dawiya adam vs zainabu sued 2018 tzhclandd 394 27 july 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 194 OF 2016 (From the Decision of the District Land and Housing Tribunal for TEMEKE at TEMEKE in Application No. 120 of 2013) DAWIYA ADAM U........................................................................ APPELLANT VERSUS ZAINABU SU ED ........................................................................ RESPONDENT JUDGMENT P.M. Kente, J: This is an appeal against the decision of the Temeke District Land and Housing Tribunal in Application No. 120 of 2013. Before the said tribunal, (herein after referred to as the trial Tribunal) the Respondent had successfully sued the appellant for a declaratory order that she is the lawful owner of a piece of land described as Plot No. TMK/MBGK/KZN/33/593, located at Mbagala Kuu Area Temeke Dar es Salaam. She accused the appellant for trespassing into her land by dumping sand bags near her fence which later caused the fence to fall down. The appellant in her testimony during the trial, admitted that the disputed land belongs to the respondent as she is her neighbour but she denied to have caused any damage to the respondent’s i fence. She said that the damage was caused by the heavy rains which hit Dar es Salaam in December 2012. She also testified that she had no intention to destroy or otherwise cause damage to the respondent's wall but she was trying to protect her house from being damaged by the floods caused by the heavy rains. According to her, she collected and arranged sand bags but her sole aim was to protect her property from being destroyed by the heavy rain. The trial Tribunal entered judgment in favour of the respondent. The appellant was aggrieved by the said decision. She has now preferred this appeal to this court on the following grounds:- J. That the trial Tribunal erred both in law and fact to determine and entertain the matter by considering the weight of the respondent’s evidence. 2. That the trial Tribunal erred both in law and fact to determine the matter by considering the weak elements of the dispute and left the strong elements to the dispute thus the judgment involved different facts and point of law. 3. That the trial Tribunal erred both in law and fact to entertain the matter without adding the necessary party to the matter especially the seller of the disputed land because when the appellant bought the land in 2009, the respondent was there and we were living peacefully. 2 4. That the trial Tribunal erred both in law and fact to hold the decision in favour of the respondent by ignoring the appellants evidence of the case related to disputed land purchased by the appellant in 2007 and filed the case in 2013 and another cases in different times for the same court and the same subject matter that all four surrounding neighbours have a case against her concerning boundaries. 5. That the trial Tribunal erred both in law and fact to hold the decision in favour of the respondent while the evidence produced by the respondent was not sufficient. 6. That the trial Tribunal erred both in law and fact to hold the decision in favour of the respondent while the respondent accepted that she was there when the appellant purchased the land and she did not object the sale transaction since 2007. 7. That generally the evidence on record differ from the findings and conclusion made by District Land and Housing Tribunal hence lacks merit. At the hearing, both parties were unrepresented and upon request by the parties, this appeal was argued by way of written submissions. 3 To support her case, the appellant submitted that the trial tribunal was wrong in determining the dispute by considering what she called wrong elements' and leaving the strong "element". According to her, the trial tribunal ought to have determined the question as to whether the appellant was the law full, owner of the land where the sand bags were dumped. She referred the court to the case of Puspa d/o Roajibhai M.Patel vs. The Fleet Transpaort Company Ltd (1960) 1 EA 1034 in support of the legal proposition that a party is bound by his pleadings. The appellant contended that the trial tribunal ought to have determined the issue of ownership which would assist the said tribunal to reach a fair and proper decision. The appellant submitted further that, the trial Tribunal was wrong in determining this dispute without calling a necessary party, the seller of the disputed land because when the appellant bought the suit land in 2009, the respondent was present and they had until the occurrence of this dispute, been living peacefully. As to the forth ground of appeal, the appellant submitted that the trial tribunal was wrong to determine this dispute in favour of the respondent by ignoring the appellant’s contention that the suit 4 contravened the provisions of section 9 of the Civil Procedure Code Cap 33 R.E. 2002. It is contended that the PW2 and PW3 confessed during the trial to have been involved in mediating the parties to this dispute, therefore, the trial tribunal had to caution itself as to whether it was proper to entertain a fresh application apart from the one filed in the Ward Tribunal. It is also submitted that the trial Tribunal was not supposed to determine the matter in favour of the respondent because there was insufficient evidence which creates doubts between what was testified by the respondent and her witnesses. Therefore, according to the appellant, the respondent’s claim was supposed to be dismissed by the trial Tribunal for offending the procedure and the jurisdiction of the trial Tribunal which was required to determine a matter which had already been determined by the Ward Tribunal. On the sixth ground of appeal, the appellant submitted that the trial Tribunal was wrong to decide in favour of the respondent while the respondent accepted that she was there when the appellant purchased the land and she had not challenged the sale transaction since 2007. It is submitted that the respondent is the appellant’s neighbor and for a long time, she had witnessed the appellant dumping the sand bags without being interrupted. Therefore, the trial tribunal ought to have considered the fact that the parties are neighbours and therefore, they have to live in, a peaceful manner. As for the seventh ground of appeal, the appellant essentially reiterated what he was required submitted in ground four. In reply the respondent submitted that, the trial Tribunal was correct to determine the dispute in her favour since the issue of causing damage to the respondent's wall was the main question which the Tribunal had to determine. It is contended that the respondent's wall fence was damaged and it fell down due to the sand bags piled up by the appellant. Therefore the trial Tribunal was correct according to the respondent, to determine the matter in her favour because she was affected by the negligence of the appellant who failed to foresee the effect of pilling up the sand bags to the dangerous level. It is further submitted that the trial Tribunal was correct to determine the matter in favour of the respondent without calling the so called a necessary party, because, the negligence of the appellant of pilling up the sand bags which damaged the 6 respondent’s property cannot make the vendor responsible unless it was proved that he was part and parcel of the applicant’s act of negligence. Opposing the fourth ground of appeal, the respondent submitted that the appellant intends to mislead this court because the dispute which was filed in the Ward Tribunal related to boundaries and the parties had agreed to jointlyconstruct a rain water drainage channel. It is submitted that instead of constructing the said channel, the appellant decided to pile up sand bags which fell over the respondent’s fence wall. On the fifth ground of appeal, the appellant submitted that there was sufficient evidence for the trial District Land and Housing Tribunal to decide in the favour of the respondent. It is further submitted that, all in all, the trial tribunal was correct to determine the matter in favour of the respondent because the dispute was in relation to damaging the respondent's fence wall and not on the landed property owned by the appellant. It is the respondent's submission that the appellant was the one who piled up sand bags which fell over her fence damaging it and not otherwise. According to the respondent the dispute concerned the 7 negligent act of the appellant, so the presence of the respondent at the time of purchasing the appellant’s land does not translate into or give right to the appellant to cause damage to the respondent’s wall fence. As to the last ground of appeal, the respondent reiterated his assertion as submitted in ground four. In fine, the respondent implored this court to dismiss this appeal with costs. After considering the submissions made by both parties as well as the evidence on record, I intend to consider the 2, 3 and 6 grounds of appeal all together as in all these grounds, the appellant is challenging the evaluation of evidence by the trial Tribunal which thereafter decided in favour of the respondent. The 4,5 and 7 grounds of appeal will be considered together as they all touch on the contention that the suit before the District Land and Housing Tribunal was res judicata. The record of the lower Tribunal shows that the appellant in her testimony admitted that, the land in dispute belongs to the respondent and the appellant does not dispute that the respondent’s wall fence was damaged. The appellant went further testifying that she had no intention of destroying the respondent’s 8 fence wall as she was trying to pile up sand bags so as to prevent the flood from damaging her house. With this piece of evidence, the trial tribunal came to the conclusion that the respondent’s wall fence was damaged and pulled down because of the negligence of the appellant for piling up sand bags which block the water way, causing rain water to flood the respondent's property. In view of the above admission, I find that the Chairman of the District Land and Housing Tribunal properly evaluated the evidence after he went further to visit the locus in quo to see the real situation obtaining on the ground. He thereafter came out with a fair and just decision, because the evidence is very clear that the respondent's wall was damaged by rain water after the appellant’s had piled up sand bags into her land bringing water to a standstill. The respondent was able to prove on the balance of probability that her fence was destroyed because of appellant’s act of negligence. In my view, the appellant ought to have been careful and foreseen the impact of her acts to her neighbor’s property. Going forward, I hold the view that, the seller could not be called as witness during the trial because the dispute centred on the destruction of the respondent’s property. In that situation, the vendor 9 could not be a necessary witness to testify on the negligent act committed by the appellant. Moreover, the law is very clear that it is only in rare circumstances that the findings of facts by the trial court will be interfered with by the appellate court. The appellate court may do so in instances where for instance, the trial court had omitted to consider or had misconstrued some material evidence, or had acted on a wrong principle or had erred in its approach to evaluating evidence. See Edwin Ezidori Elias Vs. Serikali ya Mapinduzi ya Zanzibar [2004], In the light of the above authority, it is my settled view that, as there is no misdirection or non-direction committed by the trial Tribunal, this court cannot interfere with the lower Tribunal’s findings of fact. As to the 4, 5 and 7th grounds of appeal, going through the record, it is clear that the matter was properly before and was finally determined by the trial Tribunal. I disagree with the appellant's contention that the matter was res judicata and that the trial tribunal was in error to entertain a fresh suit by the same parties and over the 10 same subject matter. It is my observation that, this allegation is an afterthought because it ought to have been raised at the earliest stage. It cannot be raised at the appellate stage as it is a new issue that was not raised and canvassed during the trial. Moreover, it is my observation that, even if it was raised during the trial Tribunal the suit could not fall under the ambit of section 9 of the Civil Procedure Code because, what was before the ward tribunal according to the testimonies of PW2 and PW3 was just an amicable discussion and settlement which aimed at helping the parties to live peacefully as neighbours. Thereafter, both parties agreed to construct a water drainage channel so as to enable each other to prevent her property from being damaged by the erosion or flood, but the appellant instead, went further and piled up sand bags in her land which affected the respondent’s fence wall. In the light of the above, evidence, it is my finding that, one cannot say that the matter before the Ward Tribunal could render res judicata the subsequent suit before the District Land and Housing Tribunal as the matter before the Ward Tribunal was not conclusively, determined. 11 For the foregoing reasons, this appeal is found to be wanting in merit and is consequently, dismissed with costs. Dated at Dar es Salaam this 27th day of July, 2018. 12