1. What is the likely cause of action for the intended suit?

The intended suit is tress pass to land, like every other cause of action, there are elements that

shows this cause of action, for there to be trespass to land, intentionally entering another’s land,

there have to be possession of the land by the plaintiff at the time of the trespass, which the

Msumi clan have been the owners of the land from time immemorial to the time of trespass,

also another element there have to be an unauthorized entry by the defendant for it to constitute

trespass this is depicted by the unauthorized settling of the Mabula family in 2000 and under

article 24(2) the Constitution of United Republic of Tanzania deprivation of one’s property is

unlawful when it’s without a fair compensation., further a trespasser is liable even when no

damage is done.

In the case of City of Bristol vs. Tilcon minerals Inc.1 trespass to land was elaborated in the

sense that for there to be trespass, and one to be liable for trespass, the intrusion should be

physical and accomplished by a tangible matter, thus one should intentionally cause a substance

or thing to enter upon one’s land, and for this scenario the Mabula have cultivated the 2 acres

belonging to the Msumi family, constituting physical intrusion to the land, thus constituting

trespass to land.

2. Outline and discuss the jurisdictional issues raised in the case;

There are various jurisdictional issues that have arose from the case,

a) Competence of the court, jurisdiction of the court is paramount, since courts are

creatures of the law, the jurisdiction in this scenario is concurrent between a court and a

tribunal, primary court has original jurisdiction as provided under section 18 of the

11
289 Conn. 55,87 (Conn 2007)

1
 Magistrate courts Act, that grants jurisdiction to primary court over proceedings of civil

nature where the law applicable is customary law or Islamic law, this was elaborated in

the case of Mohammed Stambull vs. Mwanahamisi Selemani 2, provided no primary

court shall have jurisdiction in any proceedings affecting the tittle to or any interest in

land registered under the Land registration Act, and since the land involved is under

customary form of ownership, and its unregistered then the primary court has

jurisdiction to preside over the case,

While the Land tribunal’s original jurisdiction is provided under the Courts (Land

Disputes Settlements) Act of 2002, section 33 and 22 of the Act has provided for

original jurisdiction on land to the District/land and housing tribunal, and section 10 of

the Land dispute Act, also confers jurisdiction concerning land to the ward tribunal.

b) Territorial jurisdiction also arose in the case, since the land and where the dispute arose

are in a district, the jurisdiction shall lie upon the district courts, and tribunals in the

Bagamoyo district.

c) The residence of the defendant, determines the institutions of a suit, since in the scenario

Boaz Mabula and family had relocated and settled upon the complainant’s land, in

Bagamoyo then it’s within the district where the suit will be instituted.

d) Limitation of the suit, considering the time frame for instituting a claim on land is

twelve years the Msumi family has lost the claim, since the suit is time barred, from the

relocation of the Mabula family in 2000 to the current institution of a suit there is a time

lapse of 17 years.

2
{1968} HCD No.357

2
 e) The subject matter, determines the jurisdiction of the case, since the subject matter is

land, trespass to land then the jurisdiction, which are provided for in section 167 of the

Land act 1999 and section 62 of the Village land Act of 19993, this jurisdiction is

conferred upon the Village Land Council, The Ward Tribunal, The District Land and

Housing Tribunal, The High Court (Land Division) and the court of appeal.

3. Which court will have jurisdiction over the matter and why?

The tribunal has jurisdiction over the matter, the ward tribunal has territorial jurisdiction in

the district, which is established under section 10 of the Land dispute Act, which exercises

the jurisdiction on land issues as provided under section 13 of the Land disputes Act, the

tribunal has original jurisdiction to mediate and adjudicate over the land disputes, also the

tribunal, also in accordance to section 10, the tribunal has jurisdiction in relation to the

district council where it was established. It also has jurisdiction in lands under the land Act

and the village Land Act4 , thus has jurisdiction over the subject matter, since the land in

question is governed by the customary law.

Further the jurisdiction is on the ward tribunal, since it gives room for appeals, to the proper

courts and tribunals with jurisdiction over land matters as provided under section 19 of the

Land dispute Act that gives room for appeal in case of dissatisfaction, to the various courts

and tribunals in accordance to their jurisdiction as provided under section 167 of Cap.113

and section 62 of Cap 114.

3
Cap 113 and Cap 114 of 1999
4
ibid

3
 Since there is no valuation report on the land, to determine the pecuniary jurisdiction of the

case, the matter can be decided by the ward tribunal, since the value of the subject matter

cannot be evaluated or estimated on speculation this was provided in the case of

Lweshabura Mzinja vs. Julieta Jacob5.

4. What is the procedure for suing in this case?

The procedure for suing in the ward tribunal when practicing their compulsive jurisdiction, are

provided under section 11, 12 and 13 of the Ward tribunal Act, that begin with the institution of

a complaint to the secretary of the tribunal, secretary of an appropriate authority, the chairman

of a village council or ten cell leader, the aggrieved person makes this complaint, it may be

made orally or in writing, and it shall be signed by both the complainant and the person it has

been made to. When a complaint is made, it shall be submitted to the secretary of the tribunal,

who shall enter it into records, and arrange for it to be heard and determined by the tribunal in

accordance with the procedure of the tribunal for the hearing.

5. What reliefs should the Msumi family seek the court?

The Msumi family should seek for the order of the recovery of possession of land, and costs of

the case, together with any other reliefs the tribunal may deem fit to grant, in accordance to the

powers conferred to them under section 16 of the Land disputes Courts Act.

6. Which possible defenses are available to the Boaz Mabula?

The Mabula family can raise a defense of adverse possession, that the Msumi family, are barred

by law for the limitation of time as provided by the common law principle, and have exceeded

5
High Court of Tanzania (Land Division) at Dar es salaam, Misc. Land Appeal No. 7 of 2005(Unreported)

4
the 12 years period to attain the land, as provided by the law of Limitation Act, under paragraph

22 Part 1 of the first schedule, the time limit starts to run when the issue of adverse possession

between the parties arose this was maintained in the appeal of Salum vs. Mkombozi 6, which

for the case of Msumi family it started when the invasion occurred/transpired that is in the year

2000 . And hence their claim should be dismissed, with costs for being time barred,.

The doctrine of estoppel is an important defense, it arises when a person who had a duty to

speak or act, in this case being the Msumi, intentionally or negligently made another through

his/her action or silence, to believe that he had something he never had, in this case the silence

and inaction of the Msumi’s for 17 years consequently made the Mabula’s family to believe in

their possession of the said land.

6
PC.( Civil appeal No. 135 of 2003) [2007] Tanzania High Court (land div.) Appeal no. 4 (unreported)