19850411 TZHC Dar es Salaam

IN· THE HIGH COURT OF TANZANIA AT DAR ES SAU\AM MISCELLANEOUS CIVIL CAUSE N0.9/84 SELEMAN SALEHEoooooooooooooooooooooAPPLICANT versus JOSEPH SISANOooooooo•oo••o•••ooo•ooRESPONDENT JUD.GM ENT MA.INA~ J The respohdehti Joseph Sliarno, succes~fully s~ed the appellant, Selernahi Salehe at the Mkurahga P~i~ary' Court for a half-acre shamba surrounding the re~pondent•s ho~seo The Appellant unsuccessfully appealed to Kisarawe district Court. This is his second appeal. There was undisputed evidence that the parties were fri.ends living in the same village. rn 1974, the appellal'lt sold a piece of land to the respondent who constructed a house on that piece of land. There were a few orahge and coconut trees on that area. The respondent had to remove some of those trees to be able to build his house. In 1975 and 1976 the respondent planted more orange ahd cocohut trees as Well as lemoh trees and pineapples. All this was done with the appellant•s know:~dge. omari Alli who testified as pW.2 asststed the respondent in planting and taking care of all those trees in the area surrounding the respondent's house. B~th lower Courts found that on the evjdence on record, the respondent had purchased the plot of land on which those trees are now standing. The first ground of appeal is that the evidence was conflicting on whether the appellant received Shs. 150/= for the plot. The respondent had said that he paid Shs.410/= to the appellant for the plot and the few trees on it. That was supported by Fatuma Alli who was present at the tra- nsaction. The trial court did not make a specific finding on the amount paid by the respondent. That, as the first appefle!.be court held, was unnecessary because there wa~ - 2 - no dispute that the appellant Had Sold the plo~ of land to the respondent who built a house oh it. What was in dispute w~s whethei::- the appeliant sold the whole are a sU.t:rouridin_g the respondent• s hou::,e and on which the orange and coconut trees were planted. In the second ground of appeal it is said that the district court erred in holding that the appellant sold the area of land in dispute in the absence of documentary evidence to prove the saleG There was evidence of Fatuma Ali who was present during the sale~ There was also the evidenee of omari who JP.~nted the additional oranges lemon, banana trees.and pineapples at the respondent'~ requesta That was in 1975 and 1976 while the sale took place in 1974. The appellant was present and he did not object~ The respondent took care of these trees till 1981 when the dispute arose. That evidence was sufficient to pro·;e that the appellant had sold the area of land on which he planted the trees to add up to what was originally the.:e. The absence of document does not n::nder the sale in effective. ' rt was an { oral contract of sale and it is binding on the partiesa rt ·.-:as al.::c su:.., ... i tted 0y Mr. Rahim 1 :.earned co;..,,-,sel for the appellant,that the suit was time-barredeWith respect, I do not agree that the respondent was barred by limitation when he filed the suit. rt is true that he purchased the plot of land in 1974 and the suit was filed in 1981. The evidence, however, was clear that from the time he purchased the piec~ of land, the appellant did not interfere with the land or crops on it till 19818 That was when the appellant alleged that the area surrounding the respondent 1 s house was his .. rt was then that the respondent had to protect his rights. The cause of ;,i.ction arose in 1981 when the appellant cla.tm\'::d owr,ership of the oranges. The respondent filed the i_;uj_t immediately. · rt is therefore wrong to say ·that cause of • ~J action arose 1n 1974. The respondent had been in continues I and undisturbed possession till 1981. He could not sue for any- thing until the appellant started 1n 1981 to demand rights over the land. The suit which was f:lled in 1981 was not time-barred at all, as the period of limitation is three years from the time cause of action arose. The suit was filed withi.n the pc;:::.od prescribed as cause of action arose in 1981 and not 1914 as \ alleged by the appellant. This appeal isl for the foregoing reasons dismissed with costs. t~•~ W. Jo MAINA .JUDGE DAR ES SALAAM 11th April, 1985.