peter paulo matyampula vs asia jumanne kalamwe 2022 tzhc 14495 8 november 2022

IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA SUMBAWANGA DISTRICT REGISTRY AT SUMBAWANGA MISC. LAND APPEAL NO. 02 OF 2022 (Originating from Land Appeal No. 5 of2021 from Mpanda District and Housing Tribunal, Original Misukumiio Ward Tribunal Land Dispute No. 31 of2021) PETER PAULO MATYAM PULA......................................................APPELLANT VERSUS ASIA JUMANNE KALAMWE..................................................... RESPONDENT JUDGEMENT Date of Last Order: 14/ 09/ 2022 Date of Judgement: 08/11/2022 NDUNGURU, J This is a second land appeal. The matter originates from Land Dispute No. 31 of 2021 of Misunkumilo Ward Tribunal. At Misunkumilo Ward Tribunal the appellant unsuccessfully sued the respondent claiming ownership of the piece of land (disputed land). Aggrieved the appellant unsuccessfully appealed to the District Land and Housing Tribunal (first appellate tribunal). Dissatisfied with the first appellate tribunal the appellant has filed the present appeal in this court comprised of three (3) grounds of petition of appeal which are quoted hereunder: - i 1. The first appellate tribunal grossly erred both in facts and law to hold that the appellant did not state how he acquired the suit land while in fact he testified on how he acquired the land. 2. The first appellate tribunal grossly erred both in facts and law to believe of the respondent that they acquired the suit land from Paulo Matyampula father of the appellant while the land did not belong to Paulo Matyampula. 3. The first appellate tribunal grossly erred both in facts and law to hold that the respondent is the rightful owner of the suit land without any documentary evidence. When the appeal was at the hearing stage, both the appellant and the respondent appeared in person, unrepresented. Submitting in support of his appeal, the appellant submitted that he has been aggrieved with the decision of the trial tribunal on the ground that the respondent did not tender any document proving that her mother bought/purchased the farm from his father. Further, he submitted that there was no any documentary proof that there was sale agreement between his father and the appellant's mother. The respondent did not have any evidence to the effect that her mother owned the farm in dispute. He submitted further that the respondent is not 2 an administrator of estate of her mother. Thus, she has no locus to claim for the suit land. In reply, the respondent submitted that he is administrator appointed by the family and the court. He said the appellant's ground of appeal are baseless. He prayed the appeal be dismissed. He submitted that the appellant has produced nothing to prove that the farm in disputed belongs to him. Now the main issue for determination before this court is whether the appeal is meritorious. This being a civil case, the principle of the law in civil litigation is that he who alleges must prove that those facts exist. This is provided under the provision of section 110 (1) of the Law of Evidence Act, Cap 6 RE 2019. This being also, a second appeal, am aware that it is on very rare and exceptional circumstances the Court will interfere with the findings of fact of the lower courts. See the cases of Materu Laison and Another vs R. Sospeter [1988] TLR 102 and Amratlal Damodar and Another vs H. Jariwalla [1980] TLR 31. In the case of Amratlal Damodar and Another vs H. Jariwalla [supra], the Court of Appeal held that: - 3 "Where there are concurrent findings of fact by two courts, the Court of Appeal, as a wise rule of practice, should not disturb them unless it is clearly shown that there has been misapprehension of evidence, a miscarriage of justice or violation of some principles of law or procedure." The first issue which stand for my deliberation is whether the appellant did testify on how he acquired the land. At the trial tribunal, the appellant testified before the trial tribunal that in 2013 he was informed by Village Executive Officer that a lady by a name of Asia (the respondent) wanted to do valuation of the disputed plot. He borrowed the disputed plot to mother of the respondent. The appellant testified that the respondent in corroboration with village executive officer one Antipas Katumbete proceeded with valuation of the disputed plot. Upon his visitation to the disputed plot in 2019 he was informed by land officers that the respondent was granted 14 pieces of plots. His first witness one Shaban Matyampula testified that upon early days of valuation of the disputed plot he informed the appellant of the valuation process as the appellant was in Sumbawanga. He was permitted by the appellant to supervise the valuation on the plot of the appellant as they adjacent to each other. That one day following the valuation the respondent being accompanied by the village executive officer asked him 4 as to why he has done valuation of her plot. They agreed to show each other demarcation in the presence of himself, village executive officer and the respondent. He came to tell the appellant what happened as regards the disputed plot. His second witness Sprian Valery Kiswata testified that he remembered in 1960 he shifted from Misunkumilo to Milala with his parents. He has been in Milala till 1974 when his neighbour one old person Fungameza shifted to Tabora and left his farms to his young brothers one Shaban Matyumpula and Peter Paul Matyumpula. In 1979 when he returned from civil war he found his fellows in a normal life as he did not hear any dispute until he was called to testify on this case. On being cross examined by members of the tribunal, he stated that he is not aware as to whether the parents of the appellant did borrow, sell or grant the disputed plot. On her part, the respondent testified at the trial tribunal that in 1975 her parents were living at Mpanda Hotel at the residence of Matyampula the father of the appellant. That Mzee Matyampula agreed with her parents to do labour works. She testified further that her parents agreed with mzee Matyampula that upon doing labour works mzee Matyampula would grant piece of plot her father. She said until 1976 mzee Matyampula granted 5 piece of plot to her father and from there on her and her relatives recognised that such piece of plot was theirs. They continued to utilise the plot from 1976 till 2001when her mother died. She testified that in all such period she did not meet Peter Paul Matyampula but met him when he came to ask for pieces of plots of which she could agreed with. She wondered why since 1975 till 2020 the appellant was where, till he came this time with the claim that the plot is his. Her first witness one Antipas Kalumbete testified that he knows very much the respondent Asia Jumanne. That in October 2014 him as village executive officer be accompanied with land officer one David visited the Mpanda girls' area where sand was extracted. He said the aim was to evaluate the area under possession of the people. He said among the people who were present include the respondent, elder Matyampula, deceased Hamis Malilo and Peter Lusambo among the few he remembered. He asked each of them to show his/her area. He said the respondent asked elder Matyampula to lead the process of showing demarcation to avoid encroachment of someone else area. Thereafter, he said valuation of the plots proceeded including the area of the respondent and Shaban Matyampula and from thereon they did not witness any dispute/conflict. Her second witness one Zena Jumanne Katabwe testified that she remembered that in 1975 with her parents shifted from Tabora to Mpanda 6 * and they resided at the resident of mzee Matyampula as tenants. Her parents agreed with mzee Matyampula for doing farm works in exchange for piece of plot as payment. That after two years the plot was under ownership of her parents. She testified that since 1975 they used the plot without any disturbance from the appellant until their parents passed away. Since 1975 till 2020 is almost 45 years, she said in all such period the appellant did complain. After considering the entire testimony above, and records of appeal it and on balance of probability as applied in civil cases it is my firm view that the evidence of the respondent above and his witnesses was strong enough as regards on how she came into possession of the disputed plot. That the evidence is to the effect that the disputed plot was originally property of the appellant's parents. However, it appears that the appellant's father entered into agreement with the respondent's parents in 1975 that the respondent's parents were to do farms works in exchange for a piece of plot. And such plot was used by respondent's parents till they passed away. According to the record, after the death of their parents, the disputed plot was under the control and supervision of respondent and her relatives cultivating until 2020 when the appellant instituted a suit. The appellant did not claim the disputed plot when the parents of the 7 respondent were still alive and it is not clear as to why he wants it now after more than 45 years had elapsed. In my view, the appellant's claim has no legal justification because in the first place it is time barred considering the fact that the respondent had been occupying the same plot since the year 2001 when their parents passed away. According to the Law of Limitation Act, Cap 89 RE 2019 the time limit for recovery or redemption land is 12 years. It is on record that this suit was filed in Misunkumilo Ward Tribunal in 2020 which is almost 19 years reckoned from 2001. Also, the records show that the disputed plot was not under possession of or use by the appellant. In the light of the above testimony, it would be grossly unfair after such a long period to disturb the respondent. See the case of Shabaani Nassoro vs Rajabu Simba [1967] H.C.D 233. The plot has become the property of the respondent by virtue of long occupation for 19 years after the death of the parents. The appellant is barred by the doctrine which permit a person to acquire an interest in property by long uninterrupted possession and use (vide The Customary Land Law of Tanzania, a Source Book by W. James and G. M. Fimbo at page 533; the Learned Authors state that; 8 "Received law permits a person to acquire an interest in property by long uninterrupted possession and user..." Having said all that, I have not seen any circumstances that compel this court to interfere with the concurrent findings of fact of the two tribunals below that the respondent had been in a long and uninterrupted occupation of the disputed land. In view of the foregoing, I find this appeal has no merit. Thus, it is hereby dismissed. Costs of this appeal be borne by the appellant. It is so ordered. 9 Date - 08/11/2022 Coram - Hon. M.S Kasonde - DR Appellant - Absent Respondent - Present through Video Conference B/C - Zuhura Respondent: Your honour the matter comes for judgment and I am ready. Court: Judgment delivered this 8th day of November, 2022 in the presence of the Respondent (appeared through video conference) and in absence of io