S. Pazi Pembe and 3 Others vs Umoja Transport Co. Ltd (Civil Appeal No 20 of 1987) [1990] TZHC 66 (20 December 1990)

IN TH8 HIGH CvU.kT CJF' TAJz,J.NIA AT :UAH LS ALAAM CIVIL APPiAL 10. 20 OF 1987 S. PJ.i.'.ti I P.8iVJBE & 3 OT&.;H.S ••••••••••••••• APPBLLANTS V£RSUS UMOJA TKANtPOHT" CO. L1'D ••••••••••••••• • BES'BONDENTS J U D G M B N T BAH.tl.Tl 2 J: H\c Lfb .. This is an appeal by So Pazi Pembe and 3 others against the judgment and decree of the Resident Magistrate I s Court at Ki_sutu· in which judgment was entered for the plaintiffuijjamaa Transport. The appellants were the defendants in the trial court. In its judgment,. 1 the trial court found that there was abundant it.vidence both oral and documentary t.o establish that the land in dispute belonged to the plaintiff who bought it from one Merali Metha. ThE: facts in this case are that the disputed land was. puroha.eed by the plaintiff from one Merali Metha. The certificate of title as issued to th plaintiff on 6th September, 1977 as certificate no.14066 and a sketch map in respect of the plot which is plot noo 161/2 was' .--. attached to it. Also tendered in court were the trans13er forms.. There was also an evaluation, report which was tendered as an exhib.it. The facts go on to assert that during the campaign of Kilimo cha Kufa na kupona" ten people entered the plaintiff's land.· As mentioned earlier Merali Metha was the owner of the ._plot and h&d a certificte of title issued to him on 24th October, 1960. After the campaign only Selemani Pe:zi :Pembe remc:,ined in the disp·,,t ed li::lnd. Then later on he was joined by-oth~r people like Mkengala the 2nd defendant and construction of houses by the derendo.nts was going on. Two witnesses for the plaintif:i PW.2 and PWo3 suid thut they were fc:i.miliur with the suit premises and that all the defendants w;re mere intruders. Those were the facts fdr · . ·- ... ;_ the plaintiff's caseo For the defendants' c2..se the evidence was that one Mohamed Msumi DW.l onme to live in th0 disputed lund in 1916. By then the lund was not owned by anyone. Many people joined DW.l Mohamed Msumi. Then in· c; 1977 Tanzuniu Kailways invaded the land in dispute and those in it were told to demolish their buildings. But the court .saved them.and they remainedo No documents were produced to corroborate the evidence. The 1st defendant Scleman Pazi Pembe also claimed in his evidence 4 that there were 180 people in. the disputed 'land and that all these. people had inherited the land from their grandfther_s. The first defendant claimed to have been in the disputed plot since 1935. ···-·••12.

\

• 2 - The other· defendant Abbas Mk§.ngalar also sc:.id that he hnd lived in tha diputed land since 196oj He denied any knowledge of erali I Metha. He however conceded tht what he called.his village had not been registerid. Further eYidence was culled by the court suo motu. This consisted of 0vidence from a land officer Mrs. Mlole and a Surveyor Mr. Ali Kih0lelo. Mrs Mlole testified·to the effect that plot no. 161/2 hd 2 partions according t• the records of the and Hcgistry .. c.7.nd that the same was owned by Umoja Trf}Hsport _und0r •ertific2.te of Title no.14066. The beacons demurcating the disputed land were wHiO; AFl AF2 AF3 WH5', R3 and 1<2. The othr witriess was Ali Kihelelo who said that he was required by the court to interprete the map of thd disputed plot. He went to the disputed plot to do resurvey and he w&s uble to see only some of the beacons as some of them were enclosed in houses built there. He, however 1 w&s able to mark where each beacon was supposed to be. It is on these facts that the learned trial Magistrate came to the conclusion referred to above. The appellants who were the defendants in the trial have appealed to this court. Unfortunately the appeal filt:: which inciuded the proceedings in the trial court got lost. The respondent's advocate Mr,. Mwakasungula muriaged to supply the High Court Registry with photostat,copies of the proceedings in the trial court and the memor&ridum of uppeal to the High Court. There is therefore no way of finding out th trud position and this court must go by what is b0fore it which is u duplicte file reconstructed by wh&tev&r wc:,s supplied by J.vlr. MwD.kusungulu. Th"'re is for example copy of stnto- · ment of defence which is dted 23rd February, 1986 but which does not. show whth&r it wus receivud nd filed in the Hesident Mngistrat's Court's registry. Another thing is th& memor&ndum of appeal. Ther& nre actually ·2 memorc.:.nd•!l.Of appeal. Ono is dilted 20th: August 1 1987 nnu there is the signature of the Hegistry Offi9er. I will, there- fore, go for the more authentic memoro.nclum of appenl, that is, the one which is d&ted and signed. The memorandum of appeal has 8 grounds of appeal. I will deal with each one separc:tely. The first grounJ. is on the sise of the· disputed plot. The plointff's evience shows that .it is 4.5 a•res. The appellants are claiming in this ground that the land in dispute is 8 acres. But now.μGre in their evidence clo any of the defendants (appellants) mention'he siz of the land in dispute. Indeed Abbas

·- 3 Mkangala, the lead0r of the appellants saicl iL his evi(tence th&t he di~ not know the size of the urba in tlisute. In any •se the· .. disputed plot is a surveyed one anu the acre&ge given is 4.5 acres. The.leurned Magistrute was certainly entitled to rely on thi& eviden•e. GroW1d one has no m0rit. I come to ground. no.2. I ·states that the map presented in court dutes back to 1944 and therefore obsolete in view qf several amendments of the City Mastr Plan. There is no evidenci in t4 proceedings to the effect thc.t -the map of the disputed lnd dr:ttes back to 1944. This grountl is mere speculation and must also fail. Ground no.3. talks about bias on the part of the trial Magistrate in not adhering to the defend&nt• request.fo~ joint team reresentiP both parties in th~ survey of the area. The record does n~t teflect any such request. The question of bias or oth..,rwise based on .the

• above allegation-does not exist as the alleguti,en is clearly f'"'lse. The tlefenclants were quite happy to leve 0v<.::rything to the court· after thir Jefence. It w&s the court suo motu which decided to call indepentlent witnesses to clarify the situc.tion. Where is the bio.s"·. Nou nt all. This ground ulso fils. (/round no., uppe::crs to be contrc:..clictory to ground nou3• Whereas in grouncl no.3 the o.ppello.nts complc.in thc;t they were not represented t the survey, in grountl no.4 they &llege thut the survey should not have been carried out at o.11 becuuse the pl1:dntiff claimed that it was a surveyed arep. To answer the bove querry I will state thnt the "survey" wc:.s uctually only intenC.ed to discover the beacons which had been put when the disputed lanJ wf;!.s surveyed for the first time. Therefore I can see nothing wrong with such move of the trial court to ord0r a survey for tht purpose. With regu.rd to ground no.5,' there appec..rs to bG a countercl2im in the written statement of dfence which,aa mentioned earlier on, is not shown to have b;;::en filed and accepted by the registry. There is no other copy of a statement of defence in the whole reoid. The complaint in grounll 5 is thct the counter claim was ignored. Mr. '-, MwnkQsungula, learned counsel for the respondent in answer to this ground of appeal s&itl th.;,.t the appelJunts applied to amend their statement of defence as the first one was rejected by the court. But they nvv1:;r filed uny new statement of defence nor was there uny counterclaim. He went on to st.:.te th&t th8 case proceeded to hearing interrtes although th"'re wc..s no written stl:.tement of defence. He . submittetl further thut ut one time the.appellants tried-to introduc the aspect of a c ountercluim in the course of the proceedings but the District Court ruled that the counterclaim could not be considered. He referred to puge 10 of the procedings. He said thut the counter- claim ws dismissed by the District Courtand thut it should not be ,, .

• 4 - entertcined n-0w us it was not pleaded at the trial. In reply to thnt Mr. K,all.ll1l,wa who argued for the appellants,· submitted that there ws a written statement of defence which Kyantlo, J. who first henrd the appeal before th8 file got lost saw and accepted. Pnge 10 of the typed proce8dings provids the answer to'this battle of worJs. In the coure of the vitlence of Seleman Pazi . ...-: ·- Pembe, l"ir. Mwakusungula,. learned c ouns0l who w.::is representing the· plaintiffs is recorJed as·suying: 11 Iv1:ro !Vlwakc:.sungul&: - I object tu any· question reg;:;irding counterclaim as it has not ben pleaded in the pledings,' ai;lμ the Jefe:ndants were given umple time to ameml their defence and they nevr tliJ, tht means they were satisfied with the old written statement of defence written in Kiswuhili. 11 T_he record continues thus:- . 11 fviro Kalunu.wa·: We clid not want to pay twice for filing documents, that why we fiL.,d the old written statement of· d·efence. We· thought -that the old written statement of tlefence could hav.e been entertainecl. 11 ,- ' - "Ruling: The counter· flJlaim hcts not be0n pleaded henoe it pun't be.· entertained.-" I agree with what Mr~ Mwactsungulc:,, bus submitted• £l;S· it is supported by the proceclings in the trial court~ Inded even in the judgment of the loarn1::d Magistrc.te the same thing is mentioned ugain. On page 5 of the typeu. copy of the juugment, la_st paragrD.ph, tq.e leurne.d Magistrate said:- / 11 The tlefendants hcve not ple;;,u.ed for compens1tion. In. fc,,ct i they hi..,,ve not mentioned this foct· throughout their case. Furthrmore no counterclc;.im wo.s pl1::au.e1... Tl.D.t being- the case, I pr0clude myself from muking any consiJeration as far as counterclaim _or compensi.<tion is concernedo 11 '.:. • This ground is also dismissed. The other grounds of appeal ure merely discussng the evidenceo There was, no doubt, cogent eviuence to the effect thut the land in uispute belonged to the responJent and tht the c.ppellants were intruders. 'l'hey were not even invitees as one ground seems to suggest. The eviCience of the appellants was not accepted by the learned trial Mugistrat~. This was, in my view, for good reasons ' wh@n~tae evidence on both sides was weighed together. There is no merit in this appeal unQ it is dismissed with ····••15- _.

• ~ / ~ 5 - costs. 20/12/1990 Q_rdc:r...; - Judgment deJ.i-v-eecL in c·ourt on 20th LJecember, 1990 - Appellan,ts present. · i·or ... 'esponc1ent - Mr. Mwak§lsungula • AT DAR ES bALM,M 20th Decembt;r 1 19_30. .i . ,