IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISTRY OF TANGA

ATTANGA

LAND APPEAL NO 10 OF 2019

[Arising From the Decision of the Land and Housing Tribunal for Tanga District in Land Application No 6 of 2014]

BETWEEN

LUCAS SI RAJ I KAMNGWELE APPELLANT

Versus

SALIM A. JIBRAN RESPONDENT

JUDGMENT

MRUMA, J.

In the District Land and Housing Tribunal for Tanga District Salim A. libran, (the Respondent herein) instituted Land Application No 6 of 2014 against Lucas Siraji Kamngwele (the Appellant herein) for special and general damages arising from trespass to land, demolition of the Respondent's structure thereon and costs of the suit. The Respondent claimed that he was the registered owner of Plot No. 877 Block D Kange area within Tanga City which had an

estimated value of T.shs 10,000,000/= in 2014. It was that plot which he claimed that it was trespassed onto by the Respondent.

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erect a house therein claiming that Plot to be his. When he was

asked by the Respondent to vacate the Plot and give vacant

possession thereon he refused.

The Respondent claimed further that the Appellant's invasion

over his Plot disenabled him to start construction works

thereon and as a result he suffered damages for non-use and

escalation of construction costs at the time he started

developing his Plot. He claimed T.shs 5,000,000/= as general

damages.

In his written statement of defence to the claims, the Appellant

refuted the Respondent's claims and stated that he rightly

erected a building on Plot No. 875 Block D, Kange area within

Tanga city which was lawfully allocated to him by the City

Council and not on Plot No. 877 as alleged by the Respondent

in his claims.

On top of refusing the Respondent claims, the Appellant

successfully applied for a Third Party Notice against Tanga City

Council on the ground that since the present Respondent was

the registered owner of Plot No 877 Block D and the Appellant

owned Plot No 875 Block D and the numbers of the said Plots

and their locations are differently arrowed, in the event the

District Tribunal finds that the present Respondent's (i.e. Salim

A. Jibran) was right, the Third Party, Tanga City council should

be ordered to compensate him with another Plot of equivalent

size and value.

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At the trial the District Tribunal framed three issues for

determination. The issues were:

1. What was the description of the suit Plot between Plot No

887 Block D Kange and Plot No 875 Block D Kange;

2. Who is the lawful owner of the suit Plot?

3. To what reliefs are the parties entitled.

In its judgment the District Land and Housing Tribunal found that on the evidence on record both parties applied for and were allocated Plots by the Tanga City Council. The Respondent was allocated Plot No. 877 and the Appellant was allocated Plot

No 875. The two Plots are beside each other. It was the the finding of the trial tribunal that from the evidence of Sudi Rashid Maulid PW4, a Land Surveyor of Tanga City Council and Exhibit Pl (an allocation letter to the Respondent Salim Abdalla Jibrani), the suit land was Plot No. 877 Block D and it was found to be the 4° Plot in the row from North, and Sixth Plot in the row from South. The Plot allocated to the Appellant (Lucas Siraji Kamngwele) was fifth Plot from both sides in the rows.

The trial tribunal further found that the Appellant started construction over the suit Plot after he was allegedly shown it by one Chunda and before obtaining a building permit from the

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City Council. Further to that the trial tribunal found that when

the Respondent noticed that his Plot had been trespassed onto

he notified the Appellant but the Appellant didn't take any step.

With regards to the Respondent's case, the trial tribunal found

that on the evidence on record the Respondent was allocated

Plot No 877 on 6° August 2009 and he accepted the Offer Letter on 12 February, 2010 and visited the Plot in 2013 more than a year after it was allocated to him. The tribunal found that had the Respondent complied to the conditions of the Offer Letter which required him to start develop the Plot within one year from the date of grant, then the Appellant would not have trespassed onto his Plot. The tribunal was of the view that if

the Appellant had agreed to the settlement proposals made by

officials of the Tanga City Council (i.e. Third Party) parties would not have incurred costs to litigate this matter. Accordingly, the District Tribunal adjudged that Letter Offers issued to both parties be cancelled and in their place new Letter Offers be issued as follows:-

1. The Respondent Salim Abdurahaman Jibrani be issued with the Letter of Offer in respect of Plot No. 875 Block D.

Kange area (which was earlier on allocated to the Appellant);

2. That the Appellant Lucas Siraj Kamngwele be given Offer Letter in respect of Plot No. 877 Block D Kange area where he had constructed his house.

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Further to that the District trial Tribunal adjudged the Appellant

to pay general damages of T.shs 2,000,000/=. The Appellant

has appealed against among other things the award of

damages.

The issue for determination by this court is therefore whether

in the circumstances of this case, the trial tribunal was justified

in awarding general damages to the Respondent.

In his testimony, the Respondent stated that he was allocated

the suit land in 2010 and he visited it in 2013 and he found

that it has been trespassed into by the Appellant.

PW2 (Bakari Mohammed Bakari) testified that the Respondent

was allocated Plot No 877 Block D Kange by the City council. In

2013 he went to inspect his Plot and found that it had been

invaded by the Appellant. The Respondent informed the City

authority about the trespass. In November 2013 the Appellant

was summoned at the Land Offices and was informed that the

Plot he was developing belongs to the Respondent. The two

were advised to discuss and see how they can settle the issue.

At first they agreed that the Respondent would sell his Plot (i.e.

Plot No 877) to the Appellant but that agreement was not

performed.

PW3 Janet Wales Mwantima Land Officer with the City Council

and PW4 Sudi Rashid Maulid Land Surveyor with the same

Council testified that the suit Plot was allocated to the

Respondent and the Appellant did trespass onto it.

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a

The Appellant denied ever trespassing on the Respondent's land and stated that the suit land was actually allocated to him by the City Council.

The commonest form of trespass to land is the personal entry by one person onto the land or building lawful owned by another. The trespass must be voluntarily so that if a person is carried or forced into another land on his part there is no trespass. Trespass to land occurs when a person makes an

unauthorised entry upon another's land and thereby interfering with another person's lawful possession and/or use of that land. It should be noted that a person who sues in trespass is a

person in possession of the land. Possession may either be possession in law, Possession in fact or immediate possession. Possession does not only mean physical occupation but also includes constructive possession. In the case at hand evidence revealed that the Appellant was allocated Plot No 875 Block D, but he constructed his house on Plot No. 877 Block D which was allocated to the Respondent. The Appellant doesn't deny to have had entered and started constructions over Plot No. 877 Block D which belongs to the Respondent. This was a trespass onto another person's land. He was therefore, as rightly held by the trial tribunal a trespasser.

Having found that the Appellant trespassed onto the Respondent's land, the next logical question ought to have been asked is whether the Respondent suffered any damages.

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• Halbury's Laws of England, 3° Edition, Vol.38, para

1222, states that trespass is actionable per se regardless of whether damage has been made to the land or not. Thus,

having found on the evidence adduced that the Appellant had trespassed onto the Respondent's land in law he was liable for damages even without any proof that the Respondent had suffered. The law is that general damages are awarded at the discretion of court but they are a natural consequence of the defendant's act or omission and they are intended to compensate the plaintiff for the injury suffered. See the Ugandan Case of Robert Cuossens vs. Attorney General SCCA No. 08 of 1999. In the assessment of the quantum of damages, courts are mainly guided by the value of the subject matter, the inconveniences that the party was put through at the instance of the opposite party, and the nature and extent of the breach. A plaintiff who suffers damage due to the wrongful act of the defendant must be put in the position he or she would have been in had she or he not suffered the injury/damage.

In the instant case there is evidence to the effect that at one time parties were advised by the City Authority to try to settle and in the process they agreed that the Respondent would transfer his ownership of Plot No 877 Block D Kange to the

Appellant. At first the Appellant agreed to the proposal but

later on he changed and continued to claim that he was the lawful owner of that plot despite being informed by the allocating authority that Plot No 877 Block D Kange was not the

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Plot they had allocated to him. The Respondent must have

suffered inconveniences when the Appellant refused a

settlement. Another inconveniences suffered by the

Respondent may be in terms of escalation of prices of building

materials between the time the dispute arose to the time he

was declared the lawful owner of the disputed plot. As is the

law, the Respondent did not guide the trial tribunal on the

quantum of general damages he would have expected. That

left the tribunal to use its discretion to determine damages. I

find that. a sum of Tanzania Shillings Two million awarded was

appropriate in a case like this where there was no other legal

issue.

In the result, this appeal is dismissed. I order the Appellant to

pay costs of this appeal. _ /w?( v<<

A.R. Mruma.

---:-s Judge

~:Jr Tanga this 6 Day of July, 2020.

t ~ - .. "..,__.----"

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