Anyosisye Mbwete vs Yesaya Mwamtobe ((PC) Civil Appeal No. 22 of 1995) [1998] TZHC 2041 (8 May 1998)

.! : $ ?', )'" .. · (,, MOSHI 9 J. IN THE HIGH COUI1'f OF TANZANIA AT MB2:YA (PC) CIVIL A1 ?F?:.:.C:'.".., ZJ,:" 22 OF 199.5 (From the decision of the District Court of Before: ,C: .• (vI. Rurnanyil·:a - J2s:::.dent }•1a;,;;istrate) YESAYA f.1WAMTOBE d C O (I O O o_ O O 0 o O O C O O 0 JUDGMENT The dispute·1between the parties ccmtred ·:m a sharnba which the appellant successfully claimed from the responder.': in a su:it before' the primary court o! Ilongo. That deision was reversed ·::i:, t::.c (1.istric.t court of Mbeya on an appeal to it oY the· resdent. The appellant felt a;:;grieved, hence tlus a.ppaa.1 ~ was arg,,ied .l)efor me by his learned ::::_,':,''.)C.:.t. 1 e. I-r. Mwr,hgole 1 and resistaa by' the :respoaient himeelf. The terial fatE established in evj02G2 before the trial court wer~ these, In •966 the resp<;>ndent inherited some land from hi& graMmOthe», lt\ 1974 Tamaha Simwitgombe SU3 approached the respondent \iith her fa.theJ for -•.·>•~ 13.nd., The respondent gave her a portion of his land which beeame the ltmd in . dipute. SU3 aild hie father occupied that lJ.nd, and built. a ttl house on itA ! Tne offer wc:,s absolute q,,d t;,," land became the ]'tel'erty of SU3. The r€!4tydent, he aclmittec, t:eF,·,r: left the lano, leaving her fqther on Ji:, a .J.. .l l, o ·:1 1975 su3 got marri.¢ and :In 19?6 the appellar,t approa.c.lled the father ,r $U3 for land. He hatl. just arrived. fror.i Zamia ,an<i he W!lS af'tel' farming land. After he had <:onaul ted SU3, the father of SU3 gava th api,ell~ the land in tiiespute. The offer, again, would arpear to have been a'Qeute,. 1 for the appellant plant'1 it tr Pe& -::,. it and '::-=--=-- t on it a perman·,mt house of and Ml:;iangalo Mbwate SM'i, ac ,,Je~l as the respor..der..t ·. s :d tnesses, Asangw.isye Mwaneakamil• su-.; ant SU3, saw the appellant building the house .and planting ''\

2 the fruit trees. Jn 1977 the appe::..lan-t left for Chunya leaving the land under the care of SM3. Arding to SM; the respondent began to raise claims of ownership over the larwi in 1988, but the r· 0 spo:1dent told the trial court a different story'..- that it was in F:C-2 wcdL tL,,; 3.ppellant sent relatives to the land to harvest fruits that he T)lacGd his first cJ.e:'rns over the land. The primary court found in favour of the 2.})pellar:.t on account of the long and undisturbed 1eriod of about fiftGcn years the appellant had occupied the land, 1. 1 ith respect, I would uphold that finding. The period of limitation for the recovery of land. is twelve years; SEE I.aw of Limitation Act No. 10 of 1971, First Sehetlule, Part 22. That period passed before the respndent ·made any effort to reeover the land from the appellant. fhe resondent, who was crucial here, told the tyial court that it was in 1992 that he registered his •first elaima ovet the lan,l. He was throughout in the village and had seen the appellal)t cupying ana developing the land. Besides, there is a line of aut1tfitieG to show that this court will not readily interfere in order to •,f• give·:,remedy where the party seeking such remedy sat on his rights and did not act 'vith pea,t1able proptitude- SEE, for instance, i1aje v. Fembera ( 197) '., : HCD 3 - d Shahani Nasetr:$ v 1 Raabu Simb:;_ ( 197) HCD 233. It is in the public u • inter;tt that a person w has long been i..>1 undisputed posession should be al;i ,~ to clea,l wit~ th; land as .-mer. Lastly, there was one erueial matter which har'. . . eacaped the attention of th,e cistrict court. The land in dispute was no longer . ~ the pro:pe.Pty of the respoJa~~t. He had, relinguished his right of ownership ,::( over it when he unydit.yafly gave it to SU.'3 in 1994. So the land ceased to be a matter for the. respon,dent. It was a misconception on the faets _established \ :, ,.. --..... in evidence 'for the·;di•trt court to ha"\ie declared the respondent it ownei·. · i ' t .. ~ I ac«ordingly ·a1• t,h?.\ a p:peal, quas!1 the district eourt' s judgment, and ' 1~•· ·, hereby restore the pr1'jl' ·eOU!'t' ~ decision which declat"ed the appellant the . . '.)\ tt /. ' . lawful .• wner 4'f the ld ih -die. The allan t to bae hie ci:,.ats her~ and in the eou:r-ts below• · t . ....-·~ ./·::,, /iii ; \ /--z-',._., ----:~~ ~ ·-------:· ___ _) JUDGEo 1