20240624094948

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND APPEAL NO. 21 OF 2023 (Originating from Land Appeal No. 70/2021, Kisarawe District Land and Housing Tribunal) HATIBU HALFANI OMARI APPELLANT VERSUS JANE DONALD KUYENGA RESPONDENT JUDGMENT 31/05/2024 to 21/06/2024 E.B. LUVANDA, 3 This is a second appeal. The Appellant was sued by the Respondent before Masaki Ward Tribunal for encroaching part of her three acres or three and half acres located at Mnungwi Masaki. The Ward Tribunal ruled in favour of the Respondent, and the Appellant was ordered to give vacant possession of a portion subject for encroachment. The Appellant unsuccessful appealed to the District Land and Housing Tribunal (the Tribunal), hence this attempt for a second appeal. In the petition of appeal the Appellant grounded that: One, the Tribunal erred in law by giving the decision in favour of the Respondent while the suit was time barred; Two, the Tribunal erred in law when it holds infavour of the 1 Respondent by choosing the story of the Respondent as believable evidence in the trial Tribunal without giving reasons for such holding, while the Appellant used to cultivate crops on the disputed land for more than fifteen years; Three, the Tribunal erred in law for failure to notify the parties of the day of pronouncement of the judgment as a result it create doubt to the Appellant. The Appellant abandoned ground number three. The Appellant submitted that it is a trite law that the claim against land occupation should be made within twelve years, citing Sospeter Kahindi vs Mbeshi Mashini, Misc. Land Appeal No. 120 of 2013, CAT (sic), for a proposition that the argument therein was whether the judgment and decree of the Ward Tribunal of Igaiula Geita (trial Tribunal) are nullity for want of pecuniary jurisdiction over a claim of ownership and possession of piece of land that he alleged to have been property of his father (deceased). He submitted that the Tribunal dismissed the appeal with costs as it was satisfied that the Respondent proved a long and uninterrupted possession of disputed land for over forty-one years which effectively extinguished the Appellant's rival claim of the title pursuant to the law of limitation. He submitted that the Appellant used to cultivate the suit land for more than fifteen years, arguing that facts which has been stipulated by the Appellant at the High Court and the same at the Tribunal. 2 for ground number two, the Appellant submitted in replica to the above facts ■that the Appellant used to cultivate cassava and other crops for more than fifteen years since he inherited the suit land from his father Khalfani Omari, arguing the facts which the Tribunal was supposed to evaluate the evidence which was adduced by the Appellant at the trial Tribunal. He submitted that the trial Tribunal and the appellate Tribunal did not evaluate evidence adduced by the parties, citing Stanslaus Rubaga Kasusura and Another vs Phares Kabuye [1982] TLR 339; Matha Michael Wejja vs Hon. Attorney General and Three Others [1982] TLR 35; Obed Mtei vs Rukia Omari [1989] TLR 111. In reply, the Respondent submitted that according to the proceedings dated 24/02/2021 depict the dispute between the Appellant and Respondent commenced in 2020 and the land dispute was filed in 2021. She submitted that she met the Appellant in 2014 who started to work in the suit farm along other people. For ground number two, the Respondent reiterated her earlier argument. She submitted that the trial court (sic, tribunal) considered all evidence and testimonies adduced by parties including exhibits which were tendered, analyzed evidence in details, arguing the Honorable Chairperson after going 3 ■through the evidence find that it was just and fair to maintain and uphoid the •decision of the ward tribunai. Starting with ground number one, the same is not supported by the evidence on record. According to the testimony of the Respondent she met and engaged the Appeliant to be her caretaker in the suit farm in 2014 and it is in the year 2020 when she was inspecting preliminaries for preparation for farming when she revealed encroachment of her farm. Even the testimony of the Appellant suggest that the encroachment was committed by one Jackson in 2019. Jackosn is the Appellant's invitee. Nowhere the Appellant asserted to had used or cultivate the suit land for more than fifteen years. This was a concocted and new fact introduced at the appeal stage. Therefore, the first appellate Tribunal was justified to block and disallow that argument. Ground number two, a fact that the Appellant inherited the suit land from his father Khalfani Omari, is a new fact introduced at appeal stage. Throughout the testimony of the Appellant there was no mention of inheritance. Rather the Appellant asserted to had been given a separate farm by his father one Alfani Omari, and in fact the Appellant acknowledged and appreciated a fact that the Respondent was the owner of the suit farm since 2006. The argument that the trial Tribunal and the appellate Tribunal did not evaluate evidence adduced by the parties, is legally untenable. The ward tribunal 4 ■summarized the evidence presented by both parties, then embarked into •drawing issues for determination, considered customary law regarding boundaries for ownership of farms and applied the same to the matter before it, evaluated evidence tendered and established that the disputed land is estimated to be one and half acres, analyzed the type of evidence for boundaries asserted by the Respondent that is anthill {kichuguu), then made a decision. Likewise, the first appellate Tribunal. Therefore, the complaint by the Appellant is without substance. In totality the appeal is devoid of merit. The decision of the first appellate Tribunal is upheld. The appeal Is dismissed. No order for costs. V E.B. .l^NDA X JUDGE 2^4)6/2024 7 Judgment delivered in the presence of the Appellant and the Mr. Nsajigwa Mwaifuge Advocate holding brief for Mr. Mwita Buberwa Advocate Respondent. ft E.fL LUVANDA J^GE ^06/2024 5