simon n sokolo vs iddi uddi miiruko 2020 tzhclandd 40 25 march 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPEAL NO. 123 OF 2019 ( From the Decision of the District Land and Housing Tribunal of Temeke District at Temeke in the Land Case Appeai No. 22 o f 2018 and an original Ward Tribunal of Yombo Vituka Ward Application No. 112 o f 2018) SIMON N. SOKOLO................................................. APPELLANT VERSUS IDDI UDDI MIIRUKO............................................ RESPONDENT JUDGMENT IN APPEAL K.N. ROBERT, J This appeal has its origin from the decision of the District Land and Housing Tribunal of Temeke District at Temeke in the Land Case Appeal No. 22 of 2018 and an original decision of Ward Tribunal of Yombo Vituka in Application No. 112 of 2018 where the Respondent claimed that the Appellant herein had trespassed into his land. A brief background of this matter reveals that the Appellant, Simon N. Sokolo and the Respondent, Iddi Uddi Miiruko are occupiers of neighbouring parcels of land sold to them by the same vendor, Ridhiwan Rajab Nyoni at Yombo Vituka, Temeke District within the city of Dar es Salaam. In July, 2018 the Respondent filed a land complaint against the i Appellant at the Ward Tribunal of Temeke claiming that the Appellant had trespassed into his land and built a wall fence therein. A decision of the Ward Tribunal was passed in favour of the Appellant indicating that the area where the fence was built belonged to the Appellant. The Respondent having been aggrieved by that decision lodged an appeal to the District Land and Housing Tribunal of Temeke on seven grounds and prayed for the following reliefs: a. This appeal to be uphold b. To quash and set aside the decision o f the Ward Tribunal c. Order the parties to measure their lands to ascertain the actual measurements/sq meters contain (sic)in the Residential license d. Alternatively, the Respondent ordered to demolish the wall fence which exceeded the boundaries and declare the appellant as the owner o f the area exceeded thereof e. Costs o f this appeal f. Any other relief(s) this Hon. Court may deem fit and just to grant in the circumstances o f the case." The Appellant resisted the Respondent's appeal at the District Land and Housing Tribunal praying for the appeal to be dismissed with costs for being baseless and intended to waste time. The District Land and Housing Tribunal relying on the Temeke Municipal Surveyors Report which was made after a visit to the scene of the disputed land on 4th January, 2019 found that the land in dispute is demarcated whereby the fence built by the Appellant Simon N. Sokolo had trespassed to the Respondent's land. The report indicated that the land in dispute is about one and a half metres by width and five metres by length. Based on these findings the Honourable Chairperson quashed the decision of the ward Tribunal, ordered the Appellant herein to vacate the land in dispute by removing the developments effected in it to allow the Respondent herein to access the trespassed square meters of land. Aggrieved by the decision of the District Land and Housing Tribunal the Appellant appealed to this Court challenging the Tribunal's decision on five grounds as follows: 1. That the Hon. Chairman of the District Land and Housing Tribunal erred both in law and in facts when she failed to analyze properly the evidence before it and as a result it reached into a wrong conclusion. 3 2. That the Hon. Chairman of the District Land and Housing Tribunal erred both in law and in facts when she failed to consider that the Respondent legally bought the land and developed it. 3. That the Hon. Chairman of the District Land and Housing Tribunal erred both in law and in facts by holding the Respondent the lawful owner of the suit property. 4. That the Hon. Chairman of the District Land and Housing Tribunal erred both in law and in facts in disregarding the testimonies given by the Appellant's witnesses. 5. That the Hon. Chairman of the District Land and Housing Tribunal erred both in law and facts in disregarding the sale agreement produced before the Tribunal by the Appellant. When this matter came for hearing before this court, the Appellant was represented by Mr. Michael Kasungu, learned counsel, while the Respondent appeared in person unrepresented. Parties prayed successfully for leave to argue the appeal by way of written submissions. The submissions were filed as scheduled. In his written submissions, the Appellant prayed for leave to consolidate the five grounds of appeal and argue them together. Submitting on the consolidated grounds of appeal, the Appellant started his submissions by quoting the provisions of sectionsllQ (1) and 119 of the Evidence Act, Cap.6 R.E.2002 and argued that the Respondent had a duty of proving that the Appellant is not the owner of the land in dispute. He argued that the Respondent throughout the Proceedings at the Ward Tribunal and the District Land and Housing Tribunal failed to prove that the Appellant herein is not the owner of the Land in dispute. The Appellant argued further that the Respondent's only evidence as to the ownership of the disputed land is the Residential Licence he obtained from one Ridhiwan Rajab Nyoni after buying a parcel of land from him in the year 2013. On the other hand, he observed that his evidence in support of his claims as the rightful owner of the land in dispute was substantive. He argued that his evidence included six witnesses, sale agreement as well as a survey report from the Municipal offices. He submitted further that he consistently testified in the lower Tribunals that he bought a parcel of land from one Ridhiwan Rajab Nyoni in 1998, that this was supported by a deed of sale which was tendered and admitted as evidence in the Ward Tribunal. He argued further that in 2006 he bought another portion of land from Ridhiwan Rajab Nyoni as he wanted more space to which he could park his car. He maintained that his testimony was supported by a deed of sale legally executed by him and Ridhiwan Rajab Nyoni. The Appellant maintained further that during the trial of this matter he testified that he erected a wall as a boundary marker over his land, then he officially approached the Temeke Municipal Council to have the parcel of land officially allocated to him, his request was approved and officers from the Municipal Council erected beacons as an initial step for the Appellants ownership process. He argued that these facts were supported by a survey report from the Municipal Council which was tendered and admitted as evidence at the Ward Tribunal, but also supported by testimonies of the Appellant's witnesses who were his neighbours at the time. He submitted further that one of his witnesses at the trial was Ridhiwan Rajab Nyoni who sold the disputed land to both the Appellant and the Respondent at different times. This witness testified that in 1998 he sold part of his land to the Appellant for a consideration of 300,000/-. He further testified that in 2006 the Appellant approached him again with a proposal to buy an extra piece of land and bought the said land at the consideration of 100,000/-. He submitted further that Mr. Nyoni testified that the Respondent bought land from him in 2013 which is a period of more than five years from the time the Appellant brought land from him. He added that Mr. Nyoni testified further that the Appellant had built a wall as a mark of his boundary in that land. He argued that this is corroborated by the Respondent's own testimony during cross-examination that he found a wall at the land in dispute the moment he bought land from Mr. Nyoni. He argued that the testimony of Mr. Nyoni indicates that the Respondent was shown by Mr. Nyoni the correct boundaries of the land he was buying and that did not include the land in dispute. Appellant submitted that according to section 34(1) of the Courts (Land Disputes Settlement) Act, 2002 the District Land and Housing Tribunal was obliged to do the following in determining the appeal: a) Consider the records relevant to the decision b) Receive such additional evidence c) Make such inquiries as it may necessary (sic) He argued further that the appellate Tribunal erred by not considering the records relevant to the decision. That the reasoning given by the Hon. Chairperson of the District Land and Housing Tribunal is not sufficient to justify how the records from the trial proceedings at the Ward Tribunal were considered at all. The Appellant submitted further that at page 3 of the impugned Judgment the Hon. Chairperson stated that on 4th January, 2019, the Temeke Municipal Surveyor reported that the Appellant holds a residential license marked TMK/YBK/VTK/9/164 and the Respondents holds a residential license marked as TMK/YBV/VTK/9/163. He wondered why neither the Hon. chairman nor the surveyor never analysed the Appellant's residential license. He argued that although it was not tendered in court during trial, the marked residential license TMK/YBV/VTK/9/164 clearly shows the disputed land to be part of the landed property owned by the Appellant. The Appellant submitted further that according to section 24 of the Courts (Land Disputes Settlement) Act, 2002 the Honourable Chairman though not bound with the opinion of assessors, ought to have given reasons for differing with such opinion. He submitted that the Appellant should be declared as the rightful owner of the land in dispute because: i. The Respondent initially sued the Appellant as a trespasser but failed to prove the same on the balance of probabilities 8 ii. The Appellant legally bought the land in dispute and developed it prior to the purchase of land by the Respondent. iii. The Appellant also holds a residential license evidencing the ownership over the disputed land. iv. The decision of the District Land and Housing Tribunal is marred with irregularities most specifically for negating the records from the Ward Tribunal as shown above. In response, the Respondent submitted in relation to the first ground of appeal that everything and every ground of appeal were properly determined by the Hon. Chairperson of the District Land and Housing Tribunal. On the Second ground the Respondent submitted that the Chairman of the District Land and Housing Tribunal did not consider that the Appellant bought the disputed land and developed it, all evidence produced before the Tribunal was irrelevant evidence such as: the affidavit and a map of the area as surveyed by the Temeke Municipal Council. He argued that if evaluated it is obvious that the affidavit tendered in court is unbelievable as it bears names of a stranger. The actual name of the seller is Ridhiwani Rajab Nyoni while on the affidavit it reads I. Nyoni; the tendered affidavit shows that the disputed plot is located at Iiaia District while the land in dispute is at Temeke District; signature endorsed on the said affidavit is quite different from the signature endorsed in the sale agreement between Ridhiwan Rajabu Nyoni and Iddi Uddi the Respondent herein. j The Respondent submitted further that, on the other hand, the evidence adduced by the Land officer for Temeke Municipal Council at the District Land and Housing Tribunal is a map of the Plot issued by the land officer for Temeke Municipal Council. However the Tribunal was not convinced with that evidence because of the following: 1. The map is not signed by the land official nor endorsed by the chief surveyor. 2. That the Land officer of Temeke Municipal council was invited to testify. In his evidence, the district land officer told the Tribunal that records shows that the disputed plot belonged to Ridhiwan Rajab Nyoni. Ridhiwan sold the plot to the Respondent. There is no document showing that Ridhiwan sold the suit land to the Appellant. Submitting on the fifth ground, the Respondent submitted that all six witnesses including Appellant's wife did not witness the sale but saw the Appellant constructing the wall separating the two plots. This, he argued, is 10 insufficient to prove there was a legal sale. He submitted further that all the witnesses called by the Appellant never witnessed the sale of the suit land to the Appellant. The Respondent submitted further that Mr. Nyoni addressed the Tribunal that he sold the suit land to the Appellant but this is not true. He argued that during the sale of the plot to him, Mr. Nyoni did not tell him that there is a small part of the plot which was sold to Appellant instead he told him that the Appellant borrowed the plot temporarily for a car park. That when the Respondent was ready to erect a building on the said land, the Appellant would demolish his wall. He argued that based on those terms Mr. Nyoni handled over the residence licence to him so that he may effect changes as to ownership of the land. In rejoinder, the Appellant submitted that he never trespassed into the Respondents land because of two main reasons: i. The Appellant had possession of the land in dispute years before the Respondent entered possession of the land and lived harmoniously in the said land. ii. The Appellant legally purchased the land. 11 Me cited the case of Sri Iswar Gopaljew v. Globe Theatres Ltd AIR 1947 cal. 200 where it was held to the effect that one cannot bring an action for trespass committed before he became the owner. He argued that in the present case, the Appellant became the legal owner of the property in dispute in 2006 after legally purchasing the same from Mr. Nyoni while the Respondent bought a neighbouring piece of land from Mr. Nyoni in 2013. Therefore, the Appellant was in possession of the property in dispute before the Respondent and had developed it and this fact was acknowledged by the Respondent in the course of the trial proceedings at the Ward Tribunal. With regards to the use of the name I. Nyoni instead of Ridhiwan Rajab Nyoni in the Affidavit, the Appellant submitted that this submission strengthens the Appellant's case and proves that he is indeed the actual owner of the property in dispute because the Respondent acknowledges that he is aware the Respondent purchased land from Mr. Nyoni. With regards to the authenticity of the deed of sale, the Appellant submitted that the Respondent had an opportunity to object the admission of the affidavits as evidence the moment it was tendered by the Appellant at the trial proceedings. The respondent never objected to the tendering of 12 the deed as evidence hence it was appropriate for the court to act upon it. Furthermore, Mr. Nyoni at the trial proceedings also testified in favour of the deed of sale executed by him and the Appellant herein in 1998. Appellant submitted further that it is important to understand that both the Appellant and the Respondent are deemed to be owners of neighbouring parcels of land bought from the same vendor at different times. Therefore the Appellant herein purchased from the Vendor parcels of land in 1998 and 2006 as evidenced by the deeds of sale. The Respondent later on came to purchase land from the same Vendor, a neighbouring parcel of land to that of the Appellant. He maintained that the Appellant holds a residence license TMK/YBV/VTK9/164 and the Respondent holds a residence license TMK/YBV/VTK9/163 He argued that though the Appellant's witnesses at the trial did not specifically testify to witnessing the sale between the Appellant and Mr. Nyoni, ail witnesses did testify to the extent that they initially saw the appellant herein developing and occupying the said property before the Respondent. He therefore prayed for this appeal to be allowed with cost. 13 Having considered the submissions of the parties, I will now deliberate on the parties contending submissions. I have however noted that submissions were stretched on some of the issues which were not raised and decided in the two lower Tribunals. Such issues will not be addressed. In his consolidated grounds of appeal the Appellant is faulting the Appellate Tribunal's analysis of evidence before it which, he believes, led to a wrong decision. It is not in dispute that the Appellant and the Respondent are occupiers of neighbouring parcels of land sold to them at different times by the same vendor, Ridhiwan Rajab Nyoni. According to the Temeke Municipal Surveyors Report, the land in dispute between the two parties is about one and a half metres by width and five metres by length whereby the Respondent claims that the fence built by the Appellant has trespassed to his parcel of land. The question for determination is therefore whether the Appellant trespassed into the Respondent's land. The Appellant argued that the Respondent had a duty under sections!. 10 (1) and 119 of the Evidence Act, Cap. 6 R.E.2002 to prove that the Appellant is not the owner of the Land in dispute which he failed to do. He 14 argued that the Respondent's only proof of ownership of the disputed land is the Residential Licence he obtained from Ridhiwan Rajab Nyoni (DW1) after buying a parcel of land from him in the year 2013. The Appellant's evidence in support of his claims of ownership of the land in dispute included: his testimony that he bought a parcel of land from Ridhiwan Rajab Nyoni in 1998 and later in 2006 he bought an additional portion of land from the same person as he wanted more space to which he could park his car; he erected a fence wall in the disputed land as a boundary marker over his land before the Respondent had bought his parcel of land from Ridhiwan Rajab Nyoni in 2013; the testimony of Ridhiwan Rajab Nyoni that he sold part of his land in 1998 to the Appellant for a consideration of 300,000/ and in 2006 the Appellant approached him again with a proposal to buy an extra piece of land and bought the said land at the consideration of 100,000/-; the testimony of Appellant's six witnesses who testified that the Appellant is the lawful owner of the disputed land and they saw him building the fence wail before the Respondent bought his parcel of land. On the other hand, the Respondent maintained that this matter was properly determined by the Appellate Tribunal. He submitted that: there is 15 no document showing that Ridhiwan Rajab Nyoni sold the suit land to the Appellant, he was told by Ridhiwan that the Appellant borrowed the disputed land temporarily for a car park; that the six Appellant's witnesses did not witness the said sale but saw the Appellant constructing the wall separating the two plots occupied by the Appellant and the Respondent; the certificate of approval of Disposition of a Residential License issued by Temeke Municipal Council shows that the Land parcel No. TMK/YBV/VTK9/163 was registered to the Respondent on 26/06/2013; the Temeke Municipal Surveyor Report indicates that the area in dispute falls in the Land parcel No. TMK/YBV/VTK9/163 which is registered to the Respondent. This court agrees with the Appellant that since the Respondent was disputing ownership of the disputed land by the Appellant who was in possession of that land, the burden of proving that the Appellant was not the rightful owner of that land was on the Respondent under sectionsllO (1) and 119 of the Evidence Act, Cap. 6 R.E.2002. From the evidence gathered, it seems to this court that Mr. Ridhiwan Rajab Nyoni sold the disputed piece of land to both the Appellant and Respondent at different times. Having sold the additional piece of land to 16 the Appellant by February, 2006 Mr. Nyoni processed and was granted Residence permit No. TMK011092 for Land parcel No. TMK/YBV/VTK/163 on 9th June, 2006 which according to the Temeke Municipal Surveyor Report covered part of an area sold to the Appellant and fenced. He then disposed his Residential License for Land parcel No. TMK/YBV/VTK9/163 to the Respondent on 25 June, 2013 which was then registered to the Respondent on 26th June, 2013. It is therefore clear that the Respondent cannot fault the Appellant to have trespassed into his property based on the developments made by the Appellant on the disputed land before the Respondent's purported ownership of that land. The question that this court has to grapple with is whether the Appellant lost his right of ownership of the disputed piece of land when the demarcation of Land parcel No. TMK/YBV/VTK9/163, which was later sold to the Respondent by Mr. Nyoni, included part of the land sold to the Appellant earlier by Mr. Nyoni. Since the Appellant had occupied the disputed piece of land lawfully prior to the demarcation, this court finds that the inclusion of a piece of land owned by the Appellant into the parcel of land demarcated for another 17 person does not automatically deprive the Applicant his right of ownership of the said land unless he is fully compensated for loss of any interest in that land. Since there is no evidence that the Appellant was compensated, his right over the disputed land is still in existence. Based on the assigned reasons, I hereby allow the appeal with costs. Dated at Dar es Salaam this 25th day of March, 2020 JUDGE ]. i ‘ U IS