Michael S. Lupiana vs Alex O. Lema (Civil Appeal No. 42 of 2000) [2000] TZHC 131 (2 December 2000)

I • I :rn 'rIIE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL APPEAL NO. 42 OF 2000 MICHAEL.S.LUPV.NA. • • • • • • 0 • Vlill.SUS ., ,.•_, ALEX O.LEMA • • • • • • • • • 0 • • • • RESPONDENT H JUDGEMENT II is is an e.ppeal by. Michael Simon Lupiana the appellant against the judgment of Hon Kr.tlonbora learned Principal Re_side.nt Magistrate da- ted 28th Jauary 2000., In that judgment the ·1earned Principal Resident Magistrate declared Alex Onesmo Joshua Lema the rightful owner of the di- sputed plot No 233 Situali at Mbezi Beach, Kinondoni within the City of D"' r es Sala9-'"!l • Furthermore the learned t . ;.a1 magistrate found as prov0d that the appellant the appellant was trespasseli to the suit land, thus dclarins the developments carried· out by the appellant to be unlawful and had to be a.emolished or removed. Aggrieved by the judgment of the trial court, the appellant has lodged a memorandum of appeal on the following grounds: (1) error in law and fact by the trial mai3istrate in holding that the respondent is the riGhfui ow.nel of the suit plot., ( 2) error in law and fact by the trial magistrate in holding that the appellant trespa.s,scd on the suit land requiring the demal1J,tion of the buildinG co- .nstructe~. (3) error in law by the trial magistrate in holdi.ng that the building be demolished without any co- mpensation. ( 4) error in law and fact on the part of the lear.ned .trial magistt'ate in admittine; as evider1ce uncertfiecl for the respondent.

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With leave of the court, the -appellant ·t,.ras allmved to fi te two a:dditional grotmds of c:tppeal to wit: (5) error in law a·nd face by the learned trial magistrate in relying o.n the testimonies of witnesses who were not subjected to cross examination by the defendant/appellant. ( 6) error in lav1 o.n the part of the trial magistrate in trying the suit when at the material time the court had no juris- diction irt that the monetary value of the subject matter had not been pleaded and an order to amend the plaint was not complied with by the plaintiff/respondent. The appellant arges the court to allow the appeal; d~clare the trial a ·nullity and set aside the judgment and decree with costs. Like in the trial court tb rarties a.re represen ➔ :ed by the same learned counsel; Mr El Maarnry for the ;: :.s:ponde.nt and Mr Maira for 'the appellant. ThE: a.~peal has been well argued by both counsel by way of written submissions .. I.et me deal with grounds fire and six of appeal in that .order. On ground five of appeal the learned counsel for the appellant has contended that the two witnesses i.e PW 2 and PW4 called .to testify on behalf ef the plaintiff were not cross examined by the defendant while the testimony of PW 3 has .not been recorded. Mr Maira. for the appellant has submitteo. the right to cross examine is an important under taking to a fair trial as it embodies the rules of natural justice, ie a fair hearing. Mr Maira has argued that failure to I giYe the appellant an opportunity to cross exam"',.. resulted in un upfair trial. In reply Mr El .aamry basing on the record submitted that no injustice was done to the a_ppellant/dcfendant as opportunity presented itself at _the trial for crossexe.minine the plaintiff's witnesses. I resctfully agree with Hr El Maainr-.1 that indeed the record bears that testimony as both appellant and his advocate were prese.nt when the witnesses testified •. With respect to PW 4 TA?U the record speaks land and clear that defendant now appellant abando.ned cross examinetion of the wi- tness.· This was on 16/12/98. The appellant cannot be heard .now compla- . ining that he was denied a fair t.rial. Accordingly this ground of appeal fails.•

3 ' Ground six in the memor::mdw11 of a1)peal touches on the pecumiary jurisdiction of the trial court. It is correct that the appellant raised the issue in the course of- trial and a ruline; -ias delivered directing among other thingG that plaintiff file an amended plaint indicating or showing the monetary value f the subject matt.er;;,. The respondent then plaintiff on 9th September 1991 filed t}1e ar.ie~~--·p:Eainll!fcof'f .i•1ih. was served to Maira and Co Advocate on behf"..J.f of the defendant/appellant. The re~ord does not show that the defendant/a,ppellant filed his amended defence dapite his several prayers to do so.., B.n the basis of this background information I find no merit in this ground appeal and I dismiss it. I will proceed to deal with ground one in the memorandum of appeal which in my view is the main bone of contention. The appellant i§._ corrr...e,laJning__™ha j;he le~~ trial. magist!'ate feJ!, n_error of lad"":(9-ct djnE t_ht_J.12£_ E.,~S,.P._O.B£i. then J?..tiff war:; _!j;..e. ri~~ul. owner of got. !9 _ ?,3.3. -i_Ai¥h an4_ .C£~~~,.9..qeptl;z qeql_ar:f..2:Lthe reseonde.n_tf.plaj_titiff. thew!_-'!l . .9.1:~~~-o.t t_l':e _pJoti From the evidence on record I am of the firm view that the learned tr:i.b..:. ' magi_strate cannot be faulted for making that finding. For it is not in dispt:.te that the respondent w_as allocated the suit plot before the appellant an·d a ce- rtificate of Title No. 23711 was issued to confirm respondent's title over the suit premises. The letter of offer and certificate of title No 26868 subs8qv_,.-, ently issued to the e.ppellant were invalid documents creating .no rights known ◄ to law• It is elementary point of la:w that following the allocation of the p1-ot in dispute as well as the issuing of the certificate of title to the respondent 1 the properly in that land passed to the respo.ndta. ', anp. there was .nothing of va- ... , •, ,:- . lue that remained which qould be offered and passed to the appelle.nt.' I taka .... that the appellant was il1ad1risad to presume that he had a good title own the · suit premises when he wns offered the letter o:Sltoffer as well as the certificate • of title. It should be emphasized beyond and shadow of doubt that appellant h<'s no. good title ollCr that land, but were documents worth nothing iri law. It_.J.'10ulcl follow therefore as da:y follows night that the appellant is a trespasser that l land and the learned trial magistrate correctly declared appellant as such. Being a trespasser ab :inition the development activities carried .out by the appellant on the suit land are ea.uallv ilJegal ,,mhtling him to no compensation J"Sgl.s'trfile • . as correctly ruled by the tI'ieJ.AA::ppellant cannot benefit out of his/ l.J:.l!?Q4-~~~ea This ten disposes of grounds one, two and three of the memorandum of appeal. .- ... •

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Before I co.nclude let me acl.dress briefly on the submission of Mr Maira learned oou.nsel on_the issue of revocation of the appellant's title while the matter is pending in court. I do agree with the learned counsel for the appellant that in terms of the holding in Partman Garment Industries Ltd versus Tanzania Manufactures Ltd (Jfff/ TLR 303, the purported . . revocaticn by His E>ccellency over Certficate of Title No. 26868 would have been null and void. This would also apply if at all to the certificate of title No. 23711. However as held elsewhere in this judgment as the certificate of title No 26868 was mill and void ab inition tha president's action to revoke a nothing were a wasted efforts as there was nothing to revoke. Iri su.inmary and for the reasons given I hold that this appeal has no merit and I dismiss it with coats. ~ judgment of the trial court is upheld and confirmed. It is so Qrdered. I /\ // . • ,_., f • •: ,( •• , ..... l•. •~•, •• \ ,' •, •. ",..• "=ss•f S.lHEMA... \ JUDGE 2/12/2f)00