Dongxing International Real Estate Ltd vs Heri Investment Limited (Civil Appeal No. 373 of 2021) [2024] TZCA 955 (2 October 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM rCORAM: MWANDAMBO. J.A., MAIGE, 3.A. And KHAMIS. J.A.) CIVIL APPEAL NO. 373 OF 2021 DONGXING INTERNATIONAL REAL ESTATE LTD.......................APPELLANT VERSUS HERI INVESTMENT LIMITED...................................................RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Land Division at Dar es Salaam) (Kente, J.) dated the 24th day of October, 2017 in Land Case No. 85 of 2015 JUDGMENT OF THE COURT 12th August & 2n d October, 2024 MWANDAMBO. J.A.: The appellant lost to the respondent before the High Court (Land Division) sitting at Dar es Salaam in a suit for trespass to land. She has appealed against that decision largely on the complaint that, the respondent did not discharge her burden of proof in the case to warrant judgment in her favour and the reliefs awarded by the trial court. The facts of the suit involve two companies engaged in real estate business owning adjacent plots of land at Msasani Beach, Kinondoni Municipality in Dar es Salaam Region. The appellant owns

the land on plot No. 8 and the respondent's land is on plot No. 7. Both the appellant and respondent had acquired their respective plots which had structures thereon which appear to have been developed by the previous owners. While the respondent's one storey house had a hedge with some trees, the appellant's house had a red brick wall fence. It is common ground that the fences had a space between them. Sometime in 2014, the appellant started to redevelop her plot by constructing a 7-storey high rise building. That project entailed demolition of the preexisting red brick wall fence and, presumably the already existing house. However, that development brew a dispute between the parties. The respondent claimed that the appellant had encroached into her plot by cutting down her fence and trees. Similarly, it was claimed that the appellant deposited debris and all sorts of waste on the respondent's premises blocking the space hitherto existing between the two fences. It was claimed that as a result, rain water could not easily flow into the nearby ocean thereby flooding the respondent's premises. Besides, the respondent complained that, the appellant constructed her fence too close to her house which resulted into overhanging of balconies in the upper floors into her plot. She branded it a technical trespass making her a

permanent victim of the overhanging balconies and electric wire razor fence. Despite the respondent's protestations followed by a demand notice sent through her lawyers against the offending construction, the appellant could not be moved. In the aftermath, the respondent instituted a suit before the High Court for an assortment of reliefs, not least, a declaration that the appellant trespassed into her premises; payment of TZS 100,000,000.00 in special damages and TZS 1,000,000,000.00 in general damages. She also prayed for a permanent injunction restraining the appellant from trespassing into her plot. In her defence, the appellant denied that she trespassed into the respondent's land in the manner claimed. She maintained that the construction of the building on her plot was done in accordance with the building permit obtained from the relevant authority. The trial court framed four issues for the determination of the suit. First, whether the appellant trespassed into the respondent's land and; secondly, whether she (the appellant) interfered with the easement existing between the two plots; thirdly, whether the

plaintiff suffered special damages; and, lastly, the reliefs to be made depending on the determination of the first three issues. At the end of the trial, the High Court found the respondent to have proved her case to the required standard. The learned trial judge dealt with the 1st and 2n d issues jointly in the judgment but, by and large, the discussion focused mainly on the 1st issue which was answered affirmatively. The trial court's affirmative finding was a result of the respondent's evidence which it considered to have proved that the construction of th6'7-stdrey‘ building by the appellant was too close to the beacon separating the two plots contrary to the Urban Planning and Space Standards Regulations, GN. No. 395 of 2011 ("the Regulations"). As a result, some parts of the building protruded into the respondent's land. With regard to the 2n d issue, the trial court found it proved that, the appellant's'construction activities resulted into blocking a water way between the two plots preventing free flow of storm water to the ocean and flooding the respondent's premises. The determination of the first two issues in the respondent's favour resulted in an affirmative finding in the 3rd issue in relation to ■V special damages. Although the respondent had claimed TZS 100,000,000.00 as special damages on account of sundry expenses

for the maintenance, security of the premises and fees paid to her lawyers, the trial court disallowed most of such expenses as unsubstantiated. It reduced the amount to TZS 15,000,000.00. Consequently, the trial court entered judgment for the respondent for: one, payment of TZS 50,000,000.00 general damages, two, payment of TZS 15,000,000.00 special damages, three, interest on the sums awarded at the court's rate from the date of judgment to payment in full, four, demolition of the offending parts of the appellant's building to conform with the requirement of the Regulations, that is, the building shall not be below 7 metres from the boundary between plot No. 7 and 8, and , five, costs of the suit. It is remarkable that, although the respondent had prayed for an order declaring that the appellant had trespassed into her land, the decree extracted from the judgment does not reflect that relief. The appeal against the impugned judgment is upon six grounds of complaint faulting the findings on the substantive issues and the resultant reliefs. Striped of details, the appellant faults the trial court's decision on the following complaints:

1. Finding that the appellant trespassed into the respondent's land in the absence o f an approved survey report.

2. Erroneous finding that the appellant interfered with an easem ent between her p lo t and respondent's p lo t without any evidence proving existence o f the easem ent

3. U njustified award o f both special and general damages.

4. Passing an ambiguous decree without specifying the distance o f the offending parts o f the appellant's building set for dem olition.

5. Addressing issues not subject o f the su it

6. Adjudicating a su it which was res judicata. At the hearing of the appeal, Mr. Denice Tumaini, learned advocate, appeared for the appellant. The learned advocate urged the Court to allow the appeal on the basis of the written submissions he had lodged earlier on practically adding nothing orally. Messrs Constantine Makalaa and Tibiita Muganga, learned advocates represented the respondent but it was Mr. Muganga who addressed the Court. Like Mr. Tumaini, Mr. Muganga stood by the written submissions in reply he had lodged earlier on without more but made responses to questions put to him by the Court. We shall refer to the counsel's submissions in the course of our discussion on each ground. Before doing that, we wish to point out that, although the appellant preferred six grounds of appeal, the written submissions in support have not addressed the 6th ground faulting the trial court for

adjudicating the suit allegedly for being res judicata. We think it may be justified to conclude that the appellant abandoned that ground thus sparing us from dealing with it The gravamen of the appellant's written submission in the 1st ground is that the finding of the trial court on the 1st issue which enquired whether the appellant trespassed into the respondent's land was against the evidence. Counsel argues that, evidence by way of an approved survey was necessary to establish boundaries to justify the finding that the appellant did indeed trespass into the respondent's land and if so, the extent of the encroachment. It is ardently argued that, absence of the approved survey map left the respondent's case unproved. Counsel goes further suggesting existence of variance between pleadings and evidence in relation to the particulars of trespass. He points out that, whereas the particulars of trespass related to cutting down the respondent's fence trees, dumping of garbage and waste products making the situation undesirable for human residence, the respondent twisted things during the trial by introducing technical trespass on account of the overhanging balconies not pleaded in the plaint. It was the learned advocate's contention that, the court made a finding on the 1st issue based on facts which were not pleaded.

It was further argued that, according to the evidence by PW2 who tendered a tetter written to the respondent's advocates admitted as exhibit PI there was no evidence of trespass through encroachment of boundary as alleged in the plaint but the trial court found that there was trespass. In the appellants submission, the trial court had no regard to the appellant's evidence through DW1 who stated that the building left a setback of 2.3 metres from the beacon separating plot No. 7 from plot No. 8. Concluding his submissions in the 1st ground, counsel invited the Court to re-evaluate the evidence on record and make its own findings. In their reply, the learned advocates for the respondent submitted with equal force in support of the trial court's findings in particular, the determination of the 1st issue from which the 1st ground of appeal has arisen. To start with, counsel submit that, there was no need for a survey plan to establish trespass into the respondent's land through cutting of trees and fence, deposit of waste and garbage at the premises. It is argued further that, the survey map was not required because the complaint was not in relation to crossing the boundaries between the two plots as testified by PW2 but construction of the building too close to the beacon contrary to the Regulations. It was also submitted that, the fact that the construction 8

exceeded the prescribed setback was admitted by DW1 in his evidence. Counsel argued that, the offensive construction resulted in the protrusion of balconies overhanging into the respondent's plot together with the electric razor fence. To fortify their standpoint, counsel referred to the Court's decision in Geita Gold Mining Limited v. Twalib Ismail & 3 Others, Civil appeal No. 103 of 2019 (unreported) to stress the point that, the appellant's act fell within the definition of trespass with or without physical encroachment in the respondent's land. Regarding the complaint against the trial court acting upon £ unpleaded facts in relation to the technical trespass, it was submitted that, the issue before the trial court related to trespass in its broad spectrum which was found to have been proved without the need for a survey map. In any case, it was argued, technical trespass was pleaded in paragraph 15 of the plaint supported by the respondent's evidence on her claim which was largely uncontroverted and so the trial court determined the issue on the weight of the evidence. In doing so it was argued, the trial court considered DWl's admission that the building was about 2.3 metres from the beacon and that the balconies are actually overhanging on Plot No. 7. With the foregoing, counsel urged the Court to dismiss the 1st ground for lack of merit.

Since the determination of this ground is closely connected with the appellant's complaint in the 5th ground, we find it convenient to address them conjointly. The 5th ground is directed against the trial court allegedly determining an issue not subject of the suit. It is contended in the submissions that the trial court's deliberation in the course of determination of the suit which resulted in condemning the appellant for constructing her building contrary to the Regulations was an overindulgence since it was not one of the issues framed before the commencement of the trial. Counsel submits that, in so far as the respondent's case was anchored on trespass rather than contravention of the Regulations, she could not rely on the alleged contravention since it was not part of her pleadings. In other words, the appellant's complaint is that, the respondent's cause of action on trespass was not founded on contravention of the Regulations. It is contended thus that reliance on un-pleaded matters involving violation of building regulations was a serious error on the part of the trial court. In their reply, the learned advocates for the respondent submitted that the trial court's reference to the Regulations did not amount to addressing a non-existent issue. According to them, all that the trial court did was to apply the law to the facts which became necessary in view of PW2's evidence. That evidence revealed that, 10

although the appellant did not cross boundary into the respondent's plot, she constructed her building too close to the beacon contrary to the said Regulations, hence the overhanging balconies. Having examined the evidence on record, we respectfully agree with the respondent's submissions on both grounds. As submitted by the respondent's learned counsel, on the pleadings and the evidence, proof of the respondent's case on trespass did not require an approved survey map. In so far as the appellant's complaint in the 1st ground is predicated upon absence of an approved survey map which was not required, such complaint is wholly misconceived. It is common ground that despite the respondent's pleading in para 12 of the plaint on the possibility of encroachment into her plot, evidence through PW2 and exhibit PI showed no such boundary encroachment but construction on plot No. 8 too close to the beacon in contravention of the Regulations. That evidence was not controverted by the respondent. Indeed, DW1 admitted as such that the setback was 2.3 metres against a minimum of 7 metres. In its judgment, in particular, page 9 and 10 (at pages 313 and 314 of the record of appeal), the trial court stated: "...Looking a t what the defendants did and the iegai position which is 'that, trespass to land li

occurs when a person does an unlawful act or a law ful act in an unlawful manner to the injury o f another's property or any violation a transgression o f the law or passing beyond the lim it, or an encroachment intrusion upon ones property, I am with, respect, o f the view that, the defendants act o f erecting their building i very dose to the boundary, contrary to the prescribed rules and standards as to result into the overhanging o f the [balconies] and the razor wire on the p lain tiff's plot, amounts to nothing but trespass. In saying so I have no squabble with what the defendants did as it was law ful but what is poignant is the defendant's decision to throw to the wind a ll the [rules] and standards governing urban planning and space standards. Needless to say, what they did was law ful but they did in an unlawful manner to the detrim ent and injury to the plaintiffs. And that is what the law on trespass generally makes and in our statutory iaw makes illegal". Upon our own examination of the evidence on record, we cannot but concur with the trial court in its finding. That finding was arrived at on the basis of the evidence which, as we have already said shortly before, did not need to be corroborated by an approved survey 12

map. We equally agree with what the learned trial judge's reasoning that: " Where any person erects a building or any structure in total disregard o f the required rules and standards and in such a manner as to result into some parts o f his building or structure protruding or otherwise hanging over his neighbour's property as the defendants did in the instant case, it is not necessary for the plaintiffs to lead evidence showing that the defendants had physically entered on their property../' [A t page 314 and 315 o f the record]. We respectfully agree with the reasoning for the proposition that, trespass need not be committed on the ground but can extend to the surface above one's land which is what is called technical trespass. On the other hand, the evidence of the appellant was not controverted on the basis of which the triai court acted in holding the appellant liable for trespass in that she cut her fence and trees and deposited debris on her plot. Again, this finding did not require any survey map to be established. Consequently, there is no merit in this ground and we dismiss it.

In view of our discussion and conclusion in the 1st ground we need not be detained in the 5th ground. It is glaring that the trial court did not make reference to the Regulations in an abstract. On the contrary, reference to the Regulations in the impugned judgment was meant to stress the point that, despite the absence of evidence proving physical encroachment into the respondent's property, the violation of the Regulations resulted into technical trespass all the same. As rightly submitted by the respondent's learned counsel, the trial court applied the law to the facts before it in determining the 1st issue. Contrary to the appellant's counsel, the fact that the appellant committed technical trespass was pleaded in para 15 of the plaint and the trial court correctly found that the evidence on record sufficiently proved existence of technical trespass. In the upshot the 5th ground is baseless and we equally dismiss it. We shall now revert to the 2n d ground directed against the trial court's finding on the interference with easement between plot No. 7 and 8. The appellant's complaint against the finding is that, there was no sufficient material to prove existence of the easement let alone its interreference. As to the former, it is submitted that, whilst the respondent claimed that there was an agreement on the easement with the previous owner of plot No. 7, no such agreement was 14

tendered in evidence. On the other hand, it was submitted that, no evidence of the existence of the alleged easement was led before the trial court by any of the respondent's witnesses. Counsel contended that all the same, the trial court made an affirmative finding on the 2n d issue without any evidence proving existence of the alleged easement. He thus invited the Court to sustain this ground and reverse the trial court's finding for being erroneous. Not surprisingly, the respondent's learned advocates saw nothing wrong with the trial court's finding and urged the Court to dismiss the 2n d ground for being baseless. Counsel placed reliance on the trial court's judgment referring to the evidence of PW3 to the effect that the appellant demolished a boundary wall between plots No. 7 and 8 and blocked the easement which was in existence in the past by filling it with garbage and building materials, which, in turn, resulted in the rain water hitherto flowing into the ocean to flood the respondent's property. Upon our examination of the counsel's rival submissions in the light of the complaint against the trial court's finding in the 2n d issue, we note a serious misapprehension of the term easement as a land law concept. The misapprehension is discernible from the pleadings

and the evidence during the trial. It is equally discernible from the manner in which the appellant crafted her 2n d ground of appeal and the arguments that followed. Admittedly, the Land Act does not define the term easement. It merely makes provisions for its effect in sections 144, 145, 146 and 147 thereof. In Shadrack Balinago v. Fikiri Mohamed @ Hamza, Tanzania National Roads Agency (TANROADS) And Attorney General, Civil Appeal No. 223 of 2017 (unreported), the Court quoted with approval from the decision of the Court of Appeal of Kenya in Ruth Wamuchi Kamau v. Monica Mirae Kamau (1984) eKLR which defined easement to mean: "a convenience to be exercised by one land owner over the land o f a neighbour ... The tenem ent to which it is attached is the dom inant and the other on which it is im posed is the servient tenem ent Once an easem ent is validly created, it is annexed to the land so that the benefit o f it passes with the dom inant tenem ent and the burden o f it passes with the servient tenement to every person into whose occupation these tenements respectively com e"

Part XI of the Land Act deals with easements and analogous rights. Directly relevant to this appeal is section 146 dedicated to creation of easements. We find it necessary to reproduce section 146 (1) and (3) for ease of reference thus: 146.-(1) An occupier o f land easement under a right o f occupancy or a lessor may, by an instrum ent in the prescribed form ; grant an easem ent over the land com prised in the right o f occupancy or lease or a part o f any that land to the occupier under a right o f occupancy or a lessee o f other land fo r the benefit o f that other land. (2) n/a (3) An instrum ent creating an easement sh all specify clearly- (a) the nature o f the easement and any conditions lim itations, and restrictions subject to which it is granted; (b) the period o f time for which it is granted; (c) the land, or the particular part o f it benefited by the easement; (d) the land benefited by the easement, and shall, if so, required by the Registrar, include a plan sufficient to define the easem ent"

There is a very useful discussion on the section in the works of R.W. Tenga And S. 3. Mramba in their book titled: Conveyancing and Disposition of Land in Tanzania: Law and Practice, 2n d edition, Juris Publishers Limited, Dar es salaam, 2020 referred by the Court in Alex Senkoro & 3 Others v. Eliambuya Lyimo (As Administrator of the Estate of Frederick Lyimo, deceased), Civil Appeal No. 16 of 2017 (unreported). In summary, an easement can be created in several ways, amongst others, by express grant or by express reservation. Relevant to this appeal is express grant. To appreciate this mode, we find it useful to excerpt a paragraph from the works of R.W. Tenga and S. 3. Mramba (supra) thus; "... This is by using (a) prescribed instrum ent (Land Form No. 58 in the Land regulations 2001) in the Land Regulations 2001) to grant such an easement in favour o f another person. It can be created on a land com prised in a right o f occupancy or lease or part o f any o f that land to the occupier under a right o f occupancy or a lessee o f other land for the benefit o f that other land "...under this mode, the parties enter into express agreem ent by executing a deed necessary for creating the easement. Where the dom inant Land is not

expressly specified in the instrum entthe court can consider the circum stances and decide accordingly.... . (Atpage 249). Subjecting the above to the instant appeal, can it be reasonably said that the respondent established her case on the claim for interference with easement? For a start, as alluded to earlier on, the respondent's case on the alleged interference with easement was built on a clear misconception of the concept grounding the complaint. While the complaint on the alleged interference with easement was premised on the open space existing between her plot and the appellants' plot, it was not suggested that the space was part of the appellant's right of occupancy to qualify as a servient land. In the absence of any indication to that effect, no easement could have been created by an express grant as required by section 146 (1) and (3) of the Land Act for the benefit of the respondent's land (the dominant land). At any rate, whereas the respondent claimed that there was an agreement between the previous owner of plot No. 7 with the owner of the land on plot No. 8, no such agreement was produced in evidence. Neither could the alleged easement have been created by reservation by the owner of the servient land (the appellant) for 19

herself in favour of her land in accordance with section 146 (2) of the Land Act. It is discernible from the judgment that, the learned trial judge appears to have overlooked the dictates of the law with regard to creation of easements. He only made a fleeting statement in answer to the 1st and 2n d issues. Had he directed his mind to the provisions of section 146 (1) of the Land Act, he would not have made that finding. The upshot of the foregoing leads to an inescapable conclusion that, the trial court's finding on the 2n d issue was, with respect, against the weight of evidence and the law. Consequently, we find merit in the 2n d ground and allow it. The complaint in the 3rd ground is two-fold. On the one hand the trial court is faulted for awarding special damages which were neither specifically pleaded nor strictly proved. It is contended on the other hand that the award of TZS 50,000,000.00 general damages was unjustifiable for want of proof of trespass and interference with easement. Counsel's submission on the award of special damages was that, the learned trial judge applied a wrong principle in awarding TZS 15,000,000.00 as special damages on account of legal fees paid by the respondent to her advocates. This is so, it was argued, legal fees for services rendered by an advocate to his client has a special

procedure for recovery through presentation of a bill of costs before a taxing officer distinct from special damages. In the premises, counsel argued that, since the respondent did not meet the threshold in support of a claim for special damages, the court should have dismissed it. It was also argued during the hearing that, unlike in general damages, the trial court had no discretion to reduce special damages from the claimed TZS 100,000,000.00 to 15,000,000.00 as it did once it found that amount was unsupported. On the other hand, it was reiterated that general damages could have been awarded in the absence of proof of trespass or interference of easement. While agreeing with the principles behind award of special damages underscored by the Court in Zuberi Augustino v. Anicet Mugabe [1992] T.L.R. 137, counsel for the respondent argued with considerable force supporting the award on the basis of the trial court's reasoning found at page 316 of the record of appeal. As for general damages, counsel argued that the award was justifiable since it was within the trial court's discretion. Luckily, the law on both aspects in ground three is settled. Special damages must be specifically pleaded and strictly proved and

the award of general damages is at the discretion of the trial court depending on the nature of the case and underlying circumstances. The respondent claimed TZS 100,000,000.00 on account of special damages in different heads but the trial court rejected a large part of it as unsubstantiated. It awarded TZS 15,000,000.00 upon being satisfied that the amount claimed was based on speculations and feigned theories for lack of evidence showing how the works for restoring the respondent's plot to its former shape were undertaken. Even though the learned trial judge was alive that it was not within its province to assess and finally award special damages which have not been incurred, he went ahead doing the same thing by trimming the amount to TZS 15,000,000.00. It will be recalled that, in para 16 of the plaint, the respondent claimed to have engaged professional legal services from VAM Associates Advocates for TZS 20,000,000.00. PW3 who sought to prove the payments to the advocates produced three receipts in evidence collectively admitted as exhibit P6 (At pages 259 - 261). The total sum in all three receipt is TZS 11,000,000.00 leaving a balance of TZS 9,000,000.00 from the claimed amount of TZS 20,000,000.00. However, the receipt at page 259 shows that payment of TZS 500,000,000.00 was for disturbance allowance quite unrelated 22

to professional legal fees. On the other hand, TZS 5,000,000.00 received on 10 April 2015 was for instruction fees for an unspecified case. On the other hand, TZS 5,500,000.00 received on 17 March 2015 in connection with professional services in respect of plot No. 7, was only 3 days ahead of the institution of the suit on 20 March 2015. Such amount could not be claimed as special damages rather, as fees for handling the case which ought to be claimed by way of bill of costs before a taxing officer in accordance with the Remuneration Order. So was the amount of TZS 5,000,000.00 shown at page 260 of the record vide receipt No. 0053 dated 10 April 2015 assuming it was in connection with the suit. On the whole, we agree with the learned advocate for the appellant that, the trial court strayed into an error in awarding special damages which were not proved to have been suffered. With regard to the general damages, we think we need not be detained in this having sustained the trial court's finding that the respondent proved trespass. Apparently, there is no contention that the award of TZS 50,000,000.00 was inordinately excessive warranting the Court's interference. In the upshot, ground three is sustained to the extent it relates to the award of special damages.

We shall now discuss the 4th ground. The complaint in this ground is that the decree passed by the trial court was ambiguous for failure to state the extent of its execution in that, the distance of the offending parts of the defendant's building set for demolition has not been provided for. Essentially, the counsel's submission on this ground is premised on the principle that, a decree must be specific and conclusive, free from difficulties in its execution. According to the learned advocate, the decree should have specified the dimensions and extent of demolition to avoid difficulties in the process of its execution. All the same, the learned advocate did not suggest what the Court should do under the circumstances. For their part, the learned advocates for the respondent found nothing wrong with the decree. According to them, in so far as the trial court found the construction of the building violative of the Regulations having been built less than 7 metres from the boundary, the demolition should take into account that distance to conform with the said Regulations. They thus urged the Court to dismiss this ground. As we embark on the discussion in this ground, we note that, the complaint does not relate to the validity of the decree, rather

alleged ambiguity for failure to specify the size of the offending parts of the appellant's building for demolition. Neither is the appellant against the demolition order of the offending parts of her building. It is significant that, Order XX rule 6 (1) of the Civil Procedure Code provides that the decree shall agree with the judgement and specify the relief granted. The issue should now be whether the decree was drawn in accordance with the law. It will be recalled that item (d) in the reliefs awarded, the learned trial judge ordered: "The offending parts o f the defendants' building sh all be dem olished so as to conform with the provisions o f the Urban Planning and Space Standard Regulations 2011 (GN. No. 395 o f 2011) in that the said building sh all not be below 7 m eters from the boundary between p lo t No. 7 and No. 8". Item (d) in the decree extracted from the judgment runs: "The offending parts o f the defendants' building sh all be dem olished so as to conform with the requirem ents o f the law". Admittedly, that may appear to be too general and perhaps ambiguous. Be it as it may, we agree with the learned advocates for the respondent that the appellant's complaint is baseless. This is so

because, as seen above, the order for demolition and its extent is clearly discernible from the judgement itself. In view of the above and considering the clear indication in item (d) of the judgment on the extent of the demolition, we find no merit in this ground and dismiss it. In the event, the appeal stands dismissed save as it relates to the 2n d ground and partly in the 3rd ground on the award of special damages. The respondent is awarded costs. DATED at DAR ES SALAAM this 30th day of September, 2024. The Judgment delivered this 2n d day of October, 2024 in the presence of the Mr. Denice Tumaini, learned counsel for the appellant and Mr. Rashid Khalfan, learned counsel for the respondent, is hereby certified as a true copy of the original. L. J. S. MWANDAMBO JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL