Aloyce Hewa vs Sikombe Chilimba ((PC) Civil Appeal No. 53 of 1998) [1999] TZHC 361 (1 October 1999)

MOSHI 2 J. IN THE HIGH COURI' OF TANZANIA AT MBEYA (PC) CIVIL APPEAL NOo 53 OF 1998 (From the Decision of the District Court of· Sumba.wan,ga at Sumbawanga in Civil Appeal No.8/98 Before:· H.J.B. Hmisi - Resident Magistrate) ALOYCE HEWA 00000000000•0,coooooo APPELLANT Versus . SIKOMBE CHILIMBA 000000000000000-o RESPONDENT JUDGMENT The .appellant successfully preferred. a suit against'the respondent before Kaengesa primary cn1rt for the recovery of a piece of land. The decision aggrieved th respondent whose appeal to the district court of ·suniba.wanga was allowed. The appellant, in turn; felt' aggrieved, hence this appeal. This app~~. w~. heard in the presence of the appellant but .in the absence of the respondent who was duly served with the hearing notice but faild, for··- ... '._ unknown reason, to enter an appearance.o He had however filed a written reply to the mmorandum of appeal. The dispute centred on a bound.a..ry-., __ The sham.bas f t_he parties •·s·hared a common bq.~~~• he appellarit claimed it was. a road whilst the respondent said it was a white-ant hill·and a mcheso tree. The primary court visited the shambas and prepare_d a sketch mapo The primacy court unanj.mously found the boundary to be the road which it marked A on the sktch plane I would not . fault that finding in the circumst&.nees. The case for the appellant was that he inherited the shamba in dispute from his father. He was cultivating maize· and beans on it. In December 1996 the respondent crass-ed th&· road and ··;uJ.tiv.at.ed six.acres of the. apt•s ••ooo•••• /2

• . 2 - shamba with maize and bean.so The appellant registered a cdi.nplaint with Kaengesa village leaders and elders who settled the disptitei The respondent admitted to have encroached onto the land of the appellant and promised not to repeat it. The admission was recorded by the: village chairman (A/Exhibit 4) and the respondent was instructed to leave the shamba after harvesting the maize and beans~ But the following year the respondent made a repeat of what he had done. On 10.12.97 the respondent again crossed the boundary and cultivated maize and beans on the land c,f the appellant. The appellant again tegistered a complaint with village leaders and elders. The respondent was summoned and again admitted to have intruded on the land of the appellant and promised not to repeat the intrusion. This time the admission was recorded by the village executive officer (P/Exhibit B)o The appellant, however;· decided. to institute the suit that same month of December 1997. A close relative of . . the respondent, Evarist Kusongwa (SM2), and a village elder ·who had taken part in settling the disputes, Gerae Chambanenje (SM3), and a fellow villager of the parties, Zakaria Mlowezi (SM4), supported the case for the appellant. · The case for the respondent was not all that clear. It was evident he was uncertain about the shamba he was referring too On being cross-examined '.JY the appel.lant the respondent said: nMimi eneo la sba langu silijui. Ba.ba yangu ndiye mwenye eneo kubwa pale ninyi eneo lenu ni dogo,ti Then he _went on saying: 1 'Mbele ya mweny-ekiti sikukataa ku-1a sbamba linalogoinwa si langu ooooeooooeeoo• • Mpaka kati ya shamba letu na lenu ulikuwa ni kisuguu na · r mchese vimefuatana. 11 On being examined by the court he said: 11 0••000• shamba hilo ni mali ya Babu yanguo 19 The respondent denied to have intruded on the shamba of the appellant. He said: "Mimi nakana madai ha.ya kwa sababu sijalima · shamba la mdai na yeye hajalima shamba languo 0 In a well reasoned judgment delivered on 23.1.98 the primary court ~~imously decided for the appellant holding that the shamba in dispute was 4.. •,. the property ~ the appellant and ord,a:~::-d -the- r.espondent, to -vacate it. for the •••••••• /3

3 - appell.a.nt a!-EU' harvesting the maize a7.d beans o The district court, surprisingly, set aside that decision on the sole grou...7.d that the suit was time-barred in that it was preferred outside the twelve years period of limitation in terms of item number 22 of Part I of the First Schedule to the Law of Limitation Act No. 10 of 1971. - With respect, I find this appeal abundant in merit. The preponderance of probability was clearly in favour of the appellant. There was material and believable evidence that the land in dispute is the lawful property of the appellant and that the respondent was the unlawful intruder. It comes out clearly that the district court was not properly seized of the facts established in the evidence recorded by the primary court. The first act of intrusion was in December 1996 when time to file the suit would ha,.e began to run against the appellant but for the se:ttlement reached. Then came the second act of intrusin on 10.12.97 followed by immediate filing of the suit. So the suit was not only promptly filed but it was filed clearly within the prescribed period of limitation. The purported interferen~ by the district court was thus injustified in that it was on a ground which was not there. I accordingly al.low the appeal, quash and set aside the decision of the district court, and h~eby fully restore, the judgment of the primary eourt. AT MBEYA., 1 October 1999. For Appellant: Presente For Respondent: Absento B.Po MOSHI JUDGE.