belonged to the appellant. The trial tribunal erred both in law and facts when it invoked Law of Limitation while the Respondent has tress-passed the disputed Land in 2005 and had no any relationship, with the death of the appellant's father in 1980 as the Appellant was having her house at the plot which was demolished in by the Respondent. The trial tribunal erred both in law and facts when it failed to rule out that the sale of the disputed Land from Christina to the Respondent, and the sale of the same to Christina by somebody else, the tribunal ought to have declared such sales to be void and null with an order of joining all the responsible parties to the disputed Land. The trial tribunal had no jurisdiction to try the matter before it as the respondent's house was claimed to be 48,850,000/= which was beyond the jurisdiction of pecuniary Limit of the tribunal. That the trial tribunal erred both in points of Law and facts in not ordering the respondent to demolish the erected house on the Appellant's plot and in not ordering the Respondent to compensate the appellant her

demolished house valued T.shs.7,000,000/. The appellant's memorandum of appeal provoked a reply from the respondent as follows:- The trial Tribunal did not error both in law and point of facts when it correctly held that the disputed Land belonged to the Respondent. My Lord, the trial Tribunal did not en-or both in law and facts when it rightly invoked the law of Limitation because the Respondent did not trespass on the disputed Land in 2005 and that the matter at hand had full relationship with the death of the mother of the appellant in 1980. Your Lordship, the trial Tribunal did not error both in law and facts when it aptly held that the sale of the disputed Land from Christina to the respondent was quite valid needing no joining any other parties to the disputed Land. My Lord, the trial Tribunal had competent jurisdiction to try the matter as the respondent's house was claimed to be worth T.shs.48,850,000/= which was within the trial Tribunal's pecuniary jurisdiction Limit. Your Lordship, the trial Tribunal made no errors both in law and facts in not ordering the respondent to demolish his legally built house on his (respondent's) plot and thus the appellant deserved no any compensation of T.shs.7,000,000/ as no appellant's house was ever demolished by the respondent. With leave of the court, the appeal was argued by way of written submissions, with the parties reiterating

what was averred in the memorandum appeal and reply thereto, respectively. There is no serious dispute from the evidence on record, that the Land in dispute and the house and kitchen which stood on the4 disputed Land had belonged to the appellant before changing hands and finally landing in the hands of the respondent. There is further no serious dispute that the appellant had been negligent with her property for abandoning it for a very long time without assigning a caretaker of the property since the death of his father Adam Kibona in 1980. This attitude of the appellant created a vacuum, which appear to have been filled by the appellant's relative Mosses Nyemba, who decided to take care of the house. According to the son of the said Mosses Nyemba, who is DW3 Livingstone Anyalwisye, his father decided to sell the house of the appellant in the year 2001, fearing that the plot and the dilapidated building which had been abandoned by the appellant for a longtime could be taken by the government and allocated to a new developer, given that he had moved from Makandana to Ileje to inherit his father's property, and in so doing had sold his own household. There is no gain saying by the appellant by insisting that it was the respondent who demolished her house worth shs.7,000,000/=, when there is a clear and fulminating evidence from DW2 Christina Motela that she was the one

who demolished the house before selling a plain plot to the respondent. Coming to the issue of Limitation period. I do not think Limitation period was applicable in the manner held by the trial District Land and Housing Tribunal. Limitation period runs from the date when the land is adversely possessed by a party. In this case adverse possession if any was in 2001 when the Land was sold to the late Anas Simwaba daughter of DW3 Christina Motela. As regards the appellant's ground of appeal that all those involved in the transaction of selling her plot should have been ordered to be joined in the suit, the most I can say is that, she was the one who had instituted the suit, she should not be heard to complain and benefit from her own mistake. She was obliged to make a thorough investigation which could easily have led her to find that it was her brother Mosses Nyernba probably with good intentions who had disposed off the property by way of sale, after failing to Communicate with her. In any case, failure to join a party is not always fatal to a suit. Coming to the issue of Jurisdiction, the respondent's house, which was estimated to be valued at T.shs.48,850,000/= was well within the jurisdiction of a District Land and Housing Tribunal which provides under section 33(2) (a) of The Courts (Land Disputes Settlements)Act, 2002 that, "The District Land and 7 Housing Tribunal shall

have and exercise original jurisdiction in proceedings for the recovery of possession of immovable property, to proceedings in which the value of the property does not exceed fifty million shillings." In my view, the pertinent issue in this case, is whether the respondent obtained a good title when his late mother Angabile Ngornile bought the plot from DW2 Christina Mogela. To answer this question, in the circumstances of this case, one has to look at the evidence of DW3 Livingstone Anyalwisye who deposed that he sold the house of the appellant on the instructions of his father that the property which belonged to her sister to whom he could not communicate be sold and money kept to await her appearance. DW2 Christina Motela deposed that when she purchased the house from DW3, the son of Mosses Nyernba, she believed it to belong to Mosses Nyemba because he was the care4taker and used to maintain and repair the same. Even tenant's used to pay rent to Mosses. She had not seen anyone else there. That means that DW3 had a right to sell the appellant's house on the instruction of his father Mosses Nyemba who saw her sister's property in a danger of being alienated.by being appropriated by the government. In law, Mosses Nyemba acted as an Agent to the appellant, as the authority of an agent may be express or implied. See section 138 of the Law of Contract Act. Section 139 of the Law of

Contract Act provides that "An authority is said to be express when it is given by words spoken or written and to be implied when it is to be inferred from the circumstances of the case, and things spoken or written, or the ordinary course of dealing, may be accounted on circumstances." Section 141 of the same Act provides further that, "An agent has authority, in an emergency, to do all such acts for the purpose of protecting his principal N . from loss as would be done by a person of ordinary prudence, in his own case, under similar circumstances." This appear to be the case when DW3 sold the appellant's house. It is my considered opinion, as held by the honourable assessors in the trial, that the appellant should seek compensation for demolition of her house from DW3 Livingstone Anyalwisye and his father Mosses Nyemba who is said to be the brother of the appellant. The respondent's mother Angobile Ngomile, and DW2 Christina Motela appear to have acted with due diligence in the matter. Having so adumbrated, I hereby dismiss the appeal. The respondent shall have costs incurred in this appeal. Order accordingly. I / At, 51 S.B. LUKLA

JUDGE 30/9/2010 9