LAND APPEAL NO 19 of 2022SELEMANI NDUYENE NEWNEWNEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MTWARA SUB-REGISTRY AT MTWARA LAND APPEAL NO 19 OF 2022 (Originating from the District Land and Housing Tribunal for Lindi at Lindi in Land Appeal No.53 of 2021, Originating from Malolo Ward Tribunal in Land Case No.3 of 2021) SELEMANI NDUYENE....... .................................APPELLANT VERSUS SAFINA FINTANI................. ..........................RESPONDENT JUDGMENT Date oflast Order: 21/11/2023 Date ofJudgement: 30/11/2023 LALTAIKA, J, The appellant herein SELEMANI NDUYENE is dissatisfied with the decision of the District Land and Housing Tribunal for Lindi at Lindi (hereinafter the DLHT) in Land Appeal No.53 of 2021. He has appealed to this Court fronting the following grounds of appeal: 1. That, the honourable chairman erred in law by applying the principle of adverse possession while the respondent at the trial tribunal failed to establish her ownership of the disputed shamba and also failed to describe the boundaries of the disputed Page 1 of 12 shamba hence the principle of adverse possession is not applicable. 2. That, the honourable chairman erred in law in deciding the matter in merits while in the trial proceedings it shows that nor appellant or respondent had focus standi. When the appeal was called for hearing on 19/9/2023 there was no meeting of the mind between Mr. Ngongi, learned Advocate for the Appellant and the holder of power of Attorney for the Respondent one Gervas Gervas. Although an order for disposing of the matter by way of written submissions was issued, the matter dragged in court until the Tanganyika Law Society (TLS) Mtwara Chapter offered pro bono legal services to the Respondent. On the 7th day of November 2023, Mr. Alex Msalenge, learned Advocate on TLS docket made his first appearance. He informed the Court that he received instructions from the TLS Legal Aid Committee to assist the respondent. As he went through the file, Mr. Msalenge reasoned, he realized that there was an order of this court to dispose of the matter by way of written submissions. Nevertheless, Mr. Msalenge continues, he could not submit on that prayer before as the matter was before Deputy Registrar. He prayed for at least seven days to file the reply to the appellants submission. Page2of 12 There being no objection from Mr. Ngongi who asserted that he was inclined to allow the same for purposes of ensuring justice is done, this court partly vacated its previous order and the following scheduled was ordered, (i) Counsel for the respondent to file reply to the appellants submission oh or before 14/11/2023 (ii) Rejoinder if any 21/11/2023 (iii) Mention for necessary Orders 21/11/2023. I take this opportunity to register my commendations to the learned Advocates for spotlessly complying with the court schedule. The next part of this judgement is a summary of submissions by both parties. Mr. Ngongi, started of by stating that adverse possession is a settled principle of law. He explained that if a person occupies someone's land without permission and the property owner does not exercise his right to recover it within the time prescribed by law> the adverse possessor acquires ownership by adverse possession. In this case, Mr. Ngongi asserted, the respondent instituted Land Case No. 03 of 2021 at Maiolo Ward Tribunal Ruangwa Lindi. The evidence showed that the respondent started using the suit farm in 1995 after the death of her uncle, meaning she could not benefit from adverse possession since her ownership was derived from inheritance, not adverse possession. Page 3 of 12 Mr. Ngongi referenced the circumstances under which a person seeking to acquire title to land under the principle of adverse possession, as explicated in the case of the Registered Trustee of Holy Spirit Sisters Tanzania vs. January Kamili Shayo and 136 Others, Civil Appeal No. 193/2016, CAT (unreported). He asserted that this case was quoted with approval in the Kenyan case of Mbira vs. Gachuhi [2002] E.A.137 (HCK), which relied on Moses vs. Lovegrove [1952] 2 QB 533 and Hughes vs. Griffin [1969] 1 All ER 460. Mr. Ngongi emphasized that there was no proof of abandonment by the true owner in this case, as the evidence showed the respondent claimed to own and use the suit farm since 1995 after her uncle's death, which precluded her from benefiting from adverse possession. He also noted that the appellant used the suit shamba after the death of Mzee Mpitani, indicating no abandonment. The learned Advocate went on to argue that the adverse possessor had to be in actual possession of the land. Since the respondent and appellant's entry did not emanate from adverse possession, Mr. Ngongi suggested, the appellant was the one in actual possession. Additionally, he reasoned, the adverse possessor had no right to be there other than through entry and occupation, but both the respondent and appellant's Page 4 of 12 claims were based on inheritance, giving them a right to claim ownership under succession law. Moreover, Mr. Ngongi pointed out that the adverse possessor had to openly and without the consent of the true owner do acts inconsistent with the true owner's use of the land. In this case, Mr. Ngongi asserted, consent was given on both sides. He also mentioned that there had to be sufficient animus to dispossess, and the statutory period of twelve years had to have elapsed without interruptions to the adverse possession. He concluded that the nature of the property must be such that adverse possession would result. Citing the Court of Appeal case of Bhoke Kitang'ita vs. Makuru Mahemba, Civil Appeal No. 222 of 2017, (unreported), Mr. Ngongi explained that the ownership of the disputed land was derived from the deceased, with the respondent's uncle owning the suit shamba and the appellant claiming it as his inheritance from Mzee Mpitani. Thus, he averred, neither party could claim ownership under adverse possession. Mr. Ngongi further argued that the Malo Io Ward Tribunal was in a better position to determine the true owner of the disputed shamba, as it visited the site and found that the respondent could not even describe the boundaries of the land. He concluded by stressing that the principles of Pa ge 5 of 12 adverse possession were not applicable in this case and prayed for the court to find merit in this ground. On the second ground of appeal, concerning locus standi, Mr. Ngongi submitted that the trial proceedings showed that neither the appellant nor the respondent had the legal capacity to claim or institute a case. He explained that the respondents ownership was based on her uncle's death, while the appellants ownership was based on his grandfather Mzee Mpitani. Without following the legal procedure of appointing an administrator or administratrix of the estate of the deceased, Mr. Ngongi reasoned, neither party had the right to claim ownership of the land. Citing Lujuna Shubi vs. Registered Trustee of Chama Cha Mapinduzi [1996] TLR 203, Mr. Ngongi explained that locus standi is the legal capacity to bring an action or appear in court. He averred that the trial proceedings showed that the appellant inherited the land from Juma Rashid and Mzee Mpitani, but no deed of transfer was tendered. The respondent also lacked locus standi as she was not an administratrix of her late uncle's estate, with no document justifying her ownership. Mr. Ngongi argued that instituting the case without locus standi and claiming something not belonging to the claimant was fatal. He invited Page 6 of 12 the court to cure the irregularity by nullifying all proceedings and records of both the Ward Tribunal and District Land and Housing Tribunal. Based on the grounds discussed, Mr. Ngongi prayed for the court to find merit in the appeal, quash and set aside the judgment and decree in Land Appeal No. 53 of 2021, and allow the appeal with costs. Mr. Msalenge, the learned Advocate for the Respondent, countered the submission by Mr. Ngongi. Regarding the first ground of appeal, he conceded to some of the elements required for adverse possession, such as the lapse of the statutory period of twelve years by the adverse possessor, the absence of interruptions during the statutory period, and the nature of the property that would result in adverse possession. However, Mr. Msalenge argued that these elements conflicted with others necessary for adverse possession. The adverse possessor, Mr. Msalenge averred, had no colour of right to be there other than his entry and occupation. Mr. Msalenge contended further that the Respondent no longer had any right to the disputed shamba, and that the Appellant sought to evict the Respondent because the Appellant had no right over the land in dispute. Mr. Msalenge argued that the Respondent met the requirements to be declared an adverse possessor as per the law and case precedents. He Page 7 of 12 also noted that even if both parties inherited the land, the question was who was in possession of the disputed land, to which the answer was the Respondent, as the Appellant did not deny this fact. Regarding the second ground of appeal, Mr. Msalenge acknowledged the Appellant's citation of the case Lujuna Shubi vs. Registered Trustee of Chama Cha Mapinduzi (1996) TLR 208, which defined locus standi. However, he argued that the Respondent had sufficient standing due to adverse possession, referencing the Indian case of S.P. Gupta vs. Union of India AIR SC 149, where it was held that judicial redress is available to a person who has suffered a legal injury or is likely to suffer. The learned Advocate also cited the case Godbless Jonathan Lema vs. Mussa Hamis Mkangaa and Others, Civil Appeal No. 47 of 2012, which quoted the Malawian Supreme Court of Appeal in AG vs. Malawi Congress Party and Another, Civil Appeal No. 32 of 1996, emphasizing that locus standi is a jurisdictional issue requiring a person to have an interest in the subject matter. Mr. Msalenge concluded by asserting that the Respondent had locus standi due to adverse possession and had the interest to institute the matter in court. He prayed for the court to dismiss the Appellant's appeal, Page 8 of 12 uphold the judgment of the District Land and Housing Tribunal, and grant costs of the appeal and any other relief deemed fit and just. In his rejoinder, Mr. Ngongi reiterated his submission in chief. I have dispassionately considered the submissions by the learned advocates for both parties. The appellants arguments centre on the principles of adverse possession and locus standi, seeking to overturn the decision of the DLHT. The respondents counsel, on the other hand, countered these arguments by emphasizing the proper application of these principles and the necessity of substantive justice. Apparently, Mr. Ngongi's forceful argument hinges on the contention that the respondent cannot benefit from adverse possession as her claim arises from inheritance. However, with due respect to Mr. Ngongi, the appellant has failed to provide concrete evidence to support the assertion that the respondent's use of the land does not meet the requirements of adverse possession. He appears to be trying to invent other requirements for the age-old doctrine in Real Property Law. Noteworthy, a person seeking to acquire title by adverse possession must prove continuous and uninterrupted possession for the statutory period. The evidence shows that the respondent has been in possession of the disputed land since 1995, fulfilling the criteria of adverse Page 9 of 12 possession. The lack of substantive evidence to counter this fact renders the appellant's argument weak and unconvincing. I must emphasize that the appellant's submission heavily relied on procedural technicalities rather than addressing the core Substantive issues. For instance, the argument that the respondent lacks locus standi because her claim is derived from Inheritance ignores the broader context of continuous possession. In Lujuna Shubi vs. Registered Trustee of Chama Cha Mapinduzi (Supra), it was held that locus standi is determined by the interference with a person's right or interest The respondent's continuous use and occupation of the land since 1995 clearly establish her interest and right to claim adverse possession. Focusing on procedural technicalities undermines the essence of substantive justice, which this court seeks to uphold. More importantly, equity demands that justice be fair and just. The respondent has been in possession of the land for over 25 years, meeting all legal requirements for adverse possession. Stripping the respondent of this possession based on technicalities would result in an unjust outcome, contrary to the principles of equity. The prayer for ordering a retrial after the parties have obtained letters of administration of estates of their long- departed parents is, in my opinion unjustifiable application of Page 10 of 12 technicalities to depart from reality. The respondent's long-term possession clearly establishes her legitimate interest, warranting protection under the law. It does not take much thought to realize that the appellant appears to be in an attempt (albeit futile) to prolong litigation without substantial merit. Courts must prioritize cases with genuine merit and avoid being bogged down by technical arguments that do not advance substantive justice. The public's trust in the legal process is bolstered when courts prioritize substantive justice over procedural technicalities. In the upshot, this court finds the appeal lacking in merit. Therefore, the appeal is dismissed in its entirety. E.I. LA LTAl KA JUDGE 30/11/2023 This Judgment is delivered under my hand and the seal of this court on this 30th day of November 2023 in the presence of Mr. Emanuel Ngongi, learned Advocate for the Appellant and Mr. Gervas Gervas for the Respondent. Page 11 of 12 E.I. LALTAIKA JUDGE 30/11/2023 The right to appeal to the Court of Appeal of Tanzania fully explained. E.I. LALTAIKA JUDGE 30/11/2023 Page 12 of 12