20070827 TZHC Moshi

., ............~--•,.;. , . ''j IN THE HIGH·COURT OFTANZANIA AT,MOSHI DC CIVIL APP~L NO.22 OF 2005· LUDOVICK B. MTALO .................. .............APPELLANT . VERSUS: 1. THE VILLAGE EXECUTIVE OFFICER· . 2. ANTIPAS HAKI B.MTALO 3. ELIFURAHA G.B.MTALO ·~······· ......... RESPONDENTS JUDGMENT In the District Court of Moshi, the appellant Ludovick Basil Mtalo, filed a . suit against three respondents. The Village Executive Officer of Mabogini, _ -' · Antipas Haki Bazili.Mtalo and Elifuraha Bazili Mtalo. The ~rst respondent was -removed from the said suit following the Ruling_ of the Court which was to the effect that the 1st Respondent was not properly sued Jr:1 terms of section 143 of the Local Government Act No. 7 of 1982. . . The District Court decided in favour of the remaining_ two Respondents._ _ . The appellant was aggrieved and has preferred this appeaL 1 From the evidence as found by the District Court the background of the matter may briefly be stated as follows:- The suit land belonged to the . father of both the appellant and the Respondents, who died in 1964, but the suit land remained ·under the care of their mother who died· in 1982. · The appellant being . elder brother was upon · clan/family consensus · · appointed administrator of the estate of late father. The appellant was also entrusted with supervising the estate on behalf of the young ones· amongst whom were the Respondents. The suit land was left to the 2nd and 3rd Respondent but it being that the Respondents were very young, then the suit land was under the custody of the appellant and sometimes in 1999 the appellant attempted to sell the suitland. These facts are · supported by DW1 Antipas Basil Mtalo, DW2 Gerald-Elifuraha Basil Mtalo, DW3 Pellagia Basil and DW5 Erasmu Mtalo. Moredver, according to DW4 Albina Kiwara, DW5 Erasmu Mtalo, the ·' . · appellant was ·given a shambe at Uru and the Respondents who were not given by their late father the shamba in Uru. After the death of their · mother, the clan decided to divide the suitland amongst the Respondents. The dispute over ownership of the Suitland between the appellant and the Respondents resulted .in to the app_ellant filing a suit against the Respondents. 2 . ~· .•' .. .. . . ~ . ~. ~ - ••. : As earlie~ stated the District Court ruled against the appellant holding that · the Suitland belonged to the Respondents as they inherited the same from their late father. Moreover, the District Court held in respect of the counterclaim in favour_ of the Respondents. The parties requested and the Court ordered that they proceed by way of written submissions. The appellant who was not represented by an advocate filed seven grounds of appeal which I shall tackle one after the other. The first ground of appeal is that, the trial Court had no jurisdiction to· determine the matter as the jurisdiction is exclusively vested in the Village Land Counals, Ward Tribunals, and Land Division of the High Court. Mr.Maruma who represented the Respondents ,, submitted that, the District Court had jurisdiction to entertain the matter as the Suit was filed in 2000 and by then the Land Disputes Act, 2002 which established the land tribunals was not yet _operational ·until 10th October 2003. The point of determination is whether the District Court had jurisdiction to determine -- the suit. 3 · It is evident that way back in 2000, the appellant filed Misc. Civil Application No.47/2000. In that application the appellant requested and - - -~ was granted leave to file the case in the District Court in terms of Section 63(1) of the Magistrate Court Act, and the appellant filed :the suit in the - - - District Court against the Respondents. It is -surprising at the appellate level the appellant claims that the Court had no jurisdiction. That not· withstanding, before the coming into force of the Land Disputes Court Act Cap 216, on _10 th October, 2003, ordinary Courts had jurisdiction to determine Land maters in terms of Section 54 (1) of that Act which is a - saving provision which provides: Notwithstanding the provisions of section 55, proceedings or appeals _, -----_commencertintneFlignCouit;1f1e Magistrate Court's which are pending on the date of Commencement of this Act shall be continued, concluded ---------- - and decisions and orders made thereon shall be executed accordingly as if this Act had not been passed." In essence, the spirit of the saving provision was to have in place a legal mechanism for disputes filed in ordinary courts before the commencement of the Act to be dealt with in those courts as a lacuna is not envisaged in the law making process. 4 Therefore in terms of section 54(1) of the Land Disputes Courts Act, Cap - 216, the pistrict-Court had jurisdiction, to entertain the matter. As regards the second ground of- appeal, the appellant claims that the Respondents had no legal status to stand in Court because they had_ not_ applied for letters of administration of suitland for they claimed to have_ inherited the suitland from their late father. On the other hand, Mr. Maruma submitted that if at all the Respondents had no locus standi, then why did the appellant sue them? Again, I am rather puzzled by this ground of. appeal because the Respondents would not have appeared in Court if the appellant had not sued them. Is it -that the appellant wanted the appellants to be · condemned unheard as asserted by Mr.Maruma. This not possible because every party has a right to be heard befo"re condemnation, as article 13(6) (a) of the constitution of the United republic of Tanzania the ·' provides: "Kwa madhumuni ya kuhakikisha usawa mbele ya sheria. Waka.ti haki na w ajibu kwa mtµ yeyote inapohitajika kufanyiwa maamuzi na Mahakama ...........................-.. . Basi mtu huyo atakuwa na fursa ya. kusikilizwa kwa ukamilifu ,, 5 . Therefore, the Respondents had a right to appear in Court and defend a case against them and appellant see~s · to be questioning his own · . ·ti>· decision of suing the·Respondents which renders the second ground of appeal baseless. The appellant, in the third ground of appeal asserts that, the Respondents' claim was time barred under the Limitation Act ·as the appellant held that land for over 20 years. Mr.Maruma submitted that, the appellant was the administrator of estate of their late father and cannot be heard to claim that he was adversely holding suit land for 20 years. The point for . determination is whether appellant is entitled .to the suit land· by virtue of ·the principle of adverse possession. From the record, which is available, it is the Respondent's case that the suitland was entrusted to the appellant as an administrator of estate of th~ir .late father including and general .,overseer and supervisor to the young ones amongst whom were Respondents who were small children. That is according to th~ testimony of DW4 Albina Kiwara and DW5 · Erasmo Mtalo, who stated that, after the· death of their mother, the clan acting on the will of their late father, divided the suitland amongst the Respondents because the same were not given land in Uru. as opposed to the appellant who was given a shamba in Uru. Also,· according· to DW1, ~ DW2, DW3; DW4 and DW5, the appellant was a caretaker of the suitland 6 which belonged to their late father. This piece of evidence which the _ District Court accepted is quite credible and _clearly. shows that the qJ · appellant was entrusted with the suit land as a caretaker. The appellant testified that the suit land was sold by their mother and in another instance testified that the suit land came into his possession in 1965.· The two are incompatible; because if the appellant possessed the suitland in 1965 then his late mother had nothing to sell, .thereafter. In the circumstances, the appellant cannot in any case invoke the . principle of adverse possession to support his claim over the land because he was a mere caretaker. This was held in the case of Geenrosa Ruraka vs. Adventina Kara~agi Civil appeal No:65 of 1999 and that as a mere caretaker of the- land could not pass title over the appellant by way of inheritance, purchase or longstay. Thus it being that the appellant was a , caretaker; however long his occupation, cannot. deprive. the Respondents the right of ownership of the suitland and this subsequently - renders thus the third ground of appeal baseless. In the 4th Ground of appeal the appellant inter alia, claims that he lawfully acquired the Suitland from the .Local Authority, that is; Mabogini Village Council and on that respect tendered ,.a receipt which was admitted as Exhibit P2 .. 7 .. (n , ~l~"ff~ " It is evident on_ the record that Exhibit. P2 was receipt from Mabogini Village acknowledging receipt 150/= received on 23/2/87 from Ludovick @· Mtalo in respect of "Marekebisho ya Ms. 5-2 Boda No.301 Ms 5-2-414, 48- 412,411-410 etc. Either the receipt did not indicate that it was a Suitland sale agreement as_ between the appellant, the· Village Council and, besides, the Local Authority could not sell the Land which it did not own. Therefore the appellant's claim that he acquired the Suitland from the local authority is not supported by any evidence at all, which also renders the fourth ground of appeal baseless. - On the fifth ground of appeal which relates -to the counter clatm by the Respondent, the appellant asse_rted that the trial Court erred in allowing the counter claim for 148 bales of paddy while the said paddy was harvested and stored by the 1st Respondent the Village Officer as per Order date 25 September, 2000 in Civil Case No.41 of 2000. The appellant did not submit .anything on this ground of· appeal . and Mr.Maruma learned Counsel did t~e same. I must say that, it is the duty of every party· to diligently prosecute his case. Without any submission from the parties to the appeal I have considered the 5th ground of appeal to be abandoned by parties. On the 6th ground of appeal; the app·ellant asserts that there was a conspiracy as between the Respondents and Chawamphu. Evidence 8 paraded by the appelfant in- the District Court fell short of establishing a conspiracy. Moreover, the appellant is not telling the truth .in asserting I that_ the conspiracy was proved as per order. of the High Court dated . 11/7/2000 1n Misc. application No.47/2000, because that order was in respect of leave granted by Munuo, J, to the applicant to institute a _ - customary Land suit in District Court of Moshi in terms of section 63( 1) of the Magistrate Courts' Act. Thus the 6th ground of appeal is also holds no ground. On the 7th ground of appeal the appellant claims that the Magistrate erred in upholding and Preliminary Objection raised to _remove the Village Officer from amongst the Respondents. · It is evident that following the Preliminary Objection by Counsel -for the Mabogini Village Executive Officer that he was not properly sued, the Respondent was removed from the case in terms of section 190(1) of the ) Local Government District Authorities Act, Cap.287 which provides:- "No suit shall be comme(1ced against a local government authority until one month at least after written notice of intention to commence the suit has been served upon the authority by the intending plaintiff or his agent" 9 I . ~ff••·• l·~·+, . . ._ (Y The Village Executive Officer of Mabogini is the Principal Officer of the Village Council and prior to the filing of the suit notice was not served ) upon that Council. The provision of the law which is mandatory was not complied with by the appellant. Thus, the trial Magistrate was right in removing the 1st Respondent for not being properly sued. - In the upshot of the aforestated, this· appeal has no merit and I consequently uphold the decision of the trial Magistrate, and dismiss the appeal with costs. Right of appeal explained. S. E~ MUGASHA JUDGE 27/8/2007 ,, Judgment delivered in the presence of the appellant, the Respondents . and Mr.Maruma Counsel for the Respondents. S. E. MUG HA JUDGE 27/8/2007 . IO