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Judgment

cu IR .T .HI(H COT .OF TAN ANIA .TMA . •.. (pa) CiiTii PFL NO. 5 OF 2000 (From the decision of the DisUiCt Court of S umbav,fanga District at Suub'w'inga in Civil Appeal I'o.'lO of 1999 end Srbcraflg Urban Primary Court Clvii Case. N.o 4 58/93): 2 . BEIjJ liT CHANILONJE .?PLLANT VLRSuS DA EEL IKUPE RES?0iDENT JtJJG4VIE NT MAOKANJA L. The ael1ant successfuLly sued the resondent for recovor,j of a parcol of land before - the Su.mbawang Urban Prixry Court. The r.e sp onco nt appe ale d be fore the Sumb' x ii a Di s tri c t Court will ch allov.d hc pea1, set asicte the trial court' s decision and condenined ie respondent before it to poy the costs. Hence this appe .,, . . . . The facts are not in serious dispute It was 1 :established that the suit parcel of land was in1erited by the ppe ilant from hi. late father some time in 1988. - After considering the evidence s of,.Benjamini Chamlonde (PWi), the appeliant Donard Maule (PW2) Galus. Wambub: (PV3T Alkdo Mate lya (p4) and Daniel Kikupe. (:Jl), the:..defendant, the trial cour unanimously found.•f.or the appellant. It was the 1'laintiff' s case that the respondent began trespassiii, oithe apellant's farm since 1987 when the rbiem was first.• •referred.to the local consiliàtn board.. The evidence shows that the respondent was fourd to be on the wronr. He encroached on the suit land a second time in 1989 n agai he was found to be on the wroi3, rf as a result of which tne Tard Executive Officer

-4', 2 - ordered h'i to uproot plents he ha raised on the appellant's fri The respondent's repeated the action.,of trespassing onth appellant's land in 1999 culminated in the civil ac the genesis of this appeal. Indeed, in his on cefeice the re dent adutted at the trral that ue once was orc1red to uproot trcos from the appe1at's land and tht he cömp lied with' the Ward Exe cuti Qfj cer? s order in that direction. . .-: . In order to have a clearer picture of the disputed land the trial court visited the us''in guo• in the presence of the parties and their witnesses. As a result the coutithmous1y found that the parties' boundary was a valley which separated their parcels of land. In ti- iC end the trial court drew a sketch, plan of the area. That skotch i1n was disowned by each party wrien the matter s finally hccrd during the first appeal. This denial necessitated another 'risit by the appellote District Cocrt. The learned appellate District Magistrate, observed in his decision that after the prtcs had showed their respective co Lsurrently agreed with the appellant in this beha1f So the portion that was referred to by him was the sane land which his witnesses also said belonged to hin. The aipellant's wi±nerdses.pärticipated in,one way or aflother, in consili the 1iti,ants. Donard i le (PW2) reconsiled while he was their 'Ward ExecutiveOfficer in 19901 Inhis efforte for a so1ition PW2 visited the area in the company of local, elders who knew the boundaries, They found that 'the respondent was a tre'passer. On his part Galus Wambuto '(P3) testified that he was a member of the counsil of elders which found that the respondcnt trespassed on the appe1lant'..lnd in 1995. The respondent was,. as- ,a result; ordered not to cross the rivulet vhich runs at the bottom of the valle.y which constitu'ees the boundary. ' And Alkado 1atelya (FV4) was the chair person of the couneil of elders which
3' found respondent to be on the wrorg. '' •' The 'iearned appellants District Vagistrete does not quarrel with the findiri of' t'h'til' curt'' He hower, allowed the appeal be cause it WCS his view that "... since the portion in distë been ' be i ng developed by the respondent for more tnaa vexears, cnd. that he has plauited even long torm cops/pints end trees, and the re spondont 'has never cultivated norplanted anytning on the piece of land in dispute, it is the property of the 3péJ:la"hb'hs been developing it since thn..'.'', (quoted verbatim). This observation was, of course, lcgally unfoune'. or a trespasser remains a trespasser unless heving acquired possos$in of the land, and while the ovincr is aware of' that fact, he dovelops it and remains on it for a period exceeding twelve yo'rs v/here that :ha .; the true, owner will he estopped to claim it by operation of the doctrine of, iDre scripti on. In order to dcç1r 'a right over land through.:prescr1ptioi cen -tain conditions must be"prd"d, namely- () the±'e mut be according' to ,ase law, sufficient continuity of user of not less than twelve yëars the user must he against the true owner 6 f th" land the isor must be as of right, which mans that the tress9rrust be seen to use the lad a s if it beloncL to him. J.G. Rindoll says i his booc entitled Lano. Law, six Edition, at page 333 9 that- 'In defining user as of right English lw has aojted the definition of Roman Law as to the

'ii II nature of user that will support a claim by prescription Acording to this .. .efintion such user must be necyp (without forQe). clari (without se crc cy) and nec pre c r i o (without perioson). (a) the owner must be guilty of acque.oeic. In this ConnOcti3n says, at pate 334 of his cook th.'t - The importance of acquiescence was 3Yp'Ossed by Fry J in Dalton Ais, (1381) 6 App. Cae. 740 at 773 - 774, vlfl.c Li he said ",.. the whole law of ............. prescription and the whblé'lw which evtrns the pres.nption or infercnco of ar -int or convonent rests rests iJjJon 3cqueiscence... Now, what does acquiescence consist of? According to current urisprudence it cnsists of several: 'lèents. First s it is the doing. of som act by one man upoh the 1id of another; secdn•dly, :'.the abscence of a right to do that:actmn the iJ'. S9n doing it; thirdly, the kno1cde of the nccson effected by i that the act is done; fourthiy, the power of the person affecte., by the act to .'prent such ct either by action on his part:or by action in the courts; and, L:, s t ly the bb8tinence by him from any such interference for such a 1ngth of time as' renders it unreasonable for the, courts to say that he shc..Ii not . afterwards interfere to stop .the•. act being done. . My examination of the record of the tra1 court leaves no doubt not that there existed circumstances upon which it couid 1 be presumed that the resondnt acquiredany rightby prescription. First, the suit was brought in the courts before tvive years had expired; for the suit was instituted within five years. from the time the cause did . of action accrucd; secondly, the ape1lant .. not acquiesce tothe. resporidents trespass considering the several occasions he .

5 - took the matter to elders and to the Ward Executive Officer before he finally instituted his suit. It is also important to note that he commond these proceedings within the time limit as set down under item 22 of the First Schedule to the Law of Limitation Act, 1971. It is, therefore, of no consequence that the respondent developed the land within the five years of illegal occupation. It is upon the above considerations that I now allow the appeal with costs to be borne by the respondent. Cause quei-rtly, the decision of the aipe11ate District Court is sot aside and that of the trial pri:iiary court is restored. Delivered in the presence of the parties ,. /

7, 'I ........... j1Ir LCI(ANJA • _••,&•,•'• ' ... . '•', ., 4 •:., j / JUDGE / \ ,;/ 2311. 2000 _•i _-7 Appellant: In person 4 Respondent: In person..

Judgment

-4', 2 - ordered h'i to uproot plents he ha raised on the appellant's fri The respondent's repeated the action.,of trespassing onth appellant's land in 1999 culminated in the civil ac the genesis of this appeal. Indeed, in his on cefeice the re dent adutted at the trral that ue once was orc1red to uproot trcos from the appe1at's land and tht he cömp lied with' the Ward Exe cuti Qfj cer? s order in that direction. . .-: . In order to have a clearer picture of the disputed land the trial court visited the us''in guo• in the presence of the parties and their witnesses. As a result the coutithmous1y found that the parties' boundary was a valley which separated their parcels of land. In ti- iC end the trial court drew a sketch, plan of the area. That skotch i1n was disowned by each party wrien the matter s finally hccrd during the first appeal. This denial necessitated another 'risit by the appellote District Cocrt. The learned appellate District Magistrate, observed in his decision that after the prtcs had showed their respective co Lsurrently agreed with the appellant in this beha1f So the portion that was referred to by him was the sane land which his witnesses also said belonged to hin. The aipellant's wi±nerdses.pärticipated in,one way or aflother, in consili the 1iti,ants. Donard i le (PW2) reconsiled while he was their 'Ward ExecutiveOfficer in 19901 Inhis efforte for a so1ition PW2 visited the area in the company of local, elders who knew the boundaries, They found that 'the respondent was a tre'passer. On his part Galus Wambuto '(P3) testified that he was a member of the counsil of elders which found that the respondcnt trespassed on the appe1lant'..lnd in 1995. The respondent was,. as- ,a result; ordered not to cross the rivulet vhich runs at the bottom of the valle.y which constitu'ees the boundary. ' And Alkado 1atelya (FV4) was the chair person of the couneil of elders which
3' found respondent to be on the wrorg. '' •' The 'iearned appellants District Vagistrete does not quarrel with the findiri of' t'h'til' curt'' He hower, allowed the appeal be cause it WCS his view that "... since the portion in distë been ' be i ng developed by the respondent for more tnaa vexears, cnd. that he has plauited even long torm cops/pints end trees, and the re spondont 'has never cultivated norplanted anytning on the piece of land in dispute, it is the property of the 3péJ:la"hb'hs been developing it since thn..'.'', (quoted verbatim). This observation was, of course, lcgally unfoune'. or a trespasser remains a trespasser unless heving acquired possos$in of the land, and while the ovincr is aware of' that fact, he dovelops it and remains on it for a period exceeding twelve yo'rs v/here that :ha .; the true, owner will he estopped to claim it by operation of the doctrine of, iDre scripti on. In order to dcç1r 'a right over land through.:prescr1ptioi cen -tain conditions must be"prd"d, namely- () the±'e mut be according' to ,ase law, sufficient continuity of user of not less than twelve yëars the user must he against the true owner 6 f th" land the isor must be as of right, which mans that the tress9rrust be seen to use the lad a s if it beloncL to him. J.G. Rindoll says i his booc entitled Lano. Law, six Edition, at page 333 9 that- 'In defining user as of right English lw has aojted the definition of Roman Law as to the

5 - took the matter to elders and to the Ward Executive Officer before he finally instituted his suit. It is also important to note that he commond these proceedings within the time limit as set down under item 22 of the First Schedule to the Law of Limitation Act, 1971. It is, therefore, of no consequence that the respondent developed the land within the five years of illegal occupation. It is upon the above considerations that I now allow the appeal with costs to be borne by the respondent. Cause quei-rtly, the decision of the aipe11ate District Court is sot aside and that of the trial pri:iiary court is restored. Delivered in the presence of the parties ,. /

7, 'I ........... j1Ir LCI(ANJA • _••,&•,•'• ' ... . '•', ., 4 •:., j / JUDGE / \ ,;/ 2311. 2000 _•i _-7 Appellant: In person 4 Respondent: In person..

Benjamin Chamilonde vs Daniel Kikupe (Civil Appeal No. 5 of 2000) [2000] TZHC 272 (23 November 2000)

Judgment

Discussion

Benjamin Chamilonde vs Daniel Kikupe (Civil Appeal No. 5 of 2000) [2000] TZHC 272 (23 November 2000)

Judgment

Discussion