Land Appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT PAR ES SALAAM LAND APPEAL CASE NO. 19870 OF 2024 (Arising from Temeke District Land and Housing Tribunal in Land Application No. 155 of2022, Before P.I Chinyeie, Chairman) PETER MAKINDA............................................................. APPELLANT VERSUS AFUA SULEIMAN MAGANGA (Administratix of the estate of the Late Suleiman Maganga Kapigawasi).............. ....... RESPONDENT JUDGMENT Date of last Order: 06/11/2024 Date ofJudgment: 25/11/2024 LALTAIKA, J. The Appellants herein PETER MAKINDA is dissatisfied with the decision of the District Land and Housing Tribunal for Temeke (the DLHT) in Land Application No. 155 of 2022. He has appealed to this Court by way of a Petition of Appeal containing the following grounds: Page 1 of 12 1. That, the trial chairman erred in law and fact by entertaining an application for a dispute of the land which lacks dear description of the disputed land. 2. That, the learned trial chairman erred in law and fact by entering judgment and decree in favour of the respondent without dear demarcations as to the description of the land that the respondent is entitled to, hence entering an erroneous judgment. 3. That, the learned trial chairman erred in law and fact by relying on the very weak evidence of the respondent, who never tendered any ownership documents and didn't know the land in dispute as compared to the appellant's watertight evidence. 4. That, the trial tribunal erred in law and fact by entering judgment in fa vour of the respondent by relying on the meeting of 1995 which has never existed, pleaded nor proved by the parties. 5. That, the trial tribunal erred in law and fact by entertaining a dispute instituted by the respondent who acted as an administratix of the estate of the late Suleiman Maganga Kapigawasi over the land which was not part of the estate of the deceased. 6. That, the trial tribunal erred in law and fact by failing to consider that, the matter in dispute was hopelessly time barred. When the appeal was called for mention on the 18th day of September 2024, the Appellant and Respondent enjoyed the skilful legal services of Messrs. Justine Kalebi and Sylvester Korosso, learned Advocates (the latter holding brief for Wilson Ogunde, learned Advocate) respectively. Page 2 of 12 Parties opted for hearing by way of written submissions. With a nod of approval by this Court, a schedule to that effect was ordered. I take this opportunity to register my commendations to Counsel for compliance with the scheduled order albeit with a few hiccups that necessitated amendment of the original schedule. The next part of this Judgment is, in that order, a summary of submissions by both parties, my analysis of the law and the verdict. Mr. Kalebi, Counsel for the Appellant, argued the appeal starting with the first ground. He submitted that the respondent's application at the trial tribunal failed to indicate the exact location of the disputed plot, lacking clear demarcations. Merely stating that the plot was located at Maganga Street, Temeke Ward, in Temeke District, Dar es Salaam, Mr. Kalebi asserted, was insufficient. The learned Counsel for the Appellant emphasized that the description did not specify the plot's length, width, square meters, title number, residential license number, or boundaries in all directions. Consequently, he questioned how the tribunal could entertain a dispute and confer ownership of a plot whose identity remained indeterminate. Page 3 of 12 Citing Regulation 3(2)(b) of the Land Disputes Court's Regulations, 2003, and Order VII Rule 3 of the Civil Procedure Code Act, CAP 33 R.E. 2019, Mr. Kalebi highlighted the mandatory requirement for applications to provide sufficient descriptions of the subject property to enable identification. Despite the appellant's repeated objections at the trial tribunal, Mr. Kalebi recounted, the chairman proceeded to entertain the matter, which, Counsel claimed, ultimately resulted in an erroneous judgment. He supported his argument by referencing the case of Elidadis M. Lushikala v. Samuel Malecela (Land Case No. 89 of 2023). Regarding the second ground of appeal, Mr. Kalebi argued that the respondent did not provide the necessary specifications or demarcations of the claimed land during pleadings or the hearing. According to Counsel, the decree, based on unclear facts, was deemed impractical and erroneous. He relied on the case of Twapasyaga Yotam Kasalwike v. Esili Kasanga (Land Appeal No. 68 of 2022) to buttress his argument. For the third ground of appeal, he pointed out that the respondent neither tendered ownership documents nor provided sufficient proof of her claims, contrary to the requirements under Section 110 of the Law of Evidence Act, CAP 6 R.E. 2019. By contrast, Mr. Kalebi asserted, the appellant had Page 4 of 12 submitted watertight evidence, including ownership documents, which, he averred, the trial tribunal failed to consider adequately. He supported his argument by referring to the case of Abdul Karim Haji v. Raymond Nchimbi Alois and Joseph Sita Joseph [2006] TLR 419, which reiterated the principle that the burden of proof lies on the party alleging a fact. Addressing the fourth ground, Mr. Kalebi submitted that the trial tribunal erred by relying on a purported 1995 meeting between the parties, which had never occurred, was not pleaded, and was not proved during the proceedings. He argued that basing a decision on non-existent facts undermined the tribunal's judgment, rendering it erroneous. Regarding the fifth ground, Counsel asserted that the respondent lacked locus standi to institute the application as the disputed land was neither part of the estate of the late Selemani Maganga Kapigawasi, for which the respondent was an administratrix, nor her personal property. He argued that this rendered the application at the trial tribunal both faulty and incompetent. Finally, on the sixth ground, Mr. Kalebi argued that the respondent's claim was time-barred, having contravened the provisions of the Law of Limitation Act, CAP 89 R.E. 2019. He stated that the respondent's claim of trespass, Page 5 of 12 being founded in tort, should have been filed within three years from the accrual of the cause of action. He cited Elias Mwita Mrimi v. North Mara Gold Mine Ltd (Civil Case No. 08 of 2020) to reinforce his position that time-barred suits are legally untenable. In conclusion, he prayed for all grounds of appeal to be upheld, the trial tribunal's judgment and decree to be quashed and set aside, and the appeal to be allowed with costs. Mr. Ogunde, Counsel for the Defendant, on his part, began by clarifying his position, stating that he supported the findings and decision of the DLHT. He asserted that the Appellant's appeal lacked merit and deserved to be dismissed with costs. He addressed the grounds of appeal in reverse order. Addressing the sixth ground of appeal, which concerned the jurisdiction of the Trial Tribunal, Mr. Ogunde explained that the matter before the Tribunal was a dispute over the ownership of a piece of land. He pointed out that both the Appellant and the Respondent claimed ownership of the disputed property, and the issue for determination was whether the Respondent was the lawful owner. Referring to the Law of Limitation Act, Page 6 of 12 he argued that a suit to recover land must be filed within twelve years. He elaborated that the Appellant had occupied the Respondent's land with consent from November 2015 until 2022 when the Respondent demanded possession. The cause of action, Mr. Ogunde averred, arose in 2022, making the matter timely. Counsel opined that even if the period were calculated from 2015, it still fell within the permissible time frame of seven years. On this basis, he urged the Court to dismiss the sixth ground of appeal. Turning to the fifth ground of appeal, Mr. Ogunde contended that it was irrelevant to the issue before the Tribunal, which was ownership of the disputed land. He criticized the Appellant for relying on a document that had not been admitted as evidence during the trial. He further argued that the administrator of an estate is empowered to deal with properties not initially listed in the probate process and invited the Court to dismiss this ground of appeal. Regarding the fourth ground of appeal, he argued that it was misconceived. Mr. Ogunde referred to evidence presented by witnesses who confirmed a meeting held on November 4, 2015, where parties had reached Page 7 of 12 an amicable settlement. He emphasized that the meeting was not disputed by the Appellant, who had admitted its occurrence during cross- examination, albeit claiming it pertained to a different area. He dismissed the reference to the year 1995 in the Tribunal's judgment as a clerical error that did not affect the validity of the decision. He invited the Court to dismiss this ground as well. Addressing the third ground of appeal, Mr. Ogunde asserted that the Respondent had met the burden of proof as required by the Evidence Act. He noted that the Respondent presented credible witnesses whose testimony and evidence, including a visit to the locus in quo, supported the claim that the disputed land belonged to the late Selemani Maganga's family. He argued that the Appellant's evidence was inconsistent and lacked credibility, as it failed to establish a legitimate root of title. He further argued that the Appellant was estopped from denying the agreement made during the 2015 meeting and requested dismissal of the third ground. Consolidating the first and second grounds of appeal, Mr. Ogunde contended that the location of the disputed land was adequately described in the application and was sufficient for both parties to identify the subject matter. He argued that the Tribunal and the parties had visited the locus in Page 8 of 12 quo, confirming the area in dispute. He dismissed the Appellant's claim of vagueness in the decree as baseless and requested dismissal of these grounds. Lastly, Mr. Ogunde addressed the Appellant's prayers for declarations of ownership and damages. He argued that these claims were unsupported by evidence and could not be raised at the appellate stage since no counterclaim had been filed before the Tribunal. He concluded by praying for the dismissal of the appeal with costs. I have dispassionately considered the rival submissions and thoroughly examined the Tribunal's records. The issues for my determination are as follows: 1. Whether the Tria! Tribunal hadjurisdiction to entertain the matter. 2. Whether the Trial Tribunal properly adjudicated the ownership of the disputed land. 3. Whether the decree issued by the Trial Tribunal was valid and executable. On jurisdiction of the trial Tribunal, the Appellant argued that the matter was time-barred. The Respondent countered, submitting that the cause of action accrued in 2022 when the Appellant refused to vacate the Page 9 of 12 land as per the agreement of 4th November 2015. The Respondent emphasized that a cause of action arises when a legally recognizable right is breached. This Court finds that the Respondents submission is well-founded. Under item 22, Part I of the Schedule to the Law of Limitation Act, Cap 89 R.E. 2019, suits to recover land must be filed within twelve years. Even counting from 2015, only seven years had elapsed by 2022, leaving the matter within the statutory period. Time limitation starts running when the right to recover possession accrues. Thus, the Trial Tribunal had jurisdiction. This ground of appeal fails. On ownership of the disputed land: the Appellant argued that the Trial Tribunal erred in determining ownership, alleging that the disputed property formed part of the estate of the late Selemani Maganga Kapigawasi. However, the Respondent submitted that the Appellant had inconsistently claimed ownership through various alleged transactions that lacked evidentiary support. The evidence before the Trial Tribunal, including the testimonies of SMI, SM2, and SM3, demonstrated that the disputed land belonged to the late Page 10 of 12 Selemani Maganga's family. The Appellant's purported agreements were inconsistent, with one claiming a sale in 1993 and another in 1997. The Trial Tribunal rightly disbelieved the Appellant's evidence. This Court finds no fault in the Trial Tribunal's determination of ownership. On the validity and executability of the decree: the Appellant contended that the decree was vague and unenforceable. The Respondent submitted that the disputed property was adequately described during the proceedings and at the locus in quo, making the decree clear and executable. I agree with the Respondent. The description of the property and the evidence presented sufficed to identify the subject matter of the dispute. The decree was properly drawn in accordance with the judgment, and this ground of appeal is dismissed. I am inclined to add albeit in passing that Counsel for the Appellant's invocation of failure by the Respondent to describe the suit land is, to say the least, unnecessary invocation of technicalities to the detriment of justice. Throughout the trial and even upon visiting the locus in quo, parties were on the same page regarding the suit land. Page 11 of 12 In the upshot, I find no merit in the appeal. The decision of the Trial Tribunal is upheld. The appeal is dismissed with costs. It is so ordered. E.I. LALTAIKA JUDGE 25/11/2024 /\lov COURT: Judgment delivered in Court Chambers this 25th day of ■Qct$&er~2024, 15:00 PM in the presence of Messrs. Justine Kalebi and Sylvester Korosso, learned Advocates (the latter holding brief for Wilson Ogunde, learned Advocate) Counsel for the Appellant and Respondent respectively. Page 12 of 12