carim immu v mohamed lukaya 2023 tzhc 17454 30 may 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

TABORA DISTRICT REGISTRY

AT TABORA LAND APPEAL NO. 41 OF 2021 (Arising from the decision of the District Land and Housing Tribunal for Tabora in Land Application No. 30 of2021) CARIM IMMU............................................................... APPELLANT

VERSUS MOHAMED LUKAYA..................................................... RESPONDENT

JUDGMENT Date of Last Order: 22/5/2023 Date ofJudgment: 30/5/2023 KADILU, J, The Appellant was the applicant before the District Land and Housing Tribunal for Tabora in Land Application No. 30 of 2021 which was decided in favour of the respondent and the applicant was condemned to pay costs of the suit. According to the records, the dispute between the parties is on the boundary between them measuring three (3) meters where the appellant claims that it belongs to the government. He however, asserts that the respondent has closed the said boundary causing drainage difficulties whereby rain water and the appellant's sewage water are not flowing properly. The dispute is quite historical and several government authorities have been engaged in resolving it, but unfortunately it has kept on recurring. It was then referred to the District Land and Housing Tribunal for Tabora where the appellant's claim was found to be baseless hence, it was dismissed with costs. Dissatisfied with the decision of the tribunal, i the appellant appealed before this court with the grounds of appeal reproduced hereunder: 1. That, the honourable District Land and Housing Tribunal erred in law and fact in delivering judgment in favour of the respondent.

2. That, the honourable District Land and Housing Tribunal erred in law and fact by entertaining the matter without questioning the veracity and strength of the evidence.

3. That, the honourable District Land and Housing Tribunal erred in law and fact by refusing an application for temporary injunction and for not calling important witnesses who could prove the appellant's case instead of reaching an erroneous conclusion.

4. That, the honourable District Land and Housing Tribunal erred in taw and fact for not affording an opportunity to the appellant to challenge the pleadings and evidence produced by the respondent.

5. That, the Honourable District Land and Housing Tribunal erred in law and fact in admitting the respondent to continue with the destruction of the appellant's wall and boundaries and ignored the appellant's claims totally.

6. That, the Honourable District Land and Housing Tribunal erred in law and fact when it visited locus in quo for not calling neighbours, local leaders, Tabora Municipality landsurveyor, for further evidence for the ends ofjustice. The appeal was argued by way of written submissions. The appellant had no legal representation whereas Ms. Flavia Francis, the learned Advocate represented the respondent. Generally, the appellant's complaint is based on two points firstly, the appellant is faulting the decision of the trial tribunal on the ground that it was not supported by 2 sufficient evidence. Secondly, the appellant has alleged that he was not afforded an opportunity to challenge the respondent's evidence during the trial. In the written submission, the appellant consolidated the 1st and 2nd grounds of appeal and argued them conjointly. He also consolidated the 4th and 5th grounds and argued them jointly while he abandoned the 3rd and 7th grounds of appeal. The respondent adopted a similar approach in his reply to the appellant's written submission. As stated, after having examined the parties' written submissions, I found that the appellant has raised a complaint that the Chairman of the DLHT did not consider his evidence at all. To start with the 6th ground, the appellant submitted that the trial tribunal visited the locus in quo but in general, the tribunal did not consider

either the negative impact or the entrance. The appellant argued that if the tribunal visited locus in quo and really consider what is in dispute then the decision should be in favour of the appellant. Ms. Flavia had nothing in her submission to respond to it in this aspect. I have perused the typed proceedings of the trial tribunal. From the outset, the appellant's complaint that he was not afforded an opportunity to challenge the respondent's evidence, is not supported by the available records in the case file. From pages 15 to 19 of the proceedings, the appellant challenged the admission of the respondent's exhibits vigorously. In addition, he cross-examined DW1 and DW2 intensively as shown on pages 20 and 24 of the proceedings. For this reason, the said ground of appeal is devoid of merit and it is dismissed accordingly. On whether or not the tribunal's decision was supported by the evidence presented, it is clear that the trial tribunal visited the locus in 3 quo in the presence of two assessors and both parties. The tribunal summarized to the parties what it had observed at the locus in quo. More importantly, the tribunal stated at page 30 of the proceedings, as follows: 1) Eneo lenye mgogoro Hmeonekana.

2) Mgogogoro upo kwa upande wa muombajii. Anadai kuwa mita tatu (3) za serika/i zimevamiwa na mjibu maombi.

3) Mahakama imebaini kuwa kiia mmoja yupo kwenye eneo lake.

4) Kimsingi hatujaona mgogoro wowote kwani ki/a mtu yupo kwenye eneo lake na hizo mita 3 za serikaii ni kitu ambacho hakipo kwa kuwa eneo au maeneo hayo hayajapimwa.

5) Mashimo ya maji-taka yamo ndani ya nyumba ya muombaji na hakuna shimo la maji-taka lililozibwa na mjibu maombi. 6) ...................... The above findings were in line with the opinions of both assessors. Under these circumstances, I am of the considered opinion that the visit at the locus in quo was properly conducted and it enabled the tribunal to arrive at an informed decision. It should be noted that, there is no law that clearly and exhaustively provides for procedures of visiting the locus in quo rather, the procedure has been developed through court practice. This being the court practice, the most important issue is for the court or tribunal to do whatever enables it to get a true picture of the suit land and allow the parties to comment or ask questions, the underlying objective being to achieve substantive justice. It is not expected that the procedures for visiting the locus in quo will exactly be the same in all occasions, what is required is for the court or tribunal to adhere to the basic requirements such as the presence of 4 the parties at the locus in quo and availability of an opportunity for the parties to ask questions or make comments on the evidence obtained at the locus in quo. In the premises, I am of the settled view that the basic requirements for visiting the locus in quo were substantively complied with. I, therefore, find the six grounds of

appeal devoid of merit and dismissed it. With regard to the 1st and 2nd grounds of appeal, the appellant submitted that the trial tribunal considered the evidence tendered by the respondent and it isolated the appellant's evidence. The appellant alleged that the trial tribunal's judgment was based on exhibit "DI" which shows the respondent was given house No. 2 at the cross line by Joha Rukaya. He further contended that the respondent has trespassed into the appellant's land almost (3) meters which resulted in the appellant being unable to open the toilet's chamber and prevent the rain from passing through its drains. I have gone through all the evidence and I see that the respondent was able to submit various documents such as Exhibit "DI" which showed his ownership over the land in dispute and after looking carefully, I have seen that the disputed land has not yet been surveyed as exhibits "D2" and "D4" indicate. This point was revealed in the correspondences between the respondent and Tabora Municipality. Basically, this argument lacks merit and is dismissed as well. In essence, the fourth and fifth grounds of appeal have been swallowed up by the grounds of appeal I have already resolved herein­ above, so I disregard them for being repetitive. I however, wish to emphasize that in terms of Section 143 of the Evidence Act, [Cap. 6 R.E. 5 2019], evidence is usually weighed, and

not counted. There is no specific number of witnesses which is required in order to prove a case. As such, the respondent was not bound to call any particular number of witnesses for him to prove his case. Likewise, since it is a duty of the parties to prosecute their case, the appellant was free to call any witness who he considered material in building his case or in weakening the respondent's evidence. There is nothing on record to suggest that the appellant had prayed to call any witness, but the application was withheld. The proceedings reveal that after the appellant had finished to testify in the tribunal, he addressed the tribunal as follows: "I have no other witness. I pray to dose my case. I only pray for the tribunal to visit the area in dispute so as to see how the situation is." (Translation from Kiswahiii to English is mine). Indeed, on 08/11/2021 the tribunal visited the disputed area as prayed by the appellant. It is thus, surprising how the appellant complains afterwards that some witnesses were not called to testify in his favour. Civil litigations are guided by the principle set forth under Section 110 of the Evidence Act, [Cap.6 R.E 2019] which places the burden of proof on the party wishing the court to believe his testimony and pronounce judgment in his favour. Section 110 (1) of the Act provides: "Whoever desires any court to give judgment as to any

legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist." 6 Similarly, in the case of HemediSaid vMohamediMbilu\\^^\ TLR 113, it was held that "he who alleges must prove the allegations." On the basis of the foregoing discussion and reasons, I find no justification to fault the findings of the District Land and Housing Tribunal in this matter. I neither read any misapprehension of evidence nor miscarriage of justice. I did not as well see any violation of some principles of law or procedure. In the upshot of all these, I see no merit in the appeal, and I dismiss it with costs. Right of appeal is open to any aggrieved party. Order accordingly. KADILU, MJ.

JUDGE 30/05/2023 Judgment delivered in Chamber on the 30th Day of May, 2023 in the presence of Mr. Omari Makomba, representing the appellant. The respondent is absent. 7