awadh karama another vs district executive director others 2018 tzhclandd 392 6 july 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 115 OF 2017 (Arising from the judgment and decree of the District Land and Housing Tribunal for Kinondoni in Land Application No. 37 of 2013) AWADHI KARAMA....................................................................1st APPELLANT MBARAKA ZUBERI MWENEGOHA..........................................2 nd APPELLANT VERSUS DISTRICT EXECUTIVE DIRECTOR.......................................... l STRESPONDENT TANDALE MKUNGUGE LOCAL GOVERNMENT.................2 nd RESPONDENT TANDALE WARD EXECUTIVE OFFICER................................3 rd RESPONDENT JUDGMENT P.M. KENTE. J. This appeal emanates from the decision of the District Land and Housing Tribunal for Kinondoni whereby the appellants had sued the respondents for trespassing their land without any legal justification, drilling underground water and constructing water systems infront of the appellants' boundaries. During the trial the appellants who testified as PW1 and PW2 contended that they are the lawful owners of Plot No. KND/TND/MKG1/2 and Plot No. KND/TND/MKG1/3 and they produced copies of Residential Licence as exhibits. On the other hand the respondents, witnesses DW1 and DW2 told the trial Tribunal that the area in dispute where the Local Government constructed water-wells and installed pumps was an open space area capable of accommodating the intended water project. After assessing the evidence on record, the trial Tribunal entered judgment in favour of the respondents holding that the appellants had no rights over the disputed area which was described as an open space. The appellants were aggrieved by the trial Tribunal’s decision. They have now come to this court on appeal fronting the following grounds:- 1. That the honourable Tribunal erred in both law and fact in holding that the respondents have not trespassed to the appellants’ landed properties on plot No. KND/TND/MKG1 /2 and Plot No. KND/TND/MKG1 /3 and that the water pumps and its appliances have been erected in an open space. 2. That the honourable Tribunal erred in both law and fact basing its findings solely on the respondents’ evidence which is utterly outdated which resulted into holding that the open space is in triangle shape. 3. That the honourable Tribunal erred in both law and fact in disregarding the most current map of the area in dispute enclosed in the appellants' Residential Licenses tendered and admitted by the Tribunal. 4. That the honourable Tribunal erred in both law and fact in denying the appellants’ request for site visits a denial which resulted into a wrong judgment. 5. That the honourable Tribunal failed to properly frame issues of dispute which resulted to its wrong decision of denying the appellants’ of their rights. 6. That the honourable Tribunal erred in both law and fact for failure to properly analyzing the evidence tendered before it and hereby arriving at a wrong conclusion that the respondents did not trespass into the appellants’ landed properties. On 23rd May, 2018 when this appeal was called for hearing Mr. Katundu the appellants counsel was present while the respondents who were duly served did not enter appearance. In the premise, hence the court ordered the appeal to be heard ex-parte. In his submissions Mr. Katundu, abandoned the 2nd and 3rd grounds of appeal and argued on the 1st, 4th, 5th and 6th grounds only. 3 Submitting on the 1st ground, Mr. Katundu contended that the trial Tribunal erred in holding that the respondents had not trespassed on the appellants’ properties plot No. KND/TND/MKG1/2 and Plot No. KND/TND/MKG1/3. This is because according to him, the respondents had trespassed into his client’s land. He therefore urged this court to hold that the respondents are trespassers. On the 4th ground of appeal counsel for the appellants submitted that the refusal to visit the locus in quo was the reason why the trial Tribunal arrived at a wrong decision. He said that the appellants had requested the trial Tribunal to visit the disputed land but their request could not be accepted. Counsel for the appellants went on saying that, if the trial Tribunal had visited the locus in qou it would have found that the respondents were trespassers to the appellants’ landed properties. As to the 5th grounds of appeal, it was submitted that the trial Tribunal failed to frame issues in dispute and as a result, it arrived at a wrong conclusion. It is contended that the trial Tribunal’s decision was based on ownership of the landed property instead of trespass as complained by the appellant. Counsel for the appellants therefore argued that if the trial Tribunal had considered trespass as an issue it would have arrived at the right decision. On the last ground of appeal, Mr. Katundu submitted that the trial Tribunal failed to analyse properly the evidence that was before it and as a result it arrived at a wrong conclusion. It is contended that, according to the exhibits tendered in court that is the Residential Licence and sketch map, the area claimed to be an open space is not in a triangle shape as testified by the respondents’ witnesses. He added that the trial Tribunal's decision was based on the evidence by the respondents which was not supported by any documentary evidence. In the end the appellant’s counsel/urged this court to allow this appeal with costs, and the judgment and decree of the trial Tribunal to be reversed and quashed. After considering the evidence on record and the one-sided submissions, I will now determine the 1st and 6th grounds of appeal altogether as they both touch on the evaluation of the evidence. As can be gleaned from the appellants' submission and the evidence on record, it is alleged that the trial tribunal did not properly evaluate the evidence before it and as result it made a wrong 5 decision. It is my observation however, that, the trial tribunal properly analysed the evidence before it and the land on which the local government leadership installed the water pumps for the benefit of its people was an open space. It is clear from the evidence that the area which is said to be an open space according to the sketch map is unoccupied and it is triangular in shape. So it is erroneous to say as the appellants did that, the trial Tribunal did not consider the evidence adduced during the trial. It is also on the record that the area which the appellants alleged to be theirs was identified by the Land Officer from Kinondoni Municipal Council as an open space and the appellant had never complained against the Local Authority after the survey. In my view, the appellant cannot complain over the project undertaken in their area but which has been specifically installed in an open space as per the evidence given by DW2. In these circumstances, it is my finding that the trial Tribunal was correct to hold that the respondents were not trespassers on the land in dispute as it was satisfied that the said land was an open space which is under the control of the Local Authority. 6 As regard the 4th ground of appeal, it is my finding that the same has no merit because, it was not mandatory for the trial Tribunal to visit the locus in quo. Moreover upon perusal of the record, there is nowhere where it is shown that the appellants had requested the trial Tribunal to visit the locus in qou. In my view, the trial Tribunal having been satisfied by the evidence given by both parties, it was of the view that there was no need of such a visit because it had all the evidence that the disputed area was surveyed and reserved as an open space since 2004. Moving on to the 5th ground of appeal, the appellants sought to challenge the decision of the trial tribunal for allegedly failing to properly frame the issues to be determined. However, upon perusal of the record, I have noted that on 4th February 2016 the trial tribunal framed three issues which read as follows:- i. Whether the suit land belongs to the applicants or it is an open space. ii. W hether the suit area is an easement. iii. To what reliefs are the parties titled to The trial tribunal after hearing the parties, who gave evidence in relation to the above framed issues, it came to a finding that the 7 appellants had no right over the area in dispute. The appellants had failed to prove their alleged right of easement. It follows that the trial Tribunal was perfectly entitled to arrive at the impugned decision, given the evidence adduced by both parties. In the premises, I do not find any reason to fault the decision of the trial Tribunal as the said decision is but sound. I will not disturb it. Consequently, I find the appeal to have no merit, and I, therefore, dismiss it in its entirety with costs. Dated at Dar es salaam this 6th day of July, 2018. M KENTE, JUDGE 8