Joseph Chamba & another v. Ramson Mlay, Civ App no 107, 1998 (Trespass)

THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM: RAMADHANI, J A.; MUNUO, J A.; And KAJI, J A)

CIVIL APPEAL NO. 107 OF 1998

 BETWEEN

JOSEPH CHAMBA      …  1^ST  APPELLANT

ABDALLAH HASSAN        … 2^ND  APPELLANT

AND

RAMSON MLAY    …   RESPONDENT

(Appeal from the Judgment of the High Court of Tanzania at Dar es Salaam,)

(Msumi, J. K.)

dated the 16^th day of March, 1998

in

PC Civil Appeal No. 103 of 1996

JUDGMENT OF THE COURT

…….

RAMADHANI, J.A.:

In Civil Case No. 63 of 1995 before the Manzese Primary Court, Kinondoni District, the appellants were plaintiffs and each claimed to be the owner of the suit premises occupied by the respondent. The respondent replied that the plot was given to him by the village chairman of Tandale kwa Maua. The Primary Court was satisfied with the explanation given by the respondent.

The Court also visited the scene and saw that the fence of the 1^st appellant was 60 cms from the respondent’s building showing that the latter had not trespassed on the area belonging to the former. As for the claim by the 2^nd appellant there was no proof that he had any building on the suit premises which was demolished but that the respondent had built on an empty space which was given to him by the Local Authority. As for compensation for property destroyed as a result of the road construction, the court was satisfied that the chairman of the local authority admitted to have ordered the grader to carve out the road. So, if there was any claim it should have been made against the local authority, and not the respondent. 

The appellants went to the District Court in Civil Appeal No. 74 of 1995 which was dismissed, too. The Court said:

After hearing both sides, the Court went to visit the site. On reaching there, the disputed area was seen with unfinished house. This area is in front of the house of the 1^st Appellant. This unfinished house which belongs to the respondent is close to the road. The house of the 2^nd Appellant is across the road and in surveyed area. At the site the Appellants showed where the earlier road had been. This was in front of the 1^st Appellant’s house. The 1^st Appellant has already built a wall marking his boundary; 2^nd Appellant is having a house on already surveyed area. The disputed area is between the houses of the Appellants and in fact, the unfinished house built by the Respondent is much closer to the house of 1^st Appellant. This area is in unsurveyed area, therefore, like what was said by Mr. Magesa for the Appellants there are no fixed boundaries. This area in dispute was later on allocated by the Chairman for Local Government. There must be enough evidence to prove that the Appellants are rightful owners. The Respondent brought evidence that that piece of land was allocated to him by the Chairman of the Local Government, this fact the Appellants do not dispute. What they insisted on was that the Chairman for the Local Government has no authority to do so but the City Council. If this is the case, then the blame or suit must have been instituted against the Chairman for Local Government and not against the Respondent alone. Moreover, this suit ought not to have been instituted against the Respondent because the 1^st Appellant has already fenced his area, and the 2^nd Appellant has been allocated his plot, the surveyed one. The Appellants came to claim the area after seeing the Respondent making developments. The Respondent is not supposed to pay or compensate the Banda and pit latrine which was demolished at the time the road was being constructed. The Respondent is not the one who demolished the same neither did he advised or order the ones who demolished the structures to do so. At the scene the structure built by the Respondent does not even fall in the land the Appellants are claiming, because the Appellants were not sure of the area they were referring to. The Appellants kept on changing the boundaries when leading the Court to see the disputed area.

The appellants were still not satisfied and so they went to the High Court where MSUMI, J. K., again dismissed the appeal saying:

From these observations, I am of respectful view that none of the appellants has legal property interest in the suit area. The evidence on record sufficiently supports the assertion that the suit area is part of the open space reserved for road construction hence it is under the control of the local authority which may allocate it to any person with community right on it reserved.

As for the claim for the compensation for the destruction of property caused by the road construction, the learned J. K. went on to say:

None of them was able to produce evidence to support this claim. On the other hand the respondent is denying that he had anything to do with the construction of that road. His contention is supported by the area local authority chairman who testified that the said construction was done by the local residents under the cooperative venture known as Kjico. Taking into account that the road in question is a public road, the assertion of the area authority chairman sounds more plausible than of the appellants.

The appellants have come before this Court for the fourth time trying to assert their claim to the disputed premises.

The matter first came to this Court on 7^th December, 2001, when it was reported that 2^nd appellant was dead. The appeal was adjourned to enable the appointment of a legal personal representative. When the matter came up again on 5^th June, 2007, there was a letter from Mwenyekiti wa Serikali ya Mtaa wa kwa Ali Mau, in Kijitonyama Ward, Kinondoni District, saying that the relatives of the 2^nd appellant have decided to abandon the appeal. That letter was signed by the said relatives: Hassan M. Mbupu, Ahmad Abdallah Mbupu and Ali A. Mbupu. The letter was countersigned by the leadership of the said Serikali ya Mtaa: Juma A. Uloleulole, Mohammed Nassor Amrani, the chairman of the Serikali ya Mtaa.

Both learned counsel: Mr. Israel Magessa, for the 1^st appellant and Mr. Masawe, for the respondent, agreed that the appeal should continue because it has taken very long.

Rule 98 provides as follows:

An appeal shall not abate on the death of the appellant or the respondent but the Court shall, on the application of any interested person, cause the legal representative of the deceased to be made a party in place of the deceased.

We were of the considered opinion that all that the Court is required to do upon being informed of the death of a party is to adjourn and to give sufficient time within which an interested person could make an application which would entitle a legal representative of the deceased to step into the shoes of the deceased. As already said, on 7^th December, 2001, the Court adjourned the appeal to give such opportunity. When the matter came up for the second time on 5^th June, 2007, five years and almost six months had expired. Surely that is long enough time to have an application by an interested person.

Moreover, in the present case there is a communication from those who should have been such interested persons clearly indicating that there is no such desire. In view of the foregone we were of the considered opinion that the 2^nd appellant’s appeal should be taken to have been abandoned under Rule 3 (2) (c).

Mr. Magesa had a memorandum of appeal containing four grounds. However, he was reminded that since this appeal emanates from a Primary Court, then only matters of law will be considered. Consequently, only ground three was considered which avers that:

The 2^nd appellate court erred in law and in fact by failing to hold that the Mtaa Chairman has no power in law to allocate land and, as such, the allocation of the suit land to the respondent was unlawful.

The lack of legal power on the part of the chairman to allocate land was the point argued by the appellants when seeking a certificate on point of law before MAPIGANO, J.

Mr. Magesa made a long submission reiterating what he had already said in both the District and the High Courts in the first and second appeals, which we need not repeat here. We agree with Mr. Masawe that the point in issue is ownership of the disputed land and not the allocation by the chairman. The appellant failed to prove ownership in the Primary Court and even in the District Court which went to the site and made the following observation in its judgment:

The Appellants kept on changing the boundaries when leading the Court to see the disputed area.

We agree with Mr. Masawe that the argument that there was an illegal allocation is a matter for another suit and not this one. The issue here is: who owns the piece of land in dispute. The appellant, as the plaintiff, has failed to satisfy the lower courts, on a balance of probabilities, that he is the owner.

We, therefore, dismiss the appeal in its entirety with costs.

DATED at DAR ES SALAAM this …. day of July, 2007.

A. S. L. RAMADHANI

JUSTICE OF APPEAL

E. N. MUNUO

JUSTICE OF APPEAL

S. N. KAJI

JUSTICE OF APPEAL

I certify that this is a true copy of the original.

S.M. RUMANYIKA

                                           DEPUTY REGISTRAR
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