ELIBARIKI RUMISHA BONIFACE V

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SHINYANGA SUB REGISTRY AT SHINYANGA LAND APPEAL NO. 28228 OF 2023 (Arising from the judgment and decree of the District Land and Housing Tribunal of Shinyanga for Shinyanga, Land Application No. 36 of 2017) BETWEEN ELIBARIKI RUMISHA BONIFACE………………………. APPELLANT VERSUS DOROTH MORICE MOSHA……………..…………1ST RESPONDENT SHINYANGA MUNICIPAL COUNCIL………..…2ND RESPONDENT JUDGMENT 6/6/2024 & 19/7/2024 MASSAM, J.: Dissatisfied with the decision of the District Land and Housing Tribunal for Shinyanga at Shinyanga, the appellant has filed this appeal with a total of three grounds of appeal namely:- 1. That, the trial Tribunal did not comply with the law before recording evidence of witness and during the recording of such evidence. 2. That, in the alternative to ground 1 herein, DW2 and DW3 who are Land Surveyor and authorized Land officer respectively from the 2nd Respondent having failed contrary to the Order of this court, Page 1 of 12 Honourable Gerson J. Mdemu, J dated 15/12/2021 in Land Appeal No. 35 of 2020 to show physical existence at the locus in quo of Plot No. 346 Block LL Lubaga with Shinyanga Municipality and the two witnesses having also failed contrary to the order in question to tender in evidence Town Plan Map and/or Survey Plan in respect of Block LL Lubaga with Shinyanga Municipality where the two Plots No. 346 and 280 are situated; the trial Tribunal Chairman erred in law and facts. a. In not holding that the two plots No. 280 and 346 Block LL Lubaga within Shinyanga Municipality refer to one and the same piece of land. b. In holding that the appellant trespassed into Plot No. 280 Block LL Lubaga within Shinyanga Municipality and effected permanent developments thereon; c. For failure to order the 2nd respondent to pay the appellant compensation and damages in respect of all permanent developments effected on Plot No. 280 Block LL Lubaga within Shinyanga Municipality. 3. That, the trial Tribunal Chairman erred in law and fact for awarding the 1st respondent the reliefs which she did not ask for in her written statement of defence. Page 2 of 12 When the matter was called for hearing, advocate Audax Constantine represented the appellant, on the other hand, the 1st respondent was represented by advocate James Njelwa and the 2nd respondent was represented by Mr. Musa Mpogole, learned State Attorney. Before going to the merit of the appeal, the brief facts of the matter are as follow;- Basically, the appellant herein filed a suit against the respondents on the claim of ownership of Plot No. 346 Block “LL” Shinyanga Municipality. The appellant alleged that he was allocated Plot No. 346 Block “LL” Shinyanga by Shinyanga Regional Land Office in 1991 and tendered letter of Offer with Ref. No. 9229/1 dated 25/11/1991 (Exhibit. PE1) and a building plan with Ref. Drw No. 092ML-27/7 dated 30/5/1994 (Exhibit. PE2). He was surprised in 2006 the respondent approached him and alleged that he trespassed to his property which is Plot No. 280 Block “LL” Shinyanga Municipality and effected improvements unlawfully. Thereafter the appellant approached the 2nd respondent in order to enquire the matter and he was informed that the suit property is the property of the 1st respondent herein and she has already been issued with certificate of occupancy. Page 3 of 12 Opposing the appeal, the 1st respondent alleged that she was allocated the suit property Plot No. 280 Block “LL”, Lubaga Shinyanga by the 2nd respondent in 8/3/1991 and he was given certificate of occupancy in 26/4/ 2004 for a term of 99 years. And she has been paying land rent since then. So, she prayed for the application to be dismissed with costs. After evaluation of evidence from both parties, the trial tribunal gave its judgment in favour of the respondents stating that the appellant failed to establish a case against the respondents on a balance of probabilities. Thus, it was decided that the disputed property is the lawful property of the 1st respondent and the appellant was ordered to vacate as he was a trespasser. He was also restrained from interfering to the disputed property. The application was therefore dismissed with costs. Aggrieved the appellant preferred this appeal based on the grounds submitted herein above. In disposing this appeal, the parties argued the appeal orally. I commend both counsel for their well submission and the same will be considered while determining the merit of the appeal. Having gone through the submission made by the counsels for the parties and the records of the trial tribunal, the main issues for determination are: - Page 4 of 12 1. Whether the trial tribunal considered the law before and when it records the evidence of witnesses. 2. Whether Plot No. 346 Block “LL” Lubaga and Plot No. 280 Block “LL” are one and the same. 3. If the 1st issue is answered in affirmative whether the appellant is the lawful owner of the disputed property, Plot No. “LL” Lubaga. 4. Whether the trial tribunal issued reliefs which were not prayed for by the parties. Starting with the 1st issue of whether the trial tribunal considered the law before and when it records the evidence of witnesses. Mr. Audax complained that as per page No. 8,22, 32, 44 and 49 shows that it was the clerk who confirmed that the witness do testify which is contrary to Section 23 (1) of Land Disputes Court Act, Cap 216 R.E 2016. He was of the view that the said illegality goes to the root of the case as it was contrary to rule 125 of 1967, paragraph 4, 1st schedule Cap 34 R.E 2019. Mr. Audax complained further that during the re-examination, and examination of assessors the evidence was recorded in a form of bullet contrary to Order 18 rule 10 of CPC (amendment of the 1st schedule) 9 rules) 2021 GN 760 which needs evidence to be recorded in a narrative Page 5 of 12 form. Thus, he prayed for the evidence of the said witnesses to be expunged from the record. Responding to this issue, Mr. James, counsel for the 1st respondent conceded to the alleged illegality but stated that the same were too small to occasion injustice to the parties herein. He stated further that as per Section 45 of Cap 216, the said errors can be reversed only if they occasioned injustice to the parties. As for the issue of evidence not to be in a narrative form, also did not occasioned any injustice to the parties as there was other evidence tendered such as letter of offer and title deed in respect of plot No. 280 Block “LL” Lubaga (Exhibit DE2) and Exhibit DE5 letter of the appellant to the 2nd respondent to be compensated as Plot No. 280 Block “LL” Lubaga is not his plot. On his side, counsel for the 2nd respondent Mr. Musa stated that the illegalities raised by the appellant are curable under the principle of overriding objective as per Section 3A of the Civil Procedure Code, Cap 33 R.E 2019. He stated that both witnesses did swear and affirm, the issue of a court clerk was just a slip of the pen which is curable under Section 45 of Cap 216. As for the issue of evidence being taken in a bullet form, he said that it did not occasioned any injustice to the parties as it was clearly and understandable. Page 6 of 12 I have revisited the records of the trial tribunal and noted that when the trial chairman was taking the additional evidence, court clerk was the one who said the witness did affirm or sworn in his faith. I do support the counsel for the appellant that the said was irregularity, however as it was well submitted by the counsels for the respondents, the same did not occasion any injustice to the appellant herein. As for the issue of cross and re-examination to be written in a bullet from contrary to order 18 Rule 10 of the CPC, it is the firm view of this court that as long as it was understandable to both parties no injustice occur to the parties. And as it was a mere procedural error which can be cured and remedied by the Court by invoking the overriding objective principle which is geared at achieving the ends of substantive justice. See the case of Union of Tanzania Press Clubs and Another v. The Attorney General of The United Republic of Tanzania, Civil Appeal No. 89 Of 2018 (CAT at Mwanza, Unreported). As for the 2nd and 3rd issues of whether Plot No. 346 Block “LL” Lubaga and Plot No. 280 Block “LL” are one and the same and if the 1st issue is answered in affirmative whether the appellant is the lawful owner of the disputed property, Plot No. “LL” Lubaga, Mr. Audax stated that when they visited locus in quo after the order of the court in Land Appeal Page 7 of 12 No. 35 of 2020, they did not found Plot 346 Block “LL” Lubaga. Thereafter, the 2nd respondent was ordered to submit town plan map and the same was not tendered. Mr. Audax stated further that as Plot No. 346 Block “LL” Lubaga was the same as Plot No. 280 Block “LL” Lubaga, Hon. Chairman was wrong to held that the appellant trespassed to the disputed land while he had letter of offer, Exhibit PW1, and building permit, Exhibit PE2 given by the land officers. Thus, he was of the view that as the said confusion was caused by the 2nd respondent, he is supposed to compensate the appellant with another plot or to pay for the damages they caused. The 1st respondent’s counsel Mr. James replied that having looked at the records of the trial court, there is nowhere the court ordered the evidence to be supported with town plan map or survey plan, the directive was too general, and they were followed by the trial tribunal. He also added that DW2 (the surveyor) when he was testifying at the trial tribunal did not mention on public document called “Ramani ya Upimaji”. Further, the town map plan was included in title deed of the 1st respondent which had Plot no. 1 up to 308, Plot no. 346 was not included there. More to that, he said the appellant failed to bring the person who shows him Plot Page 8 of 12 No. 280 Block “LL” instead of Plot No. 346 Block “LL”. The said failure proved that no one showed him Plot No. 280 Block “LL”. Mr. James on his part, replied that the trial Chairman did follows the order of Mdemu, J. He argued further when they went to visit locus in quo, Plot No. 346 Block “LL” was not found. According to him, the decision of the trial tribunal based on exhibits tendered by the 1st respondent and in 26/9/205 the appellant did admit building to the plot which is not his and without a building permit from the 2nd respondent. It was Mr. James’s further evidence that at the trial tribunal the appellant tendered build map instead of building permit. He referred this court to the case of Director Moshi Municipal Council v. Stannard Mnesi and Another, Civil Appeal No. 246 of 2017. As for the issue of compensation, the appellant was not given as he failed to prove his claim and he claimed out of the prescribed time. He supported his argument by citing the case of Tanzania National Road Agency v. Jonas Kinyagula. After visiting the records of the trial tribunal and evaluating the evidence tendered including the additional evidence submitted after visiting locus in quo, it is the firm view of this court that the disputed plot is the lawful property of the 1st respondent herein. This is due to the facts Page 9 of 12 that the evidence is very clear that the 1st respondent was the one who was allocated Plot No. 280 Block “LL” Lubaga and the appellant was allocated Plot No. 346 Block “LL” Lubaga which is different from the one given to the 1st respondent. The evidence revealed that the appellant build on the 1st respondent’s plot and when he was testifying, he stated that he believed that Plot No. 280 Block “LL” was Plot No. 346 Block “LL”, and they were shown that plot by the Land Officer from Shinyanga Municipal. In our case, Mr. Jacob Edward who testified on behalf of the 2nd respondent submitted that as per the survey plan of 1991 which registered under Registration No. 25472, it has only Plot No. 280 Block “LL’” Lubaga and not Plot No. 346 Block “LL’” Lubaga. Therefore, as the certificate of the appellant was genuine, given by the relevant authority the confusion regarding the plot was made by the 2nd respondent. thus, the trial tribunal was correct to declare the 1st respondent as the lawful owner of the disputed property which is Plot No. 280 Block “LL’” Lubaga, Shinyanga Municipality. As for the last issue, Mr. Audax complained that the trial chairman gave relief which were not prayed for by the parties. He added that, parties are bound by their pleadings as it was held in the case of Masala Musa v. Roggers Andrews Lumenyela and Two others, Civil Appeal Page 10 of 12 no. 497 of 2021. Thus, he was of the view that the trial tribunal gave the respondent what they did not prayed for. He prayed for the appeal to be allowed and each party to bear its own costs. Responding to this ground, Mr. James stated that the 1st appellant was declared the owner although it was not among her prayer in order for the litigation to come to light. He went further to state that as the appellant was found to be a trespasser the trial tribunal was correct to order him to vacate from the disputed property and to remove his structure. Thus, the tribunal gave the proper orders. On his side, Mr. Musa, on behalf of the 2nd respondent submitted that, all the relief granted were claimed by the parties. He went further stated that as per the cited case of Masala Musa v. Rogers Andrew (supra), the court may grant relief not prayed for if they are incidental and connected to the case. Thus, he prayed for the decision of the trial tribunal to remain undisturbed, and the appeal be dismissed with costs. Regarding the last issue and the last ground of appeal, this court is of the firm view that the relief awarded were incidental to the case at hand. As the tribunal found the 1st respondent to be the lawful owner of the disputed property, the appellant needs to vacate from it and the Page 11 of 12 building constructed therein need to be demolished. However, this court ordered further that: a) The disputed property with title No. Plot No. 280 Block “LL’” Lubaga, Shinyanga Municipal is the lawful property of the 1st respondent herein. b) The 2nd respondent is ordered to allocate the appellant to another suitable plot. c) The 2nd respondent is ordered to compensate the appellant due to the improvement made to the Plot No. 280 Block “LL’” Lubaga, Shinyanga. d) The 2nd respondent to pay the appellant damages at the tune of Tshs. 5,000,000/=. That being said and done the appeal is partly allowed to the extent explained herein above. Taking into consideration the nature of the case, each part to bear its own costs. Ordered accordingly. DATED and DELIVERED at SHINYANGA this 19th day of July, 2024. R.B. MASSAM JUDGE Page 12 of 12