ABDI HASSAN GULLED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MANYARA AT BABATI LAND APPEAL NO. 5976 OF 2024 (Originating from Land Application No. 28 of 2021, District Land and Housing Tribunal for Babati at Babati) ABDI HASSAN GULLED..............................................................................1stAPPELLANT AHMED HASSAN GULLED.......................................................................... 2ndAPPELLANT SARA ABDILLAH........................................................................................ 3rdAPPELLANT VERSUS ISMAIL JAMA GULLED (as an administrator of the estate of the late YUSUF GURRED ISMAIL)....................... RESPONDENT JUDGMENT 24th July & 15th August, 2024 D. C. KAMUZORA, J. Before the District Land and Housing Tribunal for Babati (hereinafter referred to as the trial tribunal), the respondent who is the legal representative of the late Yusuf Gurre Ismail sued the appellants claiming for a piece of land measuring about 5 acres situated at Endanoga village, Galapo ward within Babati district (hereinafter referred to as the suit land). He also claimed for specific damages at the tune of TZS 27 million, Page 1 of 15 an order restraining the appellants from entering the suit land, general damages as well as costs of the suit. According to the respondent, the suit land forms part of the estate of the late Yusuf Ismail who passed away sometimes in 2019. The respondent claimed that the late Yusuf Ismail acquired the suit land through operesheni vijiji in 1974 and he was using the same for agricultural activities until 2018 when the appellants trespassed into that land. The respondent's effort to settle the matter amicably was barren of fruit thus, he referred the matter before the trial tribunal. The appellants filed a joint written statement of defence in which they disputed the respondent's claim. They pointed out that the boundaries referred by the respondent were different from that of the suit land. They claimed that the suit land was originally owned by their late father Hassan Gulled since 1974 and does not form part of the estate of the late Yusuf Ismail. After hearing the parties, the trial tribunal decided in favour of the respondent and held that the suit land forms part of the estate of the late Yusuf Ismail administered by the respondent. It ordered the appellants to pay the sum of TZS 22,500,000/= as the loss incurred by the respondent for not utilizing the suit land. The appellants were aggrieved with the trial Page 2 of 15 tribunal's decision and preferred the instant appeal on the following grounds; 1. That, the learned chairman erred in law and fact for failure to properly analyze the evidence on record hence, arrived to unjust decision. 2. That, the learned trial chairman erred in law and fact to declare the respondent the owner of the suit land which is more than the size of land indicated in the application form filed by the respondent before the trial tribunal. 3. That, the trial chairman erred in law and fact for failure to adhere to the proper procedures laid down by the law for visiting the locus in quo. 4. That, the learned trial chairman erred in law and fact to award damages without considering the principles of the law governing the award of damages. When the matter was called for hearing, the appellants appeared in person while the respondent enjoyed the service of Ms. Fides Sariko Mwenda, learned advocate. Parties agreed to argue the appeal by way of written submissions and they both con g lied with the submissions schedule. In their submission in support of the l5t ground of appeal, the appellants invited this court to evaluate the evidence being guided with the decision in the case of Kaimu Said vs Republic Criminal Appeal No. 391 of 2019 [2021] TZCA 273 (7 June 2021). They contended the trial Page 3 of 15 tribunal failed to properly evaluate the evidence as it accorded no weight to the appellant's evidence. Referring page 11 to 20 of the typed judgment, the appellant contended that the learned trial chairman considered the respondent's evidence and ignored the evidence of SU4 and SU6 who were present in 1974 at the times when farms were allocated to people. That, the said witnesses were firm that Yusufu Gurred was not allocated farm as he went to the village after operesheni vijiji. That, the evidence by SU5 also supported the fact that the suit land belongs to the appellants. The appellants further submitted that, the late Yusufu Gured filed Application No. 83 of 2018 before his demise before the trial tribunal claiming that the suit land was 11 acres. That, upon his demise, the application was withdrawn and the administrator of the deceased's estate filed another application before the trial tribunal claiming that the suit land was 5 acres. They argued that this contradiction was enough for the trial tribunal to doubt whether the deceased owned land in that village. The appellants also submitted that the trial chairman was wrong to raise an allegation that the appellants were responsible for the missing ledger without considering that SU3 testified before the trial tribunal that the ledger got lost in 1992 and the name of the person responsible was disclosed. They insisted that, the defence evidence was not considered by Page 4 of 15 the tribunal in its decision thus, contrary to the law. Reference was made to the case of Director of Public Prosecutions vs Josephat Jospeh Mushi & another Criminal Appeal No. 471 of 2019 [2023] TZCA 17536 (24 August 2023). They maintained that the evidence in totality was not properly evaluated by the trial tribunal. On the 3rd ground of appeal, the appellants submitted that the trial tribunal visited the locus in quo without the appellants herein and the witnesses contrary to the procedures laid down in the case of Nizar M. H. Vs Gulamali Fazal Janmohamed [1980] TLR 29, Nshinga Liangwa vs Joseph Mpori Mwalwa Land Appeal No. 49 of 2022 [2023] TZHC 19794 (20 July 2023). That, parties to the case and their advocates were not present thus, the whole process of visiting the locus in quo was illegal and infringed the appellants' right to be heard which is guaranteed under the article 13(6) (a) of the Constitution of the United Republic of Tanzania. Reference was also made to the case of Ausdrill Tanzania Ltd vs Mussa Joseph Kamili & another Civil /Appeal No. 78 of 2014 Court of Appeal of Tanzania (unreported). On the 4th ground of appeal, the appellants argued that the award of TZS 22,500,000/= to the respondent was not proper because the trial tribunal wrongly applied the case of Ibrahim Twahili Kusundwa & another vs CRDB Bank PLC & others (Civil Mppeal No. 194 of 2021) Page 5 of 15 [2024] TZCA 7 (19 January 2024). That, the said case was not relevant in the matter at hand because the claim in that case was on mesne profit while in the matter at hand, the claim was for specific damages at the sum of TZS 45 million for not using the farm from 2019-2022. That, while the respondent's calculation of 100 sacks of maize to be sold at TZS 80,000/= each 5 sacks of peas to be sold at TZS 200,000/=each could arithmetically bring the amount of TZS 39 million, the respondent's claim was TZS 45 million. The appellants argued that trial tribunal wrongly awarded TZS 22,500,000/= without considering that specific damages must be specifically proved. They referred the case of M/S Universal Electronics & Hardwared T. Limited vs Strabag International GMBH Tanzania Branch (Civil Appeal No. 122 of 2017) [2021] TZCA 125 (19 April 2021). They maintained that the respondent herein pleaded specific damages but failed to prove the same as required by the law. They thus urged this court to allow the appeal, quash and set aside the trial tribunal's decision. In her reply to the 1st ground of appeal Ms. Mwenda submitted that, the trial tribunal critically analyzed the evidence adduced by the parties. Referring page 8 to 11 of the typed judgment, the respondent's counsel pointed out that the evidence of SU4 shows that the late Hassan Guled was allocated 5 acres only and the appellants herein trespassed to the Page 6 of 15 land which does not belong to them. That SU5 also testified that the late Hassan Gulled was allocated 5 acres of land and if during survey the suit land exceeded five acres, then the additional land would not be the deceased's land. The learned advocate argued that the late Yusuph Gulled filed Land Application No. 83 of 2019 before the trial tribunal in which he sued the 1st and 2nd appellants after their father Hassan Gulied died and the dispute was on boundaries for the appellants trespassed after their father death and they never had dispute before. The learned advocate insisted that the evidence of both the respondent and the appellants was properly analyzed before the trial tribunal and the decision arrived was proper. On the 3rd ground of appeal, the learned advocate submitted that the appellants refused to attend the visit of the loais in quo and the trial tribunal complied with all the procedures when it visited the locus in quo. She cited the case of Dar es Salaam Watei ai> < Juwerage Authority vs Didas Kameka & others Civil Appeal No. 232 of 2019 Court of Appeal of Tanzania and of Nizar M. H. vs Guiamali Fazal Janmohamed (supra) and argued that the appellai its' right to 1 Iicard was not infringed since the appellants and their advocate did nut want to participate in visiting the locus quo. Page 7 of 15 On the 4th ground of appeal, the learned advocate submitted that the award of TZS 22,500,0p0/= by the trial tribunal was proper since the appellants trespassed into the suit land and used it thus, the respondent proved the claim for specific damages. The learned advocate therefore urged this court to dismiss the appeal with costs. In rejoinder, the appellants essentially reiterated their submission in chief that the trial tribunal did not analyze the evidence on record and that the procedures for visiting the locus in quo were not complied with. Having gone through the parties' rival submissions and the record of the trial tribunal, there are three issues for determination; one, whether the trial tribunal complied with the procedures for visiting the locus in quo two, whether the trial tribunal properly analyzed the evidence on record, and three, whether the trial tribunal was justified in awarding a sum of TZS 22,500,000/= to the respondent. Before determining the issues raised, I find it appropriate to address one important aspect. It is on record that, the respondent acted in the capacity as administrator of the deceased's estate and it is so indicated in the Application and judgm nt of the trial tribunal. However, the heading part of the judgment of the trial tribunal and the petition of appeal filed in this court, refer the respondent in his personal capacity. Since there is no dispute that the respondent has been all along acting in administration Page 8 of 15 capacity, he will continue to be referred as administrator of the estate of the late Yusuf Gurred Ismail. Turning to the merit of the appeal, I will start with the 1st issue to which the appellants claimed that that they were condemned unheard since the visiting of the locus in quo was done in their absence. It is on record that both the appellants and the respondent were represented by advocates before the trial tribunal. Un 15/11/2023, immediately after the closure of the defence case, Mr. Tadei Lister, counsel for the applicant (respondent herein) prayed for the tribunal to visit the locus in quo. Such prayer was supported by Ms. Veneranda, the respondents' counsel (appellants herein). The trial tribunal fixed the date, 24/11/2023 for purpose of visiting the locus in quo. On that date, the appellants did not appear but their advocate appeared and informed the trial tribunal that the appellants refused to visit the locus in quo for some reasons which were not disclosed. Alternatively, she prayed for the matter to be fixed for another date but for purpose of reading assessors' opinion. That, prayer was opposed by the respondent's counsel who insisted on the visitation of the locus, a prayer which was granted by the trial tribunal by adjourning the visitation to anothei date, on 08/12/2023. On that date, neither the appellants nor their advocate appeared and the trial tribunal opted to continue with visitation exercise. Page 9 ol 15 I am very much ware of the procedures on visiting the locus in quo laid down by the Cou 1 of Appeal in the celebrated case of Nizar M. H. Ladak vs Gulamali Fazal Janmohamed (supra). Basically, visit of locus in quo is not i ndatory but there are exceptional circumstances under which, the visit will be become necessary. In the above case, the court stated; "When a visit to i locus in quo is necessary or appropriate, and as we have said t should only be necessary in exceptional cases, the court should attend with the parties and their advocates, if any, and with such witnesses as may have to testify in that particular matter, and for instance if the size of a room or width of the road is a matter in issue; have the room measured in the presence of the parties, and a note made thereof When the court re-assembies in the court roo m, all such notes should be read out to the parties and their advocates, and comments, amendments or objections called for and if necessary incorporated. Witnesses then have to give evidence of all facts, if they are relevant, and the court only refers to the notes in order to understand or relate to the evidence in court given by the witnesses. " From the above decision, it is clear that parties are supposed to be involved in the visitation of the locus in quo. In the matter at hand, the trial tribunal chairman formed view that visiting of the locus in quo was necessary because there was a need to verify the size of the disputed land and resolve boundary issue which was raised in the evidence from Page 10 of 15 both parties. In considering the importance of resolving that issue, the trial tribunal scheduled date for visiting the locus in quo. However, the appellants refused to attend the visit and never disclosed the reason for such refusal. I do not find how the ppellants were denied the right to be heard on that aspect. They were given chance two times and even after their non-appearance on the first scheduled date, the matter was adjourned to another date in the presence of their advocate to give them chance to appear. This means that, die appellants opted to abrogate their right to attend the visitation of the locus in quo tl ius, they cannot be heard complaining on not being accordeu the right to be heard. However, the weight of the evidence obtained duri. ig visitation is a matter for discussion and that will be covered on the sec md issue when analyzing evidence in totality. I therefore find the first issue not in affirmative as the appellants were not denied the right to oe heard. The 2nd issue is based on the analysis of evidence before the trial tribunal. The respondent's pleadings, his testimony and that of his witnesses refer to the claim of 5 acres of land and they claimed that the basis of the dis, ute was the appe ants' condo- t Oi moving the original boundaries by entering into the respondent's land. The respondent's evidence suggests that both the respondent's father and the appellants' father were aiiocated 5 acres of iand each, i i 1974. The appellants Page 11 of 15 countered such claim and insisted that the respondent's father was never allocated land but the appellants' father was allocated 5 acres. If the respondent claimed trespass against the appellants, he suggests that the appellants are occupying more than what was allocated to them. In that regard, there is issue over the location, size and boundaries of the suit land therefore, it was necessary for the disputed land to be identified and measured to eliminate the controverse. The trial tribuna1 visited the locus in quo and in his judgment the learned trial chairperson observed that the respondent was able to prove the claims regarding the ownership of the suit land, basing on the evidence adduced by SMI, SM2, SM3, SM4 and the report of the surveyor who visited the locus in quo and the information from the neighbors who were found at the suit land during the visit of the locus in quo. From that holding, I agree with the submission by the appellants' counsel that the evidence obtained during the visitation of the locus in quo was among the evidence considered by the trial tribunal as proving ownership for the respondent. It must be noted that the evidence from both parties revealed dispute over land owned by each party and the boundaries. The trial tribunal considered issue of visitation of the locus in quo necessary to verify such evidence, the point which I also support. Page 12 of 15 However, looking into the evidence obtained during visitation, I do not see if the issue in controverse was truly resolved. From the trial tribunal's proceedings, the following was captured during visitation; one, the trial tribunal invited the land surveyor from Babati District Council to verify the size and invited neighbors to verify the boundaries of the suit land, two, the neighbors were examined and their evidence recoided but the surveyor was not examined. The records shows that the surveyor submitted his survey report to the tribunal which was admitted as exhibit Bl. Going through the records, I did not find any report save for two sketch maps with signature and stamp of the district land surveyor. Based on the above observation, I asked myself as which report the tribunal chain nan was referring as supporting evidence over the size and location of the suit land. But assuming that he was referring the two sketch maps, this court carefully studied the said sketch maps and observed that, the first sketch map covers two surveyed area; Area 1 with the size of 5.57 acres and Area 2 with the size of 7.28 acres. The second sketch map covers one area with the size of 12.85 acres meaning that it is a combination oi the first two areas. However, there is no further explanation as to whether the whole surveyed areas had dispute, and if not, which among the two area is related to the dispute at hand. Thus, Pa^e i 3 of 15 while the purpose for survey was t ’ determine the real size, location and boundaries of the disputed land, I do not see if that purpose was achieved. Basically, the procedures laid down in the case of Nizar M. H. Ladak vs Gulamali Fazal JanmoF nmed (< upra) were not complied with. The land surveyor was one of the witnesses who was supposed to give evidence on the facts found at the locus. The records do not show if upon re-assemble of the trial tribunal, t! ? notes of what was gathered at the locus was read out to the parties and their advocates, and comments, amendments or objections allowed. Tn fact, the evidence of the surveyor which was relied upon by the trial tr ' mal was not in record thus, although those other witnesses of the locus may have explained on boundaries, the issue of the size was left undetermined. It must be noted that, one or the appellants' grounds of appeal is that the learned trial chairman erred in declaring the respondent the owner of the suit land which is more than the size of land claimed. This ground is well justified for the trial1' ibunal based on the surveyor's report which is uncertain over the size of the suit land. Based on that observation, I maintain the tribunal's opinion dated 24/112023 that visitation of the locus in quo was necessary to determine the real issue in dispute. However, due to inconsistencies in evidence obtained during the visitation of the locus in quo, I nullify all proceedings Page 14 of 15 related to the visit of the locus in quo and the subsequent proceedings. To be specific, all proceedings from 08/12/2023 and thereafter, are hereby nullified. Subsequently, the trial tribunal's judgment and decree or any subsequent orders of arising therefrom are hereby quashed and set aside. This court remit the record to the trial tribunal for complying to the legal requirement and compose a new judgment. In that regard, I hesitate from further analysis of the evidence and determination of the third issue regarding the award of damages to avoid preempting the trial tribunal. The appeal is therefore allowed but in considering the circumstance that the matter is to be remitted to the tiial tribunal for trial, I make no order as to costs. DATED at LAbAll this 15th day of August, 2024. AMUZORA JUt/JE Page 15 of 15