MUHAMADI NJEKULE SCANNED

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 27883 OF 2024 (Originating From Application No. 66/2022, Mkuranga District Land and Housing Tribunal) MUHAMADIIDRISA NJEKULE.......................... APPELLANT VERSUS SAIDI MUHAMEDI MKALIPA......................................................... RESPONDENT JUDGMENT 18/12/2024 to 18/02/2025 E.B. LUVANDA, J The Appellant is appealing against the decision of the Tribunal which dismissed his claim for a farm of eight acres located at Dondo Viilage/Ward, Kisiju Division in Mkuranga District, Pwani Region, on the ground that the Appellant did not honor or breached the agreement dated 22/03/2014 part of exhibit DI where the Appellant had committed and promised to pay back (redeem) a sum of TZS 2,500,000/= for a suit farm by 22/10/2014, along another document in exhibit DI where the Appellant had promised to pay back a sum of TZS 2,500,000 to continue gaining possession a suit farm as against the Respondent and sibling/kindred. Briefly, the Appellant claims over the suit farm is grounded on a fact that sometimes way back in 1993, the Appellant along his friend the late Muhamedi 1 Mkalipa who is the father to the Respondent, visited at the suit farm (deserted place) which was abandoned by the iate Shomari Mkalipa who is the grandfather to the Respondent, after having relocated to another place. According to the Appellant alleged to have been given (divided among themselves) where the Appellant was allotted eight acres (suit farm) by the late Muhamedi Mkalipa who retained majority acres. It is not clear whether the Appellant was allotted the suit farm permanently or temporary bases for usage, which fact even the Appellant failed to clarify. But at the time of allotting to the Appellant, the late Shomari Mkalipa (original owner) was alive, only passed three years later in 1996. After allotment, the Appellant developed the suit farm by planting permanent crops like coconut trees, cashew nut trees along constructing a permanent residential house where he established permanent settlement. Post demise of the late Muhamedi Mkalipa in 2013, it is when a dispute arose, where the Respondent and kindreds started claiming back the suit farm, on the explanation that it belongs to their late grandfather Shomari Mkalipa. The Respondent accused and blamed the Appellant for dishonoring the agreed terms for the latter to compensate the former a sum of TZS 2,500,000 which later increased to a sum of TZS 3,000,000. 2 In the memorandum of appeal, the Appellant raised three grounds of appeal: One, the Tribunal erred in law and fact in not considering the Appellant's evidence and testimony in respect of the property (farm) in dispute; Two, the Tribunal erred in law and in fact in failing to caution itself that DW1, one Said Muhamedi Mkalipa had no locus standi or interest whatsoever in respect of the said land in dispute by PW1; Three, the Tribunal erred in law and in fact in putting weight on the evidence of DW1 who is the Respondent herein, without taking into consideration the evidence of PW1 in respect of time of acquisition of the of the said land in dispute by PW1. The Appellant combined ground number one and two, he prefaced by citing Lujuna Shubi Balonzi vs Registered Trustees of Chama cha Mapinduzi [1996] TLR 203; Ramadhani Omary Mbuguni vs Aiiy Ramadhani and Another, Civil Application No. 173 of 2021, CAT. He submitted that at the Ward Tribunal the Respondent never attached anything to confirm his necessary standing but the Tribunal went on deciding in favour of the Respondent. He submitted that the same happened at the Mkuranga District Land and Housing Tribunal (DLHT), arguing that the Respondent never testified on his standing capacity {locusstandi) and the DLHT has not evaluated to that issue at all. He submitted that the Respondent testified that the suit land belongs to his grandfather and that he knows that the Appellant was the one using that land, 3 and after the demise of the Respondent's father, the Respondent convened a dan meeting discussing the suit land with the Appellant, arguing that nowhere he has told the Tribunal that he stood on all of that in what capacity and no evidence were shown. For ground number three, the Appellant submitted that it is clear testimony that the Appellant was given a suit farm by the Respondent's grandfather (sic) in 1993, queried as to where the Respondent was for the past twenty-two years. He cited paragraph 22 of Part I (sic, Schedule) to the Law of Limitation Act, Cap, 89 R.E. 2019, for a proposition that the cause of action arose in 2014 after twenty two years since the Appellant acquired the suit land. In reply, the Respondent submitted that locus standi is a point of law which cannot affect the validity of the case as whole, arguing that it ought to have been raised before the Tribunal and not at the appeal stage. He cited Order VIII rule 2 of the Civil Procedure Code, Cap 33 R.E. 2024 (sic), for a proposition that preliminary objections should be raised at earliest stage as possible. He submitted that the Appellant did not raise this objection relating to the locus standi of the Respondent either at the Ward Tribunal or DLHT. He submitted that it is the Appellant himself who instituted the suit at the Tribunal, argued 4 that if at all he knew the person he is suing lacks footing in the case, he was supposed to sue the rightful person (person with locus standi). For ground number three, the Respondent submitted that it is undisputed that the Appellant was allowed by the owner of the suit land to cultivate only and therefore its owner was known. He submitted that the Appellant knew the owner that is why the Appellant decided to enter into sale agreement with the family of the Respondent to purchase the suit farm. He submitted that it is after the Appellant did not honor the agreement, then the dispute arose in 2014 where the Respondent referred the dispute to the Ward Tribunal before expiration of twelve years in 2022 being only eight years, where parties involved other forum to resolve the dispute. He submitted that the Appellant is trying to use his long existence in the suit land to prove his ownership, arguing being misconceived for the explanation that computation of twelve years of use in the law of limitation covers trespassers in unclaimed land which are abandoned for over twelve years. He submitted that the principle does not apply to the Appellant, arguing he was not a trespasser in the suit land. On rejoinder, the Appellant submitted that, the Appellant has appealed against the decision, for explanation that during hearing, the Respondent claimed that the suit land belongs to his family without justification or locus standi. He submitted that it was expected for the Respondent to tender exhibits showing that he is the owner of the suit land and not the Appellant. He submitted that missed out that crucial evidence leaves the Respondent without the legs to stand to prosecute the application for want of locus standi, citing Lujuna Shubi Balonzi (supra) and Ramadhani Omary Mbuguni (supra). For ground number three, the Appellant submitted that it is true that the owner of the suit land is known, arguing it is the reason the owner gave the suit land to the Appellant for personal uses. He submitted that it is the reason there are no any terms or conditions to return the suit land given to the Appellant, arguing that since that time they both lived in peace for twenty-two years until the demise of the Respondent's father, when the Respondent decided to trespass into the suit land unjustifiably and started harvesting Appellant's crops and assaulting the Appellant's wife. He submitted that the cause of action arose in 2014 after twenty-two years since the Appellant acquired the suit land. On my part, ground number one and two, on the first limb of locus standi, the argument is misconceived. As alluded by the Respondent, it is the Appellant who sued claiming ownership of the suit land and accusing the Respondent for trespassing the same. Therefore, bringing the argument that the Respondent lack locus standi, is uncalled for. My undertaking is grounded on a fact that the 6 substantive claim or cause of action is trespass to the suit land. Therefore, bringing an argument of locus standi on the party alleged to be a trespasser, is unmaintainable. Equally an argument by the Appellant that it was expected for the Respondent to tender exhibits showing that he is the owner of the suit land and not the Appellant, is a serious misdirection on his part. The Appellant is the one who sued, it was his case, he was under obligation to prove his allegation over ownership in respect of the suit land. It is a wrong assumption to place that duty and burden to the Respondent who was merely defending a suit. It was wrong for the Appellant to come with a phantom argument that the Respondent missed out crucial evidence for proving ownership, or that it leaves the Respondent without the legs to stand to prosecute the application for want of locus standi. As I have said, it was a suit for the Appellant who was under obligation to prosecute and tender evidence vindicating how, why, when he acquired the suit land. It seems the Appellant who had no documentation whatsoever for owning the suit land, is attempting to twist and place that burden to the Respondent. On the second limb of this point, essentially both parties are in agreement that the suit land initially belonged to the late Shomari Mkalipa who passed away in 1996. It is undisputed that in 1993, the late Muhamedi Mkalipa along the Appellant visited the suit land, where the Appellant alleged was allotted eight 7 acres. The only dispute hinge on the fact that the terms of allotment to the Appellant were not made clear, whether it was allotted permanently or temporary. Neither the Appellant himself nor the Respondent could unveil this puzzle. To that end, the Appellant cannot escape a fact that he was a mere invitee. However, the conduct of parties afterward poses another challenge. During trial, in particular on defence, the Respondent who testified as DW1 along his witness Said Ally Matitu, asserted that the Appellant planted crops, permanent trees like coconut trees, cashew nut trees and constructed a permanent residential house where he have been living all the time since 1993. When DW1 was asked question by the member of the Tribunal, he stated that the suit land is almost twelve or eleven acres, and asserted that the Appellant was merely given three acres, but extended the boundary to occupy more vast land. The Respondent's sister one Sada Mohamed Mkalipa who testified as DW3, on cross examination by the Appellant, was recorded to had stated that, I quote, 'Mdai alipewa shamba na baba kiurafiki tangu 1993. Sina nyaraka ya kukabidhiana shamba. Mashahidi ni majirani na inajulikana kwa watu wote' In view of that deduced facts above, it is equitable to rule that the Appellant is entitled to retain the three acres which were allotted to him in 1993. The rest land does not belong to him. The Village Council at the suit land to supervise to 8 establish actual measurements for a size of three acres adjudged above, which all must be attached or located around or adjacent to a destination where it is said that the Appellant constructed a permanent residential house. For ground number three, the Appellant was arguing on two grounds: one that the suit is time barred; two, that the Appellant is accommodated under adverse possession for a long occupation over twenty two years. To my view, both are inapplicable to the matter. First and foremost, time limit is a defence available to the Defendant (Respondent herein). I wonder why the Appellant is raising it against own cause. It is common ground that a dispute arose in 2014 after demise of the late Muhamed Mkalipa, therefore twelve years for suing were yet to expire. Again, the doctrine of adverse possession is inapplicable to the circumstances of this case where the Appellant was an invitee. As alluded by the Respondent, for it to apply, the invasion ought to be by way of occupying abandoned land without notice or interruption from the owner. But herein it is the late Muhamed Mkalipa who invited the Appellant, therefore, the Appellant cannot be accommodated under adverse possession. For that matter, ground number three, is unmerited. Having adumbrated as above, I proceed to quash the judgment and set aside the award of the Tribunal, and declare the Appellant as a rightful owner of a 9 suit land measuring three acres only, located at Dondo Village/Ward, Kisiju Division in Mkuranga District, Pwani Region. The Village Council at the suit land to measure a size of three acres, around or adjacent to a destination where it is said that the Appellant constructed a permanent residential house. 10