20060428 TZHC Moshi

J IN THE HIGH COURT OF TANZANIA

ATMOSHI (PC) CIVIL APPEAL NO. 62 OF 2003 () (C/F DC HAI CIVIL APPEAL NO. 12/2003) (ORIGINAL CIVIL CASE NO. 2/2003 SIHA P/C) ELISHIWANGA J. KIMARO ............. APPELLANT

VERSUS MATHEW C.K. URASSA ············~·····RESPONDENT

JUDGMENT HON. JUNDU, J. This is a second appeal. It involves a land dispute over a piece of land measuring ¾ of an acre. The said suit land originally belonged to one Okio Mafito. In 1981, he sold it to one Christonsia, the late father of the Respondent for a sum of shs. 2,400/= as the purchase price. One Justin Mafito, the late father of the Appellant and a brother to Okio Mafito objected to the said sale that it was done without notice. He placed the matter before the Village Council and the Ward Tribunal which ordered him to refund the purchase price (shs. 2,400/=) to the said Christonsia to redeem the suit land. Christonsia died in 1989 and the Respondent inherited the suit land but the said Justin soon invaded the same thus prompting the Respondent to place the matter before clan members, the Village Council, the Ward Tribunal and finally instituting it before the trial court. In the trial court, it was coniended by the Respondent that the said Justin Mafito, the fatp.er of ·' the Appellant had failed to redeem the suitland as he failed to refund the said purchase price of shs. ··o 2,400/= to the late Christonsia. O'n the other hand, the Appellant in his evidence contended that his father, the late Justin Mafito had r,efunded shs. 2000/= to the late Christonsia as ordered by "Baraza la Usuluhishi" (conciliation board) on 23.8.1985 hence he had redeemed the suit land. Based

on the evidence of the parties before it, the trial court found that the evidence of the Appellant that Justin ' Mafito had redeemed the suit land was not reliable and credible hence it held that the suit land had not been redeemed. It entered judgment in favour of the Respondent. ' ' Having been aggrieved by the decision of the trial court, the Appellant appealed to the District Court of Hai. In its decision, the said first appellate court upheld the decision of the trial court. It held that the late Okio Mafito owned the suit land lawfully hence when he sold the same to 1 the late Christonsia he passed the title to him and the sale was complete and that notice of sale was not necessary. Having been aggrieved by the decision of the first appellate court, the Appellant has appealed to this court listing four (4) grounds of appeal as follows:- (1) That the 1st Appellate court erred in not finding that the Appellant is the lawful owner of the suit land by adverse possession. (2) That the 1st Appellate court erred in not finding that the original suit was time barred. (3) That the 1st Appellate court erred in not finding that the suit land had long been redeemed by the Appellant's father. (4) That the 1st Appellate court erred in not finding that the Respondent had no lawful claim to the suit land. Based on the above named grounds of appeal, the Appellant in his Petition of

Appeal, prayed to this (() court to allow the appeal and quash the judgments of the two lower courts. On 22/8/2005, this court, by consent, ordered the parties to argue the appeal by way of written submissions. The parties have complied with the order of this court for filing their submissions. Mrs Minde, learned counsel advocates for the Appellant while the Respondent argued the appeal by himself. I will start to consider and determine the third ground of appeal, that is that the 1st Appellate court erred in not finding that the suit land had long been redeemed by the Appellant's father. The issue therefore, is whether the Appellant's father redeemed the suit land. In her submission Mrs. Minde, learned counsel for the Appellant contends that as per the evidence of SU III, SU IV and SU V the purchase money was refunded to the late Christonsia hence the suit land was no longer in the hands of the Respondent's father. On his part, the Respondent in his submission vehemently contends that the purchase price (shs. 2,400) was not refunded hence he suit land was not redeemed to date. As far as the said ground of appeal is concerned, I have carefully considered the submission of both parties on the issue. I have also carefully read the proceedings and the judgments of the two lower courts as far as the issue is concerned. I am satisfied that the findings of the said courts on the said

issue were correct and I need not disturb them. In my considered view, the evidence of the Appellant's witnesses on the said issue was not credible and reliable. SU III had contended that the purchase price was refunded but did not indicate in his evidence whether he witnessed the same. SU IV and SUV were contradictory in their evidence. SU IV contended that the purchase price was 2 refunded after three months while SUV contended that the same was refunded after one year. SU 1 contended that he stamped the payment memorandum but did not indicate that he witnessed the purchase price being refunded. Another point is that the evidence had clearly shown that the purchase price was shs.2,400/= which was the amount the late Christonsia paid to the late Okio Ma:fito in purchasing the suit land. The Village Council and the Ward Tribunal had ordered the late Justin Mafito to refund the said amount to the late Christonsia in order to redeem the suit land. Now the evidence of SUI, SU III, SU IV and SUV is to the effect that the late Justin Mafito refunded shs. 2000/= to the late Christonsia. In my considered view, there is difference between shs. 2,400/= the purchase price paid by the late Christonsia and the amount of shs. 2000/= alleged to have been refunded by the late Justin Mafito. It is clear to me that the amount of shs.2,000/= was not the purchase price which the late Christonsia

Mafito had paid to the late Okio Mafito to purchase the (O suit land. Therefore, it cannot be held that the late Justin Mafito had redeemed the suit land by refunding shs. 2000/= to the late Christonsia. In my considered view, "Baraza la Usuluhishi" which had allegedly ordered the refund of shs. 2000/= to the late Christonsia on 23.8.1985 had no power to overrule the decision of the Ward Tribunal of 15.7.83 which had ordered the refund of shs. 2,400/= as the purchase price for the suit land to Christonsia. Therefore, I hold as held by the two courts below that the evidence of the Appellant on the issue of redeeming the suit land was not reliable and credible. Indeed, the sale was complete once the late Christonsia had paid shs.2,400/= to the late Okio Mafito and the title had accordingly passed to the late Christonsia. I find and hold that ground in the Petition of Appeal has no merit. I will proceed to consider and determine the first ground of appeal and the fourth ground of st appeal collectively. In the first ground of appeal, the Appellant contends that the 1 Appellate court ._ .. -·•-....., ((J) erred in not finding that the Appellant is the lawful owner of the suit land by adverse possession while in the fourth ground of appeal, the Appellant contends that the 1st Appellate court erred in not finding that the Respondent had no lawful claim to the suit land. In my

considered view, having held as held by the two courts below that on the evidence on record the suit land had not been redeemed, the question of the Appellant being the lawful owner of the suit land by adverse possession is out of place. His occupation or that of his late father of the suit land was unlawful. It could not confer title on him. Therefore, the first ground of appeal has no merit and is answered in the negative. Equally, having held that Justin Mafito had not redeemed the suit land, it follow that the sale of the suit land by the late Okio Mafito to the late Christonsia, the father of the Respondent 3 is still intant. Therefore, the suit land belongs to the Respondent by inheritance as found by the trial court hence the claim of the Respondent to the suit land is lawful and valid. On the premise the fourth ground of appeal also has no merit. In the second ground of appeal, the Appellant contends that the first appellate court erred in not finding that the original suit was time barred. The issue is therefore whether the suit in the trial court was time barred. In her submission, Mrs Minde learned counsel for the Appellant contends that the sale of the suit land was made in 1981 and that in the same year the sale was rescinded. She further contends that the Appellant trespassed in 1989 but it was not until 2002 when the Respondent took action. She submits that this

is 14 years of undisturbed occupation by the Appellant while the time limitation for filing civil suits to recovery land is 12 years hence in her view the suit filed by the Respondent was time barred. First, this issue was not canvassed in the two courts below hence it is not borne by their judgments. Secondly, the record shows that the issue of invasion on the suit land did not start in the year 1989. Way back on 15/7/1983, the Ward Tribunal of the area had ordered the late Justin Mafito to refund the purchase price (shs.2,400/-) to the late Christonsia to redeem the suit land. That was an action between Justin Mafito, the late father of the Appellant and Christonsia, the late father of the Respondent. The order by the Ward Tribunal remained intact and was one of the basis for the suit instituted by the Respondent in the trial court. In essence, the Respondents case in the trial case was partly that the Appellant's father had failed to comply with the order of the Ward Tribunal to redeem the suit land. In the circumstances, I am of the considered view that the issue of the suit being time barred is out of place hence the 2nd ground of appeal has no merit. In the upshot, the appeal has no merit and it is hereby accordingly dismissed with costs. I f the two courts below. It is so ordered. F.A.R. JUNDU, JUDGE, 28/4/2006 Right of Appeal Explained. F.A.R. JUNDU, JUDGE, 4 ;j ,, 28/4/2006 28/4/2006. Coram:- F.A.R. Jundu, J. For the Appellant:- present For the Respondent:- present CIC:- Muyungi Court:- Judgment delivered in the presence of the Appellant and in the presence of the Respondent. F.A.R. JUNDU, I JUDGE, ./. (· 28/4/2006 fi

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