Mohamed Mtema and Others vs Betty Mark (PC Civil Appeal No. 103 of 1997) [1998] TZHC 2124 (10 May 1998)

1 N THE !il(]H COUfiT OF TANZANIA b.'J . DAR ES SALAAM PC CIVIL APPEAL NO. 103 OF 1997 MOHAMED MTEMA t OTHERS ................. APPELLANT VERSUS BWf'TY MARK ...... . .... RESPONDENT ,1 U_ D_G F.M __ E __ N T The: lwpr-->J. Ji.Ill t 15, Mol ,,.:i111Pcl Mt erna and l 5 others, lia ve co111e to tl1 i::.: cous L cha.1 len,J ing the dee is ion of the Kinondoni District Cc11n:-t ;-1hich uplHJd the judgement of the Magomeni primary court. Facts of this matt er are v1::n y simple and the centre of contest vEry fim~ iu<]eecl. ThfJ Re:'>pondeut., Bet Ly Mark, is acting on behalf of her b1·otlHH .... one Dr-. D.::.una.s Ma.rk Tiger, owner of plot No. 132 Block D, MaciornPni, with t:itle clf,Gcl No. 19840 issued in 1975. The plot in qu,"'!:=;t ion is clo::;e to Magorneni market. The Appellants who are pf': t·. t y b 1 U3 ·i n n s s 1n (~ n have b n P 11 car r y i n g on the i r act iv i t i es in and -'H'Ot1nr1 t11,:1 area for years some as far bacl{ as 1980s. Of late the RP:,,porHlP11t decidE,d to charge these businessmen a fee for usage of Lhe portions of land they occupy which decision was challenged h<:.ncn her clamour for tlH-}.i..r ev:i:ction. In their memorandum of appeal the Appellants reiterated what they llav(:1 ,1J 1 ::\Jong maintained, and rigl'itly rejected by both cn1irt1:; b,~lnw, that t.lrny are !:.he owners of the relevant area because they have been in its occupation for years long before tl1 1 ") R8spondents' brother Nas i:;sued with the plot and title: that Urn v.r:ocl'!rir'li ng;-; in both court he.low ,n·e a nullity as tbP l?,is11i:11Hlr-111t l1.1r; 110 lonir.; s1·;11J<li -111<1 fi.nally that th-e bom1daries of t..lte n°:levrint plol. v✓ P.TP. not marked. .,

1,.:: r 1,.-1·1<! ,1Jrr,.1,ly nb:-;.:r';,,(i t!J,-, l\pr,,:iJl,1111-.s cd1rnot cla.im nny t·.i.,1111_ ,_ve1 !l1,! :;aid are;:3 si111ply becdu::;e lhey liave !Jeen carryiny on bus i_n,:,,ss on i t for years. One•~ an area is surveyed and ;.,J located .:1.11. right,:; of those who claim to be former occupiers, j f ,1n:i:', sa·J,"' thor:e for comp9nsrit.ion for improvements made thereon jn a cles,,·1ving situ.:,.1.i.on and as provided unch-)r the law, are i'.iX!'.:i n-111 i :,h,d. On the fa(:l·s on n .. ➔ cord the ➔ Appellants are simply incJi.(:,tLP<'l as petty bw-:inessrnP-n and for sure they cannot claim for ,;iny right· wJ1:-its0ver on Plot No. 132. BLOCK D. Needless to say Lita t l.hc: e ➔ v i.rlnnce sliov,s that Lh1:y occupied the area after the :·;a1n(,' w,:1: 0 ; ,:11 lt:i<:;:itecl to Dr. Mark. Turning t:o the question of failure to define the boundaries T mlL::t- concc ➔ dG that. Lllf!re is :-=;omr:; merit. because in such situation !)(;1<:011:..; lu1v,, i 11df:;,cl -to IH-i :::Jiov.;ri to esl:abl j sl1 the plot d 1-) 111 d J I : , i I ! : ! 11 ::, . A r (-'; S p O Tl ;.:; j b J ( ( ! ! [ j < '. E I.' f J O fll ,-. h (-l C i. t y CO U. t1 C i.. l 0 r An1hi Off ice should have been called to show the same if Respondent failed to identity the beacons. It is common knowledge th,3.L i.11 mo~,!.. ,:ascs, for one reason or another, people do remove t hr') heac:ons S!paraU ng plots. As lo lack of locus standi I must confess that the Respond(-,nt can' i-. disentang1A lHrself from this technical web thrown arouwl IHr by tl:1P. App(.'.'.)llants. Dr. Damas Mark Tiger may be Re:';;pondent' s brot.lrnr o:f same motlHn- and father but this alone do , ) no!: confer rights over her to prosecute or pursue his rights legally ln ourt. Respondent or any other person could be Dr. D,':l111a' s ,·llJent but such one shoulcl have an express authority from 11.i.m_. and that authority should be of such n-1ture a.scan be estab}.j shed before a.ny Court, usually under a power of Attorney- genera11y) clocument.ed. In the pre::;ent case there is none - save an 21s:,;ert ion by RP.spondent. tl1,1-t shn was ma.de an overseer of the 1·elry.111L p1ul. by hrr hruLlier. This is not enough to confer upon her a right to bring action on behalf of the said Dr. Damas Mark

\ ) --3- Basing on this last finding I have but to declare proceedings and judgements of both lower courts a nullity for they have no feet on which to stand .. App ea J j s a] ].()wed. At f-.11.8 samet .i.rne, considering the facts of tl1is particular case, and also the fact that the appeal has been allowed on technicality each pArty to bear its own costs. AT DAR ES SALAAM 10TH MAY, 1998 //'1 /ft::, da(r a;:,f,;;ii,t1Ci? tf ,/4., 5;c~,1,~.R.. (L. B. Kalegeya) JUDGE