20150619 TZHC Iringa

I · IN THE HIGH CO, ~RT OF TANZA~IA 1 [LAND DIVISION] I AT IR~NGA I . ·.. LAND CASE APPJlL NO. 1 OF 2d13 (From the decision of thJ bistrict Land a~d Housirig ! I i . T_ribunal of Iringa District at Iringa ir:i Land i Case No. 70 of 2011), . 1 - JOMO MAHENGE . . .. I . ON BEHALF OF 30 OTHERS ............................ ;APPELLANTS 1 VERSUS 1. ABOU SUFIAN .. OMARI SILIA 2. FEMCO AUCTION MART .. . ........ R~SPONDENTS I · 3. CONSOLIDATED HOLDING CORPORATION LIMITED / 5/6/2015 & 19/6/2015 ' RULING ·. , MADAM SHAN GALI, J. Th~_·. ·app.ellant_. JOMO MAH ENGE on behalf of 1 30 others 4 . . . . I through a represei:,tative suit has instituted_ Land Application No. . . .· I ·30 of ' 2012 .· ..,·, before the Iringa District Land and ·, Housing Tribunal . · hereinafter, District Tribunal against the respondents namely I st ABOU SUFIAN SI~tA (1 respo.ndent), FEMCO AUCTION MART (2 nd , . I . ! 1 I I 1· respondent) and :·.CONSOLIDATED. HOLDING CORPORATION (3 rd respondent). The appellants' claims are based on allegation that, they have enjoyed a custo~ary tenu~e __ 9ver the suit ·land ' ' measuring 40 hectares situated at Mgera .village, Kalenga Ward and therefore the occupation by the respondents amounts to trespass shrouded with fraudulent clouds. During the filing of pleadings and before the hearing of the ~ ~~ said land application, the respondents filed a preliminary ' ' objection containing three points of law. After hearing of the said - grounds of preliminary objection the District Tribunal upheld one ground to the effect that the land application (the suit) was time barred. Dissatisfied with that decision, the appellant •has preferred this appeal• contending that - the District Tribunal. misdirected itself in law .and fact in holding that the land_ 4'":°i, application filed before it was time barred. Mr. Onesmo Francis, learned counsel appeared for the · • appellant, while the first respondent appeared in his personal capacity, unrepresented. The remaining respondents failed to enter appearance on the day this appeal was fixed for hearin'g: By the order of this court dated 10th March, 2015 this appeal was ordered to proceed . exparte against the 2nd and 3rd respondents: . t following the application made by the 1s respondent and conceded by the appellant. 2 . - :-r::-:-,~"'-' .. In the hearing of this appeal Mr. Onesmo stated that the '·District. Tribunal erred in decidiriJ that th~ appellants' case was · time b~rred. He submitted that ~he appellants inherited the land .· in .;... dis~ute from their ; ancestors who ; had beeri in occupation of the . . I .,same since 1950's _up to S_eptember, 2009 when the.· r~spon~ents ~-.-unlawfully interfered to occupy that land. He claimed that they used to own and activate their plots free from any encumbrances . . ! . He argued that _if~liie appellants are given an opportunity for their .case to be heard, they would prove and _establish their long undisturbed o\&nership of the land in dispute. He submitted to the effect that _the person who borrowed money from . the ::NBC ..., Bank and used the suit land as collateral without the · appellai:,ts' ~now·ledge and permission did it fraudulently because . the suit land was not his proper:ty. He insisted that since the appellants were not aware of the encumbrances over the suit ·~' ~ land, they have the right to be heard in order to determine· the ownership of the suit land.·- . . In response the 1st respondent. submitted to tbe effect that , . . ... the piece of land in dispute. was lawfully ·sold and purchased by _him frorn_ the 3rd respondent. ·That, the appellants never raised . . . any' complaint when the suit land -was allocated to the late Donald · Lasa Chaula in 1988 by the Mgera village Government and. late~ ·.·<he . (Chau/a) . was issued with a Certificate of Occupancy in 1990 . . by the 'responsible authority. He stated that now the suit land is lawfully .:.registered .and has already conveyed to him. The 1st . . . 3 respondent submitted further that the notice of sale of the suit . . land was given to all villagers before the auction exercise but the appellants remained silent. He i·nsisted that the appellants were hopelessly out of time. . . In this appeal the contentious issue is on whether the suit before the •District Tribunal was· time barred. To be able to appreciate the decision of the District Tribunal it is pertinent to refer· to the Land Application No. ·.30 of 2012 which was filed ·by. the appellants. Pa rag rap~ 6 ·of the Applicatiqn ·reads as follows:- "6 (a) Cause of action/brief statement of· facts constituting the claims:- That the 31 °Applicants herein represented by Joma Mahenge pursuant to the Order of I . th this Honourable Tribunal dated 19 April, 2012 to file a representative suit states as hereunder:- (i) N/A (ii) N/A ,.. (iii) N/A ·' (iv) That sometimes in 1988 and 1989 the ' late Donald Lasa Chau/a through fraudulent means obtained a Certificate of Occupancy which . certificate of Title. identified the disputed shamba as Farm No. 272 4 . '". ., ··:·. "; . .... ··---_,:,;..:...-- " ~ ·' containing 40 hectares situate at Mgera village KaVenga Ward, Kalenga Division in IrinJa District dated 8 th day of August, 1i91. I i (v) That when the late Donald Lasa Chau/a obtained · registered Title of the disputed shamba none of the 31 Applicants were consulted. (vi) That the purported Mgera Village Meeting dated 7/10/198-8 claimed to have allocated the disputed shamba · to the late Donald Lasa Chau/a was illegal in material particulars. (vii) NIA (viii) N/A (ix) · That until 21 st August, 2009 the Applicants were not aware of the ownership of the late Donald Lasa Chau/a over the disputed· shamba as .. they used to farm the same unregistered since 1950s. • (x) That on 15th September, 2009 the · third Respondent transferred under 5 power of sale the disputed shamba to .. ,, the first Respondent." From the above paragraphs it does not tell exactly as fo when the applicants/appellants became aware of the alleged trespass into the suit land. In paragraph 6 (a) (iv) the appellants gave a· brief history '/,'lhich shows that they were well aware of the alleged trespass which marks the time when the cause of action started .to run as against them. But again in paragraph 6 (a) (ix) the applicants/appellants appear not to be aware of the alleged·- trespass until 21 st August, 2009 .. The crucial question is who told . . them or how did -th_ey discov~r t~e wh_ole long story on how, albeit fraudulently the Mgera Village Government allocated that: piece of land to the late Donald _Lasa. Chau la and how tne Certificate qf Occupancy was issued in_ 1989. The appellants. - claimed to have becarne aware of the trespass from 21 st August, 2009 but surprisingly . submitt~d . at length on how the respondents acquired that land from 1988 and 1989. From the. appellants' pleadings and submission it is clear . . that they were (, fully aware of the late Donald Lasa Chaula's occupation from 1988 and 1989. In my considered opinion, if the appellants had any right or serious interest in that land they could not have ·sat. on their. haunches and let the late Donald Lasa Chauia deal with the land ,· .6 ' .1 .l for all that time without taking i: any action. i The appellants' belated claims that they were not ~ware of the trespass until 21st August, 2009 is an. afterthought. i The appellants should refer to the decision of the·. Court of Appeal of Tanzania in the case of ,Loswak1 Village Council and another Vs. Shibesh Albebe Civil .Application No. 23 of 1997 Arusha Registry (unreported) where it was held that:- "Those who seek the aid of the law by instituting proceedings in a court of Justice must file such proceedings within period prescribed by law or where no such period is prescribed within reasonable time." ' I I Thus, Section 5 of the Law of Limitation Act Cap. 89 R.E. 2002 provides that the right of action in respect of any · proceedings, shall accrue on the date on which the cause of action arises. The cause of action in this case arose soon after ·the appe_llants became aware of the alleged fraud committed by ._ithe late Donald Lasa Chaula in 1988 and 1989.: The appellants · were late for 23 years. Under the Law of Limitation Act, suit for . recovery of land must be filed within 12 years and where the suit i · is instituted after the period of limitation prescribed, it shall be dismissed. I What the appellants were supposed to do h~ving discovered I 7 ' i I that they were out of the prescribed period is to apply for leave to file the suit out of time and advance their reasons for the delay in . order to convince the relevant authority or tribunal to grant the leave. In this case no leave was sought and obtained. In those circumstances, I am convinced that the District Tribunal had come to the right decision. I ~ereby uphold that decision and the appeal is dismissed with costs. M. S. SHANGALI JUDGE 19/6/2015 Ruling delivered in the presence of Mr. Onesmo Francis, learned advocate for the appella~ts and first respondent present in person .. . M. S. SHANGALI JUDGE· 19/6/2015 8