Anyosisyye Mbwete vs Yesaya Mwamtobe ((PC) Civil Appeal No. 22 OF 1995) [1998] TZHC 2531 (8 May 1998)

MOSHI 1 J. 1N THE HIGH COURT OF TANZANIA AT JviBEYA (PC> CIVIL APPEAL NO. 22 OF 1995 (From the decision of the District Court of Before: S.Mo Rurnanyika - Rasident Magistrate) ANYOSISYE ViBi,f.STE o c .:, o ~ c ¢ o :· o e o • o o o AF?ELLANT Ve:::-sus YESAYA MWAM'IOBE oaooeooceoooooo"o RZSPONDENT The dispute',between the parties centred ')11 a shamba which the appellant successfully aimed from the respondent in a suit before the primary court of Ilonf1:o. That decision was reversed by the district court o{ Mbeya on an appeal to it by the respt;ndent. The appellan: fd., _:,:;grieved, hence this appeal 4-- was argued before me by his learned ad, 0 '.)cat9: l'-:··. Mwangol_ and res.i.9t.ad by the respoaaent himself. The terial facts established in.evidence before the tial durl were these• In •966 the respondent inherited some land from his grendznother - 1974 Tama.ha Simwita'8ombe SU3 approached the l!"eS,pondent -.ith her fathe' fer .r\ landj The resppnent gave her a portion of his land ich became the land in diepute. SU3 d hig fath oupietl th.at land., and built. a wattl~ house on it. The offer was absolue qnd the .land became the i,,;.j\e?'ty of-SUJ. The rdent, he amnitted, tea;:,ed to 01,,rn ito In 1975 SU3 got marri¢ ano. left the land leaving her father on ito In 1976 the appellant approaehed the '?a ther of SU3 for land. He had just arrive<t from Zall~ .an~ he 14S stte» fa?'!l1i.Ilt: 1:::::-id. After he haa ontJ}.ltetl SU3, the fath0r of SU3 ga tl\e. apllU% tll,e lar,d • .:·i disput. The, offer• ..again wo,:J.::i a;_:rpear to have been a~~ute, fo:- th.~ a:.:roellant planted bui'i t' ,. s :'.l. it anc. b·..;:.:.lt on it a permanent hou•~ o.f Mwaneakamil~ SU? an:.J. S:J3, saw the arμellant bl:..ild.ing the house and pl,;:mting; \ \

• 2 - • t:J.e fruit trees. In '1'9'77 the appellant left for Chunya leaving the land uder L:.o car2 of '3M3. Accrding to s;::; tl 0 2 res:;::,ondent ·0egan tn raise claims of. owners}1ip m·..::r the land in 19;-;,, >;c1.t t•-1i r-is-pecndent told the trial court a different st~,ry- that it was in 1: <:;:2 wh.:,r_ tr~• 3.T:r9cllant sent relatives to the land to harvest fruits t:1at he plac?d his first claims over the; land. 'I'he primary court found in favour of the appellant on account of the long and undisturbed eriod of about fifteen years the appellant had occupied the land, '·Tith respect, I would uphold that finding. The period of limitation for the recovery of land is twelve years-- SEE lo.,; ,f limitation Act No. 10 of 1971, First Sehedule, Part 22. That period passed before the respondent made any effort to reeover the land from the appellant. 'T'hc ros-pondent, who was cucial here~ fold the trial court that it was in 1992 that he registered his first daims_ over the land. He was throughout in the village and had seen the appellant occupying and developing, the land. Besides, there is a line of authrities to show that this court ,,·iJ_l not r,"adily interfere in order to give remedy w)1ere the party seeking s,.,ch remedy s.:J. i: on his rights and did not act with iaeaable p;ompitude-- S:S::S, f,:,r instance, _?,ilaje v Fembera (1972) r, HCD 3, a.nd Shabani Na~-o v 1 Raja bu ,'3im!)ct, ( 196") ;!CD 233. It is in the public interest that a person w~ has long been in undisputed poMession should be able l to deal with the land. a.s er. lastly, tlrnre ,vas one crucial matter which had escaped the attention of the district court. The land 'in dispute was no longer l the prope:tty of the respondento I18 had -::· ;,::.; :1.p1ish,;1d his right of ownership . . f. over it when he unydii•al.ly gave it to .SU3 in 1994. So the land ceased to be a matter for the respndent. It was a nisconccption on the facts established in evidence for the ditri•t court t.:, ha,i.e C:.eclared the respondent it owner. ----......._ ·,, I act:ordingly,-, al~ the li1Jp:al, quash the district court's judgment, and herefy restore the primacy coU!'t's deeision which declare• the appellant the ~ . lawfu~. ewner •f the lqd in di~:pp;e. The apPellant to have his costs here and B.F. i'10SHI JUDGE.