Thobias Kaliba vs Donald Kapela (PC Civil Appeal No 40 of 1996) [1999] TZHC 262 (12 October 1999)

IN TT1 !TF,TT CflTT 01? C I AT T0JA (PC) CIVIL 0 40 OF 199E FROI T)ITRICT COURT CIVIL AiP N047/97 or L jiç rTTro CQJUP CIVIL CA3E 1To.6/96 HQ 'VEJ'3 KAI., DIV ,, •.. ... .... JJ ( TT,c3 DOTALD KAPFT,A ... .., •., ••. RPON1T JTinr-'1E.rp

M ft ft 1 (1 J The appellant, Thohias Kaliha, had. sent the resioncer Donald Kapela to the prim.,) ry Coi.irt of Bugoro in SlAny.anj7,n Region, claiming a niece of lend measuring some three heeta. He asaerted in the primari COurt that although he had moved awai from that shamba since 1975, th. resond.ent could not occtpy it as it was their clan land.. The primary Court accepted, his storq and therefore entered judgment for him. Hewas .ggrieved and appealed to the District 'Court. The District COurt, presided over by Mafuru RN, allowed the appeal. Thobias now appeals to this Court. Th,e facts established are thet the appellant moved aua from that shamba in 1995, leaving a person there cafl,ed Mtemi. Mt,emi immediately sold it to the resonent for gbs 10,0001=. After that long period of time, the appellant then went beck and claimed the piece of land sai: thn.t it is bis lend., having inherited it from his father. Mafuru RN, in reversing the decision of the primarg Court, h.os stated. that, from all fronts, the appel1 cannot claim the piece of lend now, after a period, of 10 ears, She has a10 stated that, even assuming the

2 - I piece of land is clan lend, redemption of clan land is twelve qears. I totallq agree with the learned resident magistrate. It.:. is quite cle.rhere that Thobias is vqing the piece of lend. which has been develored by the reondent for that long time. COurts, truli, do not disturb possession of 1id held. for that long. I also agree with the holding of the4e arned reside ntmngistrate that even assumitig that the land is a clan land,whoever think it is their c1i land are Icte in filing suit to reP?ssess It. One would even go further; even assuming the respondent was t!:ere unlawfully, his long stay there, though unlawful, makes him acquire Possession bq what is called adverse possession. The doctrine is better exPressed by np brother Mwalusana J. in the case of V samson ukenyi P.0 • C lvii Appeal JTo 30 of 19990 (Dodoma) where he says: " if someone occupies somebodv's lend., under adverse ocupntion for over 12 years, gith no protest from the owner of that land, the occupier obtains the ownership of that land".

• • I 1'Iwalusanya 3 goeg on to sa that: "this doctrine of nrescription find.s its authority from item 6 of the Customary Law (Limitation of Proceedings) Rules GN1:TO 311 of 1964" So, from all fronts, the appeal is hopeles. Let me flna11i add that I read in the record that the appellant has a home at a place called Kahile. It is the .13.