ital african investment ltd and another vs trans cargo ltd and anotherr 2020 tzhclandd 116 22 april 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 421 OF 2017 ITAL AFRICAN INVESTIMENT LIMITED.................. 1st PLAINTIFF BADR EAST AFRICAN ENTEREPRISES LTD ........... 2nd APPELLANT VERSUS TRANS CARGO LIMITED............. .......................... 1st DEFENDANT ITAL FRAME LIMITED......................................... 2nd DEFENDANT JUDGMENT. S.M. MAGHIMBI, 3: The plaintiffs and the first defendant are neighbors whose lands are adjacent to each other. The two pieces of land are situated on Plot No. 3 (Plaintiff's land) and Plot No. 4 (1st defendant's land), Buguruni Ghana Area, Port Access/Mandela Road within Ilala Municipality of the City of Dar- es-salaam. The 1st plaintiff has been in occupation of the suit premises from January, 1989 and the premise is currently rented to the 2nd plaintiff. On their part, after acquiring their piece of land, the 1st defendant obtained a building permit No. 02876 for construction of a warehouse and a factory building along with a boundary wall. It is a result of this building permit issued to the 1st defendant for construction work contracted to the 2nd defendant that in 2016, the dispute between the parties arose when the i defendants started constructing a wall fence adjacent to the plaintiffs wall. The plaintiff alleges that the undergoing construction blocked the rain water drainage from their land which resulted into damage to the plaintiff's wall fence. Several letters were exchanged and some attempts to resolve the dispute amicably by the local authorities from the street level to the municipal level proved futile hence this suit where the plaintiffs are suing the defendants for judgment and decree as follows: a) Payment of T. Shs. 100,000,000/= being specific damages caused to the walls. b) Order for removing the constructed wall fence. c) Payment for interest at Commercial rate. d) Payment of interest at court rate from the date of judgment to the date of full settlement. e) Costs of the suit. f) Any other reliefs(s) this court may deem fit just to grant. While filing their Written Statement of Defence, the 1st defendant also filed a counterclaim against the plaintiffs for injunctive reliefs permanently restraining the plaintiffs' shed from for pouring rain water over the 1st defendant's wall valued at Tshs. 325,000,000/- and payment of liquidated damages to the tune of Tshs. 200,150,000/- which the plaintiff has been demanded to pay her contractor for mobilized construction equipment, machinery and manpower for construction of the wall that was halted by the plaintiffs. They also prayed for costs of the counterclaim and any other relief(s) the court may deem fit and just to grant. After deliberations with the Counsels for both parties during final pre-trial conference, the following issues were agreed to and framed for determination of this suit: 1. Whether the defendants' construction activities blocked the plaintiff's drainage systems and further damaged the plaintiffs' wall fence. 2. Whether the plaintiffs suffered any damages following the defendants' constructions. 3. To what reliefs are the parties entitled to. In order to prove their case, the plaintiffs/defendants in the counterclaim called 3 witnesses while the defendants/plaintiff in the counterclaim called two witnesses. Beginning with the first issue, whether the defendants' construction activities blocked the plaintiff's drainage systems and further damaged the plaintiffs' wall fence, the main question in this issue is to see whether it was right for the defendants to construct a wall adjacent to that of the pre­ existing wall built by the plaintiffs years ago, the two plots being next to/adjacent to each other. The plaintiffs' main contention in their evidence was that the foundation that was built was too deep and too close to their wall, about 6 inches and this affected their wall. Their main argument was that if there were to be two walls then from the beacon there had to be about 3 metres or else because the plaintiff's wall was already there, there was no need to build another wall, one wall could have been sufficient. PW1 was the 1st plaintiff's Plant and Assets Logistics Controller who testified that the disputed wall was built by the 1st plaintiff about 30 years ago by the 2nd plaintiff who is also a construction company. He further elaborated that the dispute arose in May 2016 when the defendants 3 brought some sands and started digging the foundation for the wall construction. That brought some effects on the wall that surrounded the plaintiffs' premises by cracking it from the said digging. PW1 also testified that several intervention to resolve the issue amicably were made and he tendered collective EXP1 which are two letters communicating with the plaintiff on the damage their wall is causing to the plaintiffs' wall and also complaining about the "kifusi" that is there is blocking the flow of the water from the plaintiff's plot. Further that there was also a letter from the WEO of Buguruni telling the defendants to suspend the construction activities while that matter was being dealt with (EXP2). PW1 further testified that after sometime had lapse without any response from the defendants, they realized that the effect of that construction made the plaintiffs wall bend and after sometimes the wall fell, saying that he was not sure if it was demolished or it fell. PW1 also tendered EXP3, a collection of photograph of the wall taken in May 2016 as it was continuing to be cracked until it fell. PW2 also testified on the effect of the defendants' wall to their wall, how the water flow was blocked and the foundation of the new wall weakened the plaintiffs' wall until it fell down. At this point, the plaintiffs' evidence has managed to establish that according to the way the two plots are, there was no way that the defendant could have built a wall without damaging the plaintiffs' wall. This is further explained by PW1 who also testified that there is no distance from the municipal beacon to where the plaintiff's wall is constructed hence the defendant's wall construction was not according to the requirement of the municipal regulations, that is why the 2nd defendant was sued. I agree 4 with PW1 because the 2nd defendant being a professional contractor ought to have followed the procedure and from the way the plots are as said above two walls was not the best option. This is also corroborated by the evidence of DW1 who admitted to have met with Mr. Badr, the Managing Director of the plaintiffs and requested him if they could remove part of his wall which was about 3-4 meters leaning towards them and build him a new one. Further that because his wall is very old with cracks, then DW1 offered to remove it and share the wall with them (defendants) which was much newer and stronger. There is EXD9 which is also EXP1 which is a letter from the Ward Executive Officer (WEO) stopping the 1st defendant from continuing with the new wall construction. There were several interventions from the local authorities which ended in vain, this included EXD5, from the defendants reminding the municipal that the wall is yet to be demolished. EXD7 was a letter by the defendant to the Chairman of Street Authority complaining on the plaintiff's wheelers parked into the defendants' land (EXD6). Vide EXD8, a letter dated 04/05/2017 the 2nd plaintiff was asked to remove equipment's placed in defendants area. There is also EXD11, a letter dated 02/08/2017 explaining that the wail was demolished by the municipal. This is, however, after the defendant's had started construction of their wall. There is also EXD10, a letter from WEO dated 26/07/2017 calling for reconciliation meeting between the parties. I have however noted that the letter is only addressed to the 1st defendant and not copied to the plaintiff. This was followed by EXD12, a letter dated 07/08/2017 allowing the defendants to proceed with constructions. The letter's content was that "kutokana na majad'Hiano ya kikao na kufikia muawafaka wa kufanya 5 maridhiano au makubafiano kati ya transcargo LTD na Badr EA kuhusiana na utum iaji wa ukuta mmoja. Of/si imeondoa am ri ya kusitisha..." It is through this letter that the defendant alleges to have continued with construction. Having analysed the exhibit however, it is not to my satisfaction that the letter was sufficient to justify the construction for reason that one; there is no minutes of meeting or any copy of the agreement that was amicably reached between the parties that accompanied the letter. It is just a mere letter addressed to the 1st defendant and copied to the plaintiff. I posed to ask myself a question that if there was actually that meeting, was that a proper way to record the matter as amicably settled. The answer is no; for such an issue that had been irking the authorities and the parties for sometimes, one would expect the agreement to be in writing between the two rivals that they will construct a common wall, or at least an admission on the part of the plaintiffs that there was actually such an agreement. In the absence of that, EXD12 is just a mere letter written by WEO in favour of the 1st defendant but has no evidentiary value to show that the matter was actually amicably settled in the absence of the terms of settlement. In addition to the above, DW1 also testified that he told the plaintiffs Director that the reason to build a new wall was because the plaintiffs' wall was in a very bad condition otherwise there was no need for the defendant to build a wall on his side. This is an admission by the DW1 that they did not appreciate the plaintiff's old wall and intended to build a new one, only that the plaintiffs did not come to an agreement with that and that is when they decided to build their own new wall. 6 DW1 for the 1st defendant also testified that they got a building permit EXD1 in 2014 for construction of a complex and hired the 2nd defendant as their contractor. At the site there were two walls of their neighbor the plaintiffs, one was on the backside of the plot and the other one was on the right hand side of the plot as you enter from the main road. DW1 also testified that the wall on the back side of the plot was a recently built wall and the wall on the right hand side was an old one built many years ago and that some parts of that wall had some plaster and some area didn't. Further the wall had a lot of small cracks and the part that was near the askari house was leaning towards the defendant's plot. Having taken note of all that, the architect decided that it is better off to start the wall on the left side and the back side of the wall and continue building towards the right hand side of the yard and at the same time DW1 was to speak to the plaintiffs on how to handle the wall that was leaning towards their side. At this point, it is safe to conclude that after the plaintiffs and the defendants failed to come to an agreement to construct the wall, then the defendants decided to proceed and build a new wall so close to the plaintiffs such that the plaintiff's story that the construction of the defendants' wall so close to theirs demolished their wall is more probable that the defendant's story that the wall fell because it was old and cracked. DW1 admitted that they tried to speak to the plaintiffs on demolishing the plaintiffs' wall and erect a new wall instead but the plaintiffs refused to cooperate. Therefore the construction of the new wall was a result of failed negotiations between the parties. The question remains, was the defendant justified to build a new wall? The answer is no. From the way the beacons are positioned since the two plots are next to each other, 7 there was supposed to be only one wall, which the plaintiffs had for 30 years. Therefore if the defendants thought their plot needed a new wall then they would have applied for demolition of the plaintiffs' old wall from the appropriate authority, which is the Municipal Council, had the authority demolish the wall and then construct a new wall and not to come and construct a wall so close to the plaintiffs wall where damage was obviously inevitable. On those findings therefore, the first issue is answered in favour of the plaintiff, both evidence and logic are sufficient to conclude that the defendants' construction activities damaged the plaintiffs' wall fence. The next issue is whether the plaintiff suffered any damages. As per the evidence of PW1, the plaintiff's wall fence was there for over 30 years, hence the plaintiff was duty bound to quantify the damage that was caused to them. Because to estimate the value of the wall that was built 30 years ago was the duty of the plaintiff and not the court's duty. However, I have also considered that after the wall fell down, the plaintiff had to protect her side of the fence by placing some heavy equipment there. The inconveniences caused by the demolition though not quantified, cannot be ignored. The plaintiffs have been summoned several times and many meetings took place, their property was exposed on the fall down of the wall let alone putting at risk the properties contained inside the compound. Owing to that the plaintiffs are awarded general damages to the tune of Tshs. 10,000,000/-. As for the counterclaim, the defendant has failed to show how the plaintiff inconvenienced him considering all the chaos leading to the dispute at hand were a result of their stubbornness taking the matters in their own hands. The counterclaim could not be proved and is therefore dismissed. s The plaintiffs in the main case shall have their costs for the main suit as they did not file any WSD to the counterclaim. 9