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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB REGISTRY AT TABORA LAND CASE APPEAL NO. 24 OF 2023 (Originating from the decision of the District Land and Housing Tribunal for Tabora in Land Application No. 39 of2020) AMINA I. MACHENGA (administratrix Of the estate of the late Iddi Shaban Machenga)........... APPELLANT VERSUS SAADA HAMOUDI.......................... 1st RESPONDENT SHABAN BUTUNGWA........................................... 2nd RESPONDENT STELLA MCHOPA (As the administratrix of the estate of the late Mzee Mchopa)...................................... 3rd RESPONDENT EMMANUEL MSONGA......................4th RESPONDENT MBARUKU MTANDIKA.................... 5th RESPONDENT JUDGMENT Date of Last Order: 26/09/2024 Date of Delivery: 03/10/2024 MANGO, J. The Appellant, Amina I Machenga, the administrator of the estate of the late Iddi Shaban Machenga instituted Land Application No. 39 of 2020 before the District Land and Housing Tribunal for Tabora against the Respondents in this appeal. She prayed for among other orders, an order i declaring the Respondents to be trespassers and vacant possession of the land in dispute. In her application before the tribunal, the Appellant described the land in dispute to be a piece of land valued TZS 3,500,000/- located at Tutuo Mnadani area. The Appellant claimed that, the suit land belongs to his late father who died in 2011. In 2020 she was granted letters of administration in respect of her father's estate. In the course of performing her duties as the administrator of the deceased estate, the Appellant found the land in dispute in possession of the 1st Respondent who allegedly purchased the same in 2014 from Stanslaus Msonga and Mbaruku Mtandika, the 5th Respondent herein. According to the 1st Respondent, she purchased the land in dispute in two phases. She first purchased a piece of land that was owned by Stanslaus Msonga and later, she purchased another piece of land owned by the 5th Respondent. She stated further that, the said Stanslaus Msonga and the 5th Respondent purchased their respective pieces of land from the 3rd Respondent Stella Mchopa, the fact which was conceded by the 3rd Respondent. After a full trial, the trial tribunal struck out the application for being incompetent for failure to describe the land in dispute. Dissatisfied by the findings of the District Land and Housing Tribunal, the Appellant preferred the appeal at hand. Her memorandum of appeal contains three grounds of appeal which read: 1. That, the Chairman of the tribunal erred in law to hold that the application is incompetent without giving parties the opportunity to be 2 heard on the raised issue. 2. That, the Chairman of the tribunal erred in law and fact to hold that the application is incompetence without visit the locus in quo so as to ascertain the missing details and correct necessary details regarding location size and boundaries of the disputed land. 3. That, the chairman of the tribunal erred in law not to order additional evidence in order to include necessary evidence and hold that the application is incompetence. During hearing of this appeal, the Appellant was represented by Ms Stella Nyakyi, learned advocate whereas the Respondents appeared in person. The matter was argued by way of written submission and both parties complied to the timeline. In her submission, Ms Nyakyi invoked Order XXXIX Rule 2 of the Civil Procedure Code, [Cap 33 R.E 2019] to add the fourth ground of appeal which reads; 'That the Chairman of the Tribunal erred in Law by failure to accord the assessors an opportunity to make their Opinion! On the first ground of appeal, she challenged the trial tribunal for determining competency of the application without affording parties an opportunity to be heard. She argued that, the chairman ruled out that the application was incompetent without affording parties opportunity to address the Tribunal on the issue of the competency of the application. She is of the view that, by such act, the trial tribunal denied parties the right to be heard on issue of competency of the application. She referred this court to the case 3 of Wegesa Joseph M. Nyamaisa Vs Chacha Muhogo, Civil Appeal No 161 of 2016. On the second and third grounds of appeal, counsel for the Appellant asserted that, the Appellant described the land in dispute in her testimony. According to her testimony, the disputed land is located at Tutuo Mnadani area, as referred in the pleadings. She also mentioned her neighbors who include Hadija Selemani, Ismail Makolo. It was her contention that, it was necessary for the Chairman of the Trial Tribunal to visit locus in quo to verify the Appellant's evidence regarding location of the land and its boundaries. She is also of the view that, the Tribunal ought to have ordered additional evidence to be taken to ascertain the Appellant's claim. She concluded on this ground that, the trial chairman was wrong to dismiss the Appellant's application without determining the same on merits. On the fourth ground of appeal, Ms Nyakyi submitted that, the record of the trial tribunal does not establish involvement of assessors in determining this matter. She argued that, the assessors were not accorded the opportunity to give opinion as required by the law. She cited the case of Sikuzani Saidi Magambo and Kirioni Richard Vs Mohamed Roble, Civil Appeal No 197 of 2018. In their joint reply, the Respondents submitted in respect of the first ground of appeal that, the purpose of visiting locus in quo is to check on the evidence already given by the parties and their witnesses if any and not to fill gaps in their evidence. They cited the case of Pius Melemenji vs. Juma Bakari Kiyengwez Land Appeal No. 8 of 2023 which cited with approval 4 the decision of the Court of Appeal of Tanzania in the case of Depson Balyagati vs Veronica J. Kibwana, Civil Appeal No. 21 of 2021 [2023 TZCA 17772 (23 October 2023). They also submitted that, despite the fact that, the issue of boundaries was not among the framed issues for determination before the tribunal, parties were given the right to be heard on that issue since it was among necessary issues to be established by the Applicant. They made reference to the case of Dr. Jean- Bosco Ngendahimana vs. The University of Dar es Salaam (UDSM), Civil Appeal No. 304 of 2017, [2021] (20 December 2021) on the necessity to give proper description of a suit land. Relying on the well-established principle that parties are bound by their pleadings, they argued that, the Appellant failed to describe the land in dispute. They argued that, the Appellant pleaded that, the land in dispute is located at Tutuo Mnadani without mentioning the size and boundaries of the disputed land. They concluded that, with such incomplete description of the land in dispute the trial Chairman correctly found the application to be incompetent. On the second and third grounds of appeal the Respondents argued that, it is not a duty of the court or tribunal to search for evidence to prove or disprove the case. It is the parties themselves who have a duty to do so. They as well have a duty to pray before the court or tribunal for an order to adduce additional evidence if they find it to be necessary. Lastly, the Respondents challenged the fourth ground of appeal raised by the Appellant in her written submission without a prior leave of the court. 5 Alternatively, the Respondents submitted that, the assessors gave their opinion on 22nd November 2022 as reflected at page 43 of the typed copy of the proceedings. Thus, the allegations by the Appellant are not true. They prayed the appeal to be dismissed for want of merit with costs. In rejoinder, Ms Nyakyi reiterated her submission in chief and added that, the Respondents conceded to the issue that boundaries determined by the Chairman of the Trial Tribunal was never among the issues framed for determination. According to her, this proves that, parties were not given the chance to address the tribunal on the issue of boundaries. Therefore, they were denied right to be heard on the raised issue which formed basis of determination of the application. I have considered submission by the parties and evidence on record. Court record indicates that, parties conceded that their pleadings do not have sufficient description of the land in dispute. The fact that, the Appellant did not describe the disputed land sufficiently is evident from the contents of the second and third grounds of appeal. The two grounds of appeal establishes that, the tribunal ought to have been availed with additional evidence regarding the location of the land in dispute. In the second ground of appeal, the Appellant suggests that the lacuna in description of the suit land ought to have filled by a visit to locus in quo. As correctly submitted by the Respondents, a visit to the locus in quo is not intended to fill in evidential gaps but verification of evidence adduced by the parties. The third ground of appeal suggests that the evidential gap would have been filled by the trial tribunal ordering additional evidential. In this, I agree with the Respondents that, it is not the duty of the Tribunal to call for 6 additional evidence. Parties to a suit, in this matter, the Appellant who was the Applicant before the trial tribunal was duty bound to provide description of the land in her application and later avail the Tribunal with evidence to prove the same. Unfortunately, the Appellant's application does not provide for such detailed description of the disputed land so as to distinguish it from any other pieces of land located at Tutuo Mnadani area. There is also no evidence establishing that, the disputed land covers the entire Tutuo Mnadani area. In that regard, I find the second and third grounds of appeal to be meritless and the Trial Tribunal correctly struck out the matter after if found the same to be incompetent. Such findings make the first and fourth ground of appeal which are based on procedural irregularities to be redundant. Before I conclude, I wish to make it clear that the Application before the trial tribunal was struck out for being incompetent and it was not dismissed. Where a matter has been struck out, parties are at liberty to refile the matter after rectifying issues that made it to be incompetent before the Court. The remedy for an incompetent matter before the Court has been stated in a number of cases including the case of Bank of Tanzania vs Zuhura H. Mbulu (Civil Appeal No. 207 of 2021) [2024] TZCA 545 (11 July 2024) in which the Court of appeal stated that: "It is settled principle that an incompetent matter cannot be dismissed. The logic behind is that if the matter is incompetent, then the court lacks jurisdiction to entertain it on merit; instead, that matter is struck out to give an interested party an option to revert back properly to the same court to pursue the matter in 7 question. As such, striking out the matter does not resolve dispute between the parties; unlike when the matter is dismissed, as in the present, an aggrieved party has no room to go back to the same court that dismissed it to have the matter determined on merits. When the matter is dismissed, it presupposes that the same has been determined on merit." Applying the same principle, I find the Appellant took wrong direction by filing this appeal on a matter which was merely struck out for being incompetent. Since the issue that made the application to be incompetent was expressly stated by the tribunal, the Appellant ought to have honored the decision of the tribunal and file her application afresh. For that reason, the appeal is hereby dismissed with costs. Dated at Tabora this 3rd day of October 2024 Z. D. MANGO JUDGE 8