20171130 TZHC Dodoma1

"ORIGINAL''

IN THE HIGH COURT OF TANZANIA

DODOMA DISTRICT REGISTRY

AT DODOMA MISC. LAND APPEAL NO. 25 OF 2017 Appeal from the judgement of the District Land and Housing Tribunal of KIOMBOI, Appeal no. 1 of 2016, original from Mkulu Ward Tribunal) NKANGA HUMBA MASAMPU............................. APPELLANT

VERSUS HUSSEIN MANDE IKAMA ...... ...................... RESPONDENT

JUDGEMENT Mansoor, J: Date of JUDGEMENT- 30/11/2017 The matter originated from Mkulu Ward Tribunal. At the Ward Tribunal, the Appellant lost his claims; hence this is the second appeal. 1 ''ORIGINAL'' The respondent claims that he was allocated the suit land by the Village Council in 1991. He said in 1994 he moved to another place and left the disputed land in the care of his mother in law, one Lula Ilumba. The mother in law was in use and occupation of the land until 2015. The Appellant said the land belongs to him, and 1n 1988 / 89 during elnino rains, he gave the land to the respondent for a consideration of 1 cow, but to date the respondent has not given him the cow, thus he wan ts his land back. He said, the respondent left the land unoccupied from 1989 until 2014, thus he had taken his land back since he was not paid his cow. 2 ''ORIGINAL'' Although the judgment of the District Land and Housing Tribunal on appeal did not go into the details of the evidence and of the arguments used in support of the case for each side, however the real issue in dispute is the ownership of the disputed land. The court also did consider the material evidence relating to ownership by each side, the Respondent said- he -was- giveri the land -by -the Village Council in 1991, Appellants is saying the land is his land and sold it to the respondent in 1988 / 1989 but produced no evidence at all

proving either ownership of the land in dispute or the sale agreement between him and the respondent. The Appellant failed to offer even a letter from the Village to be evidence that the land belongs to him prior to the allocation of the land to the respondent. 3 ''ORIGINAL'' In their submissions, the Appellant and the respondent have relied on their own oral evidence, while the Appellant alleges to be the owner of the land by customary right, the respondent claims he was allocated the said land by the village council in 1991. The respondent has argued that the allocation of land by the Village Council in 1991, gave him a customary land right over-·the· said land. Th·e appellant has·rtot --- disputed that the respondent had been given the land by the Village Council but he is arguing that the Village Council did not have the mandate to allocate the land to the respondent since the land belonged to him. First, the factual position of the Appellant contention that this is his land and should not have 4 "ORIGINAL" been allocated to the respondent is not correct. As correctly pointed out by the Respondent in his submissions, the rights of occupancy over the disputed land as evidenced by the witnesses at the trial tribunal and during the visiting of the locus in qu-0 by the Ward Tribunal-Members was granted to the respondent. ·The Appellant failed to produce any evidence that the

land belonged to him before it was allocated to the respondent by the village council. He failed to give any proof that they had a contract with the respondent in 1988 / 89 for exchanging this piece of land with one cow. Thus the land allocation to the respondent by the village council in 1991 cannot be said to be invalid. The Appellant cannot therefore validly claim that his title to the land allocated to the respondent by the village council in 1991, if true, is 5 "ORIGINAL" superior and precedes the rights of occupancy granted to the Respondent over the same land in 1991. Secondly, as a matter of law, even if it is assumed that the said land belonged to the Appellant prior to 1991, a -question arises -whether the _Village Co:un_cil _ had the legal authority to allocate to the Appellant's land which did not belong to the village, or was not under the jurisdiction of the village council. As the land in dispute was registered land for which customary title had been issued to the Respondent in 1991, unless there is evidence that the land did not fall under the jurisdiction of the Village council, the village council had authority to allocate the said land to the respondent. Unfortunately the Appellant did not call any witness from the Village Council or offer any other evidence, to show that the land is not vested in 6 "ORIGINAL" the village council. In the absence of such

evidence, the Village Council had power to allocate land which was under its jurisdiction, to the respondent. The appellant's claim that he had a customary law title to the land is therefore without any legal foundation. The - --VHlage-cou-nei-1-wh-icB.-did- have the_authori:cy to allocate the land rightly granted -a customary law title to the land to the respondent. In short, the appellant did not ---~---~- adduce any-·-evidence-auring7:rial which--coutd--prove-- --------- that he had any title to the land in dispute. Thirdly, the respondent produced evidence, and the ward tribunal have witnessed during their visit at the locus in quo that the respondents was on the land for over twelve years having an undisturbed quiet enjoyment of the land before the Appellant claimed the said land. The respondent's claim is twofold, firstly he 7 "ORIGINAL" has been allocated the land by the Village council, and secondly, his claims of title for being in adverse possession. The common law principle of adverse possession applies where the person claiming has been in adverse possession for twelve years. In the -circumstances, even assuming the_ Appellant owned the land prior to 1991, the respondent's claim of quiet enjoyment of the land for Twelve (12) years is true, and the respondent did acquire title by adverse possession, as 12 years had lapsed since he started occupying the land. Conclusively, I find there was no credible evidence adduced by the appellant to show that he had lawful right to the land in dispute. To sum up this appeal, I find th~t the whole appeal is without merit and it is dismissed in its entirety. 8 - - - --- - . "ORIGINAL" The Respondent will have the costs of this appeal. It is ordered accordingly. DATED at DODOMA this 30 th day of NOVEMBER, 2017

JUDGE 9