Andrea James Kasuga vs Asher Automobiles Limited (Civil Appeal No. 41 of 1997) [1999] TZHC 126 (4 June 1999)

IN THE HIGH'COURT OF TANZANIA T DAR ES SALAAM DI$TRICT REGISTRY AT· DAR ES SALAAM CIVIL APPEAL N0.41 OF 1997 ANl)REA JAMES KASUGA_ .. • ••••••••• APPELLANT VERSUS ASHER AUTOMOBILES LIMITED • ~ •••.•. • •• RESPONDENT J ·u D G .. M E N T BUBE$HI 1 J.: · __ The appellant, original plaintiff, filed a c_lairn over Plot N?. 93 Bahari Beach seeking for a declaration that he was the lawful occupier •. -The trial court disallowed the claim.and found for the defendant. He is aggrieved, hence this appeal. The appellant h2s, through his counsel· Mr_. Ngassala, filed four grounds ~o challenge the trial court' 1 s df?.cis.ioti. His first ground is that as he held a Deemed Right of. Occupancy over the plot since 198?, and prior 'to the survey in 1985/86, his title could not be superceded by the defendant's title. I think this ground can be easily disposed off.. DurinK· trial, the appellant did not produce evidence to show that Mtongani, village had allocated that land to the appel_lant. There was indeed. an application made to the secretary of Mtongat1i Village - See Annexture A. But then what were the result? Was the application granted? vie are not told. The trial court. adequately dealt with this issue as is evident from the judgment. _On ti-a.lance I am satisfied that the appellant has not proved that he has a better title to the plot that the respondent. This ground is therefore rejected,. On ground two - that the trial court was biased against the appellant and that the trial court refused to go and visit the disputed land to see for herself the fraudulent claims by the Respondent. ,. ... /2

2 It is a fact that PW2 stated in court to have written to the respondent informing him that his Title is to be revoked. This same witness when .cross examined by Mr. Muccadam for the Respondent admitted that both the respondent::; o_:ffer and the certificate of occupancy still su subsist. Even if we assume for once that there was a move to have the title offered to the rlespondent revoked; did that act per se grant ownership/title to the appellant? I think not, the appellant had to satisfy the court on the source/basis of his title to the land in dispute,. On the allegations that the respondent had misrepresented certain facts to the bank, and therefore the trial court had to visit the locus in quo, this was not in issue. The trial courts duly was to decide on balance of probabilities, whose claim had been established and not on the other allegations. On ground three, the trial court considered the evidence tendered ·by the appellant on his IDe1T1bership of Mtongani village •. All evidence considered I cannot say the courts decision to reject the appellants membership of Mtongani village was improper. All in all I am satisfied th~t the trial court'sdeeision was supported by evidence tendered, The appeal which lacks merit has to fail and is hereby dismissed with costs. Delivered in presence ot Mr. Muccadam for Respondent and in absence of the Appellant, A.G. BUBESHI JUDGE 4/6/99