Mchana v. Ng’ungu (PC) Civ. App. 2-Dodoma- 71; 17/11/71; Mnzavas, J.

 

Mchana v. Ng’ungu (PC) Civ. App. 2-Dodoma- 71; 17/11/71; Mnzavas, J.

The appellant successfully sued the respondent in the primary court for a piece of land. The respondent appealed to the district court where judgment was given in his favour. The appellant claimed that the land in dispute belonged to his deceased’s mother who had inherited it from her father. He further told the court that this late mother gratuitously gave it to the respondent’s father and allowed him to use it but that she at no time surrendered ownership of the land to him. It was established that after the death of the respondent’s father, the respondent continued to cultivate the land.

            Held: (1) “There was evidence (which evidence was accepted by the appellant) that the respondent has been in an uninterrupted occupation of the land for over 30 years. There was also undisputed evidence that the respondent’s father who died over 30 years ago also used to occupy the same land without any interference from anyone”. (2) “Broadly speaking, customary law does not recognize limitation to claim to land although common sense and natural justice requires that there should b some limitation in the institution of land suits. There can be no specific limitation period when dealing with land claims based on customary law as much would depend on the facts of each given case.” (3) “Looking at the totality of the evidence, there can be no doubt that the land in dispute belonged to appellant’s mother and the appellant is, according to Rangi customary law, the right person to inherit the said land. But due to his dilatoriness in claiming the land from the respondent he has, in so doing, given some prescriptive right to the respondent over the land. But notwithstanding the fact that the respondent has acquired a good claim to the land by prescription it would, in the light of the evidence in favour of the appellant, and the further fact that the parties are related, be inequitable to allow him to won the whole land. There being no permanent crops on the land the only equitable remedy is to divide the land equally between the appellant and the respondent.”

            Editor’s note: - The Magistrates Courts (Limitation of Proceedings under Customary Law) Rules, 1964 apply to claims to recover land held under customary law. These Rules are saved by the Law of Limitation Act, 10/1971 – See S. 50].