Alex Timoth Lali

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DODOMA SUB-REGISTRY AT DODOMA LAND APPEAL NO. 3 OF 2023 (Originating from Land Application No. 20 of 2022 before the District Land & Housing Tribunal for Kondoa) ALEX TIMOTH LALE (The Administratrix of the Estate of the Late ZITA PAUL SALALA )..................... RESPONDENT VERSUS ELIHAKIMU HASSAN MAHENGE.................................. RESPONDENT JUDGMENT Date of Last Order: 6/6/2024 Date of Judgment: 16/7/2024 MASABO, J.: The appellant herein was the applicant in Land Application No. 20 of 2022 before the District Land and Housing Tribunal for Kondoa (the trial tribunal). He instituted the application in his capacity as a representative of Zita Paul Salala, now deceased. He alleged that the respondent unlawfully trespassed into a parcel of land measured 3/4 acre property of the late Zita Paul Salala and built a house therein. The respondent refuted the claims and asserted that he lawfully owned the suit land having purchased it from Omari Makusa Issa (DW2). As per the record, when the application was called on for hearing, the appellant paraded 4 witnesses in proof of his case and the respondent Page 1 of 12 paraded 4 in opposition. For the appellant, the appellant testifying as PW1 told the trial tribunal that the suit land is part of land owned by the late Zita Paul Salala located at Mondo ya Zamani area. That, she acquired the same from his brother Timothy Laie, also deceased before 1974 when the later relocated from Mondo ya Zamani to Mrijo village. That, during villagerisation in 1974, the late Zita Paul Salala was relocated to Araa Village but she kept going back to Mondo ya Zamani where she maintained her ownership of the suit property and used it for subsistence farming. In 2012, the respondent trespassed into it claiming that he had lawfully bought it from Omari Makusa (DW2) and built a house therein. PW2, Ayub Omari Mwenda, recalled that Zita Paul Salala owned the suit land having acquired it from her brother, Timothy Laie, who relocated to Mrijo village. That, after her relocation to Araa village, she regularly visited the suit land for farming but in 2012, a person not known to him trespassed into the land and built a house thereon. PW3 Said Rashid Mahende and PW4, Paul Theobald Sisya corroborated the evidence adduced by PW1 and PW2. They too narrated that the suit belonged to Zita Paul Salala and that the respondent unlawfully trespassed into it and erected a house. On his part, the respondent testifying as DW1, admitted that he was not the original owner of the suit land but he stated that he lawfully purchased it from Omari Makusa at a consideration of Tshs 250,000/- in 2012 and thereafter he erected a house therein in 2013. Hence, the suit land exclusively belonged to him as he followed all the procedures and processes for the purchase of the suit land and had the endorsement of the village Page 2 of 12 authorities. The sale agreement was admitted as Exhibit DI. Makusa Omari Issa, the person who sold the land to the respondent, testified in his favour as DW2. He told the tribunal that the land belonged to him. He bought it from the original owner (name unidentified) in 1966 and built two houses therein. During villagerisation in 1974, he demolished the houses but he maintained its ownership until 2012 when he sold it to the respondent. In cross examination, he stated that he bought the suit land in 1970 from Mwanaidi Mohamed and although he had a contract for sale, the same was burnt in 1988 or 1989. Thus, he remained with no document but he was very sure that the suit land was his. DW3, Marry Emmanuel Kimolo and DW4, Athuman Kaita, witnessed the sale transaction in their capacity as village chairman and Ward Executive Officer (WEO), respectively, for Mondo in 2012. None of them went to the plot and they never called the hamlet leader for Pampuka hamlet where the suit land is located. They all relied on DW2's word that the land belonged to him. Further, DW3 stated that, although she did not go to the site and the hamlet leader was not called, she was pretty sure that the suit land belonged to DW2 as that is what she knew. Also, the tribunal paid a visit to the locus in quo. Having assessed this evidence and having considered what transpired during the visit at the locus in quo, the trial tribunal found the appellant to have not proved his case and dismissed it with costs. Determined to pursue his right further, the appellant has knocked on the door of this court with an appeal based on the following four grounds: Page 3 of 12 1. That, the trial tribunal erred in law and fact for not taking into account that the appellant has been in the occupation of the land in dispute since 1974 until when the same came into dispute in 2012. 2. That, the trial tribunal erred in law and in fact in holding that the suit land belongs to the respondent herein basing on the weak, contradictory and irrelevant evidence of the respondent and his witnesses. 3. That, the decision of the trial tribunal does not qualify to be a judgment as it has neither analyzed evidence that was put before it deliberately nor given the reasons thereof. 4. That, the trial tribunal erred in law and in fact to decide in favor of the respondent while the matter was not proved as per the standards set. With a leave of this court, the appellant filed two supplementary grounds making a total of 6 grounds of appeal. The supplementary grounds are: 1. The judgment and decree of the trial tribunal are nullity for want of opinions of assessors; and 2. The trial tribunal erred in law and fact when it failed to abide to the principles of visiting locus in quo. When called on for the hearing which proceeded by way of written submission, the respondent had no representation. He fended for himself Page 4 of 12 I whereas the appellant enjoyed the representation of Mr. Isaya Edward Nchimbi, learned counsel who drew and filed his written submission. Submitting in support of the appeal, Mr. Nchimbi dropped the original grounds of appeal and proceeded to submit on the supplementary grounds. With respect to the first supplementary ground, he submitted that the law mandatorily requires that before the chairman reaches the judgment he should give the assessors an opportunity to give their opinion. The requirement, he argued, is provided for under section 23 of the Land Dispute Act, Cap. 216 R.E. 2019 and Regulation 19(1) and (2) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2003. He proceeded that the trial tribunal's proceedings show that the opinions of the assessors were to be read on 6th December 2022 but they were not read. The trial chairman just recorded that the assessor's opinions had been read to the parties but they were not. Based on the decision of the Court of Appeal in the case of Sikuzan Saidi Magambo & Another vs Mohamed Roble (Civil Appeal No. 197 of 2018) [2019] TZCA 322 TanzLII and Edina Adam Kibona vs Absolom Swebe (Sheli) (Civil Appeal No. 286 of 2017) [2018] TZCA 310 TanzLII, he submitted that the omission to read the opinion of the assessors is a fundamental irregularity and occasioned miscarriage of justice. Hence, it vitiated the proceedings. On the second supplementary ground, he submitted that visitation to locus quo has to comply with the principles set out in the case of Nizar M.H. vs. Gulamali Fazal Janmohamed [1980] TLR 29 where it was stated that Page 5 of 12 when the court visits the locus in quo, the parties and their advocates if any should all attend along the witnesses who have testified on the particular matter and that, when the court resume, the notes recorded thereat should be read out to the parties and their advocates and the comments, amendments or objections if any be incorporated, if necessary. With reference to pages 45 to 48 of the trial tribunal's proceedings, he submitted and argued that the procedure above was not complied with as: one, the parties adduced evidence without oath; two, the parties were not accorded the right to cross examine; three, the trial tribunal never re- assembled to । read out the notes; observation and comments to the parties and, last, while at the locus in quo, the tribunal did not record important proceedings such as drawing a sketch plan. Based on these two supplementary grounds, he submitted and prayed that the proceedings are fatally defective and should be nullified, quashed and set aside and so is the judgment. The case file be remitted back to the trial tribunal for trial de novo. Replying to these two supplementary grounds, the appellant submitted that the appeal is devoid of merit and should be dismissed with cost. On the first supplementary ground, she submitted that the opinions of the assessors were not only read but they are also present in the case file. Thus, while the submission on the mandatory requirement for the opinion of assessors is correct and reflects the law as it currently stands, the allegation that the opinions were not read is unfounded. The cases cited are inapplicable as Page 6 of 12 their facts are sharply distinguishable from the facts of this case. Unlike in the cited cases, in the present case, the opinions of assessors were read over and the chairman referred to them in his judgment as shown on pages 11 to 12 of the trial tribunal's judgment. Hence, there is no irregularity. In the alternative, he submitted that the irregularity if any did not occasion a miscarriage of justice hence curable under section 45 of the Land Disputes Courts Act, Cap 216 R.E 2019. On the 2nd supplementary ground of appeal, it was submitted that the tribunal duly complied with all the guidelines for visitation of locus in quo. All the parties were present; the assessors were also present and both parties identified the suit land showing the boundaries. In fortification, he cited the case of Avit Thadeus Massawe vs, Isdory Asenga (Civil Appeal No. 6 of 2017) [2020] TZCA 365 TanzLII where it was held that the purpose of visiting the locus in quo\s to ascertain the suit land by looking at its size, boundaries and its physical features. Resting his submission, he argued that the irregularity if any did not occasion a miscarriage of justice and it is curable under section 45 of the Land Dispute Courts Act. In the foregoing, he prayed that the appeal be dismissed with costs. I have considered the rivalry submissions alongside the trial tribunal's record and I will now proceed to determine the appeal based on the two supplementary grounds. Starting with the first supplementary ground, section 23 (1) and (2) of the Land Disputes Courts Act deal with assessors and state that, for the District Land and Housing Tribunal to be properly Page 7 of 12 constitutes, the chairman should sit with a minimum of two assessors who shall be required to give out their opinion before the chairman reaches the judgment. The requirement is reinforced under Regulation 19 (2) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2003 which sets out the modality for obtaining the opinions. It requires that, before making his judgment, the chairman should require every assessor to give his opinion in writing. Applying these provisions in Ameir Mbarak and Azania Bank Corp Ltd v. Edgar Kahwili, Civil Appeal No. 154 of 2015 CAT (unreported); Tubone Mwambeta v. Mbeya City Council, Civil Appeal No. 287 of 2017 [2018] TZCA 392 TanzLII and Edina Adam Kibona vs Absolom Swebe (supra), the Court of Appeal held that the participation of the assessors in the trial before the District Land and Housing Tribunal is mandatory and so is their opinion which, as per the provisions above, must be given in writing and read out to the parties before the composition of the judgment. The Court has also consistently held that, the omission to obtain such opinions is a fatal irregularity with the consequence of vitiating the proceedings and the judgment so entered. In the present case, the chairman sat with two assessors. Thus, it was crucial that their opinions be obtained before delivering the judgment. The tribunal's record shows that, on 25th November 2022, the trial chairman ordered the assessors to give their opinion on 6th December 2022. Further, it shows that on 6th December 2022 the opinions were read over and as correctly submitted by the respondent's counsel, the written opinion of both assessors dated 28th November 2022 are present in the case file. It would appear that, Page 8 of 12 the appellant is trying to impeach the trial tribunal's record. I do not subscribe to his view as the law presumes such record to be the accurate record of what transpired in the tribunal on the respective date. Hence, it cannot be easily impeached. As stated by the Court of Appeal in Alex Ndendya vs Republic (Criminal Appeal 207 of 2018) [2020] TZCA 202 (6 May 2020), TanzLII: It is settled law in this jurisdiction that a court record is always presumed to accurately represent what actually transpired in court. This is what is referred to in legal parlance as the sanctity of the court record. In Halfani Sudi v. Abieza Chichili [1998] T.L.R. 527 the Court followed its previous decision in Shabir F. A. Jessa v. Rajkumar Deogra, Civil Reference No. 12 of 1994 (unreported) to hold that: "A court record is a serious document; it should not be lightly impeached. " We also subscribed, in that case, to the decision of HM High Court of Uganda by Bennett Ag. CJ in Paulo Osinya v. R. [1959] EA.353, to hold that: "There is always a presumption that a court record accurately represents what happened." As the submission by the learned counsel did not rebut this presumption, the record of the trial tribunal has remains to be accurate one and the first supplementary ground of appeal is, therefore, found with no merit and it is overruled. Turning to the second supplementary ground, the law is now settled that, visitation to the locus in quo is in the discretion of the trial court or tribunal Page 9 of 12 I and should be done sparingly only when it is necessary. Also, as correctly submitted by the appellant's counsel, when the trial court or tribunal finds such visitation necessary, it should proceed guided by the principles for visitation of the locus in quo as elucidated in the case of Nizar M.H. v. Gulamali Fazal Jan Mohamed [1980] TLR 29, in which the Court of Appeal held that:- "When a visit to a locus in quo is necessary or appropriate, and as we have said, this should only be necessary in exceptional cases, the court should attend with the parties and their advocates, if any, and with much each witness as may have to testify in that particular matter... When the court re-assembles in the courtroom, 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 those 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 witnesses. We trust that this procedure will be adopted by the courts in future." Cementing this position in the case of Kimonidimitri Mantheakis vs Ally Azim Dewji and Others, (Civil Appeal No. 4 of 2018) [2021] TZCA 663 TanzLII, the Court of Appeal held thus:- "In the light of the cited decisions, for the visit of the locus in quo to be meaningful, it is instructive for the trial Judge or Magistrate to: one, ensure that all parties, their witnesses, and Page 10 of 12 advocates (if any) are present. Two, allow the parties and their witnesses to adduce evidence on oath at the locus in quo; three, allow cross-examination by either party or his counsel, four, record all the proceedings at the locus in quo; and five record any observation, view, opinion or conclusion of the court including drawing a sketch plan if necessary which must be made known to the parties and advocates, if any." (Also see the case of Avit Thadeus Massawe vs. Isidory Assenga, Civil Appeal No. 6/2017). When looking into the proceedings to ascertain whether the visitation complied with these guidelines, I have observed that the visitation was materially noncompliant with the above principles and the general principles of evidence. As correctly argued by Mr. Nchimbi, while at the locus in quo the parties and their witnesses adduced evidence without oath and there was no cross examination. Their testimonies were, akin to a fairy tale. Second, having completed the visit, the trial tribunal never re- assembled to read out the notes and the parties had no opportunity for observation and comments. What remains to be determined in the foregoing, is the consequences for noncompliance. The counsel for the appellant has argued that noncompliance is a fatal irregularity that vitiates the proceedings whereas, on the other hand, the respondent has argued that the irregularity, if any, is negligible. The latter argument has no limbs on which to stand as it sharply Page 11 of 12 b contrasts with the law. As correctly submitted by Mr. Nchimbi it is now a settled law that failure to comply with the guidelines above constitutes a fatal irregularity that vitiates the proceedings as stated by the Court of Appeal in the case of Sikuzani Saidi Magambo and Kirioni Richard v. Mohamed Roble (supra). Accordingly, I concur with Mr. Nchimbi that the proceedings of the trial court have been vitiated by this irregularity. The second supplementary ground of appeal is, therefore, successful and it is allowed. The trial court's proceedings are consequently nullified, quashed and set aside. The record is remitted to the trial tribunal for a fresh trial before a different chairman. The costs shall be shared by each of the parties shouldering its respective costs. DATED at DODOMA this 16th day of July 2024. J. L. MASABO JUDGE Page 12 of 12