Mussa Bilia vs Benard Ulaya (PC Civil Appeal No. 74 of 1997) [1998] TZHC 2432 (10 December 1998)

.. : ... '. . ·, IN THE HIGH COURT OF T;1.NZANL~ AT.MB~/:i ORIGINi\L JU':?ISDICTION l1B-e'ya Registry) .· ,.. _,.-. i(C) .d-IVIL. APFE!-\L. ;NOo ''74 ·oF =197 . .- •. · : .'1: ·• . . • t I, .i ;·. rt , , . .. . (From Stfrnniwdnga\i>/C·. Civil,:Appeal No. 5/97 ._ ~ Orig •. S' w!ll1ga Urban Pro _ Civil Case No. 197 of 1996) Court MUSSA BILHI APPELLANT V.!.'iRSUS BENARD ULf.fYA 04 O. 0 o o e O G • o a.• e O O. _, 0 0 • o RESPONDENT JUDGEMENT MWIPO:PO, J • : The appellant MUSSA S/0 BILD-\ is cl2mouring for _land w'qich was : ... ~~ L. ~ . given to the·repondent BERNARD S/0 UL{;.YAts father 9ne_ICK,\S/O_ UI-'.,1YA .• . ". . .· .. ·· .·. !. in 1978.· When .the·'1aJa°\ras· given by :the a"f.)pellant's __ fat:Oer Jo th~_ .. ' . ,~ . . . • ·, I . . ... respondent I 6 fath:)~ ili.-''1978. tr1e·· pp'ei1'ant · was. aware. of i.t. but he argues • • ; ,. • ' • • ,,-, ? :; ""; • :•. ,, ••• ' • ·'· ,, ' • • :,. !! that the respondent was merely ah ·invite, th.erc·o~-:-;Just bef.f;_;½he . . - :•! ·.: i. • . . . respondent's father was gi ,/n 'thidt rand ·o after :,the_ ,same ,..-i;;rruisaction . . ' - . : :: ;:.., ... · ,·. , 1 :.:. i'" · : "if, . has takn .pice .there was· no i dispute 'that the, appellant 1=1x:iifted (in 1976) • • I• 1 ;;om .th'i~ ea· :f. disput·· to' another village,.iaske.d 1 uJ),.nzi, ~~~;; ?e stayed for mani:;~~~: not' i-efs· thfui · 1 1"0 yeaJ:'s until.-.art)μnd 1986-. During his . •• l' ;' • • • ~ • • absence the respondent 1 s father dispose·cl. off th_e, lan.d. in. dispute in 1982 ' . to· the resp ndent who had got' m:1rricd arid who con.tinued usi11g it unregistered until 1995 when the appellant returned back to reclaim the land as his: 'The p·rimary court of Sumbn.wangs.. de<;:i<ied the farm into two equal halves with ·each party getting a- portion of it. The appell.:>~t wfi.s· happy 'with that.· decisio;n,. but the responde_nt .. ~ . : 1\ 1 1 :...1 ;_ : . : ':: ·- ··::: i ··: . ,- .- . . appealed against· it clainHng th-:1.t the entire farm was hiso The District Court entered judgment on first appeal for:. ttie- :z;-~spondent for. the entire .. _/arm on reasons that" the' -respondeni ··'113-S a?.ermanent and continous physical occ1:1pation and use ·of it since· ·1978 until'.i;1986. w}:len the sμi,t _was filedo . . . I . .. . :- . --.: .. . -.-,- . 1.. •••••o•o/2

The learned Mr. Mwakolo has ar·gued· tha:t, th-2 time limit should not have been calculated to have commenced in 1982 or in 1978 but from 1986 when the appellant claimed tht land and their mc1-tter was taken to the . . . Reconcilation Board which. decided in favour· oflhe 'appellant and that the later proccdings in _the Prim--rry Court were res judicata due to the previous decision of the reconciliation board of their local area. At any that :the a<lyrs use of it by the respondent despite the decision of the reconciliation board is wh3t counts in c<J.lculating time which is only 10 yerirs .from 1986 to 1996-:wbi11'lhis suit was filed, argued the learned Mr. Mwakolo (Adv). From. the,, ;,;id.enc~/f bth' sides 'the'rc.>>is. no,.dispute t'q;.;tt the ";' respondent st3.rtd using' th 'iand i'k·ct{'.spute 'i:rt:1978 .hrougl) is f:1the:r ... , • . /:··•;' .. ·. . . ··:,.·;I .. , . ISACK S/0 ULWA who i:1ter•;n g.:\ve"?S,t,'.inJ982'tro-t_ne r:GSJ?.p~~ent ... gEm,-iRD ;.· .. -,·:· .. - ·'. . ('· ' s/o ULAYA the family"of the rsp'o:htlent ther'(.ff,ore hp.s; be_en ,in continuous use a.."ld occupatin of· th'&' land 'in ·dispute .sin<::9 :,197,8, 'Wtil __ 1996 whe.n the dispute was tak.ei :to the Urban ·Primary Court.. The appellant no doubt lost touch with the farm for more than 18,yeare. > After the respondent . . required the farm {;{ 1982 he· too used it for 14 years until 1996 when the " .. _. ·. . respond-:mt sued the appellE'..nt in courto -The appell9.Ilt :ts the quarrelsom before who· instad of :enforcing'!h:U, claims l::i.wfully in court resorted ·'·',: .. into use of force by uprooting the 10 trees pl3,11ted by t_he responclenta . . . ':, If 8-t all ISACK S/0 'tfu1WA was m6rely:::,invi.ted in .. that land in dispute . .. : .. . . - .. · :. -·, .. 'Y., ::;f·; -··:)-)i:. ···:: :·: _,: ;· ··1 :?t • then he started using it· as his 0 0wh when. he disposd - t t.o the rosponc1.,)!1t 'j,,; t··, in 1982 without serioui 'protest froril the ·appellant. The efforts of the appellant to excmtt ownership on the _land in dispute in 1986 ending up in the rec~ncili:ttion board was not enforced by way of its execution if ,s_t all· he got an award of ownerc,hip of that land in dispute. The argument that res judicata npplied is not voTi_d for no previcmr.: decision of the reconciliation bo:.rrd has been tendered as evidenceo The Ward Tribunal Act was enacted· 'i'n. ·1984 and it took very long to establish ♦ Oaoa•••/

3 the tribunals in the country. It is unlikely th,:i.t the decision was one of the Ward Tribunal which acts as a judicie.l decision comparable to amount to a res judicata. The reconciliation bo:rrd being reforred to seem to have been mere administrative arrangoment_or (}uesily judicial body which was meant to appear the parties and settle their disputes by circumstances ,. without a judicial enforcement of its decisions. After all, the respondent contended that he is the one who wono This conduction appears quita plausible in view thr:lt he i's the one who continued to remain mid uso the plot in di,spute which app~,U' to be about 6 or 20 acres. The appellant seem to have once owned the land in dispti.te pcri'.oq_. to 1978 who later dm clnimed it 4 only inheritor of the land i~ dispute 3Ild should have first established his inherit,'.J.Ilce rights and powors of an adrninistr,tor of the est:J.te 0,f his before grabbing by force the li'.l.nd in disputeo The appellant has '1 useless case and has no l?cal support in the Katumba Azimio area where the farm is situated for he had to call his witnesses from Uatip.i Vill-'.J_ge far aw,w who did not supp6rt_, him fully though for DWo4 who describd \tiE.?Jar:-pt in dispute as of mere "mahame·: value to th.:? ayipollant. ;Maha.me" :ils a Swahili word for :iruins; as -- abandoned residence no longer being used for a home. D1.·J.3 John Mayanga actually go..ve a clear picture that even the clan of the appellat had acted into their land since 1964 which clan remained in occupation and are of it until 19960 This appeal is without any merit at all. The la.~d in dispute is established to be permanently under the ownership of the respondent. I I The appe:tl is dismissed with costso 1 ·.) I (Sgd.) ! E .. L.K. Mwipopo, Judge 9/12/1998

. L 4 10/12/9,8 Coram: Hono EoL$KO Mwipopo, Jo For Appellant: Mr o Mwakoio - Advocate. Mussa Bilia - Present i. in persorL For.Respondent~ I.sack Ulaya ~.PI:~sent:in pe:rsono . ·r·. ..·· ' . ·::-- Court: -:.: •. !j.,•/. :, Judgment delivered in the presence of both parties .. E.L.K. Mwipopo, J. 10/12/98 I cmTIFY. THAT this is a true copy oL the· original •