SAADA SAID

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT SUMBAWANGA (CORAM: HON. THADEO MWENEMPAZI) LAND APPEAL NO. 14 OF 2023 SAADA SAID..... ............ COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS JUMANNE MUSSA MKENAGSI.............................. RESPONDENT / DEFENDANT JUDGMENT 16/03/2024 & 22/04/2024 MWENEMPAZI, J. The present appeal traces its origin froni the District Land and Housing Tribunal of Katavi at Mparida (trial tribunal) before which the respondent applied for an order that he is a rightful owner of the land in dispute which is Page. 1 Hon. THADEO MWENEMPAZI located at East Isengule hamlet at Isengule village within Tanganyika District in Katavi Region, and the size of the dispute land is 16 x 22 steps. It is in the records that in the year 1990, the respondent had acquired the said disputed land from the late Mwasiti Binti Bakari on one side and Zuberi Ally on the other side out of utmost good will and blood relationship (undugu). That, the constructed a house at the dispute land; he and his family lived on the disputed land for over 18 years, in which in the year 2008 i the said Mwasiti Binti Bakari who had gifted him the land passed away. She was buried on the land adjacent to the disputed land. Nevertheless, the records reveals that, the respondent maintained his possession until 2022 when he was summoned at the Ward Tribunal. The appellant claimed the dispute land against him whereby after mediation had failed, the respondent filed the suit against the appellant at the trial tribunal, whenfthe dispute was heard, he was declared the rightful owner of the disputed-land Being dissatisfied by that decision, the appellant knocked the doors of this court with a Memorandum ofAppealwhichconsistsdf four (4) grounds in which I find best to reproduce as hereunder; 1. That the trial tribunal erred in law arid fact by declaring the respondent as the owner offthe disputed land only on mere words without any written document which proves tfiiat the deceased (Mwasiti Bakari) gave the disputed land to the respondent as a gift, something which is contrary to the law. 2. That, the trial tribunal erred in law after declaring the respondent as the owner of the disputed land relying on adverse possession without considering that the property on dispute was never an abandon land. 2 3. i hat, the trial tribunal erred in law and fact by delivering the judgment and decree in favour of the respondent without considering the material evidence of both the appellant and her witnesses who testified that the actual owner of the land is one Mwasiti Bakari (deceased). 4. That the trial tribunal erred in law and fact by delivering the judgment and decree in favour of the respondent without considering the^material contradiction on the witness testimonies arid it wasdughtto be disbelieved the said witness lied. The appellant then prayed for this appeal to be allowed with costs. On hearing of this appeal, both sides fended off for themselves as they had legal representation.Whenshewasinvited to argue for her grounds of appeal, the appellant as lay person as she is, she submitted that she prays for the- respondent to produce documents to justify that he was given the disputed land. Thereafter, she prayed for the grounds of appeal to be considered In response to the submission made by the appellant, the respondent submitted that he did not tender documents but the evidence proved that he was given the disputed land as a gift. He added that, the appellant as a 3 child admits that he was given the disputed land. That, there is no need of the documents as she accepted that he was given the disputed land. After reading the records before me and the submission made by both sides, it is my fortified reasoning that out of the above reproduced grounds of appeal the second ground of appeal is considered by; this court to be determinant question or factor of the dispute at%hand. Therefore. the only determinant issue in this appeal will be whether the trialtribunal properly construed the principle of adverse possession. 'X It has been held in decision by Court of Appeal of Tanzania in the case of the Registered Trusjteesjpf HoiySpiritSisters T. vs January Kamili (Civil Appeal 193 ,of 201:6) J20181.TZCA 32 (6 August 2018) where it has quoted with approval the two English decisions - viz - Moses vs Lovegrove [195^2 QBC5?3; ang Huglies vs Griffin [1969] 1.All ER 460. That: - " It has always been the law that permission or consensual occupation is not adverse possession. Adverse possession is occupation inconsistent with the title of the true owner, that is, inconsistent with and in denial of the right of the true owner of the premises." 4 In those cases, it was held that it is trite law that a claim for adverse possession cannot succeed if the person asserting the claim is in possession with the permission of the owner or in pursuance of an agreement for sale or lease or otherwise. Thus, on the whole, a person seeking to acquire title to land by adverse possession had to cumulatively prdye the following: - 'W1'' (a) That there had been absence ofpossession by the true r owner through abandonment. (b) That the adversepossessorhadbeenin actual WSlt.sVf ,^.•^7.. •••£<•:•-Tv ■ I.;.'; 'r'^' possession ofthepiece of land; (c) a That the adverse possessor had no color of right to be there other than his entry and occupation; (d) Thattheadversepossessor had openly and without the a consent <of the true owner done acts which were inconsistent with the enjoyment by the true owner of land for purposes for which he intended to use it; (e) That there was a sufficient animus to dispossess and an animo possidendl; 5 (f) That the statutory period, in this case twelve years, had elapsed; (g) That there had been no interruption to the adverse possession throughout the aforesaid statutory period; and (h) That the nature of the property was such that in the light of the foregoing/adverse possession would result. % J[Emphasis added] Therefore, it is a settled principle of law- that aperson who occupies .yt" ’kk someone's land without permission, and the property owner does not exercise his right to recover it within the time prescribed by law, such person (the adverse possessor) acquires ownership by adverse possession. The , :;;75 circumstances under which a person seeking to acquire title to land under that principle were aptly explicated in the case of the Registered Trustees ‘V-p.-r- of Holy Spirit Sisters Tanzania vs January Kamili Shayo and 136 Others, Civil Appeal No. 193 of 2016, CAT (unreported). In the situation at hand, the respondent has claimed that he acquired the disputed land from the deceased (Mwasiti Bakah) who had given him as a 6 gift, way back in 1990. The witnesses he summoned at the trial tribunal did testify that, indeed the respondent was given the disputed land by the late Mwasiti Bakari as a gift. As rightly argued by the two celebrated cases above that, it is trite law that 4ft? "Mb a claim for adverse possession cannot succeed if the person asserting the '’Mbs. claim is in possession with the permission of theowner or in pursuance of an agreement for sale or lease or otherwise. Uhd^^thd^|rcumstances, therefore, it is true as complained that the Chairman was in error when he found the respondent as the owner of the dispute land on the basis of adverse possession. Clearly, the evidence which ywas tendered point to the acquisition of ownership of land by the respondent by being given as a gift as testified. No one denied that the respondent was given the disputed land as a gift, despite the fact that there is no any documentary evidence to support the respondent's claim as submitted by the appellant. The said Mwasiti Bakari passed away in 2008 and the appellant did not claim for the dispute land until 14 years later as shown in the facts of the present case; from the year 2008 up until the year 2022 when the appellant reported the matter at the Ward Tribunal, twelve years statutory period had elapsed 7 whereas the respondent was in constant possession of the disputed land without being disturbed by anyone. It is my firm holding that to wait for fourteen (14) years to reclaim the possession of a land, it is to sleep on one's right. The limitation period to recover land is 12 years as perlsection 3 (1) of the Law of Limitation Act, Cap. 89 R.E. 2019, read together with part l item 22 of Part I to Schedule of the same Act. The appellant is therefore stopped by the law to reclaim the disputed land fourteen years after she knew of the fact that the land is in possession of the respondent^ I do pen off by dismissing-fhis appeal for lacking merits as the appellant's action of reclaiming land has been overtaken by events. The decision of the trial tribunal is upheld; to the e)d;ent explained, that the respondent is the lawful owner of the disputed land. Consequently, I proceed to dismiss this appeal with no order as to costs for the reasons that the disputants are relatives; I thus order that each one should shoulder his or her own costs. The decision of the trial court is hereby upheld subject to rectification on the reasoning as explained. It is so ordered. 8 Dated and Delivered at Sumbawanga this 22nd day of April, 2024 9