muharami o tanda vs yasini abubakari mmari 2023 tzhclandd 16993 6 october 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO.301 OF 2023 (Originating from Application No.82/2022, District Land and Housing Tribunal of Temeke) MUHARAMI O. TANDA APPELLANT VERSUS YASINIABUBAKARI MMARI RESPONDENT JUDGMENT 04/10/2023 to 06/10/2023 E.B. LUVANDA,J Muharaml 0. Tanda the Appellant herein is challenging the decision of the Tribunal adjudged him to have encroached three feet from the location of a road path towards the area of the Respondent. The Appellant raised three grounds of appeal; One, the trial Tribunal erred in law and facts to deliver judgment without visiting focus in quo in order to determine the exactly boundary of the area to satisfy itself physically the disputed land; Two, the trial Tribunal erred in law and fact to deliver judgment in favour of the Respondent with illogical reasons and declare him the owner; Three, the trial Tribunal erred in law and fact for failure to consider the evidence adduced by the Appellant before the Tribunal. Ground number one, the Appellant submitted that the land which Is In dispute is concerning the boundary and both parties are having residential licence, arguing the areas of the duo each have specific measurement and is surveyed by Temeke Municipal Council. He submitted that the Chairman was supposed to visit the locusin with the surveyor in order to ascertain the exactly boundary and size of the land in dispute between the Appellant and Respondent. He cited the case of Kimonidimitri Mantheakis vs. Ally Azim Dewji & Others, Civil Appeal No. 4/2018 CAT. Ground number two, the Appellant submitted that the Applicant (sic. Respondent) faiied to prove the case and the Chairman did not ascertain as whether the Respondent has proved his case on the balance of probability, instead come with illogical reasons that the evidence of DW2 supported the Applicant (sic. Respondent) case while the evidence of DW2 contradicted with the evidence of the Respondent, regarding the direction of the border between the parties, the Respondent said is on the West and DW2 said East. Ground number three, the Appellant submitted that the Tribunai disregarded the evidence of the Appeilant that the boundary between parties is the local way existed for long time, instead considered the evidence of DW2 which is contradicting with the evidence of the Respondent, he cited the same disparity explained on ground two above on the West or East, arguing the Respondent said they share a border on the West while DW2 said East. In reply, the Respondent submitted that the Appellant did not raise the issue of visiting locusin quoaX.5Xx\a\, arguing the Tribunal could not ad.sue motto on the issue not raised during the trial. He submitted that a matter not raised at the trial cannot be raised at appellate stage. He submitted that a fact that both parties have residential licence for their respective land cannot suffices to determine the proper boundary, as residential licence are not issued to the surveyed land. He submitted that the Appellant and Respondent land is unsurveyed, no beacons, no approved registered plan. He submitted that what could determine the proper boundary is acquisition documents (agreement for sale) for both parties and not residential licence. He submitted that all witness testified on the measurement of the Respondents land, including DW2 who witnessed when the Appellant was acquiring land, arguing that DW2 knew the exactly boundaries between the parties. Ground number two, the Respondent submitted that the contradiction of DW2 on the side of the boundaries whether South as per DW2 or West as per the Respondent, did not go to the root. He submitted that parties are neigbours and the dispute is on the boundary. He submitted that the Respondent said his boundaiy is prickly pears {mfchongoma) which were removed by the Appellant, while the Appellant said the boundary is a local way. Ground number three, the Respondent submitted that the fact that the present local way has been used for long time cannot itself determine the boundary between the two. He submitted that the Respondent has been complaining about the boundary against the Appellant several times, a fact which shows that the local way has never been the boundary between the parties. He submitted that the contradiction of the side where the two share border does not go to the root of the dispute. On rejoinder, the Appellant submitted that the purpose of visiting locus in quo is to know location of the disputed land, the extent, boundaries and neigbours and physical features of the land in dispute, for giving fair and just decision. He insisted that the evidence of DW2 which was relied by the Tribunal, is contradictory, arguing the Respondent said the Appellant area is on the Western, while DW2 said on the Southern. On my part, ground number is unmerited. Going by the Tribunal records neither party had made a prayer for visiting to the locus In quo. The Respondent (Applicant at the Tribunal) closed his case without any reservation, likewise the Appellant who was the Respondent at the Tribunal. Now to heap blame to the Tribunal In the circumstances, Is unjustifiable. In the case of Kimondimitri Mantheakis (supra) at page 6, the apex Court established, I quote, and bold areas of my Interest, "Whereas the visit ofthe iocusin quo is not mandatory, it is the trite iaw that, it is done oniy in exceptionai circumstances as by doing so a court may unconsciousiy take a roie of witness rather than adjudicator". Herein the Appellant did not say as to what were compelling and exceptional circumstances which could dictate visiting the iocusin quo. A mere fact that parties are quarrelling over a border, on Itself Is not an exceptional circumstances warranting visiting the iocus in quo. To my view the situation herein where witnesses established where the border lies and the extent of encroachment, I doubt If visiting the locus In quo could add any value. It Is true that the Respondent tendered In evidence a residential licence exhibit PI, however, as alluded by the Respondent, procurement of the residential licence Is not a proof that the plot In question Is surveyed. This Is because exhibit PI, does not depict the actual size of a plot rather mere approximation, neither beacons nor approved plan, in fact exhibit PI is issued on squatter areas, as it can be seen on attached drawing map, where there is no singie road shown. Even the saie agreement exhibit Dl, which was tendered by the Appeiiant, could not assist to depict actuai measurements as was suggested by the Respondent. This is because exhibit Dl has no measurement whatsoever. Ground number two, the Appeiiant focused much on the so cailed contradiction on the testimony of DW2 Hamis Hemed Tindwa and the Respondent, that DW2 said the border between the parties was on the East where there was madrass thorn {michongoma), whiie the Respondent who had testified as PWl at the Tribunai said the border with the Appeiiant is on the West, to my view this was not fatai. This is because PWl stated that the whole of his area was surrounded by madrass thorn hedges. To my view, a serious contradiction was between the Appeiiant(DWl)and DW2, whiie the former said there was no madras thorn trees compieteiy, rather they were separated by the border of a parth road, whiie the iater said the border was well demarcated because it was surrounded by madrass thorn hedges in aii sides. When DW2 was asked by the assessor, insisted that a border was madrass thorn, argued a path road is stiil there, have not disiocated. DW2 stated that currentiy the madrass thorn hedges are no ionger there, instead there are bricks owned by the Appellant. Also the evidence of the Appellant who asserted that their border Is a path road, contradicted with DW3 Mohamed Shawejl Nanaro who witnessed when the Appellant was purchasing land, as a member of cell number 22, Mbagala Kuu on 07/11/1997, stated that a path road was not the border rather belonged to an area of some other people. This adumbration take Into board ground number three as well, they are both dismissed. m The appeal Is without merit. The findings of the tribunal are upheld. Appeal Is dismi owever, I make no order for costs. C E.B/ LUVANDA r- DGE /10/2023 DlV\^ Judgment delivered In the presence of the Appellant and Respondent o E.B. LUVA^ § JUDGE it S: oeb6/2023 4^0IVI^