20190212 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA AT MWANZA MISC. LAND APPEAL NO. 06 OF 2017 {From the Decision of the Land and Housing Tribunal of the Tarime District, at Mara, In Land Ca_se tvo. 36 of 2013} -- JOHN KAMBARAGE SOSPETER Administrator of the late ZILPA SOSPETER........ .............................,............... .APPELLANT VERSUS ODIRA ONG'OU ........................................................ RESPONDENT JUDGMENT 13/12/2018 & 13/02/2019 Gwae, l The appellant, John Kambarage is the son of Zilpa w / o Sospeter who is now deceased, obtained letters of administration on 1th October 2016 to stand on behaif of his late mother. The deceased filed this appeal challenging the concurrent decisions of Kigunga Ward Tribunal and District Land and Housing Tribunal for Tarime at Tarime on the grounds that; the tribunals below decided against the weight of the evidence adduced by the parties, that the tribunals erred in law and fact by considering the evidence of the respondent who had never entered appearance and that the time for recovery had not elapsed.~ 1 ,, ~.,- At the hearing of this appeal, the administrator, John Kambarage appeared in person while the respondent had never entered his appearance despite the fact that he was served through publication in Mwananchi Newspaper dated 16th November 2016. The appellant sought adoption and consideration of his grounds of appeal. Having looked at the evidence adduced before the trial tribunal, I have observed that the appellate late mother was endeavoring to establish that the respondent was allowed to use the land for a period of ten years while the respondent is found seriously arguing that he purchased the suit land from one, Sospeter Opiyo. The respondent, at the trial tribunal, was able to tender the sale agreement dated 21st April 2002 which was admitted as 'DE2'. Looking at the evidence in its totality, I am convinced that the respondent's evidence that he purchased the suit land from the appellant's late father is more credible than that of the appellant. Moreover the records of the tribunals reveal that both parties were ' afforded an opportunity of being heard and they were able to call one witness each. Hence the appellant's lamentation that the respondent d i d ~ 2 ~ot turn appear at the trial is unfounded. However the respondent did not appear before appellate tribunal compelling the appeal was heard ex-parte. Despite the fact that the appeal was heard nevertheless it was decided in favour of the respondent. Regarding the appellant's complaint that the suit was filed before expiry of 12 years, thus the suit land could be redeemed by the appellant's late mother. I am not persuaded by the appellant's contention since the sale agreement was entered on 21.04.2002 while the appellant's suit was lodged on 26.01.2016, thus more than 12 years. In order one to recover a parcel of land he has to do so within 12 years. Right to redeem or recover a piece of land is within 12 years as was rightly stressed in Mfaume v. Rajabu Fuku (1970) H.C.D 106 "I see no reason for reversing the decision of the District Magistrate which seems well founded on the facts and in law. When a claimant returns after more than 20 years to assert ownership of a piece of land which he has never occupied and which the person against whom he claims has been occupying and improving then he must bring very convincing evidence if he is t o ~ succeed" ,,,,.., ~ 3 In our instant dispute, there is evidence of purchase by the respondent in the year 2002 and that he had been in occupation since then (S-kwenye eneo hilo tangie mjengapo ni muda gani-J-Miaka 14) (see also item 6 of the schedule to the customary Law (Limitation of Proceedings Rules). Presently, it is my considered view that the respondent had sufficiently established that he had been occupying the suit land for more than 12 years without interruption In the light of the reasons given herein, this appeal is entirely dismissed; the concurrent decisions of the tribunals below are hereby confirmed. As the respondent did not appear nor did he file a reply to the petition of appeal, I shall not therefore make an order as to costs. It is so ordered. M. ~~a~e~------ Judge 12/02/2019 ~ Right of appeal explained M. ------..i"" Ju~ 12/02/2019 4