BERNADETTE TWINOMUKAMA SCANNED

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 27099 OF 2024 (Originating From Application No. 113 of 2020, Hala District Land and Housing Tribunal) BERNADETTE MUKAYIRANGA TWINOMUKAMA................................ ...APPELLANT VERSUS YAHAYA SAIDI KAONEKA.................................................................. RESPONDENT JUDGMENT 2nd to 13th December, 2024 E.B. LUVANDA, J The Appellant named above, is appealing against the decision of the Tribunal dismissing her claim and accusation against the Respondent for encroaching 6.30 meters and uprooting four beacons for her Plot No. 128, Block S, title number 119831 situated at Tabata-Segerea. The Tribunal ruled that the act of the Appellant constructing the wall fence enclosing her land and assenting to the existing boundaries vide a form for verification of boundaries signed by the Appellant in favour of the Respondent in 2018 exhibit KU2, operate as an estoppel on her part to reclaim the suit land afterwards. The Appellant is aggrieved by this verdict, now she is appealing to this Court on the following grounds of appeal: One, the learned Chairman erred in law and facts in applying doctrine of estoppel to bar the Appellant right to claim her land; Two, the learned Chairman erred in law and facts to hold that the i Respondent did not encroached into Appellant's land for the reasons of Appellant signed land survey form for the Respondent; Three, the learned Chairman erred in law and facts in holding that the Appellant failed to prove the case since during her land survey did not incorporate the Respondent, which was not the issue before the Tribunal; Four the learned Chairman erred in law and facts to hear and determine the disputes between the parties over the title deed in respect of Plot No, 128 Block 'S' located at Tabata in Hala Municipality with title no, 119831 without involvement of the Registrar of Titles; Five, the learned Chairman erred in law to hear and determine the disputes without visiting locus in quo. Mr. Charles N. Buzwizwi learned Counsel for Appellant consolidated ground number one and two, he submitted that it is a trite law that doctrine of estoppel is limited to annul or circumvented statutory duties, citing Roshani Meghjee & Co. Ltd vs. Commissioner General Tanzania Revenue Authority, Civil Appeal No. 49/2008, CAT He submitted that the act of the Appellant to sign surveying form for the Respondent was done out of performing statutory duty for surveying procedure which requires the surveyor to ensure all third parties' interest cleared, and since the form did not dispose the size of the land, that action did not mean the Appellant accepted or cause the Respondent to believe that the Appellant has 2 waived the size of her land or changed the land demarcations. He submitted that she only signed as neighbour of Respondent as required under the survey procedures. He submitted that the only circumstance where the parties/owners are obliged to agree in the boundary is where the surveying land is the farm, citing Obed Mtei vs Rukia Omari [1989] TLR 111. He submitted that since the Respondent's land survey was not conducted into the farm, argued that the Appellant signing surveying form was not adherence to the boundaries as propounded by the Trial tribunal. Ground number three, the learned Counsel submitted that the main issue before the Tribunal was whether the Respondent encroached into the disputed land of 6.30 square meters, arguing to evidence the issue, the Appellant submitted exhibit KM5, (land surveying reports,) exhibit KM1 (certificate of title) whereby all exhibits substantiated the size of the Appellant's land, he submitted that the Tribunal deliberately or inadvertently overlooked such crucial evidence tendered by the Appellant and proceeded to make decision on issue which was not raised by the parties, and worse enough the parties had no opportunity to counter such findings by the Tribunal. He submitted that it is trite law that, the who alleges must prove that a certain fact exists, citing section 110 of the Tanzania Evidence Act, Cap 6 RE 2019; Hemed Said vs Mohamed Mbilu [1994] TLR 113, for a proposition that, the 3 party whose evidence is heavier than that of the other is the one who must win the case. He submitted that the learned Chairman was wrong to rule that the Appellant failed to prove her case simply because she did not incorporate the Respondent during her land survey while disregarding the fact that the Appellant tendered imposing evidence before the trial Tribunal. For ground number four, the learned Counsel submitted that there is no dispute that parties are entangled over the land with the title deed as portrayed in the Tribunal judgment. He submitted that the Registrar of Titles was to be involved in settlement of this dispute rather than being condemned unheard, Nestory Mfose and Six Others vs. The Registered Trustees of Catholic Archdiocese of Arusha, Civil Appeal No. 254 of 2019, CAT. For ground number five, the learned Counsel submitted that since the parties in this appeal were involved in the land dispute of encroachment by Respondent into the Appellant's land measuring 6.30 square meters as depicted at page five of the Tribunal's judgment, the Appellant's witness (SM2) as per page 6 of the said judgment testified that, Respondent encroached for 2 and 1/2 meters on one side of her plot and 30 centimeters on the other side, also cited page sixteen of the impugned judgment. He submitted that it was prudent for the Tribunal 4 to visit locus in quo to satisfy itself of the complained encroachment on the Appellant's land or clear the doubts as to the boundaries of the disputed land, citing Nizar M.H vs. Gulamai Fazal Jan Mohamed [1980] TLR 29. In reply, the Respondent submitted that the act of the Appellant to sign a survey form for the Respondent, connotes that the boundaries were correct in terms of the (sic) of among others size of the land and beams were placed on the correct position, arguing therefore that the Appellant is stooped by the said doctrine by turning around without any justifiable reasons. He cited the persuasive case of Nairobi County Government vs Kenya Powers and Lighting Company Limited [2018] eKLR. Also cited section 123 of the Evidence Act, cap 6 R.E. 2019. He submitted that the Appellant even resurveyed her land without involving the Respondent which is improper and contrary to law to install beacons or survey the area without involving all parties to the dispute, citing Obed Mtei vs Rukia Omar [1989] TLR 111. For ground number three, the Respondent submitted that the main issue before the Tribunal was whether the Respondent encroached into the Appellant's piece of land measuring 6.30 square meters (sic, meters). He submitted that they are supposed to tally with the issue at hand so as to lead the Tribunal (sic, Court) to make genuine decision. He submitted that the Tribunal viewed no evidential value submitted by the Appellant to substantiate that the Respondent 5 encroached into her land. He submitted that the Appellant was supposed to provide tangible evidence to convince the Tribunal on her allegation. He cited Hemed Said (supra). For ground number four, the Respondent submitted that the Appellant had a room of calling the Registrar of Titles if she thinks that would assist to prove her case. He submitted that it is not the duty of the Tribunal to determine which witness the Appellant can call so as to prove her case. For ground number six, the Respondent submitted that there is no law which make it mandatory for the Tribunal to conduct a visit at the locus in quo, arguing the same is done at the discretion of the Tribunal particularly when it is necessary to verify evidence adduced by the parties during trial. He submitted that visiting locus in quom to confirm what is already in the record with the actual physical inspection and not to substitute the eye for the ear rather to clear any ambiguity that may arise in the evidence or to resolve any conflict in the evidence as to physical facts. He submitted that visiting locus in quo, is not mandatory, argued that even if the visit initiated at the request of both parties, argued it depends on the state of the evidence. On rejoinder, the learned Counsel for Appellant submitted that the purported form signed by the Appellant was bearing the title of "consent form for land 6 survey" argued it doesn't mean that is not boundaries form as submitted by the Respondent to stop the Appellant from denying the boundaries. He submitted that the issue was whether the Respondent encroached into the disputed land of 6.30 square-meters, argued to evidence the issue the Appellant submitted exhibit KM5, (land surveying reports,) exhibit KM1 (certificate of title) whereby both exhibits were meant to substantiate the size of the Appellant's land, and those are tangible evidence unlike it was insinuated by the Respondent in his reply submissions that the Appellant was supposed to bring tangible evidence to convince the Tribunal. For ground number four, the learned Counsel submitted that ground number four of appeal as it was misconceived by the Respondent, for explanation that the Appellant is faulting the Tribunal for failure to order Registrar of Titles to be joined as a necessary party in the suit but not calling Registrar of Title as a witness to testify on the side of the Appellant as propounded by the Respondent. For ground number five, the learned Counsel for Appellant submitted that since there was variation of testimony in the main suit evidence as portrayed in the submissions in chief, argued it was prudent for the Tribunal to visit locus in quo to satisfy itself of the complained encroachment on the Appellant's land and clear the doubts as to the boundaries of the disputed land, citing Nizar M.H. (supra). 7 On my part, for ground number one and two, on the face of it are premised on unmerited arguments, The reasoning and findings of the learned Chairperson was legally sound and properly grounded or founded on both factually and legally. At page five of the impugned judgment, paragraph two, the Tribunal ruled, I reproduce, Kwa upande wangu sina tofauti na maoni ya wajumbe yailyonukuliwa hapo juu kwa sababu nitakazozitoa baada ya hapa. Kwa mujlbu wa mdai kwenye ushahidi wake anaeleza mwaka 2003 aiiona bikoni za kiwanja chake na kutambua huo ndio mwisho wa kiwanja chake ndio maana aiijenga fensi bila kuwa na mgogoro na mdaiwa. Hati miliki ya kiwanja chake kieieiezo KM1 ameipata mwaka 2011. Amegundua mdaiwa amemega kiwanja chake mwaka 2020 baada ya jirani yake bwana Faustina aiipoita mpima ardhi wa Wizara na kubainisha akionyesha kuwa mdai amejipunja kiwanja chake kwa upande wa nyuma kwa kuwa ameacha eneo ia kiwanja chake' At page six, second paragraph, the learned Chairperson continued, 'Sababu ya msingi ya kuungana na maoni ya wajumbe ni kutokana na mdai kukubaii utetezi wa mdaiwa kuwa alimsainia fomu ya mipaka wakati wa mdaiwa kurasimisha eneo lake kama ifuatavyo: -Ndio uliniita wakati unarasimisha eneno iako na nilikusainia fomu yako ya mipaka. Mdaiwa ametoa fomu ya kurasimisha makazi iiiyopokeiewa kama kieieiezo cha uteteze-KU2. Na fomu hiyo inaonyesha ni kweli kabisaa kuwa mdai amesaini mwaka 2018' 8 In view of the above, the Tribunal was justified to invoke the doctrine of estoppel against the Appellant. This is for obvious reason that apart from the fact that the Appellant is estopped by her affirmative acts towards ratifying the existing boundaries between her and the Respondent, her claims were an afterthoughts and a mere squabbles and dissension in neighborhood within the context of the local community at large. This is because, DW1 and DW2 that is the Respondent and his spouse, respectively, testified that since 2004 when one Job who is the brother in law to the Appellant along Mr. Kabyemeia who is the Appellant's husband purchased and paid the first visit for a foot print at the suit land, they have been living in good terms like friend, brothers and sisters, where DW2 along DW3 assisted greatly in construction of the Respondent's house by fetching water and the Appellant used to store her building equipment and materials into the Respondent's house. Equally after the Respondent settled there permanently in 2008, was in good terms with the Respondent's wife, where Tatu Mohamed Tindwa (DW3) said, I quote, '...AHkaribishwa na mkewe Kaoneka na sinyao Hikuwa moja. Wameendeiea na urafiki wao...' It is until in 2020, when squabbles started, as the testimony of the Appellant who was recorded to had testified, I quote, 'Upande wa magharibi wa kiwanja changu ndio kuna matatizo ni/iyagundua mwaka 2020 baada ya kiwanja cha Kaskazini 9 kikapata mnunuzi Bw. Faustina atiponunua aiimuita mpima Ardhi wa Wizara na huyo mpima wa Wizara akaongea mbona huyu "akionyesha nyumba yangu" mbona huyu amejipunja eneo lake kwa nyuma upande wa magharibi kuwa nimeacha eneno ia kiwanja change nyuma' This passage suggests the course taken by the Appellant amounted to what folks says "kufufua makabud'. In fact, it was unnecessary for her to indulge into such litigation. As above said, the Tribunal was justified to make a finding that the Appellant is estopped by her own previous deeds which had the effects of affirming, confirming and approving the deemed existing boundaries between her and the Respondent. Ground number three, to my view, having ruled as above, the only remedy available for the Tribunal was to enter a verdict that the Appellant failed to prove the alleged encroachment. In other words by invoking the doctrine it means even if the encroachment was there, but the Appellant is barred from claiming it back from the Respondent. Ground number four, to my view is unmerited. The Appellant is the one who sued at the Tribunal. If was interested for the Registrar of Titles to be joined as a necessary party, who prevented her then. The rule bound the Appellant, that she cannot be let to take advantage of her own wrong, mistake or omission. 10 For the sake of arguments, even if the Registrar of Titles could have been joined, still the Appellant failed to demonstrate as to what could be her role in the situation of this case. An argument that the Registrar of Titles was denied the right to be heard, is misleading. The Appellant did not assert any verdict made which directly affected the Registrar of Titles. Ground number six. Is unmerited. Going by the records of the Tribunal specifically proceedings dated 12/08/2024, reflects that it is the Respondent who staged a request for visiting the locus in quo, but made a reservation that if the Tribunal will assess and see the necessity of doing so. I reproduce, 'Mdaiwa: -Sina shahidi mwingine. Nafunga ushahidi wangu kama Baraza iinahitaji twende kona eneo hiio kwa vitendo. Mdai: -Mimi sioni haja ya kwenda kuona eneo Ha kama haja twendeni kuiiona eneo. Naamini ushahidi upo wazi na vipimo vipo wazi' Therefore, it is absurd for the Appellant to lodge a complaint faulting the Tribunal for not visiting the locus in quo while it is the Appellant who refused and objected when the Respondent had demanded the visit. Above, all the Appellant could not say as to what could be the value for the visit in the situation where on the ground there is an existing fence constructed by the Appellant as a boundary to her land. To my view, visitation was unnecessary, it was sought by the Respondent who a during the trial was pleading and positioning himself 11 like as a looser, and the Appellant was fronting her argument with confident, only that things turned around against her. The appeal is lacking merit whatsoever. The decision of the Tribunal is upheld without any reservation, regard being a fact that even costs imposed were not contested by the Appellant. The appeal is dismissed on its entirety. However, the Appellant is spared to foot Judgment delivered in the present^ of the Respondent in the absence of the 12