Land Appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT PAR ES SALAAM LAND APPEAL CASE NO. 19873 OF 2024 (Originating from the Ubungo District Land and Housing Tribunal in Land Application No. 229 of2022) WILSON ASWILE MWAWOGHA............................................ APPELLANT VERSUS DEODATUS MBAZI............ ........................... RESPONDENT JUDGMENT Date of last Order: 15/10/2024 Date ofJudgment: 28/10/2024 LALTAIKA, J. The Appellant herein WILSON ASWILE MWAWOGHA is dissatisfied with the decision of the District Land and Housing Tribunal for Ubungo (the DLHT) in Land Application No. 229 of 2022. He has appealed to this Court by way of a Petition of Appeal containing thee (3) grounds. I take the liberty to reproduce them as hereunder for ease of reference and record keeping: Page 1 of 14 1. That the trial Chairman erred in Law and fact to hold that the disputed area which is occupied by the Respondent is not the public road while the relevant authorities confirms that it is Public Road, and the same Respondent hinders the Appellant to enter into his property registered as Plot No. 127 Block A. King'azi B Area, Ubungo Municipality. 2. That the trial Chairman erred in both law and facts holding that the disputed property is subject to the compensation to the owner before the same being acquired by the Government while there were no any evidences to that effect. 3. That the trial chairman erred in law and fact for failure to order the provision of entrance/ easement to the Appellant so as to access to his property knowing that the Appellant has no means of entering to his property without passing through the disputed land. The contextual background necessary to connect the dots in this application is that this case revolves around a dispute over a piece of land, Plot No. 127 Block A, located in the King'azi B Area within the Ubungo Municipality, that one party claims as private property, while the other party argues that it should be designated as a public road. The Appellant, who initiated the case, contends that the land in question was already surveyed and designated for public use as a road when the Respondent purchased it. The Respondent, however, argues that he rightfully acquired the land, received no notice that it was intended for a public road, and was not compensated as required by law. Page 2 of 14 When the appeal was called on for hearing on the 9th day of September 2024, the Appellant appeared through Mr. Emmanuel John, learned Advocate, holding brief for his learned brother Mr. Laurent Ntanga learned Advocate. The Respondent, on the other hand, appeared in person, unrepresented. Records indicate however that he later obtained legal services in the form of drafting by a legal practitioner and or legal aid provider who chose anonymity. Parties opted for hearing by way of written submissions. With a nod of approval from this Court the following schedule was ordered: Appellant's written submissions to be filed on or before 23/09/2024, Respondent's reply to be filed on or before 07/10/2024, Rejoinder if any 15/10/2024, Mention for necessary orders to ascertain compliance of the schedule and schedule for Judgment 15/10/2024 at 10:00 I take this opportunity to register my commendations to the learned Advocate and the anonymous legal service provider, for their commitment and spotless compliance to the scheduled order. Their sense of time management has enabled this Court to pen down this Judgment and deliver it equally on time. The next part of this judgment is a summary of rival submissions, which I found richly insightful, my analysis and the verdict. Page 3 of 14 Mr. Ntanga, Counsel for the Appellant, argued that his client, the Appellant, is the lawful owner of Plot No. 127 Block A, located in the King'azi B Area within the Ubungo Municipality. He explained that the Appellant purchased this land from Damas Michael Kayanda on January 26, 2017, for Tanzanian Shillings Five Million, paid upon entering the contract. At the time of purchase, Mr. Ntanga noted, the land was designated as an easement intended for use by the Appellant, neighbouring residents, and the public to access their properties and for other public purposes. Following the sale, Mr. Ntanga asserted, the Appellant and his neighbours surveyed their respective plots, with town planners from Ubungo Municipality coordinating the area's layout, including the disputed property, which was mapped as a public road for communal use. The survey plan, referenced as TP DRG DSM/KND/180/22010 and approved on September 15, 2017, showed the entire area surveyed, including the disputed property adjacent to the Appellant's land, which was a public road with a width of 30 meters (Exhibit P4). The learned Counsel further outlined that, after these developments, the Respondent purchased the same property, designated as a public road, from Damas Michael Kayanda on January 10, 2020. Mr. Ntanga noted that Page 4 of 14 the Appellant having developed the property since acquiring it, had been residing there with his family. However, the Respondent's actions— particularly his development on the property designated as the public road- obstructed the Appellant's access to his own plot, Plot No. 127. After realizing the Respondent's actions had fully blocked the entrance to his property, the Appellant sought an amicable resolution. According to Mr. Ntanga, the Appellant's attempts through the Kwembe Ward Tribunal yielded no resolution, leading him to file Land Application No. 229 of 2022, in which he sought several orders: a declaration that the Respondent's building on the public road obstructed the Appellant's property access, demolition of the Respondent's developments, a permanent injunction preventing the Respondent from further obstruction, an award of Tanzanian Shillings Twenty Million in specific damages, and associated costs. Despite being served with documents and granted additional time to respond, Counsel averred, the Respondent failed to appear before the tribunal, leading to an ex parte hearing. Mr. Ntanga recounted that despite the evidence presented, the tribunal did not grant the Appellant's requested orders, hence the present appeal. Page 5 of 14 Having given the above rather elaborate contextual backdrop, Mr. Ntanga embarked on the grounds of appeal, opting to argue the first and third grounds jointly. In these, he contended that the trial chairman erred in law and fact by ruling that the disputed property occupied by the Respondent was not a public road, despite relevant authorities confirming otherwise, and in failing to grant the Appellant an easement for access to his property. He asserted there was no dispute regarding the Appellant's ownership of Plot No. 127 and the obstructive nature of the Respondent's structure on the adjacent public road, evidenced by the survey plan (Exhibit P4). Citing testimonies of the Appellant and witnesses, including PW1 Wilson Aswile Mwawogha, PW2 Hamls Juma Matuewe, a town planner, and PW3 Aporo Benjamin Madules from the Ubungo Municipality, Mr. Ntanga argued that the evidence corroborated that the development blocked the Appellant's access. He pointed out that although there was an argument suggesting the Appellant could access his property via Plot No. 128, the design and fencing of that plot rendered access impossible. Mr. Ntanga emphasized that Section 110 of the Evidence Act (CAP 6 R.E. 2019) required the Appellant to establish facts supporting his claim, which he successfully did, with corroboration from municipal authorities. To Page 6 of 14 buttress his argument, he cited the case of Benedict Mhagama v. Kalaita Yohana, Civil Appeal No. 135 of 2021 [2024] TZCA 673. He added that, following this initial onus, the burden would shift to the Respondent to disprove these assertions. In Mr. Ntanga’s view, the tribunal failed to honor this principle. In the second ground of appeal, he argued that the trial chairman had wrongly introduced the issue of compensation without any claim or evidence to that effect, highlighting that compensation was irrelevant as the land had been designated a public road during a 2017 survey, predating the Respondent's purchase. Citing Mohamed Ally v. Masesa Ally, Civil Appeal No. 607 of 2023 [2024] TZCA 802, he stated that parties and the court are bound by the issues raised in pleadings and that compensation was not among them. In conclusion, Mr. Ntanga submitted that the tribunal's failure to recognize the public road designation and subsequent blockage of the Appellant's entrance was contrary to established law and evidence. He prayed that the court allow the appeal with costs, asserting that the facts and legal principles supported the Appellant's case. Page 7 of 14 The Respondent, in addressing the first and third grounds of appeal, contended that the trial chairman correctly ruled that the disputed area occupied by the Respondent was not a public road. He explained that the chairman had thoroughly analysed the evidence presented during the trial before reaching this conclusion. According to the Respondent, the evidence at the tribunal confirmed there was no dispute regarding the unsurveyed status of the areas owned by both the Appellant and the Respondent. At page 7 of the tribunal's typed judgment, the chairman noted that the law was clear on the need for compensation by government should anyone's land be acquired for public interest such as construction of a road. The Respondent asserted that the disputed land had not been acquired as public land, as no procedures had been followed to do so in accordance with the laws of the land. He referenced Section 3(l)(g) of the Land Act [Cap 113 R.E. 2019] The Respondent also highlighted that the trial tribunal's judgment at page 9 mirrored this statutory requirement. He further cited the case of Stephen Augustine Minja v. The Commissioner for Land & 4 Others, Land Case Page 8 of 14 No. 208 of 2020, High Court of Tanzania, Land Division, Dar es Salaam (Unreported) and Mulbadaw Village Council and 67 Others v. National Agricultural and Food Corporation [1984] TLR 15]. The Respondent argued that the law and case law findings indicated the suit land had not been acquired by the government for public interest and that he had not received any compensation if it had been. In response to the second ground of appeal, he submitted that there was no dispute regarding his lack of compensation. He referred to the Appellant's submission at page 6, which noted that "the issue of compensation was not raised anywhere in all proceedings...." Additionally, PW2 and PW3 had not provided evidence to confirm that the government had properly acquired the suit land as a road reserve and that he, as the landowner, had received full, fair, and prompt compensation. He concluded by respectfully requesting that the appeal be dismissed with costs. In his rejoinder submission, Mr. Ntanga argued that the application before the tribunal (Ubungo District Land and Housing Tribunal) had proceeded ex parte against the Respondent, thereby limiting the Page 9 of 14 Respondents right of audience before the court to procedural matters only, excluding substantive issues. Addressing the matter of compensation, Mr. Ntanga contended that compensation had not been raised anywhere in the proceedings, nor had anyone claimed it. He explained that the landowners initially approached a land surveyor, leading to the survey plan's approval on September 15, 2017. The Respondent, however, had purchased the land only after it was surveyed, on January 10, 2020, and had subsequently constructed on a public road. Consequently, Mr. Ntanga asserted, the Respondent was not entitled to any compensation, as he had acquired surveyed land with full knowledge of its status. I have dispassionately considered the rival submissions in the light of the grounds of appeal. I have also taken a rather keen interest in examining the Tribunal records and the applicable law. By way of a recapitulation, the Appellant's counsel, Mr. Ntanga, submitted that the initial application before the Tribunal proceeded ex parte against the Respondent, thereby limiting the Respondent's right to participate in substantive matters before this Court, restricting his participation solely to Page 10 of 14 procedural issues. It is my finding however, that the learned Chairman commendably chose to abide by the book even in the absence of the Respondent to narrate his part of the story. I think this is the stability of the law we all need to emulate. Proceeding expar-te against one's rival is not a ticket for acquisition of every item in one's wish list. The following issues arose for determination: 1. Whether the Respondent was limited to addressing procedural matters in this appeal. 2. Whether the Respondent was entitled to compensation for the disputed land. 3. Whether the Tribunal correctly held that the disputed land was not a public road. The Appellant argued that the Respondent was barred from addressing substantive issues on appeal due to the ex parte nature of the original Tribunal hearing. While it is generally established that parties who were absent during ex parte proceedings are limited in their grounds of appeal, this limitation pertains to the Tribunal's decisions on evidence and matters already adjudicated in their absence. However, procedural justice principles affirm a party's right to challenge substantive determinations made in their absence, particularly where such determinations affect proprietary rights. As Page 11 of 14 a matter of fact, had the decision been taken against the Respondent, he could have appealed on the substantive part of the decision even if he had not offered his defence. The Respondents participation in addressing substantive issues thus finds support in the broader interests of justice, as procedural limitations do not inherently override substantive rights that could result in adverse consequences for the Respondents land ownership. On the second issue, the Respondent claimed that the disputed land was not properly acquired as a public road, as no compensation had been offered, a requirement under section 3(l)(g) of the Land Act [Cap 113 R.E 2019]. This statute mandates "full, fair and prompt compensation" when land is appropriated for public use, and the decision in Stephen Augustine Minja v. The Commissioner for Land & 4 Others (Supra) emphasizes this statutory requirement, underscoring that government acquisition of land mandates compensation to the original owner. In this case, the Appellant contended that the Respondent purchased the land after it had been surveyed and was thus aware of the potential for public road designation. However, it is my finding that such a claim has not Page 12 of 14 been supported. More importantly, purchasing surveyed land does not nullify the right to compensation should that land be officially acquired for public purposes after the fact. Additionally, Stephen Augustine Minja clarifies that acquiring land for public use without compensation violates the fundamental rights of the landowner, even where the owner is a subsequent purchaser of the property. This Court, however, refrains from endorsing that the Respondent should be compensated as that is upon other government functionaries to examine, conduct valuation and propose the requisite compensation. I think this musty be clearly stated to avoid confusion to unrepresented party. Nevertheless, Finally, I examined the Tribunal's ruling that the disputed land was not a public road. The Respondent supported this finding, citing the Tribunal's comprehensive analysis of the evidence. Indeed, as recorded at page 7 of the Tribunal's judgment, the Tribunal considered testimony from both parties and found no indication that the land had been formally designated as a public road, nor was there evidence of any acquisition process, which typically includes compensation as stipulated in both the Land Act and the Land Acquisition Act. Page 13 of 14 In the upshot, I find no reason to disturb the Tribunal's findings and subsequent decision. The appeal is hereby dismissed in its entirety with cost. It is so ordered. Ruling delivered this 28th day of October 2024 in the presence of the Appellant who has appeared in person, and Mrs. Edina Sixfred Kagozi, on behalf of the Respondent. Page 14 of 14