TWAHAA SAFII

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 409 FO 2023 (Originating from Land Application No. 42 of2019 District Land Housing ~ Tribunal, Temeke) TWAHA SAID MPENDU.............................................APPELLANT VERSUS MBARUKU ALLY.................................................... RESPONDENT JUDGEMENT Date of last Order: 22/03/2024 Date ofJudgement: 30/04/2024 S.D MWAIPOPO, J The Appellant in this Appeal filed an Application No. 42 of 2019 before the District Land and Housing Tribunal for Temeke at Temeke, claiming against the Respondent the following reliefs: - ■ ■■ F.v.' ■ •=■ !Ws'-:iJVft.TinW'S.'iXU, i. That this honourable Tribunal be pleased to order that the fence Wall be demolished. ii. The costs for the suit be provided for by the Respondent. Hi. Any other reliefs(s) this honourable Tribunal may deem just and fit to grant. The Judgement of this court was re written pursuant to the order of Hon. A. H. Mwilapwa S. (Extended Jurisdiction) dated 02/01/2023 directing the Tribunal to write a new Judgement based on the issues i dated 25th November, 2019 and not 4th of March, 2021. The issues which were framed by the Tribunal were as follows: - 1) Endapo njia kab ya nyumba mbili Hinunuiiwa na mjibu maombi. 2) Endapo mleta maombi aiizuiwa kuendetea kuendeleza ukuta wa nyumba yake na mjibu maombi. 3) Nafuu zipi wadaawa wanastahili. Upon hearing the evidence of the parties, the Tribunal delivered the Judgment in favour of the Respondent by dismissing the Application with costs. Aggrieved with the decision of the Tribunal, the Appellant filed this Appeal before the High Court containing five (5) grounds as follows: - 1. That the suit was made, heard and determined contrary:- to the*w Judgment of this court in Land Appeal No. 158 of 2016 dated 20/07/2016. 2. That the chairman of the DLHT erred in law in entertaining the matter contrary to Regulation 12(1) of the Land Disputes Courts (the District Land and Housing Tribunal) Regulations GN No. 174 of 2003. 3. That the Hon. Chairman of the of DLHT erred in law andTac^nn^ making the decision that the Respondent did not close pathway between the house of the Appellant and that of the Respondent. 4. That the Hon. Chairman of the DLHT erred in law and in fadtin making the decision that the Respondent did not obstruct the Appellant to develop his fence wall by the Respondent(sic). 2 5. That the Hon. Chairman of the DLHT erred in law and fact in dismissing the suit without making proper valuation of the evidence tendered by the Appellant. The Appellant finally prayed for the Appeal to be allowed, Judgment and Decree of the trial Tribunal be quashed and set aside and parties to comply with the order made in Land Appeal No. 158 of 2016 or in the alternative the court be pleased to grant the prayers made bv the Applicant in the trial Tribunal. The matter proceeded by way of written submissions as per the timetable drawn by the court. The Appellant was represented by learned Advocate Juma Nassoro and the Respondent was represented by .. learned Advocate Khalifa Ngoma. Arguing in support of his grounds of Appeal, the Appellant began by dropping the second ground of Appeal and proceeded to argue the 1st ground separately and combined the 3rd, 4th and 5th grounds of Appeal. With regard to the 1st ground of Appeal the Appellant submitted that parties in this appeal are parties in Land Application No. 54 of 2015 filed in the District Land and Housing Tribunal for Temeke. The case was heard and decided by the Tribunal in favour of the Respondent as it upheld the decision of the Azimio Ward Tribunal in Civil Case No. 43 of 2015. The Appellant herein appealed against the said decision in this court. The Appeal was Land Appeal No. 158 of 2015 which was heard and determined by his lordship Kente J, as he then was on 20/07/2018. Had the trial chairman properly evaluated the evidence tendered before — her by the Appellant, who was the Applicant in the suit, she would have not made a finding that the Respondent did not close a pathway and that did not obstruct the Appellant from constructing his wall fence. The Appellant tendered in the Tribunal his Residential License which was admitted as Exhibit T4, showing that the Appellant's plot is plot No. 36/66, the Respondent's plot is plot No.36/62. According to exhibit T4, the Appellant's residential license, between the two plots there isaclear’* pathway shown in white color and triangle in shape. During visit of the locus in quo, the Appellant showed to the Tribunal that the Respondent's wall constructed by the Respondent closed the^ pathway. The evidence on locus is vivid on how the respondent closed the said pathway. A part from the above evidence which clearly shows how the Respondent's constructed wall blocked the pathway, the Appellant also produced in the Tribunal photographs as exhibits T5, T6, T7, T8 and T9. These photos show the Appellant's wall is old one and short, and that of the Respondent is new one and taller than that of the Appellant. The photos clearly show the wall (new wall) constructed' by**'' the respondent squeezed without leaving any space of the pathway between the two plots. By producing exh T4, Residential license, T5, T6, T7, T8, T9 various photographs and evidence of the locus in quo^the,^ Appellant during trial properly in a required standard of preponderance of probability proved his case. He argued further in his submissions that section 110 (1) of the Evidence Act Cap 6 RE 2022 imposes a burden to the Appellant to prove his allegations, the duty which he duly exercised as herein above shown. See the case of Oliva James Sadatally VS. Stanbic Bank Tanzania LTC, Civil Appeal No. 84 of 2019, CAT, 5 1 he court in the said Appeal quashed and set aside the proceedings, Judgments and Decree arising therefrom. The court further exercising ito '' revisional jurisdiction, made an order for a trial de novo. The Appellant contended that the effect of the order for the trial denovo was the parties to go back to the trial Tribunal to start afresh with the hearing of the case in the same file and not filing a fresh case. It was his submission that the filing of the new suit, Land Application No. 42 of 2019 between the same parties, same subject matter and Jn.therSamanwBSS^ Tribunal was wrong. The new suit in the circumstances was therefore nothing but sub judice to the previous suit, because he argued that in the tribunal there were two parallel suits over the same subject matter and parties. The Appellant asserted that parties in this mater ought to have complied with the order for a retrial denovo and not to open and proceed with a new suit. The court is therefore invited to quash and set aside the proceedings and Judgement in Land Application No. 42 of 2019 for being null and void and further make an order for the DLHT for Temeke to proceed with the trial of Land Application No. 54 of 2015 before another chairman and new set of assessors in compliance with the decision in Land Appeal No. 158 of 2016 as per Hon. Kente, J as he then was. He also referred the court to the case of Karori Chogoro vs. Waithache Merengo, Civil Appeal No. 164 of 2018, CAT (unreported) With regard to the 3rd, 4th and 5th grounds of Appeal, the Appellant combined them together in the alternative to his previous submissions in respect of the first ground. He began by stating that; ■.............."■' 1 unreported, page 13 of the judgement. He contended further that the way the Respondent constructed his new wall he blocked the Appellant form developing his suit land. The Appellant asserted that the construction of the wall by the Respondent infringed paragraphs 4 and 5 of the conditions of development of plots as shown by Exhibit T4. This makes the wall fence constructed by the Respondent to be illegal, such that it deserves to be”h%s’eS!*tol» pulled down at the Respondent expenses. In rounding off his submissions, the Appellant submitted that, on the other side, the Respondent gave no evidence to 'disestablish^r^hai^e^^MMO the Appellants evidence. He produced no documentary evidence to prove how the wall he constructed did not block the pathway. The Respondent failed to show the size of his plot and how the wall he constructed is well within his area. The only document he produced did not show how it relates to the plot in dispute. The document showed the Respondent purchased land in Azimio Street Kaburi Moja area. He argued that Azimio street Kaburi Moja area is too far from the disputed plot. The disputed land is situated at Mbuyuni Street, Mtoni Mashine ya Maji area within Azimio Ward. He reffered the court to Exh. T4 Appellants Residential License and therefore prayed for the Appeal.-to bes allowed with cots. Submitting in rebuttal, the Respondent began by giving a historical account of the matter as follows; The Appellant lodged a complaint against Respondent (Mbaruku Ally) in Civil Case No. 43 of 2015 at Azimio Ward Tribunal. After hearing parties and their witnesses, the ward Tribunal entered a decision favouring the 6 Respondent. Aggrieved, the Appellant preferred an appeal to the Temeke District Land and Housing Tribunal in Land appeal No. 54 of 2015. After hearing from the parties, the Tribunal entered the.dedsioia^^^^ in favour of the Respondent. Aggrieved, the Appellant preferred an Appeal to the High Court of Tanzania (Land Division) in Land Appeal No. 158 of 2016. Again after hearing from the parties, his lordship P. M. Kente, J (as he then was) revealed that there was a procedural irregularity committed by Azimio Ward Tribunal as Respondent's case was not heard, though he was declared the winner, as a result on 20th day July, 2018 the Judge pronounced a revision order, proceedings, quashing the decision, and setting aside the judgement and decree arising there from and made an order for a trial de novo. In complying with the High Court (Land Division Order of Trial de novo,.>.... . . ... ... the Land Application No. 42 of 2019 was filed at the same District Land Tribunal of Temeke. Again, after hearing the parties and their witness, the Tribunal entered a decision in favour of the Respondent. Aggrieved, .. the Appellant again preferred an appeal to the High Court (Land Division) in Land Appeal No. 46 of 2022 which was transferred to the Resident Magistrates Court of Dar es Salaam at Kivukoni/ Kinondoni in Extended Land Appeal No. 23 of 2022. After hearing the parties; Mwilapwa, PRM with extended Jurisdiction, quashed and set aside the issues raised and framed on 4th March, 2021 as they appear in the proceedings as well as decision and ordered the trial Tribunal r Chairperson to compose the judgement in accordance with the issues raised on 25th November, 2019. Therefore, this appeal is against the composed judgement in Land Application No. 42 of 2019 as ordered by .... . .