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2022 Tzhclandd 192
2022 Tzhclandd 192
(LAND DIVISION)
AT PAR ES SALAAM
JUDGMENT
T. N. MWENEGOHA.J.
The appellants have preferred this appeal to this Court after being
aggrieved by the Judgment and Decree delivered by Hon. A. R Kirumbi at
the District Land and Housing Tribunal for Ilala at Mwaiimu House in Land
Application No. 17 of 2021 delivered on 24^^ December 2020. Brief facts
of the matter are that the appellants have filed their Memorandum of
Appeal with the following grounds;
1. That the Honourable Chairperson erred in law and in fact by
delivering the Judgment on the favour of the respondent
without proving on the standard required by the law;
2. That the honourable Chairperson erred in law and facts by
holding that the appellants were jealously as the
respondent was benefiting from the disputed property;
3. That the Honourable Chairperson erred in law and facts by
his failure to evaluate the evidence of the appellants
together with relaying on evidence not tendered by
respondent as to reach the fair and just decision;
4. That the Honourable chairperson erred in law and fact by
his act to grant the 9million to the respondent without any
colour of right and justification of the said amount;
5. That the Honourable Chairperson erred in law and facts by
his act of omission to analyze the opinion of assessors to
the Judgment as required by the law.
6. That the trial Tribunal erred in law and fact by entering the
Judgment against the dead person (2"^ respondent in
original application);
He submitted that the claims of the appellant were raised in 2014, about
14 years from the sale agreement entered on 1999 of which those claims
are time barred Case of Ismail Haiidi Mmingwa vs. Mohamad Saleh
Amour, Land Casa No. 83 of 2014, HCT Land Division,
(Unreported).
He submitted on the 2"*^ ground of appeal that it was correct for the trial
Tribunal to associate the trespass of the appellant into suit land In 2014
with jealous since both parties agreed they entered into sale agreement
since 1999 and the same was developed In 2000 and as soon as the
respondent built the house and frames of business, the appellants were
tempted and trespassed to suit land In 2014.
With regard to 3'"'' ground of appeal he submitted that the trial Tribunal
delivered Judgment in favour of the respondent after considering evidence
adduced by PWl,PW2 and PW3 despite the fact that respondent's father
did not appear to testify before the trial Tribunal since he had already
handed over the suit land to the respondent when he attained majority
age. He submitted that there is no required number of witnesses to prove
a case and with this he referred to Section 143 of Law of Evidence
Act, Cap 6 R. E. 2019 and the case of Joshua Chipanha @ Kidyani
vs. R, Criminal Appeal No. 336 of 2020, Court of Appeal of
Tanzania at Dodoma (Unreported).
For the 3'"'' ground of appeal, the trial Tribunal at page 9 paragraph 2 and
3 when read together, clearly stipulates that the Tribunal evaluated the
evidence tendered by the applicant and respondent therein. It is evident
the trial Tribunal considered evidence tendered before it into reaching its
decision. From the foregoing the 3^^^ ground holds no water.
On the 4^"^ ground of appeal, the applicant submitted in Court for a prayer
of specific damages to the tune of Tshs. 650,000/= that is the monthly
income from 31^^ October 2014 to date of determination of the suit. He
outlined the breakdown to the amount that; Monthly rent of six shops
240,000/=, Monthiy rent from 30 petty traders 300,000/=, monthiy rent
for two room house 60,000/= and monthly rent for public toilet and birth
rooms 50,000/= totai 650,000/=. In his testimony the respondent before
the trial Tribunal testified that, "/ was very affected in business because
the tenants vacatedforfearandremained oniy with two tenants.Irequest
the Court to determine and deciare thatIam the true iegai owner ofthe
suit iand, be paid costs, damages for destruction".
It is trite law that specific damages are to be specificaiiy pleaded and
strictly proved.(See the case of Anicet Mugabe vs. Zuberi Augustino,
1992 TLR 137). In the testimony of the respondent at the thai Tribunai
there is no proof given of specific damages daimed. The Tribunal gave
order for payment of"general damages to the tune of Tshs. 9,000,000/=".
From the prayer of the applicant therein, he did not pray for general
damages but rather specific damages which in turn were not strictly
proved. I therefore find the 4'^'^ ground of appeal has merit.
Moving to the 5^^^ ground which wiil not dwell me much, the impugned
Judgment at page 9 paragraph 1 cleariy stated the opinion of assessors
that the application should be granted and they gave their reason for
holding so. Their separate opinions are in Tribunal's file records. Ms. Jokha
Lemli signed on 13/10/2020 while Mr. T. Mwakalasya signed on
15/7/2020. The respondent's counsel submitted that the opinion of
assessors was read over to the parties. In his rejoinder appeliant s counsel
did not answer to this issue that the assessors' opinion was read over to
parties and it therefore implies he conceded to that fact that assessors
opinion was indeed read over to parties. Hence the 5^^ ground has no
merit.
For the 6^^ ground that the Tribunal entered Judgment against a dead
person, this as submitted by the respondent was cleared after the
respondent's counsel had notified the Tribunal. A copy of the correct
Judgment was served to the appellant herein and he has not contested to
that. I therefore find the 6^^ ground without merit.
From the foregoing I concur with the decision of the trial Tribunal save
for the issue of damages which the Tribunal granted an order for the
appellant herein to pay Tshs. 9,000,000/= with no specific proof. Appeal
is partly allowed with no order to costs. Each party bear own costs.
Rights of Appeal Explained.
T WENEGOHA
JUDGE
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