Siraeli Paulo vs Abdalla Nisagurwe (PC Civil Appeal No. 36 of 1988) [1991] TZHC 2741 (8 August 1991)

IN THE HIGH COURT OF TANZJ-i.NIA AT i\RUSHA _(PC) CIVIL APPEAL NO. 36 OF 1988 (Original Same District Court Civil Appeal No. 2/88) (Before: J. N. NIMKAZZA 9 Esq., P/D/MAGISTRATE) SIRAELI PAULO .• o o ••• o. o.o o o •••• o •••••• •. o. ;APPELLANT v-ersus· ABDALLA N I3AGURWE • ., •••••• ·• -~ · ••••• _o • • •• • • .RESPONDENT

JUDGMENT -~~'?-.?..;!, This is a second -appeal, the case hav_ing originated ie th~ Primary- Court of Gonjn in Same District. The respondent had sued i:li-2 appellant for ~ piee of land measuring about half an acr. : The ·Primary Court dismisseq ,th~ suit ltut on appeal •o he . . Dist.rid: Court of Same, he was successt:ul .- F.ee.l4no ~~••ed . ·. ·. . by.- the decision of the ·first appeilat co.urt the appellant· ,:· has resorted to this·'court. ·;•i Mr. D'Souza, advocate·· for the apellnt, filed and argued , . ·,'. . . fi Ve -groun<is of ·'appeal. The respondent intimated an intention --· 1 ~ . • to engage the servic.es of n advqcate but. in .tJhe _end he gave up t:.he idea. He however filed and relied pn _Written submissions which were titled Reply to; Memorandum of-Appeal. · The gist· of the' C 0 laim 'h' "th~ responp~-- 1;,riefly. rs that ' . •' .•·.· ::•·.. . . . the piece.of land in dispute originally belonged,to·his . . '.. . . father. He then inherited it from his father·but some how the '· \ \ ' . mother of .the app~llar.t··;.,;as the o~~ wh_o was using -i-t •. In 1975 · •• • t · •. -.. •·l' ·. . .- . he wanted .to take back the· shamba but the mother of the appGllant asked· to be" al.io~~d·.to __ continue. using-it'.. He agreed • ! • • ~ .: • she as too 9ld, allowd the.4ppellant but realising th.at . to ,us·e i t•.for, the ;\ I henefi t · of h_r m?t:her !1ntil such time as .. he would need it. In June 1987 th. mothe; of the ,·appellant died ,and a little over two months -at_er te respondent asked the appellant for his shamba but she· di_$puted his' right to ~t, hence-the suit which he filed in the Primary Court • . The appellant's case on the oth2r hand is that the piece 0£ land in dispute origira]1y elnged to her father who subsequently gave, J t,. ,to appel 1 ant's mother. In about •••••••• /2

In about 1980,the mother gave it to her as well as to her husband Charles.· Abdallah. In about 1983 st}e planted over 40 coffe8 trees and other perenial plats and fruit trees. Accoding to the appellaht thereforej that piece of land had never belonged to' the respondent. One of the, ;grounds of appeal is that the res pendent had . no· l<?.c_u__s-..tc:E& in the case ·bcause he had no letters of administration over the estate df his .. late father. Counsel however abandoned thts ground. wheh arguing the appeal. 1'\nother ground of appeal is that if it is · assumed that the respondent had a Valid clal!ti over the disputed piece of land 1 .,the_claim had become tlme barred.·.Proceeding from the same assumption I think the grouhd. n,as no merit. The respondent ~ ' .... : J ' said - that prior, to ·1975 the mo.ther of the appellant was using the land with h!s· pems$ion. In 1975 it was ret•rned to him and he allowed the appelian to uce it until he needed it bat:k• Ths happened in August) 1987 but the appellant refused to restore it to the respondent, tierice the suit which he filed in the Pri.mry Court to recoverpossessiont, So~ if both'the appellant and he~ mother were merelliencees as claied by the respondent, the suit could not: h've leen time barred L, The peiod of .. :,; !: limitation of l2 ( 'h'.el.ve) ears in. ifem ~ of the Schedule to the Customary Law (Limitation of Probeedings) Rules, 1963 con:cained in G.N o No. 311 of 1964 relates to adverse possession of land; not to land supposedly·held on licence. See MkAKOFIA MERIANANGA v l-,SHA NDISIA (1969) H.c.o. n. 2e4. so, if, again, it is assumed that the appellant was trying to ' ' assert a right over the disputed· land adverse to the respondent's claim, the period began to run from August, 1987 and the suit- was :fj_leci. on 11/11/87, barely three months later. That cannot, by any stretch of the imagina,tion, be said to be beyond the period of limtation of 12 yars. But th~ questiol'l to· be asked is whether, as found by the fir,s,t 9ppel.late court ,end te trial c::ol.lrt, the land. in dispt/i:e ;1·ad infa<;t .originally 'belonged to the father of the rep;nderft.

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.3 trial Primary Court said in it~ judgment 11 Ushahidi up.a?'lde wa mdaiwa unaonyesha shamba hilo asili yake linatoka kwa mdai ila liiikwe?'lda kwa mama yake ,arnbaye ni sharig,az.i wa .mdai· •ha yeye ndiye mwenye: mas'tawisho kwenye s.hamba hilo na ·ndio amekabidhiwa mbele ya mashaqidi rndai na SU2 Fadhili Masema na mumewe Charles s/6 Abdallah na hak·una aliyepinga". · I. have J:,"ead·.carefully the evidence of the appellant (who was the original defehdant1·nd her two witnesses Fadhili s/o Masewa and Charles s/o Abdallah, and could see no where any suggestion that the disputed -piece of land originally belonged to the respondent (then plaintiff). It is my tew, that both the trial magistrat and the first ·appellate magistrate appear to have misread the defer,ce evidence which, throughout was that the shamba had belonged to father of the appellant. Indeed there is implicit support ·for that conter,tion - from some of the ' witnesses for the respondent. For example, P.W3 - Barikeeli s/o Nsaghurwe, a brother of the respondent, gave contradictory-... evidence, at first·saying that the respondent gave the disputed shamba to the mother of appel,lant in 1975. Then he was being qUes tioned by tl,e trial mag is tra te he said , inter ali a:- "Shamba hilo mwanzoni nilikuwa ninafahamu ni la mama wa mdaiwa. Tangu wakati ninazaliwa mama ya mdaiwa ndio alikuwa anali tumia shamba hilo 11 • The witness was 4~ years when he gave that evidence in December, 1987, which would mear that even by 1,47 the mother of the I appellant was using the plot in dispute. The respondent himself, in his evidene,also gave contradictory evidence. At first he said. he got the shamba from his father.· Then immediately thereafter, in the same breath said - "Shamba hilo nilipewa na mama wa mdaiwa Nazahedi d/o Magohe tangu 1975 11 • Those exepts •••••••• /4

I 4 '!hose excepts :suggest that the respondent was admitting the shamba belo.ng2d to~ pe mother o.f tl'.le appellant. There was evidence fro~ the appellant's side that over 40 coffee tree.s were planted by· the appellant in alfout 1983. That evidence. was ·not effectively di'sputed by the respondent or his ' ;,; witnesses. If, therefore, as diimed by·the,respondent, he had allowed the.agpellant to ue the disputed shamba as a mere tenat at w:i.U ,. would he have tolesrated for almost :five years the act of the appellant in plantir,g the-·ff.ee trees; which was an indicat:Lon that the appellan·t was asserting owm,ership rights? . . For all the .above reasbns, · I agree ·the ·P~imary. Court was justified in finding that·on a preponderance of.evidence, the disput,id piece of land belonged to the appellant and the first . appellate court had no sufficient gr6d~ for overturning that decision. This appeal is allowed with costs. At Arusha: 8/8/91. (J. Ao Mroso)' JUDGE Mr. D'Souza for' appellant. Respondent present in person. JAM/MJK. ---..-----.,