19970227 TZHC Dar es Salaam3

J;;g_l}#('I~ 1 i'. • THE UNITED REl-'UBLIC OF T.i1.NZAN!A ----~- IN THE HIGH COURT OF '11,"if·JZ;"i.NL'l I-i.T D,J.R ES s;,L;•.:1M CIVIL .i.1-'PE..1.L NOo 68 0F l995 RARUNA MSHi1.LU eooeooooooco-eooooo,oooneoooc.ocoo•oooo 1\PPELL'i.NT versus ,.7JLIDS RUSHliIGO 000000000000000000000000•00••0••00 RESPONDENT ---------•:-..,;-.- -- . .., JUDGMENT. Kl!JERI, ]:)&,1(EXT.J) This appeal arises from a decision in the Resident Magistrates• Co·1rt at Kisutu, DSM'l (FoRoi~. Chillonji~ Esqo, PRM) in Civil Case No 39 of 1987 in which, on the 8th day of May, 1995 claims for trespass by the defendant on the plaintiff's plot, d~mages in sum of shs.108,000/= general damnges plus interest at court rate on the total decretal amount, demolition and removal of the wall / ····1.."' .•• .r-. ,.,_r -,,,,..,ctr-.d i.. ----v . . . . .1.r•·+ C'' th·e p1 ..,1·~-1-~-t-..,.,..,. ,..,..,d -C....-- and 1 1,,,., •• -·•·---- --.; -.,.L\,;," .•.• +'•~ ·',·-"'-.,·•·· w.; -... v ........ .,.j,. •• - ~ _.., -~ ..__.._. _ _ _ _ ,.,J any other coni::iequential relieis, was dismissed by the trial Courto The trial which started on the 16th March 1988, took 1· slightly over '7 years to complete" '11h12 a_pp(;llant H/,HUNA V.SHf1LU .... was represented by the late Mr. J.?. Lipiki while the respondent JULIUS RUSHJ.IGO who had been represented by Dr. Lamwai, learned advocate at the trial is before this court represented by Mr. Jo Mbuna, another learned advocate. On application by the parties' learned counsel which was made and granted on the 7th December 1995, written submissions were to have been completed by_the end of January 1996. The following are the circumstances in which the case came about before it reacqed the trial Court. Sometime in 1962 the appellant purchased a house No 60, on plot No 2 Block G Makanya street, MaGomeni area in Dar es Salaam Cityo /1.djacent to this house, was the respondent's house Noo5, being on plot No 29 Kibada street Magomeni area, Dar es Salanm city as well. These two houses became affected by what was known as the City's slum ,clearance scheme whereby ,. the National H0using Corpor-'.ltion demolished the slum§ and l rebuilt ::;:;_,-;: roo:;.ed residc:it.~a~. he-use~. On unknown datei the respondent desirous of turning tiw res'i.dehtial premises into • - 2 - business-user type where he ,·1,:mted to operate a bar and a guest house in total chagrin and dismay of the appellant who feared for her daughters' damage to th~ir moral up-bringing, he was promised thut the project would not materializeo It was after the respondent had invited the City Council officials to check the area he intended to construct the backyard and fencing wall as well as widen the space between his house and the house of the appellant for purposes of creating a car park and an entrance, he was given a go aheado It was in the course of the respondent continuing with the said construction works that on the appellant I reporting trespass by defendnnt to his plot to the City authorities specifically, the PW5, thnt Hv3 and PW4 who are both standard VII leavers with ten years experience as Technician Auxiliary cum survey technicians, were sent to take measurements between the two houseso The PW3 and P\·J4 later reported back to PW5 that indeed the plot of the appellant had been -encroached by measure- ment of n.bout 1.3 feeto But according to the respondent he had approached surveyors from the Kinondoni survey offices who upon visiting the area they allowed him to go ahead with the construction. There was mentioned in the case for the respondent that a City Surveyor one Mr. Mbena had compiled a report which was neither annexed to the pleading nor brought in evidence. And neither was Mbena called as a witness in the respondent's case. But on the appellant's part he called PW8 who is a qualified engineer and an owner of a company known as nEpanko Enterprises Company Ltdvt who said that he had checked the toilet that was alleged to have been damaged and he certified the same to have been dangerously damaged and he advised for its abandoned use while he assessed and projected costs of construction of a new toilet at shs.108,000/=• His report is marked Exh,P7o To the usually Uincisive11 style of Dro Lamwai exposing those who attempt to personate that they possess academic qualifications which they dont have and of late commonly called 1¥kihiyoi 1 or plurally iivihiyov: Dr~ Lamwai. went at lengtA to expose the PW8 as a liar, who did not qualify for the academic I qualifications as a civil eneineer~ and one who had tried vainly to show that dnmage to a pit-latrine could be established by someone who using a torch looks through an aparture into a dark latrine. - 3 - The le.::.,rned trial Principal Resident Magistrate after carefully analysing the evidence, he ruled out that it had not only not been established that the respondent had trespassed on the appellant's plot but also tha~ the appellant had not suffered damages amounting to shs.108,000/= or at all. It followed that with exception of the respondent who was awarded I with costs, no any other reliefs were grantedo Before discussing the grounds of appeal let me point out that I have carefully read through the proceedingsj judgment and the grounds of appeal as well as submissions from learned counsel. Starting with the fil~st and tho second grounds of appeal, I 1:-iust say that the learned trial Principal Resident Magistrate properly and correctly evaluated after considering the evidence relating to the dnmnge of the ai;.:pcllant 9 s latrine. It was the appellant who failed on a balance of probability to show to the court when visiting the locus in quo the damaged latrine. As for the first ground of appeal that the learned Principal Resident M~gistrate did not record notes, I entirely agree with this or else he should at least have incoporated them in the record. However after I had carefully checked the record I disagree that the learned Principal Resident Magistrate followed and made an incorrect observation in his judgement - see para two at page two of judgment. From my observation, infact from I gather from those observations in the second paragraph to page two of the trial court's judgment, these cannot be a mere product of a sharp memory as a computer as Mr. Lipiki wants it understood8 On the contrary, the learned trial Frincip:11 i1csidcnt Magistrate must have recorded some notes only th,,.t they were not incorporated in the record of proceedings. To be spccific 9 after the learned Principal Resident Magistrate hnd r0ccrded th0 evidence of P~I that he expected to be shown evidence about trespass which the PWI had put as ;aHe has ~il t.E.!.1 i:ny _a!'ea _g~~ ,Jlie rJC?.fJ:t.a!i be en l>.lock~~~?~ldin~in whicLs~~.-S.~I'l!l~t Eu}-1 it,E,;e0 - - - and then later that: 17~ _ w a s const,ruc.E:_Il.ii rain W<l,~.:r: fell on my J::.a:,t:rJ.2?-~01l'il:1.~££.C_t_~;,Le_s__!roxe.c:l_o,,_, .L,E;hle_d a §lrve:y~ ~t}!P:1:tr ➔tl}_,e );.~.►nng_}i._~~sl,e a &-3.r._t17 o ooe•oa/4 - 4 - That the learned Principal Hesident Magistrate refused to enter the house was maybe supported by his extremours belief for he only expected to be shown evidence about trespass which would rnatch with the above-quoted evidence. I therefore find that from the recorded observ.'.ltion in the judgment of the trial Principal Resident Resident Magistrate there were no incorrect observations by the trial Principal Resindent Magistrate after seven years. I also find that there was no failure by the trial Principal Resident Magistrate to consider and evaluate the evidence. As for the third ground of appeal concerns failure to properly consider and interpret the_provisions of section 4(1) of the Land Survey Ordinance Cap. 390 in relation to the evidence of the appellant's witncosos as to trespassa The witnesses under reference are HO and :E-'W4 who were standard seven leavers of 10 years' experience nnd. holdir:.g posts of Technician Auxiliary cum ·- servey technicionso The learned trial Principal Resident Magistrate interpreted the act by the City Surveyor PW5 ordering PW3 and PW4 to r;o to the house of the o.ppellnnt to confirm allegations about the respondent he..ving trespassed on the plot in question, as not an order for survey. Section 4(1) of the Land Survey Ordinance, Capa390 reads ( I quote) 0 4(I) No person other than a surveyor shall (a) survey any land for the ..purpose. of preparing an approved plan within the meaning of the Land Registr-'l.tion Ordinance Cap 334 or any Ordinance amending or replacing the samce (b) survey any land -.-1ithin an area to which this 1x~rngraph applies, for the purpose cf preparing a plan to ic.lentify the land referred to in any docum.::nt curnpulsorily registrable under the provisions of the land Rcgistrntion of Documents Ordinance (Cap.117) or any Grdina.nee amending or replacing , the s.:1me« (c)'- replace or cause to be replaced any missing or displaced boundary beacon or move~ destroy or place, or causes to be moved, destroyed or placed any boundary beacon, purpbrting to detonate the boundaries of surveyed land, or make any survey for the purpose of placing any boundary beacon purporting to detonate tho boundaries of surveyed land. - 5 ~ • (d) hold himself out to the public in any manner whatsoever as a land survcyor. 0 I entirely agree with the learned Principal Resident Mn 6istrate that the PW3 and PW4 did none of the acts enlisted above. I join hands with his observation tho.tin such serious land matters it was un- thinkable and unsafe to send junior and unqualified staff to verify on reported encroachment of a plot of land which involved t.s-Jdng measurements taken in absence of the other party - the respondent., As for the last ground that the trial court ought to have rejected the respondentvs evidence as false, none of the learned ad-vacates made any submissions on it, such that the fourth ground of appeal is hereby dismissed. I will make the followin 6 concluding remc:.rks. As a first appellate court I ho.ve looked at rmd evaluated the evidence a fresh and have come to my own opinion besides the grounds of appeal. The appellant failed on a balance of probability to ,, prove that the respondent ho.cl trespassed on his plot by either building a wall measuring Io3 feet inside his plot or that his •• pit latrine had becm damaged as a result of the building of the wall. When the trial court visited the locus in g~, no evidence of trespass was shown to thnt courto Instead of the evidence of PW8 pointing out to the damage he carried out estimations of constructing a new latrineo This could not have proved trespass much as there is no evidence that the allegedly damaged latrine is out of useo As for academic qualification PW8 he was held in • doubt as to whether he was really a qualified civil engineer. Turning to the claim for damages in a sum of shs.108 1 000/=, this sum could not be granted because it was not the actual value of the damage but rather as is shown in Exh.P7, it was an estimated cost of construction of a new pit latrine~ .tmd as there had not been satisfactorily led evidence to prove that the respondent had damaged the latrine of the a:ppoll.ant, he could not be ordered to pay that sum. A saying that as day follows right and vice versa, as trespass and damage had not been pr9ved on a balance of probabilities against the respondent, an order that the wall that had been allegedly unlawfully erected on the appellant's plot could not be ordered domolish.ed and thereby removed from the Jr - 6 - appellant's plot. · Appeal dismissed with costs. M. G. C., YJiJERI PRINCIPAL RESIDENT Mi,GISTRATE (EXT .. JURISDICTION) Delivered on 27/2/1997. AT D.iiR ES SALAAM .. I ~ertify that is a true and correct copy of the original • . I I~