Scanned 12130

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 12130 OF 2024 (Arising from Land Application No. 176 of2021 before the District Land and Housing Tribunal of liaia at Kivukoni by Hon. Niguiambwa, Chairperson) BETWEEN HUSSEIN MATRAN SAID (as the Administrator of the estate of the /ate Matran Jumaa Said)............................................. APPELLANT VERSUS SAID A. LITELLA...................................................................RESPONDENT JUDGMENT 27/8/2024 & 19/9/2024 A. MSAFIRI, J, The origin of this appeal is briefly that the now respondent Said Abdallah Litella instituted an Application No. 176 of 2021 before the District Land and Housing Tribunal for Ilala (trial Tribunal) against Matran Jumaa Said. He claimed that the said Matran Jumaa Said who was then the respondent has illegally encroached a portion of the applicant's land located at Msimbazi Street, Gerezani area within Dar es Salaam, and caused the boundary conflict. The applicant claimed to be the lawful owner of the said portion which is part of his land, and the building therein which is located at Block 4 Plot 6 at Msimbazi Street. i The applicant stated that sometimes in 06/10/2016, he noticed that the then respondent's car parking has interfered with his boundary and he made inquiry at Ilala Municipal Council requesting for measurement of the boundaries of his property. The applicant said that the land surveyors from Ilala Municipal Council came and measured the disputed land and observed that the respondent's plot has interfered in the boundary of the applicant by 50 centimeters at the front side. That the efforts to settle the dispute amicably failed and hence he has resorted to filing the suit at the Tribunal. In defence, the then respondent Matron Jumaa Said, filed a written statement of defence (WSD) and counterclaim. In the WSD, the respondent denied every claim by the applicant. In the counterclaim, the respondent claimed that he is the lawful owner of the disputed portion of land and prayed to be declared so. In his counter claim, the respondent said that he is neighbour with the applicant and that back in 1992 when he was building his house on his property, he found an already constructed old wall/fence separating his property and that of the applicant. That in early 2010, the applicant got an investor who was willing to build a storey building in his own property. That the applicant asked the 2 respondent to permit him to demolish the old wall fence which separates their properties citing reason that the old wall might fall during construction. The respondent said that he agreed, hence the applicant demolished the said wall. That, after completing the building, the applicant rebuilt the demolished wall following the same path as previous one. That, the problem started in 2016 when the respondent decided to elevate the height of the said wall. That the applicant started claiming that he, the respondent has encroached into his land, while the respondent has just elevated the already constructed wall which was constructed by the applicant himself. The respondent claimed further that the applicant is abusing the Court process as he has prematurely instituted a suit before the trial Tribunal because both parties are waiting for resurvey of the area hence the applicant has acted prematurely. The Application was instituted in 2021. After hearing, the judgment was delivered on 16/4/2024 whereby the trial Chairperson was satisfied that the applicant have proved that the respondent has encroached into the applicant's land for 50 centimeters. The trial Chairperson granted the Application and dismissed the counterclaim with no order for costs. By that time, the original respondent Matran Jumaa Said has already passed away and Hussein Matran Said, the current appellant was 3 appointed the administrator of the deceased estate. Aggrieved by the decision of the trial Tribunal, the appellant has advanced five (5) grounds of appeal as follows: 1. That the trial Chairperson erred in law and in fact by holding that the dispute was not time barred. 2. That the trial Chairperson erred in law and in fact by failing to consider that the alleged survey done by SM-2 was illegal for failure to involve the Appellant and contradictory statements provided by Respondent witnesses over the alleged survey. 3. That the trial Chairperson erred in law and in fact by stepping into shoes of the Land Officer whom the communication (exhibit KM-4) was addressed to for further actions. 4. That the trial Chairperson erred in law and in fact by relying on Exhibit KM-4 which was uncertain; had discrepancies and contradicted the pleadings. 5. That the trial Chairperson erred in law and in fact by condemning the Appellant that she had failed to prove facts while the said facts were not disputed by the Respondent. The hearing of the appeal was by way of written submissions, whereby the appellant was represented by Mr. Emmanuel Nasson, learned advocate while the respondent was represented by Mr. Hussein Hitu, learned advocate. Both parties complied with court's schedule for written submissions and I commend the parties' learned advocates for their well-« presented and researched submissions which I have well considered in the determination of the appeal. Before the trial Tribunal, and before the commencement of the trial, three (3) issues were framed the first one was whether the main application was filed within the time prescribed by the law. The trial Chairperson found that the application was within the time. The trial Chairperson was of the view that according to the evidence adduced by the then applicant, the cause of action accrued on March 2016 when the dispute over the boundary arose between the applicant and the respondent who are neighbours, hence the suit was within the time limit. In the instant appeal, in the first ground the appellant is claiming that the trial Chairperson erred by holding that the dispute was not time barred. In the submission, Mr. Nasson, the counsel for the appellant stated that the dispute was based on tort of trespass to land. He said that the time limit for dispute found on tort of trespass is three years as prescribed by the provisions of the Law of Limitation Act, Cap 89 R.E. 2019. He said further that since the applicant noticed a trespass on 06/10/2016 then the suit which was filed on 28/7/2021 was time barred. In addition Mr. Nasson submitted further that it is not true that the cause of action accrued in 2016. That the respondent is alleging that the 5 appellant's wall has encroached his property by 50 centimeters, while the said wall has been there even before the appellant moved to the area in 1992. To cement his point, the counsel cited the case of Elias Mwita Mrimi vs. North Mara Gold Mine Ltd, Civil Case No. 8 of 2020 (2022) HC 1149. In reply, Mr. Hitu for the respondent argued that the nature of the dispute at hand is based on the recovery of land and not tort, hence the time limit is twelve (12) years. He cited the case of Herieth Kasidi vs. Augustino Bushiri, Civil appeal No. 480 of 2020. I agree with the findings of the trial Chairperson that the application was on recovery of the land hence it was within the time. This finding is based on the pleadings by the applicant during the trial whereby his claim was on the recovery of the portion of land which he believed to be his and on which he claim that the respondent has encroached. In his reliefs, he prays to be declared the owner of the portion of land that has been illegally encroached by the respondent. I find the circumstances of the dispute at hand to be different with the case of Elias Mwita Mrimi (supra) which was referred to me by the appellant's counsel. The relief claimed by the plaintiff in the cited case. 6 was one for compensation against the defendant for unlawfully entering into the plaintiff's land and conduct mining activities therein without rendering a prompt, fair and adequate compensation. The nature of the reliefs claimed by the claimant determines the nature of cause of action. The applicant in the dispute at hand was not seeking to be redressed by compensation or damages for the unlawful trespass. He was seeking to recover the portion of land and prayed to be declared the owner of that portion. I find that this was not based on a tort of trespass but land recovery which is 12 years as per the Law of Limitation Act. Furthermore, I don't agree with the appellant's claim that the cause of action arose in 1992 or in 2010 or way back in 1970's when the respondent purportedly inherited the land from his father. The evidence shows that the applicant noticed the encroachment in 2016 where he took action of reporting the matter to Ilala Municipal Council seeking for boundaries measurement /resurvey. According to Section 5 of the Law of the Limitation Act, the right of action in respect of any proceeding shall accrue on the date on which the cause of action arises. I find that the Application No. 176/2021 was within the time as correctly found by the trial Chairperson and the first ground is dismissed. ^14- 7 The second ground is that the trial Chairperson erred by failing to consider that the alleged survey done by SM-2 was illegal for failure to involve the appellant and contradictory statements provided by the respondent witnesses over the alleged survey. I have read the Tribunal records and the proceedings shows that the witness Moki Sinashida Mbwana testified as SM-2, and said he is a surveyor employed by Ilala Municipal Council, working for seven (7) years. He said that he know Said Litella as a person who wrote a letter to the Municipal Council of Ilala requesting for inspection of the boundaries of his plot. That following the request, he as a surveyor went to inspect the requested area which is located at Kariakoo Plot No. 6 Block 4, Msimbazi Street. That in the measuring process, he (SM-2) was with the Buildings Inspector, the applicant (owner of Plot No. 6), the owner of Plot No. 7 and the cell leader. That in the measurement, he used a "total station" equipment. That after measurement, he discovered that the area on Plot No. 7 has entered/encroached into the area on Plot No. 6 for about 50 centimeters. That in the measurement they were assisted by the map of the area. SM-2 identified the Report on the survey/demarcation process which was admitted in Tribunal as KM-4. 8 When he was cross examined, SM-2 replied that the respondent (now appellant) was present during the survey exercise but he don't know him. SM-2 said that he don't know the cell leader and the other officer who was also present at the area in dispute. In re-examination, SM-2 said that he did not serve the respondent, owner of Plot 7 to summon him for resurvey but he informed the Street Government office. SM-3 Dotto Ramadhani Muhombolage also testified on the respondent side said that he is the Building Inspector. He said that the applicant (now respondent) requested for resurvey of his area. That the resurvey was done by the surveyor and SM-3 was a witness. That the resurvey was witnessed by him (SM-3), the Street Executive Officer of Gerezani West, and the Street Chairman of Gerezani West. SM-3 said that the respondent (now appellant) was not present but there was his representative. That the resurvey showed that the appellant has encroached into the area of the applicant (now respondent). SM-5 was Mbotela Harry Kolimba who introduced himself as the Street Executive Officer who in 2016 was the Executive officer of Gerezani West Street. He said that in 2016, he received a letter informing him about the boundary dispute between the parties i.e. the appellant and the respondent. That, he went to the disputed area accompanied with the 9 Land Officer from the Municipal Council of Ilala, and the Street Chairman and Building Inspector. SM-5 said further that at the scene, there was the appellant and the respondent's representative. That the process of resurvey was done and later the results were released by the surveyor. The respondent in the dispute (appellant) also testified as SU1. He admitted that the applicant (now respondent) is his neighbour. He said that he was served with a letter from Ilala Municipal that he has encroached into the disputed land. That the letter showed that he, the appellant has encroached into the respondent's land for 50 centimeters. He denied to have participated or being present when the resurvey process was done. In the submissions before this Court, the counsel for the appellant stated that at all times the appellant has been complaining that he was never involved in the alleged survey but the trial Chairperson completely ignored this fact. That it was alleged by the respondent's witness that the appellant had sent a representative but the name of that representative stands unknown to date. The counsel maintained that the appellant was not involved in the alleged survey hence the same was a nullity, 10 To cement his point, the counsel for the appellant cited a case of Peter Peter Junior & others vs. Mohamed Akbal & Another, Misc. Land Appeal No. 104 of 2015. In response, the counsel for the respondent submitted that the majority of witnesses clearly testified that the late Matran Jumaa witnessed the resurvey also sent the representative during the entire measurement process. He submitted that the evidence shows that the appellant was at all the time aware of the dispute but did nothing to settle the matter amicably. He pointed that the cited case of Peter Peter Junior (supra) was distinguishable from the current case as in the cited case, the dispute was on installation of beacons while in the instant case it is about identification of already measured and installed boundaries of the surveyed buildings located along Msimbazi Road. In the case of Obed Mtei vs. Rukia Omari 1989 TLR 111 (CA), the parties occupied land next to each other. One of them sent surveyors to measure and demarcate the land in absence of the other. As a result of the survey, a piece of land was taken away from the land of that other and incorporated in the deed plan of the person who sent the surveyors. The Court of Appeal held that; Jlf I L- li ''Before making any survey, it is the duty of the land officer to make sure that all third party interests are cleared and if it is a farm the land officer must see to it that the owners agree on the boundaries. Since the procedure was not followed the survey should be conducted again... " In the instant matter, during the trial, there was no clear evidence on whether the appellant was present and involved in the resurvey process. As per the evidence I have analyzed above, there was contradictory statements from the witnesses who claimed to participate on the resurvey process about the presence of Matran Jumaa Said or his representative. In his evidence, SM-2, a surveyor who conducted resurvey, said the owner of Plot No.7 was present. In cross examination, he said that the owner of Plot No.7 was present but he don't know him. If SM-2 didn't know the owner of Plot No. 7 then how was he certain that he was present during the resurvey? The respondent who testified as SM-1 did not say whether the appellant was present during the resurvey process or his representative. SM-3, the Building Inspector who was also present during the resurvey process said that Mr. Matran (appellant) was absent but there was his representative. This representative was unnamed. J\fl L. 12 SM-5, the Street Executive Officer was also present at the resurvey, said the appellant was represented. The representative was unnamed. Furthermore, there was no documentary evidence or a form which the involved parties signed to confirm their participation and witnessing of the process so as to avoid doubt of the process being one sided. It is not in dispute that the area in dispute is already surveyed and has installed boundaries of the surveyed buildings in this, I agree with Mr. Hitu, the counsel of the respondent. But I differ with Mr. Hitu on the importance of both sides participating/being involved in the measurement/resurvey process. Since these plots are already measured/surveyed, then it was vital that the two neighbours who are disputing on the boundaries to participate in the resurvey process and proof of participation be availed so as to avoid further dispute and misunderstandings. The contradicting evidence given by the applicant/respondent's witnesses about the presence of the appellant and or his unnamed representative poke doubts and uncertainty of the involvement of the appellant in the process. Since it is the applicant/respondent who was to establish that the resurvey process was conducted according to the procedures and was conducted fairly involving both disputing parties, then this Court finds that 13 the applicant/respondent did not establish that the resurvey process involved also the appellant who was the important party. I have also read exhibit Km-4 which is a letter authored by SM-2, a Land Surveyor, writing to the Land Officer, Ilala Municipal Council informing about the resurvey process. The letter states that SM-2 (author) has conducted the process of resurvey being the request of Said Litella, and the process was done in collaboration with neighbours and Street leaders, Buildings Inspector, and Cell leader. The letter is silent about the participation or involvement of the appellant or his representative in the process. I agree with the claim by the appellant through his counsel that the trial Chairperson failed to consider the appellant's claim that he was not involved in the resurvey process. Indeed, the appellant has pleaded in his WSD at paragraph vi) that he was never involved or consulted in the process. Further in his evidence during the trial, the appellant showed that the resurvey process was done in his absence. But unfortunately, the trial Chairperson did not consider or determine this vital point in his judgment. In the circumstances, I am guided by the observation of the Court of Appeal in the cited case of Obeid Mtei (supra) that it was the duty of 14 the Land Officer (or Land Surveyor) to make sure that all parties who have interest in the property being resurveyed are involved and participate in the process. Failure to do so makes the whole process of resurvey a nullity as the parties rights are in danger of being prejudiced. By the above analysis, I find that the whole process of resurvey was a nullity for not involving the appellant who is an interested party. I allow this ground and since it has the effect of finalizing this appeal, I need not go into determination of the remaining grounds. I hereby reverse and set aside the judgment, Decree and any subsequent orders of the trial Chairperson in Land Application No. 176/2021. I find that the process of resurvey/ measurement done on the disputed Plot was a nullity and if any disputing party wishes to measure /resurvey the said area, the process should involve all interested parties on the disputed plot. Appeal is allowed with costs. 15