Benjamin Chamilonde vs Daniel Kikupe (PC Civil Appeal No. 5 of 2000) [2000] TZHC 381 (23 November 2000)

A- IN TF HIGH COURT OF.TAN.KIL T TBEYA (pa) CIVTi ??LL NO. 5 OF 2000 (From the deoision of the Distict Court of Sumbaana DJ. -3trlct at S'bvrng ill Civil ppea1 Io.Lf0 of 1999 and n'anga Urben Primary Cuurt Civil Cisc io,58/98) ITT CRAI'IILONJE z Z h\TPELL.ANT VERSUS DAi TELIKtJPE RESPONflENT JUDGNT a . The a ellant successfully sued the re sr, ondent for recoerj of a parce3. of land before the Sumbawali.ge Urban Primary Court. The re sp ono nt ape ale d be ±' oe the Sumbc x :' n a Di s tn c t C oui t wi ch al1od tic appeal, set asicte the trial coirt s decision and condeitheL the respondent before it to po y the costs. Hence this appeal. Thefacts are not in serious disubc It was establishea that the s'ut parcel of 1nd was in1eried ipy the appe liant froi lus late father - sometime in 1988. After cwasidering the evldeL.ce of Ben"ini Chamlonde (P '1), the appellnt Donard ITaule (P12), Galus 7aLi1bu (?J3T, Alkô rate1ya (p i) nd. Daniel Kikupe (. Dl), the defeLnt, the trial court unaramous1r found for the a9pellcnt. It was the Flalntiffs cse that the respondent began trespassln.z on the eje Liant' a farm since 1987 when the problem was first referred to the local consiliation board. The evidence shows ch.t the responcont was found to be on the wro. He encroached on the suit lmd a second ti e in 1989; again he was found to he on tbe wroi as a result of which tne 1ard Executive Officer .../2

• 3 - found respondent to be on the w1ong,. The learned appellants Districtagistrate does not quarrel with the findings of. th.trial courts. He, hovTever, allowed the : appeal because it was his view that au-ice the portion in dispute been bein developed by the respondent for more than five years. and that he h a s planted even, long .te'm ci'ops/plants and trees, and the respondent has ne fver; cultivt nor planted arytaing on the piece of land. in disu4e, it is the proprtr o th appllnt vho has been develoing it since (quoted verb'tm). This observation was, of course, legally unfounded For a trespasser remains a trespasser unless haying acquiredposacssiQnofthe land, rd while the ovmor is aware of that faô't, he dovelopp it and remains on it for a er.iod exceeding twelve y3'rsb IvVhere. that happe the trie o-rner will be estopped to okilu it by operation of the doctrine of presci,ption0' In ODdtacç1ire a right over la±id thrOugh prescription centain conditiorst be pr'oved,. .namely- there must. be:acc'ording to case law. :sen contlnuity of user of not less than tielve years the user dust he agsinst the true own3i' of the land 2 the üsoi must be as of right which means that the trespasser must be seen to use the lancias if it belonged to hjm. J.G. Rindai1 says in his boo.c entitled Land Law, six Edition, at page 333, that0-- 'In defining user as of right English li has adopted the definition ofRoan Lw to the as 1'

-1 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 oommend these proceedings within the time limit as set down under item 22 of the Pist 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. Consequently, the decision of the a:pellate District Court is set aside and that of the trial iJri:!ary court is restored. De1ired in the presence of the, parties. aTo

; Z\ \ IZ -- / Appellant: In person Respondent: In parson. / -- i: Jj:i IACKANJA JUDGE 23,11,2000