LAND APPEAL NO

© THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA (CORAM: HON. AUGUSTINE RWIZILE) LAND APPEAL NO. 000010205 OF 2024 HAPPINESS MKWETU COMPLAINANT / APPELLANT / APPLICANT I PLAINTIFF VERSUS ELINATHA NDIJUYE RESPONDENT / DEFENDANT JUDGMENT Fly Notes Facts Ratio Decidendi 22nd of August 2024 Hon. RWIZILE.: The appellant and the late Elisha Kabujege were blood relatives. A dispute over a piece of land arose in 2017, where the appellant successively filed a dispute before the Ward Tribunal of Msambara-Kasulu District, which held that the land in dispute belonged to her. However, before his death, Elisha who was not happy with that decision, filed an appeal before the district land and housing tribunal challenging its decision, but died before the judgement was given. The respondent after appointment to administer the estate of the later Elisha took the case up. Ultimately, the appellate tribunal awarded the judgement in her favour, which aggrieved the appellant. This therefore is the second appeal. The appellant still claims that the land located at Kabanga village, Mulinda street, along Kasulu road belongs to her father. The respondent on the other side claimed ownership of the property. The appellant has filed this appeal with the following grounds - I. That, first appellate tribunal erred in law and facts by deciding the matter in favour of the respondent based on the principle of adverse possession which the respondent did not only fail to prove its element but also contrary to the respondent's evidence, who alleged to be allocated the land in dispute by village council. 2. That, first appellate tribunal erred in law and facts by hearing and deciding appeal No. 26/2018 in favour of the respondent without considering the said appeal was already dismissed for want of prosecution by the Page. I Hon. AUGUSTINE RWIZILE same tribunal on 09.10.2019. 3. That, first appellate tribunal erred in law and facts by deciding in favour of the respondent based on the principle of adverse possession without considering the fact that the late ELISHA KAB UJEGE was an invitee who cannot acquire land by adverse possession. 4. That, first appellate tribunal erred in law and facts for failure to re-analyze, evaluate and scrutinize the evidence of brought by the appellant during hearing and proceed to give ownership of land in dispute to the respondent based on the principle of adverse possession without respondent to establish its element. 5. That, first appellate tribunal erred in law and facts by holding in favour of the respondent who failed to bring the evidence from the village council to proof his allocation. 6. That, first appellate tribunal erred in law and facts to decide the appeal before which emanated from land dispute which involve relatives without joining the administrator of estate of the late MKWETU or adm inistrator of the estate of their mother. At the hearing of this appeal, the appellant was unrepresented while the respondent was under the services of Mr. Daniel Rumenyela, learned advocate. In his brief submission, the appellant argued generally that the evidence was not properly evaluated because the respondent is said to have been allocated land in 1978, when he was a pupil in standard in IV. At that time, she· said, she had started standard 1 and she was ten years. She further argued that the case was dismissed on 9.10.2019 and does not know what happened until when she was called back. According to the appellant, her case was mismanaged, and so prayed for the judgement. The tribunal did not consider her evidence. The appellant therefore asked this court to allow this appeal. Mr. Rumenyela learned advocate for the respondent submitted that it is not true that the respondent was a minor when land was given to her. His submission was that he got the land when a mature person. He used that land uninterrupted since 1978 to 1999 which was over 20 years. There was no claim in that period over the suit land. The period is too long, far above the minimum time. He went on submitting that the appellant is not an administratrix of the estate of the deceased. She ought to be the administratrix first, before filing the case. He asked this court to refer to the case of Swalehe Juma Sangawe vs Halima Swalehe Sangawe, Civil Appeal No. 82 of 2021. According to him, the appellant had no locus to sue because she is not administratrix of the estate. According to the learned counsel, the record shows, upon dismissal of the appeal by the appellate tribunal, the respondent applied for restoration which was granted. He therefore prayed the appeal be dismissed with costs. Having heard the submissions of the parties and considering the record of appeal, I will determine all grounds of appeal seriatim, although parties made general comments about the same. But after going through the first, third and fourth grounds of appeal, it is clear to me that they are all attacking the appellate tribunal for having decided the case basing on adverse possession. It was held by the appellate tribunal that the respondent proved started using the land in question for decades without interruption. In order to acquire land through adverse possession, the court of appeal held in the case of the Registered Trustees of Holy Spirit Sisters Tanzania v. January Kamili Shayo & 136 Othersc, (CAT), Civil Appeal No. 193 Of 2016 on pages 25 -26, that one has to cumulatively prove the following: - Page.2 Hon. AUGUSTINE RWIZILE 1. that there had been absence ofpossession by the true owner through abandonment. 2. that the adverse possessor had been in actual possession of the piece of land; 3. that the adverse possessor had no color of right to be there other than his entry and occupation; 4. that the adverse possessor had openly and without the consent of the true owner done acts which were inconsistent with the enjoyment by the true owner of landfor purposes for which he intended to use it; 5. that there was a sufficient animus to dispossess and amino possidendi; 6. that the statutory period, in this case twelve years, had elapsed; 7. that there had been no interruption to the adverse possession throughout the aforesaid statutory period; and 8. that the nature of the property was such that in the light of the foregoing/ adverse possession would result. The record has it that, the respondent used the land for the good amount of time. The deceased was in possession of that land for a long time in terms of evidence. It was alleged it is since the 1970s. The appellant who claims, it was the land he possessed did not do any effort to deal with the matter, he let peaceful enjoyment. It is clear to me that the 8 things required to prove the case on adverse possession were cumulatively shown. Therefore, I find no merit in the three grounds of appeal. The second ground of appeal points out that the land appeal No. 26 of 2018 was dismissed on 9th October 2019. This can only be solved by the record of appeal. Indeed, on 9th September 2019, the original proceeding that is hand written shows, the appellant (then respondent) asked for dismissal of the appeal for a consecutive none- appearance of the appellant (now respondent). The appellate tribunal dismissed it right away. It seems on 8th June 2022, as per page three of the typed proceedings of the appellate tribunal, in the presence of the appellant it is stated that: "... Baraza: shauri ni kwa ajili ya kusikilizwa. Baada ya kurejeshwa kupitia maombi madogo Na. 150/2021. Mr. Mwangati: Kwa kuwa muomba rufaa amefariki tunaomba kurekebisha sababu za rufaa iii Jina la msimamizi wa mirathi ndio lisomeke, .. Mjibu Rufaa: Sina pingamizi... " It is clear from the record that the appellant was present when the tribunal noted that the appeal was reinstated after it was dismissed for want of prosecution. She was present and was aware of the said application for restoration. Although I have not been able to take a cursory glance in application No. 150 of 2021, because it is not part of the record of appeal, but still, I have no reason to doubt the proceedings of the tribunal. After all, that is the record properly before me and cannot be lightly impeached as the appellant has tried to do. Still, all that happened in the presence of the appellant. She did not resist that the same was not restored then. I take it that she was aware. Failure to resist it at that material time, makes it plain that this ground has no merit. It is therefore dismissed as well. The 5th and 6th grounds are about failure to prove the case by the respondent. It must be put in perspective that before the trial tribunal, the appellant presented her case and had the burden to discharge her duty. The respondent challenged the findings of the trial tribunal, and the appellate tribunal was satisfied that the evidence before it was not sufficient to prove the matter. It came out with the impugned ruling. I have no doubt, as my determination Page. 3 Hon. AUGUSTINE RWIZILE on the 1st, 3rd and 4th grounds which was clear that the same was proved to be the property of the respondent through adverse possession and the evidence of the respondent was clear and showed he was a rightful owner of the suit land. I find no merit in these grounds as well. That done and said, I find no merit in this appeal. It is dismissed in its entirety. I find it, based in that nature of the parties and the case at hand, no need to order costs of the case. Dated at KIGOMA ZONE this 22nd of August 2024. I ~ AUGUSTINE RWIZILE JUDGE OF THE HIGH COURT Page.4 Hon. AUGUSTINE RWIZILE