said salum kiluke vsagatha zakaria hamis and 3 others 2021 tzhclandd 680 29 october 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC.LAND APPEAL No. 274 OF 2020 (Appeal from the decision of the District Land and Housing Tribunal for Ilala in Land Application No.76 of 2017) SAID KASSIM KILUKE (As personal legal Representative of the late Omary Kassim) APPELLANT VERSUS AGATHA ZAKARIA HAMISI..... RESPONDENT FARB ASSOCIATES LTD ......2"'' RESPONDENT SALUM CHAMKOKA .....S^^RESPONDENT SALUM MNEKA ..4™RESP0NDENT JUDGMENT Date of last order; 26/10/2021 Date of Judgment; 29/10/2021 T. N. MWENEGOHA.J. The appellant being aggrieved by the decision of the District Land and Housing Tribunal for Ilala in Application No. 76 of 2017 appeals to this court on the following grounds; 1. That the trial chairperson erred in law to hold that the first respondent proved ownership of the disputed land basing her decision on the sale Agreement (Exhibit DI) without considering its admissibility. 2. That the trial chairperson erred in law to hold as she did March 2017 when the second respondent issued notice. 3. That the trial chairperson erred in law having found as a fact that respondent bought the disputed land on the 21^ December 2000 it was over 12 years when the first respondent obtained a decree in the Ward Tribunal. 4. That the trial chairperson erred in law in that she did not properly evaluate the evidence. Wherefore, it is the appellant prayers that the court be pleased to quash the decision of the trial Tribunal. During the hearing of this appeal the appellant and the 1^ respondent appeared in person and un represented, the 2"*^, 3^^ and 4^ respondent did not enter appearance. Submitting in support of his appeal the appellant submitted that the land in dispute measures 1.1/4 acres and not 8 acres. Also, he did not dispute the fact the 1^ respondent purchased the suit land from the Late Omary Kassim but only insisted that the 1.1/4 acres purchased by the respondent is not measured from the front side of the farm land but from the other side of the farm (that is from bondeni) but the respondent has trespassed 1.1/4 acres from the front side of the late Omary Kassim's farm land. Therefore, that there was a necessity for the trial Tribunal to visit a locus in quo in order to reach into the just and fair decision but the Tribunal did not visit the locus, so the appellant prayed this court to visit the locus in quo. When replying, the respondent conceded with the applicant on the size of the suit land he bought from the late Omary's farm land but disputed the location of the suit land. She insisted that the part of the land she purchased is located on the front side of the late Omary's farm land and not from the other side as it is alleged by the appellant. Having gone through the parties submission the main issue for determination is whether this appeal is meritious. Passing through the records of the appeal I have found out that the 1^ respondent purchased the piece of land in dispute from one Nausi Saldi (the wife of the late Omary Said Kiluke) on December 2000. The evidence revealed that the late Omary Said Kiluke died on 5^^ August 2013, more than 12 years from the date of transaction, and that the wife died first before her husband, the late Omary Kiluke but after the demise of the wife, Nausi, no one challenged the transaction to date. As per the schedule item 7 Law of limitation Act Cap 89(herein after the Limitation Act) provides for the time limit for a person to challenge a contract, is within 6 years from the date the contract was entered. Therefore that, if anyone wanted to challenge the contract, he ought to have challenged it within 6 years from the date of the transaction. The parties right to challenge the contract between the late Nausi and the respondent expired in 2006. Furthermore, Section 9 (2) and item 22 of the 1^ schedule of the Limitation Act, required the late Omary Kiluke if at all he was dissatisfied by the sale of the suit land, to claim it within 12 years, but this applicant (the administrator) started to claim the suit land after the expiry of 17 years from the date the 1^ respondent purchased to when the case was filed. From the conduct of the late Omary Said Kiluke from the time the suit land was purchased by the 1^ respondent to the time of his death, one can learn that he was aware and he agreed to the sale that is why he never bothered to claim it. Before this court the appellant submitted that the land in dispute measures 1.1/4 acres and not 8 acres. He did not dispute the fact the 1^ respondent purchased the suit land (1.1/4 acres) from the Late Omary Kassim the only dispute between the parties is about the location of the 1.1/4 acres purchased by the respondent, the appellant insisted that the 1.1/4 Is not measured from the front side of the farm land but from the other side of the farm (that is from bondeni). The respondent conceded the fact he is not demanding 8 acres from the appellant, but only 1.1/4 acres from the front side of the late Omary Kassim's farm land. Therefore, the dispute between the parties is the location of the 1.1/4 acres and not the size of the farm. Passing through the trial Tribunal's decision I have found out that the Tribunal awarded the whole 8 acres of the appellant (Including even the area which was not in dispute) to the 1^ respondent. Undoubtedly, there was a necessity for the trial Tribunal to visit a locus In quo in order to reach Into the just and fair decision but the Tribunal did not visit the locus, that Is why it arrived to that decision of awarding 8 acres to the 1^ respondent, the decision which did not solve the dispute but aggravated the problem between the parties. Having said that, the appellants' appeal is meritorious. The judgment and decree of the trial Tribunal is quashed and set aside. I therefore order that the records of the Misc. Land Application No.76 of 2017 be remitted back to the trial Tribunal, the Chairman is ordered to visit the locus in quo and ascertain the actual position of the 1.1/4 acres in dispute and compose a new judgement basing on his findings. I make no order as to costs. Dated at Dar es salaam this 29^^ day of October, 2021. //^/ ^ «( Si DR..7f>iWENEG0HA, J'