20150020 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) ATMBEYA LAND CASE APPEAL NO. 02 OF 2013 (From the decision of the District Land and Housing Tribunal of Rungwe District at Rungwe, In Land Case No. 42 of 2010) JACKSON MWAKALINGA ........................................................ APPELLANT VERSUS EMMANUEL MWAILUBI & 27 OTHERS ................................... RESPONDENT JUDGMENT Date of last order: 1210512015 Date of Judgment: 2010512015 A.F. NGWALA, J. The appellant is dissatisfied with the Decision of the Rungwe District Land and Housing Tribunal. In his Memorandum of Appeal to this honourable court, he is complaining that the Chairman of the District Land and Housing Tribunal erred in Law when he sustained the Preliminary Objection of the respondents and therefore dismissed his application with costs. The appellant insists that there was no evidence which showed that the disputed land was sold. There were vendors of the piece of suit Land which were supposed to be joined in the application. According to the appellant the Rungwe District Court had written a letter dated 5th September, 1996 to one Oswald Mwakalinga of Kjiji cha Kasyeto Kyimbila - Rungwe 1 I restraining him from selling the disputed piece of Land. A copy of that letter from Rungwe District Court was attached to his ( . Memorandum of Appeal. It was also his second ground of Appeal that the chairman did not consider that the appellant has locus stand to sue the respondents because on 7/9 2010 the Tukuyu Urban Primary Court appointed the appellant to be an Administrator of the Estate of the late Jimu Mwakalinga. And that his Application was in time as the particulars of all respondents were well explained in his application. At the hearing of this Appeal, the appellant argued that the Preliminary Objection of the respondents was wrongly considered, because there is no evidence which showed that the disputed land was, sold. After a careful examination of the records and the submissions made by both parties;. I am of the considered view that, the issue for consideration and determination in this Appeal, is whether or not the Chairman of Rungwe District Land and Housing Tribunal, properly sustained the Preliminary Objection raised by the Respondents?. From the record it is a clear fact that the application is time barred. Worse the suit is bad for non joinder of the vendors of the piece of suit land and the Application is badly drawn as it is incapable of telling who are the 38 respondents and their ranks in the Application. It is also clear from the record that, the respondents, who made preliminary objection over the disputed shamba, bought their respective pieces of the said shamba from one Donald 2 Mwakalinga the son of the late Jimu Mwakalinga. For example, the fourth respondent , Yona Lupasya had tendered an exhibit, which was a copy of the sale Agreement (Mkataba Wa Mauzo ya Shamba), which indicates that, Yona Lupasya, bought the shamba from Mr. Ally Mwaijande and Donald Mwakalinga, on 26th August, 1999 at a price of Tsh.360,000/=. and the money was paid in cash. The evidence shows that, the land in dispute belongs to the respondents. It is also not clear from the record that, the shamba in dispute undoubtedly belongs to the appellant. The appellant has not proved as claimed that he inherited the shamba in dispute from his late father Jimu Mwakalinga. There is no any documentary evidence produced or any adduced evidence by the appellant to support the same. It is evidence therefore that, the only evidence available and which has not been disputed, is the letter of appointment of Jackson Mwakalinga by the Rungwe Primary Court, as an administrator of the Estate of the late Jimu Mwakalinga. The appellant was appointed on 7th September, 2010 to be an Administrator. Whereas, the respondents have been in the disputed shamba since the year 1990's. They have developed their respective suitland by building houses, planted permanent crops and trees therein, for period of more than 14 years. The respondents have occupied the suitland, before the appellant was appointed by the Rungwe Primary Court as the administrator of the estate on 20th September 2010. Whence 3 when he sued the Respondents in the Rungwe District Land - b-and Housing Tribunal, he had no locus stand to sue, and or ( cause of action against the Respondents. It is quite clear that, the land in dispute was not part of the Estate of late Jimu Mwakalinga, given the fact that, the respondents have built houses and planted permanent trees therein. It is the findings of this court that, if there were any adverse claim of the land in dispute, then the applicant/Appellant should not have allowed the respondents to built and to grow permanent crops therein. It is also doubtful, if the estate of deceased remained without an administrator, care taker or owner, since 1988 till 2010 ) when the appellant was appointed to be an administrator. I hold so because this court takes judicial Notice of the Land Tenure and Customary Rules of inheritance amongst the Nyakyusa plus real lived practices of Nyakyusa on land matters on the way they deal with land commonly known as "Ukumbika pa kilirigo". This was done, as it is in record that the District Magistrate wrote a letter to one Oswald Mwakalinga, on 5th September, with Ref. No. Kumb Na. CR. App. No. 1/96 entitled "Uuzaji wa mali ya marehemu Mwakalinga" which stopped him to sell the "shamba" and trees of the late Jimu Mwakalinga. The appellant who had complained was advised on behalf of the other children of the deceased to convene a meeting and institute a Probate Case. 4 The Law of Limitation on land does not operate that way. Section 52 (2) of the Courts "Lãnd Dispute Settlement) Aät, 2002 reads:- "The Law of Limitation Act; 1971 shall apply to proceedings in the District Land and Housing Tribunal and the High Court in the exercise of their respective original jurisdiction". The above quoted Section, settle the legal limitation period upon which the suits can not be brought in court. The purpose of this provisions, relating to suits for recovery of land, is to make sure that there must be an end of the suit specially in a case of this nature. It is my further observation that, the land in dispute was permanently given or sold legally to the respondents. The appellant obviously knew this fact. If he purports to say that he did not know, let this court make him understand now, that, the respondents cannot be removed or disturbed in any manner, from the usage and possession of the land without a lawful cause. For the foregoing, reasons, I do hereby dismiss the appeal with the usual consequences as to costs. That is the appellant shall pay the costs. Order accordingly. 441LOY A.F. Ngwala Judge 20/2015 5 Date: 20. 05. 2015 ( Coram: Hon A. F. Ngwala - J. Appellant: Present For the Appellant: 1st Respondent: Present 2nd Respondent: Absent 3rd Respondent: Absent 4th Respondent: Present 5th Respondent: Present 6th Respondent: Present 7th Respondent: Present 8th Respondent: Absent 9th Respondent: Present 10th Respondent: Present 11th Respondent: Absent 12th Respondent: Absent 13th Respondent: Absent 14th Respondent: Absent 15th Respondent: Absent 15th Respondent: Absent 16th Respondent: Absent 17th Respondent: Absent 18th Respondent: Absent 19th Respondent: Absent 20th Respondent: Absent. 21stRespondent: Absent 22c Respondent: Absent ( . 23rd Respondent: Present 24th Respondent: Absent 25th Respondent: Present 26th Respondent: Absent 27th Respondent: Absent 28th Respondent: Absent C/C: Japhet Court: Judgment delivered in the presence of the Appellant and the Respondents who have appeared today as shown above. Court: Right of Appeal to the Court of Appeal of Tanzania explained. '" A.F. Ngwala I I .. 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