stephen paulo mhembano others vs enock paulo mhembano 2017 tzhc 2214 6 april 2017

IN THE HIGH COURT OF TANZANIA

AT DOPOMA LAND APPEAL NO. 65 OF 2014 (From the Decision of the District Land and Housing Tribunal of DODOMA District at DODOMA In Land Case No. 6 of 2011) REV. STEPHEN PAULO MHEMBANO & O TH ERS.......................APPELLANTS

VERSUS ENOCK PAULO MHEMBANO.................................................. RESPONDENTS

JUDGMENT 13/02/2017 & 06/04/2017 H. H. KALOMBOLAJ.: The matter started at the District Land and Housing Tribunal for Dodoma in Application No. 6/2011, ENOCK PAULO MHEMBANO was the applicant while REVEREND STEVEN PAULO MHEMBANO, YONAH PAULO MHEMBANO, and NAHORI PAULO MHEMBANO were the respondents. Judgment was entered in favour of the applicant who was declared a legal owner of the suitland. Respondents were dissatisfied hence the present appeal. They have four grounds of appeal:- i 1. That, the learned Magistrate erred in Law and fact in ignoring to appreciate and uphold the pertinent tact alleged by the plaintiffs that, as a matter of law the action was taken by the respondent was maliciously and that there were no reasonable and probable cause.

2. That, the learned Chairman erred in Law and fact when he misdirected himself on the concept of prescription and Adverse possession.

3. That, the Learned Chairman erred in Law by not assessing the credibility of the witness who testified on behalf of the respondent and just take into account that what they said was true.

4. That, the decision of the learned Chairman is against the weight of evidence on record. Mr. Kikondo Maulid was the counsel for appellants who told court on the 1st ground of appeal that the Chairman of the tribunal failed to decide on a Counter claim. On the 2nd ground of appeal he said the tribunal decision was based on a doctrine of prescription and adverse possession whereby these doctrines cannot apply because it was known Enock Mhembano ( the respondent) was taking care of the land in dispute while they were waiting for time to distribute the estate of their deceased father as by then their mother was still alive ( see the judgment at page 5, and paragraph). Thus principle 2 of adverse possession cannot apply ( also see page 6, 2nd paragraph of the judgment). Moreover, the doctrine of adverse possession and that of prescription cannot apply at the same place. He submitted on the 3rd ground of appeal that witnesses who testified on side of respondent failed to give clear explanation on the matter, so as the respondent himself. That it is not true that appellants refused to take their areas as it was stated by respondent before District Land and Housing Tribunal, the truth is that they took their areas as they knew they belonged to their late father. It was submitted onthe 4th ground of appeal that proceedings show appellants evidence was very clear to the effect that the

area in dispute belonged to appellants. That District Land and Housing Tribunal disregarded the evidence which was before it and give decision in favour of respondent whos evidence was not clear. In Regard to Section 124 of Tanzania Evidence Act they said, doctrine of prescription cannot apply as respondent was only taking care of the area. They prayed appeal be allowed. Mr. Wasonga advocate replied that submissions on part of appellant have no weight in Law because the Memorandum of Appeal filed contravenes Order XXXIX Rule 1 of Civil Procedure Code. That the order made it mandatory for a decree 3 challenged and copy of judgment be attached to Memorandum of Appeal. The present Memorandum of Appeal is not supported by a decree or judgment. Then the same must be struck out. That he made use of this Order of Civil Procedure Code because Section 51 of Land Disputes Courts Act directs where there is lacuna in the Land District Courts Act and its Rules, Civil Procedure Code applies. Otherwise he submitted on the 1st ground of appeal that it must be expunged because it talks of matters which were not before District Land and Housing Tribunal. There were no terminologies like malicious, reasonable cause and probable Cause which terminologies are normally applied in tort. And before District Land and Housing Tribunal parties were not called as plaintiff and defendant. In respect of a

Counter Claim there had to be presence of a legal representative of the deceased father ( of the parties). Since appellants claim land of their deceased father they had no legal status before the tribunal. Their father died in 1984 (as per exhibit D1 collectively). And there are 26 years from 1984 - 2010 when the dispute started. That is why District Land and Housing Tribunal applied doctrine of prescription as this doctrine applies in a situation whereby 20 years has elapsed, and in the present matter respondent has stayed for 26 years. Further on the Law of Limitation Act, Cap 89, it is submitted that under item 22 to the schedule claim to recover land is 12 4 years, and upon the case of ERIZUS RUTAKUBWA VRS JASSON ANGERO TLR [1983] af page 365, appellants have no right to claim the land in dispute. And that under Section 9 (1) of the Law of Limitation Act Cap 89, appellants ought to have started claiming for their father's land since in year 1984 when their father died which year time started running against them. Moreover evidence at hand favoured respondent and not appellants as appellants have never been living in the area in dispute. Mr. Kikondo rejoined that the Counter claim was admitted by Tribunal therefore it was not wrongly filed. That they did file the judgment and decree to accompany the Memorandum of appeal as it is required by Law. He submitted time

cannot accrue where a dispute is in respect of a deceased’s estate i.e a dispute that has arisen after death. Therefore as in the present matter heirs may sue anytim e they wish. And when their father died in 1984, their mother was still living who died in 1994. They could not have filed a Probate matter while their mother was still alive. Distribution of estate was done in 2009 and respondent received his area. Since respondent was only taking care of the area with leave from the family members, doctrine of prescription and adverse possession cannot apply. And on an issue that at what time the time started to accrue, it is their submission, it was after the grant of letter of administration, therefore they had many years ahead. They insist their appeal 5 be allowed basing on the weight of evidence on appellant's side. After the counsel for appellant submission, Mr. Wasonga when making a reply, submitted on a point that the Memorandum of appeal was filed in contravention of Order XXXIX Rule 1 of the Civil Procedure Code, Cap 33 R.E.

2002. He said there was no decree and judgment to accompany the Memorandum of Appeal. This court was alarmed by this point and decide to peruse the file before discussing the appeal as a whole. On the other side appellant’s counsel when making a rejoinder, countered saying that both decree and judgment were filed together with the Memorandum of appeal. Record is to the effect that Memorandum of Appeal was only accompanied by a judgment, decree is not there. What does Order XXXIX Rule 1 (1) states: “Every appeal shall be preferred in the form of a memorandum signed by the appellant or his advocate and presented to the High Court ( herein after in this Order referred to as “the court”) or to such officer as it appoints in this behalf and the memorandum shall be accompanied by a copy of the decree appealed from and ( unless the court dispenses therewith) of the judgment on which it is founded.” 6 It is therefore mandatory under this provision of Law a decree and judgment to accompany Memorandum of Appeal as the word SHALL is used, unless the court dispenses with. But there is no evidence in record that the court dispensed there with. In that absence, appellant must have filed Memorandum of Appeal which is accompanied by a copy of decree and of judgment. Appellants are hereby found to have contravened Order XXXIX Rule 1 (1) of the Civil Procedure Code, Cap 33 R.E.

2002. Since this order is a mandatory requirement, basing on record before me I am settled that appellant filed the Memorandum of Appeal in contravention with Order XXXIX Rule 1 (1) of Civil Procedure Code. In the premises this court is hindered from determining the appeal on merits as the present appeal is incompetent. The same is dismissed with costs. It is ordered. in . H. KALOMBOLA)

JUDGE 06/04/2017 7 DATE: 06/04/2017. Coram: Hon. D.R. L y im o -D r 1st Appellant: deceased 2nd Appellant: Absent 3rd Appellant: Present Respondent: Present C/c: Ijinji COURT: The case is coming for judgment. 06/04/2017 Judgment delivered on this 6th day of A p ril 2017, in the presence of 3rd Appellant and in the presence of Respondent. Court clerk Ijinji present. D.R.LYIMO

DEPUTY REGISTRAR 06/04/2017 8 Right of Appeal explained. 9