20100517 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CIVIL APPEAL NO. 116 OF 2009

BETWEEN SOSPETER M. NDALAHWA ................................ .APPELLANT AND 1. NATHANIEL CHAMLOMO 2. PATRICK CHAMLOMO 3. SAULO CHAMLOMO 4. YONA OJUKU CHAMLOMO ................... RESPONDENTS 5. SYPRIAN .. SIMON CHAMLOMO 6. KHALFAN SALEHE PEMBE 7. ABDALAH MAZONGELA

JUDGMENT MASSENGI. J, Appellant Sospeter M. Ndalahwa who is unrepresented 1s appealing against the decision of Kisutu Resident Magistrate Court civil case no 337 / 1997whereby he was plaintiff and respondent Nathaniel and six others were defendant . In this appeal they are represented by the learned advocate Mr. Galigano. 1 The appellant before the trial court prayed for judgment and decree against the respondents on the following orders: (a) That the said land in disputed be declared a public road and the general public (b) That the defendants be ordered to remove all the things and / or demolish/ destroy . the planted plants blocking the said road at their own costs. (c) That the defendants be permanently restrained from interfering with the said public road. (d) Costs to follow the event (e) Any other relief(s) the Honourable Court may deem fit and just to grant. At the end of the day judgment was in favour of respondents with an order that a fresh surveying of the area in dispute and each party to bear its own cost. It is this order which the appellant he is appealing against. He has three grounds of appeal which are:- 1. That the trial Magistrate erred both in law and fact by disregarding the survey plan no E 158 / 83 legally issued by the relevant authority. 2 2. The trial magistrate erred in law and fact by holding that no public road existed in the suit premises.

3. That the trial magistrate erred in law and fact by ordering another survey in liu of the existing plan no E 158 / 83 Briefly, facts of the case are that the appellant in 1989 bought a piece of land from deceased Swalehe Penabe and by his application to the Ministry of Land in 1991 the land was surveyed and his was given title no 452 / 1 and 453 / 1 Block C Stakishari Ukonga. He was issued a copy of the site plan whereby a public road was established; The site plan was admitted in evidence and marked "PA". The respondents who are his neighbours' have now blocked the public road by planting michongoma and putting blocks on it and cause unnecessary disturbance to him and his family. Respondents have been shopped by the concerned authorities but they have turn a deaf ear on that hence the suit before the trial court where the appellant prayed for therefore said orders. Respondents admitted appellant to be neighbour. The agreed appellant did his own survey of the land as the other neighbors couldn't pay surveying fees. They deny to have blocked a public road as such road has never existed 3 as the area is a squatter. The issue of the existence or non - existence of the public area was taken to the authorities and a reconciliation meeting was to h =be held but it was never conducted and that the former survey was cancelled by the commissioner for planning and ordered the land to

be resurveyed. Respondents was produced corresponding letters to that effect. In his written submission the appellant has argued on the first ground that the trial magistrate erred in law and fact by disregarding the survey Plan No. E 158 / 83 legally issued by the relevant authority by relying on evidence of document which was not tendered in evidence but was admitted for the purposes of identification only hence such document having no evidential value. Respondent in his reply submitted that the survey plan which appellant claims was disregarded by the trial court was declared null hence have no legal force. In rejoinder the appellant completely denied that the plan was nullified. He further submitted that DW2 from the Dar es salaam City Council a fit and competent person to testy to that effect, didn't testify so. DW2 one Ramadhani Selemani Chamwiti 1s a surveyer with Ilala Municipal Council gave evidence and 4 . \ his evidence is found in page 21 of the typed proceedings. After going through his evidence I agree with appellant that he didn't give evidence to the effect that the Dar es salaam City Council has nullified the plan I therefore agree with the appellant the trial court erred in law and fact by disregarding the plan which was tendered in evidence. Now if the survey plan is taken into consideration does it reveal the existence of a public road as alleged by

the applicant? I have going through the survey plan but I couldn't find that there was any public road created in the cite plan except a few plots. Also the evidence tender by DW2 a land surveyer from Ilala Municipal Council testified before the trial court that according to the survey plan, only part of the land at Stakishari area was surveyed and some not and that there is no public road shown in the plan. I quote his evidence as found in page 21 of the typed proceedings: " ......... the land at Ukonga Stakishari is not surveyed but some area is surveyed and the exhibit Pl is a survey plan and three four plot which is surveyed but 5 . . • there is no public road shown· in the survey plan". Therefore the survey plan which the appellant is inviting the court to regard or to take into consideration and find as to whether the public road existent does not support his argument as it does not shown the exisistence of the purported public road. The only evidence he ought to rely on is against him. Now how can the court come in the conclusion or how the court can make a finding of the exisistence of the public road while there is no evidence to that effect? It is my opinion then the trial magistrate didn't commit any erra in law nor in fact by holding that no public road existed in the suit premises and ground no 1 and ground no 2 of the memorandum of appeal has no merits and are

hereby dismissed. Powers of ordering another survey plan instead of existing survey plan No. E 158 / 83 are not vested on courts but rather vested on the Direct of Land and Surveys under Land Survey Act Cap. 324 R.E 2000. The Municipal District Council is the an authority vested with the power of creating public road as they are the planner of the use of the land. Let then the proper authority decide on approving the existing survey 6 .. . plan or to conduct another survey plan. Hence this court cannot order the respondent to respect or disrespect, recognize or disrecognize survey the plan. As shown above ground no 1 and 2 of this appeal has no merits and therefore the appeal before me falls and it hereby dismissed with costs. F. H. Massengi

JUDGE 17/05/2010 Delivered in chamber court in presence of appellant in person and Mr. Galigano for respondents. F. H. Massengi

JUDGE 17/05/2010 7