ramadhani ally maleta 2 others vs donart kaiz alwatani 2023 tzhclandd 16703 27 july 2023

ramadhani ally maleta 2 others vs donart kaiz alwatani 2023 tzhclandd 16703 27 july 2023

The trial Tribunal erred by granting reliefs to the respondent without sufficient proof of encroachment and by ordering a resurvey after finding lack of evidence. The Tribunal also failed to properly analyze the Surveyor's Report and did not specify the extent of encroachment, leading to a defective judgment. The counterclaim was properly struck out for contravening Tribunal orders, and the right to be heard was not denied. The entire proceedings, judgment, and decree of the trial Tribunal are quashed and set aside; a retrial is ordered.

Citation
ramadhani ally maleta 2 others vs donart kaiz alwatani 2023 tzhclandd 16703 27 july 2023
Parties
1st Appellant: Ramadhani Ally Maleta; 2nd Appellant: Issa Salum (as legal representative of Salum Kondo Kinega); Respondent: Donart Kaiz Alwatani
Court
TANZLII
Jurisdiction
Tanzania
Judgment Date
27 July 2023
Procedural Posture
Land Appeal / Judgment on Appeal From District Land and Housing Tribunal
Outcome
Appeal allowed; proceedings, judgment, and decree of the trial Tribunal quashed and set aside; retrial ordered before another Chairman; each party to bear its own costs.
Legal Topics
Burden of Proof, Trespass to Land, Counterclaim Procedure, Right to Be Heard, Survey and Boundary Disputes
Source Language
English
Land Law Civil Procedure Burden of Proof Trespass to Land Counterclaim Procedure Right to Be Heard Survey and Boundary Disputes

Case Brief

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Parties

Ramadhani Ally Maleta

1st Appellant

Issa Salum (as legal representative of Salum Kondo Kinega)

2nd Appellant

Donart Kaiz Alwatani

Respondent

Procedural Posture

Land Appeal / Judgment on Appeal From District Land and Housing Tribunal

Legal Issues

  1. 1 Whether the respondent proved encroachment by the appellants on the suit land to the required standard
  2. 2 Whether the trial Tribunal erred in granting reliefs without sufficient proof and analysis of evidence
  3. 3 Whether the counterclaim of the 2nd appellant was properly struck out and whether right to be heard was denied

Ratio Decidendi

The trial Tribunal erred by granting reliefs to the respondent without sufficient proof of encroachment and by ordering a resurvey after finding lack of evidence. The Tribunal also failed to properly analyze the Surveyor's Report and did not specify the extent of encroachment, leading to a defective judgment. The counterclaim was properly struck out for contravening Tribunal orders, and the right to be heard was not denied. The entire proceedings, judgment, and decree of the trial Tribunal are quashed and set aside; a retrial is ordered.

Court Disposition

Appeal allowed; proceedings, judgment, and decree of the trial Tribunal quashed and set aside; retrial ordered before another Chairman; each party to bear its own costs.

Orders

  • Proceedings, judgment, and decree of Application No. 77 of 2010 before the District Land and Housing Tribunal for Ilala quashed and set aside.
  • Retrial ordered before another Chairman as expeditiously as possible.