registered trustees of the roman catholic diocese of dodoma vs henery kedmon jembe 2017 tzhc 2084 29 may 2017

IN THE HIGH COURT OF TANZANIA DODOMA DISTRICT REGISTRY AT DODOMA LAND APPEAL NO. 74 OF 2016 (Appeal from the District Land and Housing Tribunal o f Dodoma Land Application No. I l l o f 2014 THE REGISTERED TRUSTEES OF THE ROMAN CATHOLIC DIOCESE OF DODOMA...................................... APPELLANT VERSUS HENERY KEDMON@ JEMBE........................ RESPONDENT JUDGEM ENT Date o f Ruling- 29/05/2017 Mansoor, J: The Appellant herein is represented by Masai Advocate while the respondent was unrepresented. The appeal was disposed of by written submissions. 4 The brief background of the matter is that the Appellant claims to own the disputed land since 1929 allocated by the Village Council, and in 1950, the Appellant had the Certificate of title. The Certificate of Occupancy issued to the Appellants in 1950 was received as evidence and marked as Exhibit P I. The Respondent on the other hand claims to have been given this land by the late Mzee Babu Martin in 1988, and that he built his 8 room residential house, and he has been occupying the house since 1988 undisturbed. The Trial Tribunal visited the locus in quo, and had been satisfied that since the Respondent has been in possession and use of the land since 1988, he is the lawful owner of the land. Aggrieved by the decision of the Trial Tribunal, the Appellant brought an appeal raising two grounds of appeal that the tribunal erred in holding that the respondent was in use and possession of the land for over 22 years without any proof, and that the Appellant should have been declared the owner of the disputed land. The Appellant argues that P W 1 Nicolous Damian gave evidence that the respondent started trespassing into the land in 2nd October 2011, and tendered a letter dated 16th October 2011 (exhibit p2). Also in the minutes of 27 December 2013, the respondent was summoned by the Appellant on 22 October 2012, and he admitted to have trespassed into the Appellant’s land, he was asked by the Appellants to stop building. He was also stopped by the Village land Council on 10th September 2013 from building but he ignored the stop orders. It was also proved by the minutes of the meeting of the Appellant’s that the respondent started building at the disputed plot in 2011, and that the Appellant started seeing the Appellant constructing a foundation on 07th September, 2011. The respondent was invited by the appellant to attend a meeting on 16th October 2011, he refused to attend. On 20th January 2012, he was summoned by the Bahi primary Court and on 20th January 2012, the respondent admitted to have trespassed, and the court directed the parties to meet for a resolution. On 10th September, 2013, he was asked to stop construction by the Village land Council. He did not attend the meetings as ordered by the Primary Court, neither did he obey the stop order of the Village land Council. While in the meetings and before the primary Court, the respondent changed the story, and started claiming that he purchased the land from one Mama Sijilani, and that he has been occupying the land since 1988. There was no proof whatsoever given before the Trial Tribunal of the ownership of the land either by Mama Sijilani or Mzee Babu Martin, and whether or not those people had good title to pass to the respondent. There was also no proof whatsoever as to when he started construction of the house in the disputed land as he did not produce any document to substantiate as to when he started occupying the land. The respondent on the other hand relied heavily on the doctrine of adverse possession, and cited the case of Rupia Tungu and 3 others vs. Abdul Buddy & Halik Abdul, Civil Appeal No. 115 of 2004, HC (unreported). I went through he submissions and the records and I shall say that the suit was not barred by section 22 of the First Schedule to the Law of Limitation Act, 1971 Cap 89 (“the Law of Limitation Act”). Section 22 of the First Schedule to the Law of Limitation Act provides for the limitation of time for recovery of land to be twelve (12) years. From the records I agree that that the suit was instituted and filed in the Trial Tribunal in 2014, while the cause of action arose in 2011, when the Appellant discovered the trespass and started taking action. Section 9 of the Law of Limitation Act states: “Where the person who institutes a suit to recover land, or some persons through whom he claims, has been in possession of the land and has, while entitled to the land, been disposed or had discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.” It is on record that the Appellant was dispossessed of the land when the Respondent t started occupying and using the land and this occurred in 2011 when the Respondent started construction of his house at the disputed land. It is also on record that the Appellant started taking action as soon as it discovered the trespass and had tried amicable negotiations to resolve the dispute since 2012. The Respondent was stopped by the Village, but decided to ignore the orders. It is also on record, and there was ample evidence adduced before the Trial Tribunal, which evidence was not challenged at all by the respondent that the Appellant was issued with the Certificate of Title Deed since 1950, the Appellant never demanded for vacant possession, and vigorously objected to the respondent erecting buildings on the disputed land, thus The time of limitation should start to be counted from 2011 when the respondent’s refusal to give vacant possession after the appellant started demanding for it since 2012. The question to be approached and determined by this Court is whether the respondent had acquired title by adverse possession and whether the respondent was occupying the land since 1988. I have said hereinabove, and from the records, there is no proof whatsoever given by the respondent proving that he started occupying the land since 1988. He even failed to substantiate the title of Mzee Babu Martin. On the other hand it is undisputed fact that the Appellant were allocated the disputed piece of land by the United Republic of Tanzania and had taken full possession of the land since 1950. It is an established principle that a right of occupancy granted in terms of section 6 of the Land Ordinance Cap. 113 confer a superior title to the grantee as the land is a registered piece of land and there was no proof that the Appellant surrendered the part of this land for the use of other people. Based on the above, this appeal succeeds .The decision of the District Land and Housing Tribunal is hereby quashed and set aside. The Appellant is declared the owner of the disputed land, and the respondent is ordered to give vacant possession of the suit land with immediate effect. Costs of the appeal be borne by the respondent. Appeal allowed with costs. DATED at DODOMA this 29th day of MAY, 2017. A i^ M A n s o o r v-r.v lOLXmSf /■:'// JUDGE \•\ \« ■■ ■-// wV 29th MAY 2017