20131011 TZHC Iringa

IN THE HIGH COURT OF TANZANIA [LAND DIVISION]

ATIRINGA >MISCELLANEOUS . :. . '

LAND CASE . .·, APPEAL NO. ,-11 OF 2011 . ' ' · (From the decision of tlie District Land and Housing Tribunal of Iringq.. District at Iringa in Land Case Appeal No." 42 of 2008 ,ciid Original Ward T~i~unal of ;Njomhe Ward in Application No .. 19 of 2008) MTOGELAUMI MHOHA ............... APPELLANT VERSUS · ·:;\. SELESTINE MWANYIKA .. ~·:···::.·'.•RE.,~PONDENT ..~:. -:. . . _.;- . _; .. ;.,. (Date of last Order-6:8:.2O13 Date of Judgement 11.10:2013)

JUDGMENT MADAM SHANGALI, J~ In early 2008 the appellant MTOGELAUMI MHOHA sued the respondent SELESTINE MWANYIKA before the Njombe Mjini ward Tribunal claiming for the ownership of the piece of land in dispute. The trial Njombe Mjini Ward Tribunal unanimously ruled in favour of the respondent. Dissatisfied with the decision the - appellant filed his first appeal _before Njombe District Land and Housing Tribunal. On 18/11/2008 the fist appellate District Land and Housing Tribunal ruled 1 again 1n favour of the respondent and condemned the I -'. appellant to pay costs. .. , · Disgruntled by.· that decision the· appellc:mt ...... has filed . .. . this .. . ~ second appeal intending to challenge the::decisio:n .of the .two lower tribunals. In his petitio'.9- of appeal the appellant has listed four grounds namely:- . Ope:- That· the suit was not time 'bared as ruled 1n the decision, of ·the · first appellate District Land and Housing J'ribunal~ Two: That both two lower tribunals failed to consider the ·appellant and his witnesses test1~onies; Three: That the sale of the suit· land was done unproceduraly and illegally through the Chairman of Mjimwema, one Augustine Mfikwa in 1996; and Four: That the case was partially and unfairly conducted before the lower tribunals.· This appeal was filed back on 20th,.· July, 2011. . Since then, the case has been fixed for several mention and

hearing dates without any take of success. According to the court records the main reason being the frequent non-appearances 2 .•· . '·'\, ,/. ': ._·. , • r of the respondent. On 11 th June, 2013 the appellant's •·; application to proceed with the hearing exparte was allowed. -· .ob:·:the .. . hearing . date the appellant who appeared in pet~o~ ·and . :unrepresented did not submit on his· . grounds of app;al, -inst;·ad h~- -~~~yed the co_u~t to adopt and consider his grolinds of appeal. ' .... Having, gqrie through the _record of· proceedings . qf_; the lower tribuiiM~ together with their ·judge~ents. ·and· having· considered the ground~ ,6,f the appeal _.filed by ·the a:P;_pellant I hereby resolvttthe appellant's grourids-:'of appeal as foll~ws:- On the first ground of appe·a1, ther~:i· is overwhelming :_ ·, evidence on record to establish that the suit ian;cr... 'was sold to'. .. - ; ' the respondent _by _ihe late Gervas Mhoha i~ 1996. ~Then, the· case was filed by the appellant on 10/3/2008 i.e. after the period of 13 years. ·.-There is no dispute that for the whole period of 13 years the respondent has been cultivating and - developing the land without any interference. It is surprising to note that the appellant started to claim for the ownership of () the said land after the death of his young brother and the owner, Gervas Mhoha .. ·. The law of Lirriitation Act, 1971,

Section 3 ( 1) Part I item 22 of the first schedule bars any claim of recovery of land where the· occupier has been peacefully enjoying it for mo:re 3 / - - ~=~ i~.. t . . than twelve (12) year~. Indeed where a person has develop and occupy land undisturbed for a long pe:fiod, _he is presumed to have acquired that land by prescription . and courts have always . been . reluctant to . _disturb p.is ~ ' .·. . title over . ' . such land - See Nicoloaus K.~lilnga Vs. Nuka Maliyan,. Civil Appeal No. 8/ 1988 (GA). Arusha Registry (unreported) and . Mohamedi Hassan Hole Vs.·Keya Jumanne Ramadhani Civil Appeal No.· 19/ 1992. With that position of the law ,·and evidence the first ' - ground. of appeal is rejectec1/fThat ground alone is enough to -~ . . . dispose off this appeal because the rest of grounds have no leg to support for the suit itself was filed out of time. Nonetheless ; ' ·., . it. is important for the appellant to understand that in the : . ' · deterinination · of the suit the lower tribunals critically and correctly evaluated the evidence from both sides and came to the correct decisions against him. The land was legally sold by the owner Gervas Mhoha and the appellant has no right to claim it. The evidence of Protas Mwanyika is crystal clear that the appellant's late brother Gervas Mhoha who was the lawful owner of that land sold the same in 1996 to the

respondent. - Protas Mwanyika was a witness to that sale agreement transaction dated 16 / 9 / 1996 which indicate that the said piece of land was sold at TShs.200,000/=. Protas Mwanyika was able to produce a copy of that sale agreement before the trial ward tribunal. 4 ~ ...p · · Before the trial ward tribunal the appellant claimed to be the owner of the suit land but failed to· produce sufficient evidence to justify his· ownership or. ·af-'least to give sound explan~tio~ . as: -;-tci:: ~hy he started t_o· tlaim for ownership im~ediately after the dea.th of liis brother G~rvas Mhoha. ·1t i~ _preposte_rous on· 'the.part of th~ ippellant to -·allege , that the ., lower. tribunals failed or neglected .to consider his testimony. The records;.· of proceeding ·and decisions of the iower tribunals are clear that ef.ch testimony was c~itically examined arid the decisions i~if based on the . ~redible evidence and the position of the law. The appellant failed;. ,totally and completely to prove his case on the· balance oL · . . probabilities as required in law. The piece of larid in di~pute • 1 was the lawful property of Gervas Mhoha who sold it during / } his lifetime to the respondent. In conclusion both decisions of the lower tribunals are ' hereby upheld. The appeal is devoid of merits and it is hereby ·.,. dismissed. No order for costs because the appeal was heard ' exparte. M. S. SH /

JUDGE 11.10.2013 5. "·l . Q -· -· -·. .-' -- __ t:,_ Ju-dgement delivered todate 11/ 10/2013·· in the presence ·•. , . of the appellant in person and in absence of the respondent. :M.- S. SH. :JUDGE )Ll0.2O13 6