lupiana vs lema 2000 tzhc 13 2 december 2000

TI'{ lI'm~ HIGHCOURT OF TANZANIA AT DAR ES SALAAM CIVIL APPEALNO. 42 OF 2000 This is an D.ppeaJ.. by Michael Simon Lupiuna the appellant against the judgment of Hon K:::>~ombora learned Principal Resident MaGistrate da.- ted 28th January 2000~ In that jUdgmellt the leDrned Principal Resident Magistrate declared Alex OneE:mo Joshua Lema.the rightful m"ner of the di- sputed plot No 233 Situcli at Hbezi Beach, Kinondoni within the City of Furthermore the learned t .,·ll macistl'ate found as prov0d that the appellant the appellant vIas trespasserl. to the suitland, thus declarinG the developments carried out by the appellant to be unlawful and had to Aggrieved by the judgment of the trial court, the appellant has lodged a memorandumof appeal 011 the follmJing grounds: (1) el'ror in law and fact by the trial magistrate in holding that the respondent is the righful ownel of the suit plot •• ( 2) errol' in law and fact by the tria.l mC1;'jistrate in holding that the appellant trespacsed on the suit land requiring the demalution of the buildinG' co- nstructed. 0) eTror in 1m" by the trial magistrate in holdino that the building be demolished without any co- mpensation. (4) error in law and fact on the part of the learned trial magistrate in admittinc; as evidetlce uncerMied for the respondE~t. With leave of the court, the appellant was allo,red to fite two anclitional grounds of ~·ppeal to ,'it: (5) errOl' in law a:1d face by the learned. trial magistrate in relying on the testimonie,s of vd tnesses who were not subjected to cross examine.tioD by the defendant/appellant. (6) errOl' in la\-J on the part of the trial magistrate in trying the sd t vrhen at the material time the court had no juris- dictioll in that the monetary value of the subject matter had not been pleaded and an order to amend the plaint was not complied with by the plaintiff/respondent. The appellant arGes the cour-: to allow the appeal, declare the trial a nullity and set aside the judgment and decree with costs. Like in the trial court t(:c" .CDrties are represen+ed by the same learned counsel, Mr El Maar[jryfor the 1°_spondent and Hr Naira for the appellant. '.rrk appeal has been well argued by both counsel by way of written submissions. Let me deal with grounds fire and six of a:)peal in that order. On ground five of appeal the learned counsel for the appellant has contended that the two witnesses i.e Pir! 2 and pw4 called to testify on behalf .f the plaintiff were not cross eX3.minedby tho defendant ivhile the testimony of PW3 has .not been recorded. Mr Maira for tl~ appellant has submitted the right to cross examine is an important under taking to a fair trial as it embodies the rules of natural justice, ie a fair he3ril1g_ Mr Maira has argued that failure to give the appellant an opportunity to cross exar)~. resulted in un unfair trial. In reply Hr El Naamrybasi..'1gon the record submitted that no injustice was done to the appellant/defendant as opportunity lJresented itself at the trial for crossexcunininc the plaintiff's witnesses_ I res:?ectfully agree with Hr E1 Haamry that indeed the record bears that testimony as both appell~~t and his advocate were present when the witnesses testified. With respect to PW4 1~TU the record spew~s l~ld and clear that defendant now appel1a~t abando.hed craBS examinetion of the wi- tness. This was on 16/12/98. The appellant cannot be heard now compla- ining that he \1a...S denied a fair trial. Accordingly this ground of appeal fails. Ground six in the memor:lutJ.un of appeal touches on the pecumiar.r jurisdiction Df the tricu court. It is correct that the appellant raised the issue in the ~oursc of trill ard a rulins i-ias delivered directing among other thing.s that plaintiff file Em amended plaint indicating or showing the monetary value ~f the subject ma.tter., The respondent then plaintiff an 9th September 1991 fil"'d ~1lC El:";3(lji_,,·p~ai~·~""co~t~'f\'lhichw.as served to Haira and Co Advocate on behE'.J.fof the defendant/appellant. The l'e~ord does not show that the defendant/appellant filed his amended defence depite his several prayers to do so" B.nthe basic of this background info,;:omation I find no merit in this eround appeal and I dismiss it. I will proceed to deal Hith ground one in the memorandumof appeal which in my view is the main bone of contention. The appellant is c0l'!.!£:l;.~i.nil!f!b.thal jJl.£. le¥:r~ triql ma.E:.istf'atefel-1-."ifLerror of l~J:l.P..dM"~ .il}..11?,.1}j"nZ tl~~t .t1}£. E.es.1?.op..d.ep..t.._tl~e1l..E.~~~!.l;;e. ris.ht.f"uJ..cwEepof.E..lot.Ji.?-S2.)~zi Biacr:.._~ .c.2n.?Sr9- t.\¥:. qeclEU:i.:'L~?e 1'8 si~ondelMlc;;kl1tilf 1.i~J1 the--1.~'£1J£2.~,--nE.r_ o.:t:j;.l":.e_.~li lJl~ From the evidence on record I am of the firm view that the learned trtb..' magistrate cannot be faulted for making that finding. For it is not in disp~~e that the respondent 11/as allocated the suit plot before the appellant and a ce- rtificate of Title No. 23711 was issued to confirm respondent's title over the suit premises. The letter of offer and certificate of title No 26868 subsClqll" ently issued to the e.ppellant were invalid docwnents creating no rights known to law. It is element.'lI'y point of law that following the allocation of the p1.ot in dispute as well as the issuinG of the certificate of title to the respondent j the properly in that land passed to the respol1dt;;~.·,and there Was nothing of 'la- .. lue that remained \-/hich could be offered and passed to the appellant. I take ~. that the appellant was illadl1iSEld to presume that he had a good title mm the suit premises when he was offered the letter c:a.offer as well as the certificate of title. It ,should be emphasized beyond and shadow of doubt that •• appellant h""s no good title ottcr that land, but were documents worth nothing in law. 1t ._would follow therefore as day follows night that the appellant is a trespasser that ) land ~1d the learned trial magistrate correctly declared appellant as such. Being a trespasser ab Inition the development activities carried out by the appellant on the suit land are ea.:ual. Iv iUegal (~nhtling him to no compensation !'Ia[;~S'tratO. . as correctly ruled by the txaieJl\ A:ppellant cannot benefit out of his/~ ~ll2RJ.Q~~eo This ten disposes of grounds one t two and three of the memorandumof appeal. Before I conclude let me address briefly on the submission of Mr Maira learned oounsel on the issue of revocation of the appellant's title while the matter is pending in court. I do agree with the learned counsel for the appellant that in terms of the holding in Partman Garment Industries Ltd versus Tanzalua Manufactures Ltd ~817TLR 303, the purported revocation by His Excellency over Certficate of Title No. 26868 would have been null and void. This would also apply if at all to the certificate of titlG No. 23711. However as held elsewhere in this judgment as the certificate of title No 26868 was mill and void ab inition thG president's action to revoke a nothing were a wasted efforts as there \1aS nothing to revoke. In su.t!IIllaI'Y and for the reasons ()iven I hold that this appeal has no merit and I dismiss it with coatse Tb.e judgment of the trial court is upheld and confirmed. /' ;. _,~ '..,'" '..,~,:....\. ."=-. I 8.IHEMA'· / ~ ,', " j"') 1 JUDGE Z/12/2000