ALLY JUMA ALLY SCANNED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO.16248 OF 2024 (Originating from the Judgment and Decree of the District Land and Housing Tribunal for Temeke Land Application No. 103 of2022 delivered on 29h May2024) ALLY JUMA ALLY....................................................APPELLANT VERSUS RAFAEL PAUL KYARA......................................................... RESPONDENT JUDGEMENT 7th & 10h January,2025 L.HEMEDJ Parties to the instant case are neighbours. They own adjacent pieces of land which are located at Barabara ya Mwinyi, vituka street, Yombo vituka ward, Temeke District - Dar es Salaam. At the District Land and Housing Tribunal for Temeke, RAFAEL PAUL KYARA, the Respondent herein, sued the herein ALLY JUMA ALLY for trespass to his piece of land by erecting on top of the fence wall of his piece of land. He also claimed that the Appellant herein, in the course of trespassing his piece of land, blocked the way of access to the outer part of his house. The Appellant herein filed his written statement of defence resisting all the claims. He also raised counter claims alleging that the Respondent herein i had trespassed into his piece of land. The matter went to the stage of the trial, and at the end of the trial chairperson decided in favour of the herein Respondent. Aggrieved by the said decision the Appellant herein knocked the gates of this court with a Memorandum of Appeal containing the following grounds:- " 1. That the Tria! Chairman erred both in law and fact by failing to consider the nature ofboundaries due to neighborhood of parties, due to the production of documents which governing a disputed land demarcations. 2. That the Trial Chairperson erred both in law and fact by deciding the dispute against the Appellant without considering the bases of evidence adduced by witnesses. 3. That the trial Chairperson erred both in law and fact for failure to consider on exchange of beacon which caused the Appellant's areas be trespassed and possessed illegally by the Respondent. 4. The trial Chairperson erred both in law and fact where he conceded on opinion of the Tribunal Assessors while falling to give weight decision on 2 points of truthfulness of nature and history of the disputed land." Hearing of the appeal was done by way of written submissions. Parties acted in person and they did file their respective submissions timely as was directed by the court. In arguing the appeal, the Appellant dropped ground 1 and submitted on the 2nd, 3rd and 4th grounds. In the course of reviewing the submissions, judgment and proceedings of the trial, I realized that the trial Tribunal visited the locus in quo. I also noted that the trial chairperson used evidence gathered from the locus in quo as evidenced at page 9 and 10 of the typed judgment of the Tribunal. This prompted me to go through the proceedings to find out if the rules of visiting locus in quo were complied with by the trial tribunal. According to the proceedings, of the trial Tribunal, defence case was closed on 19th February 2024. On the particular date, parties prayed for the visitation of the locus in quo and the Tribunal made the following orders:- "Amri. 1. Kutembelea eneo 17/4/2024 2. Wadaawa wafike. Sgn.P.I. Chinyete 3 19/2/2024' The trial Tribunal visited the locus in quo on 17th April, 2024 and heard evidence from SMI and SU1.1 have noted the following irregularities from the proceedings of 19th February 2024 and those of 17th April, 2024; one, since both parties had closed their cases, the trial Tribunal did not make an order to recall SMI and SU1 for purposes of adducing evidence at the locus in quo; two, at the locus in quo, SMI and SU1 adduced evidence without taking oath. It should be noted that the above irregularities were not complained of by the parties but noted by the court suomoto. This necessitated the calling of the parties to address the court on the said points. When the Appellant who was appearing in person called to address the court, he supported the findings of the court that, the visit of the locus in quo was not properly conducted by the trial Tribunal. He urged the court to make an appropriate order. On his part, the Respondent contended that the Tribunal called the parties at the disputed land and that both parties managed to show their respective pieces of land and the boundaries thereof. According to the 4 Respondent, the trial Tribunal discovered trespass to the suit land by the appellant. At the end, he joined hands with the Appellant that during visit of locus in quo witnesses did not take oath prior to adducing evidence. Having heard from the parties, let me start by pointing out that visiting of locus in quo in land disputes is never mandatory. In Nizar M.H.Ladak v. Gulamali Fazal Janmohamed [1980]T.L.R 29, the Court of Appeal of Tanzania insisted courts to inspect locus in quo only in exceptional circumstances. The CAT was worried that by doing so a Court may unconsciously take the role of a witness rather than an adjudicator. In fact, it is even discouraged to be adopted where it is not necessary. However, where the circumstances of the case dictate the visit, the court or tribunal must conduct such a visit according to the laid down procedures. To begin, let me start with the procedure for visiting locus in quo which was propounded in Ugandan case of David Acar and Three Others vs. Alfred Acar Aliro [1982] HCB 60, where the High Court of Uganda held thus: - " When the court deems it necessary to visit the locus in quo, the both parties and their witnesses must be told to be there. When they are at the locus in quo, 5 it is...not a public meeting where public opinion is sought as it was in this case. It is a court sitting at the locus in quo. In fact, the purpose of the visit of the locus in quo is for the witnesses to clarify what they stated in courts; he/she must do so on oath: The other party must be given opportunity to cross-examine him. The opportunity must be extended to the other party. Any observation by the trial magistrate must form part of the proceedings." [Emphasis added] Coming back home, the above procedural requirements are not in anyway materially different from what had been had been entrenched in the jurisprudence of Tanzania as may be exemplified by the decision of the Court of Appeal of Tanzania in Nizar M.H.Ladak v. Gulamali Fazal Janmohamed(s4//ra), where it was observed that:- "When a visit to a locus in quo is necessary or appropriate and as we have said...the court should attend with the parties and their advocates, if any, and with such witnesses as may have to testify 6 in that particular matter and for instance, if the size ofa road or with of a road is a matter in issue, have the room or road measured in the presence of the parties, and a note made thereof. When the court re­ assembles in the court room, all such notes should be read out to the parties and their advocates, and comments, amendments or objections called for and if necessary incorporated notes in order to understand or relate to the evidence in court given by witnesses. "[Emphasis added] To put the above into the form of checklist as may be drawn from the Ugandan case and the decision of the Court of Appeal of Tanzania in Nizar case(s4/p/a), the procedure to be followed upon the trial court's visit to the locus in quo, entails the following requirements: - 1. All the parties, their witnesses, and advocates, if any must be present; 2. Allowing the parties and their witnesses to adduce evidence under oath at the locus in qua, 7 3. Parties should be allowed to cross-examine witnesses; 4. All the proceedings at the locus in quo must be recorded; and 5. Recording any observation, view, opinion or conclusion of the court, including drawing a sketch plan, if necessary." As a matter of general rule, visiting locus in quo is necessary in land disputes where the parties are disputing on the location of the land in dispute or where there is a contention on the boundaries of their respective plots, or in case of trespass, where boundaries are clear, but there is contention as to whether one party's activities like farming, construction or other activities have protruded into neighbour's land amount to trespass. The circumstances will always be diverse on case-by-case basis, nevertheless, the purpose will remain to ascertain those facts and assertions which can neither be verified through oral testimony nor exhibited through documents presented before the court as was held in Victor Raphael Luvena v. Ephraim Kawa & Others, Civil Appeal No. 25A of 2021. 8 As to whether visiting of the locus in quo was necessary in the matter at hand, I judge that it was. The nature of the dispute as mirrored in the record of the trial tribunal justifies the necessity of visiting locus in quo. The parties were not in common understanding as to the extent of trespass as each party was accusing the other for having encroached to his piece of land. The question that needs to be addressed is whether the procedure for visiting locus in quo were complied with. Coming to the present matter, the trial tribunal found to be necessary to visit locus in quo as aforesaid. Two witnesses, that is, SMI and SU1 testified at the locus in quo. However, according to the proceedings of the trial tribunal, there is no order of recalling the said witnesses who had already closed their testimonies re-appear before the court and re-testify. Additionally, the said two witnesses adduced evidence at the locus in quo without taking an oath. My firm view is that, such error cannot be cured by overriding objective principles as it falls within the fatal mistakes. It is a trite law that evidence taken without an oath is no evidence. The fact that the trail chairperson used evidence from locus in quo taken without an oath, renders the entire judgment a nullity. On top of that, the visit of locus in quo conducted on 17th April 2024, contravened one of the requirements of 9 witnesses to testify under oath. This being the case, I proceed to make the following orders: - 1. Appeal allowed; 2. The proceedings starting from 17th April 2024 up to 29th May, 2024; Judgment and Decree of the trial Tribunal are quashed; 3. The matter is remitted to the lower tribunal for re­ determination before another chairperson but same set of assessors, from the stage of visiting locus in quo, and 4. Each party to bear its own costs. Order accordingly. io