John Barnabas vs Hadija Shomari (Criminal Appeal 195 of 2018) [2019] TZCA 280 (28 August 2019)

-_ IN THE COURT OF APPEAL OF TANZANIA , AI_O OD Qf.tA (CORA 1 nd NW, HAODA SHOMARl ------------------------------------------------~~ ESPO: lDENT (App I from th d eisten ot the Hlgh Court 01 T :14 nl Jt Dodcma) (KalQmbQ1ila J.) d _ th day 01 M V, 2015 in Land Appeal No. 75 of 2013 JUDGMENT OF THE COURT 23 rd &. 28 th, August, 2019 MWANGESI, l.A.: The appeal before us, has its genesis from Land Dispute No.4 of 2013, the District of Iramba within Singida Region, complaining that the appellant herein, had trespassed onto her plot of land measuring about seven and half (71/2) acres. The decision which was given In her favour by the Ward Tribunal, aggrieved the appellant, who successfully challenged it at the 1

-.._ District Land and Housing Tribunal for lramba District, vide I- ppeal Appl cation No. 37 of 2013. In turn, the respond ent thrall h j·rscellaneous ppeJlant, 1 th ubj t of I a peal. In assailing the decIsion of the High Court, the appellant has premised his grievance on four grounds namely: -

1. That, the Honourable High Court Judge, erred in law and in fact in not considering the point of time limitation raised by the appel/ant herein.
2. That, the Honourable High Court Judge, erred in law and in fact in not considering the fact that, the respondent lacked locus standi to claim for the land of her deceased husband.
3. That, the Honourable High Court Judge, erred in law and in fact, in not considering the fact that, the respondent could not object the sale of the land in dispute after the death of her husband 2

-. --- - -- -.._------------- - -- 4. That, the Honourable Nigh Court Judge, rred in k1W and in fact, in upholdIng the decision of tile 'lard Tribunal i tier. )DS th property f , • r. El I ch I Machlbya, learn t th appel nt wh reas, the respondent entered appearance In person, le ally unrepresented. Upon having faJled to comply with the stipulation under the provision of Rule 106 (1) of the Tanzania Court of Appeal Rules, 2009 as amended by the Tanzania Court of Appeal (Amendment) Rules, 2019 <;Jovernment Notice No. 344 of 2019 (the Rules), which required him to file written submission within sixty days in support of the appeal, the learned counsel, sought leave of the Court which was granted, to argue the appeal orally in terms of Rule 106 (10) (b) of the Rules. In his amplification to the grounds of appeal, the learned counsel argued the first ground separately, while the remaining three grounds were argued jolntlv, His argument in the first ground was that, the dispute lodged by the respondent at the Ward Tribunal of Krnyangiri, was legally untenabfe because it was time barred. This was so for the reason that, while the appellant came into possession of the disputed landed property in the 3

awareness of the respondent on the s= l pril, 20 0 as reflected at pag2s 59 060 of th ~ Record of poeal, the respondent tod cd her disput in the N, rd 13~ -, P t , pe of t 12 Y ar nd 57 dJY· Th saId p rlod ()ccorolng Q t r. bya, by very f r b nd the perlod of 12 years, provided under the provisIon of paragraph 22 of the First Schedule to the Law of LimltatJon Act, Cap. 89 of the Revised EdItion of 2002 (the Limitation Act). The named provision sets the limitation period to lodge a claim related to ownership of land to be twelve years. In that regard, the learned counsel urged us to allow the first ground. With regard to the other remaining three grounds of appeal, Mr. Machibya, faulted the decision of the High Court, which was based on the fact that, the respondent had not consented to the sale of the disputed land by her late husband to the appellant. He argued that the same was not the gist of the complaint, which was lodged by the respondent at the 'Nard Tribunal. And, even if the same could have been the case which they argue it was not, he submitted that it could not stand, because it was raised after 4

the demise of her husband. The l~~drn~;cl counsel} conclude his submission b I imploring us to allo '/ tl .... appeal" Alh costs. h rite husb _ d to s ll o lh t. n he 'Y ~ r o argued by th learned couns I for the appellant. She howey r, raised an objection to the alleged sale to the village ExecutIve Offlcer (VEO) of Klnyangirl, on the 22 nd June, 2000. When she was probed by the Court as to why since then, she never took any action until her late husband passed away, only to come and lodge her complaint on the 22 nd February, 2013, which was after the elapse of twelve years, she gave no answer. The basic issue which stands for our determination in the light of the grounds of appeal lodged by the appellant, and the submission from either __ side__ abovel-js_wb_e_thLthe_gisRutew.bj_I]wC!__ lQg[_g_b_'i:r?'Q.QnQQt§g_qLJ]?t the appellant at the Ward Tribunal of Kinyangiri, was time barred. We think this is the central issue because, the question of limitation of time went to the jurisdiction of the tribunal to entertain the dispute. We held in Stephen Masato Wasira Vs Joseph Sinde Warioba and the Attorney.General 5

-_ [1999] TLR 334, where the High Court had struck out an application filed out of time, that: - I tl, H s ction 3 (1) of the L w ot llmtt: lion r.t'..t/ 1971, only the power to dIsmIss It out and not to strike It out; as happened In this case." What we could gather from the record of the lower court and tribunals, is the fact that the question of limitation of time was raised by the appellant throughout the prosecution of the matter. At the District Land and Housing Tribunal, it is reflected at page 73, where it is seen in the second ground of appeal. Nonetheless, even though the tribunal sustained the appeal by the appellant, it never addressed itself on the question of limitation of time which of time, was raised by the learned counsel for the appellant in his submission as noted at pages 98 and 103 - 104 of the Record of Appeal. Unfortunately, however, the learned Judge of the High Court, did not as we" address itself to such an issue. 6

In our view, both the Ch3ii,TI::H) of the District Land and Housir 9 Tribunal in the first appeal, and the learned Judge of the High Cour In the to th jurlsd cnon or tnbun I nd t refor I J COl Sfa(le of proc Ing. Now coming to the merit of the appeal before us, we noted In the record of the Ward Tribunal as polnted out by Mr. Machibya that, the appellant purchased the disputed piece of land from the husband of the respondent in the year 2000. The first installment of the purchase price that is TZS 50,000/=, was paid on the 3 rd April, 2000, while the fina! payment was indicated to have been made on the 22 nd June, 2000. It was further noted in the record that, on the date when the appellant was making the final payment of the purchase price in the office of the VEO, the respondent stormed in the office and found the process in progress, and raised her complaint to the said VEO, in resistanceto the said sale. However, the record is silent on the way or mode on how the alleged complaint was resolved. What is on record is the fact that, on the 23 rd February, 2013, the respondent 7

instituted the dispute which is the subject of this appeal, at the Ward Tribuna! of Kinyangiri. • ~,* .• , if •.•••••• to lodg th d pu In respect of e JI pIcco of end, a subm tted by th learned counsel for the app _ Jlant, tho outcom Is a period of about 12 years and 357 days or so. Indeed, such period Is by very far beyond the 12 years stipulated under paragraph 22 of the First Schedule to the Limitation Act. In terms of the dictates of section 3 (1) of the same Act, the dispute ought to have been dismissed in line with what was held in Stephen Masato Wasira Vs Joseph Sinde Warioba and the Attorney General (supra). A similar scenario was discussed by the Court in National Bank of Commerce Vs Sadrudin Meghji [1998] TLR 503, where an application .. --_ - ,' --' - - ,,- - - ----._ ------_. had been lodged out of the period prescribed by the law. In dismissing the application, the Court stated that: - "We agree with Mr. Kesara that the application is time barred. Under the provisions of section 3 and 8

pereqrsph 21 of the First Schedule to the Law of limitation Act, 1971/ the application should have appOca on beft. us ~ CJ lodge.. 11 mon 17s sIn e delivery 01 th dectston. ThIs In our cons. tiered opInIon Is very much out of time:" See also: Tanzania Cotton Marketing Board Vs Cogeot Cotton Company S.A [2004] TLR 132. In the same vein, the fact that the dispute leading to the appeal before us was lodged at the Ward Tribunal of Kinyangiri, twelve (12) years and 357 days from when the cause of action accrued, it was out of time. Under the circumstances, the Ward Tribunal ought to have dismissed it because it lacked the requisite jurisdiction to entertain it. Unfortunately, this anomaly was not noted by the District Land and Housing Tribunal in the first appeal, as welt as the High Court in the second appeal. This finding moves us to allow the first ground of appeal. And, with the foregolng position, we find no' need to delve in the remaining other three grounds of appeal. 9

.-- .. ----.----- ----- ---- -----_.------ The learned High Court Jud£~ in the second appeal, in sustaining th .... appeal preferred by the respondent, she quo ed t e ccond paragraph of 1m {to ts to ifJ nd chaff. '11 to tne e iJence, she faJled. It is then fOre not tru s It was seta by counsel for the respondent that the appellant's Issue Is an afterthought. I hereby quash the decision of the District Land and Housing Tribunal and restore the decision of the Ward Tribunal" In view of the above quotation, it is our understanding that the holding of the learned Judge in the second appeal, was based on the fact that the objection of the respondent in the sale of the disputed plot of land, was not put into consideration by the Village Executive Officer. In our view; the learned Judge misdirected herself because the issue of consent of the respondent to the sale of the disputed property, was not the issue before the Ward Tribunal. Our stance is fortified by the wording of the dispute which was lodged by the respondent at the Ward Tribunal, of which we take the liberty to reproduce it verbatim thus: - 10

...•. "Maelezo ya Dai Namdai John Barnabas shamba /angu embeto analitumia bila idhini fan u. Sh mba / /7:; ',e' /ina okub ve 'a eker! s bs fa nusu '1/2). n Additionally, in her estirnony before the ward tribunal, he responden was recorded to state that: - "Nakumbuka shamba lenye mgogoro nilifyeka mimi mwenyewe, na shamba hilo nllikuwa nalitumia pamoja na watoto wangu. Baada ya mimi kuondoka kwenda kumuuguza mtoto wangu, na baada ya kurudi, nilipata habari kuwa shamba tangu limekodishwa na John Barnaba (mdaiwa). Ndivyo alivyoniambia mme wangu. Nilimuu/iza kwa nini iwe hivyo, kaniambia mimi nilitaka kuchomwa moto, kwani mlm! nilituhumiwa kuwa eti ni mchawi wa mvua ndiyo maana nimemkodishia nipate fedha ya kujikimu. Nl'limuulizaje kwa nini umemkodishia na mimea sisi tutaku/a nini? A/ijibu kuwa kwa ssbsbu ya mststtzo i/{bidi sua/a hilo nilifikishe kwa mtendaji wa kijiji kuuliza kuwa mimi na watoto tutakula wapi. .. " Consequently, in line with what we have endeavoured to traverse above, we hold that the Ward Tribunal of Kinyangiri, lacked jurisdiction to 11

entertain the land dispute whid WJS lodg2d by the respondent because it vas time barred. As a re ult, the proceedlnq before the V/tlrd Tribunal ano I h Order ccord ngly. DATED t DODOMA this 2 day of August, 2019. B. M. MMILLA JUSTICE OF APPEAL S. S. MWANGESI JUSTICE OF APPEAL J. C. M. MWAMBEGELE JUSTICE OF APPEAL The Judgment delivered this 28 th day of August, 2019 in the presence of Mr. Elias Michael Machibya, learned counsel for the appellant and Ms. Hadija 12