Land Appeal No

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 399 OF 2023 (Originating from the Judgment of the District Land and Housing Tribunal of Temeke at Temeke in Application No. 21 of2022, Hon. P.I Chinyeie dated 23d August 2023) SAIDI SELEMANI NANDONDE.................................................................. 1stAPPELLANT ABDALLAH NASORO NGUKU.................................................................. ..2ndAPPELLANT HALIFA YAHAYA MUSA............................................................................. 3rdAPPELLANT PADSON OSCAR............................ 4th APPELLANT YASINTA MATHIAS........................................... 5th APPELLANT SAIDI MAKAKALA..................................................................................... 6thAPPELLANT GEOFREY ELIA........................................................................................... 7thAPPELLANT VERSUS CARLOS ANDREW KIDIRU.................................................... RESPONDENT JUDGMENT Date of last Order: 08/4/2024 Date of Ruling: 25/4/2024 k, MSAFIRI, J. The appellants being aggrieved by the judgment and decree of the District Land and Housing Tribunal of Temeke (herein as trial Tribunal) in Land Application No. 21 of 2022, has appealed against the said judgment and decree which was entered in the favour of the respondent. M 1 The appeal is based on four (4) grounds of appeal as follows; 1. The learned trial Chairperson of the District Land and Housing Tribunal erred in law and fact by holding that the respondents before the Tribunal, appellants herein are trespassers (intruders) to the land in dispute without considering the opinions of the assessors of the said tribunal who went for cite visit and observe that there is no trespass committed by the appellants to the respondent piece of land. 2. The learned trial Chairperson of the District Land and Housing Tribunal erred in law and fact by declaring the appellants herein as trespassers over the land in dispute while the Applicant before the Tribunal, the Respondent herein failed to prove ownership of the piece of land in dispute. 3. That, the learned trial Chairperson of the District Land and Housing Tribunal erred in law and fact for failure to distinguish the Appellant's piece of land from the Respondent's piece of land and come onto unjust decision. 4. The learned trial Chairperson of the District Land and Housing Tribunal erred in law and fact by holding that the natives over the land in disputes were given compensation to vacate the land in dispute without any evidence on record to prove on the said compensation to the natives. The appellants prays to this court to allow the appeal and set aside the impugned judgment and decree. The brief background of the dispute is that the applicant who is now the respondent instituted an application before the trial Tribunal claiming that he is the owner of the land in dispute which is registered under Certificate of Occupancy with Title No. 73117, Plot No. 271, Block 15, at Toangoma, Temeke. He claimed further that the respondents (now the appellants) have trespassed into his property and they are building houses and planting 2 permanent and perennial crops. Among other reliefs, he prayed for the declaration that he is the owner of the disputed land and the respondents (appellants) are trespassers. After hearing, the trial Tribunal granted the application. The respondents were aggrieved and hence this appeal. The hearing of the appeal was by way of written submissions and the appellants were representing themselves while the respondent was represented by Thomas Chubwa, learned Advocate. I am of the view that the first and second grounds of appeal are on the same issue of declaration of the appellants as trespassers. On the first ground, the appellants default the trial Tribunal for not considering the opinions of assessors who went for site visit and observed that there was no trespass by the appellants. On the second ground, the appellants default the decision of the trial Tribunal for declaring the appellants as trespassers while the respondent failed to prove ownership of land in dispute. On the first ground, the appellants submitted that the assessors who sat during the trial, one Fatuma Chikwindo and Rutami Masumu, said they went for site visit in respect of suit property and after that they gave an opinion that the appellants were not trespassers, as seen at page 11 of the impugned judgment. All- 3 The appellants argued that the trial Chairperson did not take into account the opinion of assessors who visited the locus in quo and decided the matter in favour of the respondent without assigning the reasons for differing with the said assessors' opinion. They argued that this was contrary to Section 24 of the Land Disputes Courts Act, Cap 216. To bolster their point, they cited the case of Eng. Justin. D. Rweyemamu vs. James Rugakingira & 3 others, Land Case Appeal No. 61 of 2021, HC (Unreported). On the second ground, the appellants averred that the trial Chairperson erred by declaring the appellants the trespassers while the respondent failed to prove ownership of the land in dispute. That, there was no any documentary evidence showing that the respondent is the owner of the land described as "maeneo ya chini ya Bonde Hsilopimwa" That there is no any Certificate of Title, sale agreement or any other form of document bearing the names of Carlos Andrew Kidiru (the respondent). They averred that the respondent failed to prove his case contrary to Section 110 of the Evidence Act, Cap. 6 R.E 2019. Replying on these two grounds on the issue of trespass, Mr. Chubwa, advocate for respondent, submitted that, the trial Chairperson is not bound by the opinion of the assessors, and that the appellants did not produce, 4 any documents to show ownership of the land they possess or how they got the said land. He submitted further that, the respondent proved ownership of the disputed land by producing a Title which was admitted in Court. That, according to Town Plan Officer, the area down the respondent's land is reserved land whereby the respondent is supposed to take care of it. Determining jointly these two grounds of appeal on the ownership of the disputed land and whether the appellants were trespassers, I read the judgment and proceedings during the trial. During the trial, three issues were framed for determination which were; first, whether the disputed land (land in dispute) was the lawful property of the applicant; second, whether the respondents were trespassers; and third, the reliefs by the parties. To establish his case, the applicant testifying as SMI, stated that he is the owner of the land in dispute and he requested for the said land in 2004 and was granted by the Temeke Municipal Council in 2005. He tendered a Title which was admitted as exhibit Pl. He said that the respondents (appellants) trespassed into the land in dispute in 2021 and they started building therein. He said that the area is surveyed and it is registered into 5 his name. He said that his land is measured 2000 square metres and that the trespassers are inside/within his land. The land Officer from the Ministry for Lands one Johansen Chimoni Chibanda, testified as SM3 and stated that the Plot No. 271 Block 15, Toangoma is in ownership of the applicant (respondent). He said that the area owned by the applicant is within the Government Project of 20,000 Plots planned by the Government. He read the map on the Certificate of Title (Exhibit Pl) and stated that the land in dispute is on Plot No. 271 Block 15 Toangoma and that the applicant is still a registered owner, that there has never been any change of use or ownership. SM3 said further that according to the map of the area, the area down the plot it is a valley, a reserved area. He said that according to the Regulations of the Town Plans, the reserved area (valley) cannot be allocated to anyone, it is hazardous area. It is not allocated to anyone since its use for human activities can endanger the areas/plots which surrounds the valley, therefore, the owner of the Title has obligation to take care and preserve the area. 6 SM3 concluded that the occupants/occupiers of the valley area are trespassers as no land authority can grant or allocate that reserved land to any person. The respondents (now appellants) testified as SU1 Saidi Selemani Nandonde, SU2 Abdallah Nassoro Nguku, SU3 Halifa Yahaya Musa, SU4 Yasinta Matias Kilatungwa, SU5 Geofrey Elia Mwalaje, who all testified that they are lawful owners of their areas and that they are native owners and their areas are outside the area of the applicant. They did not produce any documentary evidence to show how they acquired their areas. On 30/6/2023, the trial Tribunal visited the locus in quo. All the parties were in attendance. The applicant as SMI showed his area. Among other things he said that the area on the valley was not allocated to anyone. "Hi/o la Bondeni (extra) halikupangiwa mtu" He said further that, "eneo la Bondeni nimeelekezwa kusimamia Hi kuzuia mmomonyoko wa udongo" He said that he is paying the land rent for both areas, 2000 square metres and the area of the valley. The respondents all maintained that their areas are outside the area of the applicant which is Plot No. 271 Block 15 with square metre 2000. On the first ground, the evidence shows that the trial Tribunal visited the locus in quo with the parties. Obviously the assessors also were in 7 attendance at the locus in quo. In their opinions which were given after the visit, both assessors were of the opinion that Plot No. 271 Block 15, the land property of the applicant (respondent) was not invaded by the respondents (appellants), and that the areas which are occupied by the respondents were outside the area of the applicant. The trial Chairperson, in her judgment, did not agree with the opinion of the assessors. She found that SMI (the applicant) has proved that the land in dispute is lawfully his and that the respondents were the trespassers. The trial Chairperson gave the reason of differing with the assessors that she was satisfied with the evidence given by SM3, and the evidence given by the respondent that the area in dispute was acquired, surveyed and the natives were compensated therefore they are not the rightful owners of the disputed land. Therefore, the trial Chairperson took into consideration the opinion of the assessors and in her judgment, at page 15 she gave the reasons of differing, as required by Section 24 of the Land Disputes Courts Act. The said provision, provides that the Chairman shall take into consideration the opinion of the assessors but shall not be bound by it. /wj / 8 Therefore, in the instant matter, the trial Chairperson was not bound by the assessor's opinion and she gave the reason of differing with the said opinion. Hence, I find the first ground to have no merit. On the second ground, that the respondent failed to prove ownership of the land in dispute, the major question is what is the land in dispute? Was the land claimed to be owned by the respondent i.e. Plot No. 271 Block 15 square metre 2000 the one which were trespassed by the respondents? During the site visit, the respondent as SMI stated that the area which the appellants have invaded is the area which is on down side of his area, on the valley (Bondeni) and that the valley area was not allocated to anyone. "Hi/o la Bondeni extra halikupangiwa mtu" In cross examination, the applicant as SMI said that he was directed to preserve the valley area. According to the evidence of SM3, the Land Officer, there is the area of Plot No. 271 Block 15 which is within the Government project area and which is lawfully owned by the respondent and there is the area of the valley (bonde) which is hazardous area and is not allocated to any person according to the law. That the people who are in that area are trespassers. - 9 In cross examination, SM3 said that he has come to give evidence on Plot No. 271 Block 15 and the area of the valley. He said that the valley area is the Government property. From the adduced evidence, I have gathered that there are two areas which are subject to the dispute. The first area is Plot No. 271 Block 15 and the second area is the area of the valley which was said to be neighbouring or nearby Plot No. 271 Block 15, and which the appellants stated that it was their area where they practice farming and some of them have built houses. SMI and SM3 did not state the extent on which the appellants have trespassed into 2000 square metres which is Plot No. 271 Block 15 and which, according to exhibit Pl it is lawfully owned by the respondent. The appellants have stated that their areas are not within the respondent's area hence he cannot claim that they have trespassed into his land. Unfortunately, the trial Tribunal despite visiting the locus in quo and took the evidence at the locus, it did not make findings on the evidence at the locus or did not state the Tribunal's observations of the situation at the locus in quo. ML- 10 The Tribunal did not make findings on the extent of trespass and whether the 2000 square metres extend to the area of the valley which SM3, Land Officer stated that it is hazardous are and was not allocated to any person. In such circumstances, it is my view that the respondent did not establish his ownership of the land beyond 2000 square metres. If the appellants have invaded the hazardous area near the respondent's area which is under Government ownership, then the respondent cannot claim that he is the owner of that area but as per the evidence of himself and SM3, he was only directed to preserve that area to avoid erosion and other hazards. At page 14 of the judgment, the trial Chairperson observed that; " Kama aiivyoeieza SM3, Afisa Ardhi, hiio ni bonde, halikumilikishwa na aliye na Had huiitunza Hi mmonyoko wa udongo usiharibu kiwanja kilicho karibu na eneo hiIo, na kwa muktadha wa shauri hiii, SMI." (Emphasis mine). On direct translation, the trial Chairperson was of the finding that the area which is purportedly invaded by the appellants is a valley, and it was not allocated to any person but it is under custody of the respondent whose plot is near the valley, who has duty to preserve it from soil erosion. I find that neither the appellants nor the respondent proved the ownership of the area of the valley (bonde), as even the appellants' claims of li ownership of the area was merely verbally and was not supported by documentary evidence to prove how they got their areas. The second ground is found to have merit to that extent. On the third ground, the appellants stated that the trial Tribunal erred for failure to distinguish the appellants' piece of land from the respondent's land. In their submissions, the appellants claimed that the applicant/respondent's piece of land is different from the appellant's piece of land. That the Tribunal went site visit and came to realise that the suit property is distinguished from the respondent's piece of land. That from the evidence, the appellants own the suit land which is unsurveyed which is commonly known as "eneo la chinila Bondenilisilopimwa", while the respondent own another piece of surveyed land. In response, Mr. Chubwa submitted that the appellants have trespassed the land which is reserved land where the respondent is supposed to take care of it to make sure there is no soil erosion. He added that the appellants have no right to own the reserved land because it is dangerous for human beings to live. In this ground, it was established as per evidence that there are two areas, a 2000 square metres described as Plot No. 271 Block 15 owned by the 12 respondent, and the reserved area (Bondeni) which the respondent was supposed to be taking care of it and which is not owned by any person as it was not allocated to anyone. It is a government preserved area. The respondent was requested to take care of it by planting trees to prevent soil erosion. As said, none of the parties have proved to own the said land. As the appellate Court and the appeal is on the first bite, I have mandate to analyse the whole evidence adduced during trial and come out with my own findings. And upon analysis of evidence, I have come to the finding that none of the parties proved the ownership of the suit land and therefore the appellants have no rightful claim over the disputed land. On the fourth ground, indeed there was evidence that the native occupiers of the land in dispute were compensated. This evidence was from SM3 the Land Officer and SM2, the neighbour of the respondent. However, these two witnesses did not produce documentary evidence to show who were the original occupiers of the land in dispute and if they were paid compensation. There was no evidence to prove that whether appellants were the native occupiers of the land in dispute. Since there was no such documentary evidence, the evidence of SM2 and SM3 lacks support of documents to prove that. Afl I 13 Hence, despite the fact that there was no evidence to prove the payment of compensation of natives, there was no evidence either from the appellants that they were lawfully occupiers of that land and hence they have no claim of right over that land. Therefore, since this Court has found that none of the parties have claim over that land, it is my finding that; the Judgment of Tribunal is reversed to extent that:- 1. Appellants are the trespassers of the said land in dispute as they have no claim of ownership on the same. 2. The respondent has claim of right of ownership over his piece of land measured 2000 square metres described as Plot No. 171 Block 15 Toangoma, Temeke, Dar es Salaam. 3. The other orders of the trial Tribunal remains intact. 4. Each party to bear their own costs. Right of parties to further appeal is clearly expressed. Order accordingly. A. MSAFIRI JUDGE ' 25/4/2024 14