enea vs kyusa vs isaack cletus 2018 tzhclandd 501 3 august 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT PAR ES SALAAM MISC. LAND APPEAL NO. 84 OF 2017 (Arising from Application No. 170 of 2014 in the District Land and Housing Tribunal for Temeke at Temeke) ENEA KYUSA.......................................................APPELLANT

VERSUS ISAACK CLETUS.............................................. RESPONDENT Date o f Last Order: 03/05/2018 Date o fJudgm ent: 03/08/2018

JUDGMENT MGONYA, J. The Appellant ENEA KYUSA filed this Appeal after being aggrieved by the decision of the District Land and Housing Tribunal for Temeke [herein to be referred to as the DLHT] which was delivered on 20/04/2017 on the following grounds:- 1. T h at th e t r ia l T rib u n a l e rre d in la w a n d in fa c ts fo r n o t co n sid e rin g th e e vid e n ce te n d e re d b y th e A p p e lla n t; 2. T hat th e t r ia l T rib u n a l e rre d in la w a n d in fa c ts b y d e cla rin g th a t th e A p p e lla n t is n o t th e le g a l o w n e r o f th e d isp u te d a re a w h ile th e y re p re se n te d a ll th e re q u ire d e vid e n ce ; She thus prayed that this Court:- /. To a llo w th e a p p e al; //. D e cla re th e la n d in d isp u te to be h e r p ro p e rty ; Hi. The C o u rt to o rd e r th e R e sp o n d en t n o t to in te rfe re w ith th e en jo ym e n t o f th e A p p e lla n t on th a t la n d ; a n d iv . A n y o th e r re lie fs th is C o u rt m ay deem f it to g ra n t In reply, the Respondent ISAACK CLETUS strongly disputed the 1st and the 2nd grounds of the Petition of Appeal stating that the trial Tribunal observed the laws and the evidenced adduced were properly evaluated by showing that he is the legal owner of the disputed land. The Respondent therefore prayed for the dismissal of the Appeal with costs. Since both parties in this Appeal

appeared in person, the Respondent prayed to argue the Appeal by way of written submission; the prayer which was accordingly supported by the Appellant, and dully granted by the Court. Having gone through the submissions of both parties and the District Land and Housing Tribunal's record, it cannot be disputed that the root cause of this matter is the trespass of the Residential License No. TMK 014553 and alleged to build the toilet therein. The brief facts of this matter as gathered from the record and submissions of the parties, where the Appellant and the Respondent are neighbours. It is said that the Appellant owns the house at Keko Magurumbasi with Residential License No. TMK 014553 while the Respondent bought his land to the Appellant's neighbor one M ik id a d i M ucheni. The Appellant was the first person to hold land in the said area in 2006 as per Annexture A1 and the Respondent bought the area within in 2009. The issue came up that the Respondent has trespass into the Appellant plot and built a toilet thereon. The Appellant alleged that the Respondent went beyond his boundary and entered into her land in which he built the toilet therein. Respondent was given an opportunity of three time consecutive to bring his witnesses to testify but failed on the reason that the said witness was sick but nothing was brought to the effect hence it was a mere allegation which

needed proof. The Appellant brought AW-2 one Pom be Em m an u el K a n y e ti who testified that he is the neighbor of the Appellant at Keko and Appellant bought a dispute area (mabanda) from the Late Upara Mikidadi and immediate started to develop it; while in the course of developing the said land, Respondent came in and built a septic tank in the said land. Having gone through the evidence adduced by the parties in the Lower Tribunals, I find that the Appeal heavily lies on the evidence adduced and I believe it was the trial Tribunal which was in a better position to evaluate the evidence and credibility of the witnesses compared to District Land and Housing Tribunal as an Appellate Court and this Hon. Court as the 2nd Appellant court which only reads the records herein as was held in the case of A L I

A B D A LLA H R A J A B U VS SAAD A A B D A LLA H R A J A B U A N D O T H ER S [1 9 9 4 ] T L R 13. It is clear that this Appeal is heavily based on the w e ig h t o f e v id e n ce th e re in adduced. Therefore I am going direct to look at the evidence adduced by parties at the trial Tribunal. That being the case the evidence adduced shows that the Appellant started first to build the structure and later the Respondent came and also build the toilet therein. It is in the records that the Appellant hold the area in dispute since 2006 as per residential license TMK No. 014553 while the Respondent hold the same since 2009. It is my firm view that the Appellant's evidence is heavier than that of the Respondent in which the Appellant managed to bring before the Court one witness who testified to the effect that the Appellant's allegations to the disputed land and true as the witness is the neighbor to both parties. It was stated in the case of H EM ED S A ID I VSM O H AM ED M B ILU (1 9 8 4 ) T L R 1 1 3 HC\n which the court held that: "In la w b o th p a rtie s to a s u it ca n n o t tie , b u t th e p e rso n w hose e vid en ce is h e a v ie r than th a t o f th e o th e r is th e one w ho m u st w in". The main reason which led into the Hon. Chairman's decision at the Temeke District Land and Housing Tribunal, is the failure of the Appellant to disclose the fact that she is the

wife of the owner/a person who holds Residential Licence No. TMK/014553 at Keko Magurubasi with the name of SAID MOHAMED NJOGOKO. That being the case, it was the Chairman's position that the Appellant is not competent to litigate the matter at hand, as she ought to have disclosed that fact (her relationship with the holder of the Licence) prior at the trial Tribunal. With due respect, I tend to differ with Hon. Chairman's reasoning for the following reasons. 1st despite of the fact raised by Hon. Chairman, looking at the evidence adduced by both parties to this litigation from the very beginning at the trial Tribunal, it is the Appellant's evidence which had more weight than that of the Respondent. This is from fact that, the evidence from the Appellant, is that, she was the one who first acquired the suit land in 2006 before that of the Respondent in 2009. Above all, the records of the trial Tribunal reveals that the Respondent took advantage of constructing the toilet in dispute while the Appellant was away nursing her sick husband upcountry. Further, that the Respondent did build the said toilet without engaging nor consulting neighbors who were in a better place to show him the respected boundaries. It suffices to say that, the Appellant's evidence from herself and a neighbor to both litigants was enough to declare that the Respondent really trespassed into the Appellant's

premises. 2nd, the fact that the Appellant sought to have declared that she is not the owner of the disputed land as the Residential Licence had not taken her name is irrelevant to me. I say so since, at the Ward Tribunal's Major objection is to se cu re p e ace a n d h a rm o n y in th e a re a fo r w h ich it is e sta b lish e d , b y m e d ia tin g b e tw ee n a n d a s s is tin g p a rtie s to a rriv e a t a m u tu a lly a cce p ta b le s o lu tio n on a n y m a tte r co n ce rn in g la n d w ith in its ju ris d ic tio n , see Section 13(1) of the Land Disputes Courts Act, Cap. 216 [R. E. 2002]. Hence, at the Ward Tribunal, all the Legal Procedures have to be waived in order to reach into the just conclusion of the matter before it. That being the case, it was not necessary for the Appellant to disclose that she is standing on behalf of his sick husband in which the records of the Ward Tribunal took that in consideration. You may wish to refer to the Ward Tribunal's proceedings especially on conclusion of the Ward Tribunal to see that the Appellant told the Tribunal that her husband was sick and she was not around when the Respondent built the toilet in their plot "Mdai alisema siku za nyuma alimuona mdaiwa akianza kuchimba choo hicho na akamsihi asiendelee na uchimbaji huo, lakini baadae mdai aliondoka na kwenda kumuuguza mumewe huko mkoani na aliporudi alikuta choo hicho

tayari kimeshajengwa na kufunikwa sakafu ya juu." It suffices to say that under the circumstances, the Appellant's evidence is still and strong and above all, she has full interest over the suit land. Lastly looking at the substantive justice with all the facts and evidence adduced in trial Tribunal and waive all the legal technicalities, it is a fact that under the circumstances and evidence adduced at the trial tribunal, the Appellant's land has been trespassed by the Respondent. That is even the panel advised the parties to have amicable settlement of the matter. However, the same proved failure, hence the Appeal at District Land and Housing Tribunal and also before this Hon. Court. That being the case and from all that I have stated above, I and accordingly allow this Appeal with costs and proceed to declare that the Appellant is the lawful occupant/owner of the disputed land. Right of Appeal Explained. L. E. MGONYA

JUDGE 03/ 08/2018 COURT: Judgment delivered before Hon. A. Teye, Deputy Registrar in the presence of both parties and Ms. Bukuku RMA on 3rd day of August, 2018 in chamber No.

17. L. E. Mi

JUDGE 03/ 08/2018 8