yusta felix vs mwanaisha rajabu 2018 tzhclandd 449 20 july 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND CASE APPEAL NO.134 of 2017 (From the decision of the District Land and Housing Tribunal of TEMEKE District at TEMEKE in Land Case Appeal No.50 of 2016 and original Ward Tribunal of TUNGI Ward in Application No. 93 of 2014] YUSTA FELIX......................................................................APPELLANT VERSUS MWANAISHA RAJABU...................................................RESPONDENT Date of Last Order: 12.06.2018 Date of Judgment: 20.07.2018 JUDGMENT S.A.N WAMBURA, J: On 29/12/2014 the respondent one Mwanaisha Rajabu filed a complaint at Tungi Ward Tribunal alleging that the appellant Yusta Felix had trespassed upon her plot by building a septic tank and a fence/wall at her window. The appellant had purchased the suit land from the respondent’s father. He alleged that the respondent had agreed that he builds the same on her plot. Having heard both parties and visited the locus quo, the Ward Tribunal found in favour of the respondent; that the l appellant had trespassed into her piece of land for the reason that he failed to adduce a written agreement that the respondent had allowed him to build the septic tank and fence on her land. It issued an Order for the demolition of the said wall and each party to confine any developments thereto within its boundaries. Dissatisfied the appellant appealed to the District Land and Housing Tribunal for Temeke (herein to be referred to as District Land and Housing Tribunal) which upheld the decision of the Ward Tribunal. Still aggrieved the appellant has filed this second appeal on the following grounds:- /'. The Honourable Tribunal erred in law and fact by flouting the procedure of attending the appeal. ii. The Honourable Tribunal erred in law and fact by failing to evaluate properly the evidence tendered before it. She thus prayed for the appeal to be allowed and judgment and decree of the lower tribunal to be quashed with costs. The respondent challenged the appeal praying for its dismissal with costs. 2 With leave of this Court the appeal was heard by way of written submissions. I thank both parties for adhering to the schedule. There is no doubt that the land in dispute belongs to the respondent. The only dispute is whether the respondent allowed the appellant to construct the wall and septic tank in her premises. According to the evidence on record this was not proved so the appellant lost. This being the second appeal I believe in need not labour much on the 2nd ground. More so because it is very rare for the 2nd appellate Court to disturb and fault the findings on evidence of the lower tribunal as it was held in the case of Neli Manase Foya and Damian Mlinga, Civil Appeal No.25 of 2002. As to whether there was a procedural flow in attending the appeal from the Ward Tribunal contrary to Sections 23 (2) and 24 of Land Disputes Court (The District Land and Housing Tribunal) 3 Act No.2/2002, it is my belief that the record ought to be guideline for it speaks for itself. On 26/10/2016 when the tribunal Ordered the appeal to be disposed of by way of written submissions only one Assessor was in attendance Mr. Kantabula. On 13/12/2016 the Coram was incomplete and no Order was issued. On 27/3/2017 the record shows that the respondent was not in attendance and no Order was issued. Yet the two assessors were present. The second one according to the record was Mrs. Zella. On 22/5/2017 only the appellant entered appearance and judgment was adjourned to 17/7/2017 as it was not ready. The two assessors prepared their joint and unanimous opinions which were signed on 4/7/2017. Judgment was delivered on 27/7/2017 at the presence of the parties and in the absence of both assessors. 4 In the circumstances, can it be said that the procedures contained in Sections 23 (3) and 24 of the Land Disputes Court Act where flown? I would answer in the negative as the matter was heard by way of written submissions, assessors gave their written opinions and the Chairperson considered the opinions as stated at page 3 of his judgment. I believe the fact that judgment was delivered in their absence was not fatal as their opinions were in writing. Having said so I find no merit in this appeal which is accordingly dismissed with costs. KIUDGE 20.07.2018 5