stewart m kiwiastewart michael kiwia versus adela muhiba rugenza another 2023 tzhclandd 17300 31 october 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL N0.336 OF 2023 (From Land Application No.19 of2022, by the District Land and Housing Tribunalfor Kigamboni.) STEWART M KIWIA@STEWART MICHAEL KIWIA APPELLANT VERSUS ADELA MUHIBA RUGENZA.... RESPONDENT MOHAMED SHOMARI 2^^ RESPONDENT JUDGMENT Date ofLast Order: 03.10.2023 Date ofJudgment:31.10.2023 T.N.MWENEGOHA,3: This Appeal is based on the following grounds; - 1. That, the Hon. Chairperson erred in law by his failure to properly evaluate and consider testimonies and evidence(s) from the appellant herein, hence reached to unfair and unjust decision against the appellant. 2. That, the Hon. Chairperson erred in law and facts by his failure to consider laws governing easement in Tanzania in writing the decision of the tribunal. 3. That, the Hon. Chairperson erred in law and in facts by his failure to comply with legal procedures and principles governing locus in quo. 4. That, the Hon. Chairperson erred in law and facts by his failure to consider the legal requirement provided under section 31(1) of the Law of Limitation Act, Cap 89 R.E 2019. The Appeal was heard by way of written submissions. Advocate Hardson B. Mchau, appeared for the appellant while the respondents appeared In person. Submitting on the 1®^ ground of Appeal, Mr. Mchau was of the view that, looking at the typed Judgment of the trial Tribunal, the trial Chairperson, did not evaluate the evidence or the testimonies adduced by the appellant. He just summarised the testimonies of the appellant's side, but evaluated that of the respondent only. He cited the case of Leonard Mwanashoka versus the Republic, Criminal Appeal No. 226 of 2014, Court of Appeal of Tanzania, at Bukoba,(unreported). On the 2"^ and 4^ grounds together, it was argued by Mr. Mchau that, the evidence before the Tribunal proved that, the appellant has been using the suit land to access his home for more than 20 years, since 2002. Therefore, the appellant has an implied right of easement over the said land as provided for under section 31(1) of the Law of Limitations Act, Cap 89 R.E 2019 and also the case of Alex Senkoro and Others versus Eliambuya Lyimo (as Adminstrator of the Estate of Fredrick Lyimo), Civil Appeal No. 16 of 2017, Court of Appeal of Tanzania at Dar es Salaam(unreported). He went on to argue on the ground that, the trial Tribunal visited the locus in quo on the 4^^ of May, 2023. While at the site, the trial Chairperson ordered the parties to file their final submissions. That, he did not read any of the notes which he recorded at the site, for the parties to comment, object or amend them. His failure to do so, has caused miscarriage of justice to the appellant as some of the facts which were Included in the Judgment are false, they never existed at the site when the Tribunal visited the same. Therefore, the trial Tribunal did not comply with the mandatory procedures, governing site visits as given in Nizar M.H versus Gulamali Fazal Janmohamed (1980)TLR 29. In reply, the respondent insisted on the ground of Appeal that, the trial Tribunal, lined in favour of the respondent because the whole evidence and facts were in his favour. The respondent's evidence was heavier compared with that of the appellant. That, the appellant himself, failed to prove his claims as required under section 110 of the Evidence Act, Cap 6 R.E 2019 and the case of Hemed Said versus Mohamed Mbilu (1984)TLR, 113. On the 2"^ and 4^^ grounds, it was argued that, the appellant failed to establish the existence of his alleged easement over the disputed land. The appellant's claims of blockage of access to his land are plainly unfounded. The same is easily accessible regardless the existence of the appellant's fence. That, the rules governing locus in quo were all observed by the Tribunal and there is no fault on part of the Tribunal for not following the required procedures as claimed by the appellant's counsel. That, there is no evidence that, the appellant applied to Kigamboni Municipal Council for a permit to construct a road on the respondent's land for him to access his land. Lastly on the 3^^ ground, it was contended by the respondent that, rules governing site visits were well observed and the Judgment reflected the facts found at the locus in quo. Therefore, the appellant's claims are unfounded. His arguments were 3 well supported by that of the 2"^ respondent who insisted that the Appeal has no merits and should be dismissed. In his brief rejoinder, IWr.Mchau reiterated his submissions in chief and insisted that, the Appeal at hand has merits and should be allowed. Having heard the submissions by the parties and considered the records from the trial Tribunal, the issue for determination is whether the Appeal has merits or not. In discussing this issue, I will consolidate 1^, 2"^^ and 4^^ grounds and analyse them together, as all of them focuses on the evaluation of evidence produced at the trial Tribunal. The gist of the dispute between the parties here in above is a right of way, claimed by the appellant as against the respondents jointly. His claim is based on the fact that, he has been using the said land to access his land for years, since 2002. The respondent has erected a fencing wall on the suit land and the appellant has claimed to have been denied an access to his home. However, the evidence on records shows that, the appellant and the 2"^ respondents are neighbors, their lands are adjacent to each other. The evidence further shows that, the area in dispute was once used commercially by the 2"^ respondent. There was a local shop (Genge), where the 2"^ respondent used to lease the same to various people for 40000/= per month, as shown by SM2 and also SU2, Noela Stanley Jonas, who was a tenant in the shop in 2018. That is to say, the area in dispute belonged to the 2"^ respondent. He is the one who sold the same to the 1^ respondent who has constructed a frame. Further, SU4, a local leader, who was involved in resolving the dispute between the parties, went to visit the area in dispute and found the way is there for the appellant to access his home. The trial Tribunal visited the site and found the allegations by the appeilant are unfounded as claimed by the respondent. He still can access his land through the same area, though he wants to use the same as a road, capable of being used by cars or otherwise. Therefore, in my opinion, there is nothing suggesting any improper evaluation of the evidence in the suit land. What the trial Tribunal did was to show how heavy the respondents'evidence was, compared to that of the appellant. It is not true that he did not evaluate and use the appellant's evidence. The same was well used In the trial Chairman's analysis, as seen in the typed Judgment of the trial Chairman (see page 5-9 of the typed Judgment). Thus,I agree with the findings of the trial Tribunal. The respondents' evidence was heavier than that of the appellant. They deserved to win as parties in a civil suit cannot tie, see Hemed Said versus Mohamed Mbilu,(supra). Tfierefore, the 2"^ and 4^ grounds are rejected. Regarding the ground, that the rules governing the conduct of locus in quo were not followed. Again, these allegations are unfounded. I have perused the case file from the trial Tribunal. It shows that, the Tribunal visited the site on the 4^ of May 2023. A report of what transpired on the area and what was observed was read to the parties and both of them were asked if they agree with it. Mr. Hudson Mchau, Advocate for the appellant, then applicant is on record saying he was satisfied with was recorded regarding the site visit. It is surprising to see the same person at this Appeal stage is claiming that the trial chairperson did not read any of the notes which he recorded at the site, for the parties to comment, object or amend them. For his conducts, as shown in the records, he Is estopped to deny what he did during the trial see National Insurance Corporation vs Maliglsa Manyangu & Others(Civil Revision No.l4 of 2017)^ High Court of Tanzania at Dara es Salaam,(unreported). The 3'^ ground is also rejected. In that case, all four grounds of Appeal are denied and the entire Appeal is therefore, found to be devoid of merits. Eventually, the same is dismissed with costs. The decision of the District Land and Housing tribunal for Kigamboni, vide Land Application No. 9 of 2022 is upheld and so are the orders that followed it. T.-N. MWENEGOHA JUDGE 31/10/2023