Obed Mtei v Rukia Omari 1989 TLR 111 (CA)

 OBED MTEI v RUKIA OMARI 1989 TLR 111 (CA)

Court Court of Appeal of Tanzania- Dar Es Salaam

Judge Makame JJA, Kisanga JJA and Omar JJA

21 June, 1989

Flynote

Land Law - Survey - Procedure - Effect of failure to follow procedure. E

-Headnote

The parties in this case occupied land next to each other. One of them sent surveyors to measure and demarcate the land in the absence of the other. As a result of the survey a F piece of land was taken away from the land of that other and incorporated in the deed plan of the person who sent the surveyors.

Held: 

(i) Before making any survey it is the duty of the land officer to make sure that all third party interests are cleared and if it is a farm the Land Officer must see to it that the owners agree on the boundaries;

(ii) since the procedure was not followed the survey should be conducted again. Appeal allowed in part.

Case Information

Order accordingly.

[zJDz]Judgment

Omar, Makame and Kisanga, JJ.A.: The appellant Obedi Mtei was sued in the High Court by the respondent Rukia Omari for trespass into her land, Plot No. 560 I Kawe Beach, Kinondoni District. The prayer was also for the demolition of the huts unlawfully built by the appellant. The learned trial judge gave judgment for the respondent and ordered that the respondent Rukia be put in possession of all that land encroached upon by the appellant. The beacons removed by the appellant were to be put on their right places as approved by the Director of Surveys and Mapping and the appellant was ordered to demolish the hut he built on the respondent's land. Being dissatisfied by this decision the appellant is now appealing to this court.

The facts of this case are as follows: That one Rukia Mohamed now the respondent was either sold or given as a gift a piece of land at Kawe Beach area, measuring l.25 acres of C land, by one Obeid Mtei who had known her for sometime and the two had helped each other in many ways as good friends. The land was soon measured in the presence of the Chairman of the Allocation Committee, P.W.2, Amimu Hamisi, and both he D appellant and respondent and some elders of the village. Beacons were put there in the form of iron rods. Two weeks later Rukia sent a professional surveyor, P.W.3 who measured the land again and put beacons. Appellant was not there this time. This was in June, l986. In August, l986 when P.W.3, visited the land the second time the two E beacons put by him were not seen, they had obviously been removed and the third beacon was found under the hut which appellant Obeid had built. There was a wire fence stretching from one side of the plot to the other and taking away about 2272 square meters of the respondent's land.

Appellant avers that this extra land which was incorporated in the deed plan was taken F away from his land unlawfully, when respondent sent surveyors to measure and demarcate the land in his absence and allocated 1.5 acres to Rukia instead of 1.25 of the land which he had given her free of charge but which on her insistance he had signed an agreement signifying that he had sold her the plot for shs. 5,000/=.

There was another piece of land bought by the respondent from villagers which was added to this one obtained from the appellant. Appellant does not dispute this former piece. He is only concerned with the 1.25 acres sold or given to her which was originally part of his plot.

The Director of Surveys and Mapping who was called by the appellant to the farm after he had complained to him of the irregularities in the fixing of beacons, had this to say:

Normally before we make any survey it is the duty of the Land Officer to make sure that all the I third party interests are cleared and if it is a farm, the land officer must see to it that the owners agree on the boundaries.

In the present case the surveyor did not follow the procedure in that he did not involve all the neighbours and he did not have a certificate signed by the Land Officer and the B neighbours regarding his survey and the boundaries. Further he said in his testimony "I see this plan Exh. P.6 it was approved by my office. I see these beacons YR 928 and YR 929. If they were removed it is very serious".

Considering that the deed plan had been prepared as a result of the survey of P.W.3 in a manner which did not take into account the above procedure of having the owners approve of the boundaries and signifying their approval on a particular certificate which the Director of Surveys had shown to the court while giving evidence, we are of the view that the survey should be conducted again.

We believe there would be no area of disagreement once the parties are present as they are to our knowledge in full agreement as to what the acreage of each of their plots is.

In the result we allow the appeal to the extent that a re-survey is ordered. The deed plan of plot 560 might or might not change in acreage depending on what part of each of their E respective plots it should embody. The resurvey should be conducted on the lines suggested by D.W.2, Mr. Edwin Njau the Director of Surveys and Mapping, as shown above. We note that there is no dispute regarding the no mansland.

Appeal allowed in part.

1989 TLR p113

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