ANANIA

THE HIGH COURT OF TANZANIA LAND DIVISION AT IRINGA LAND APPEAL NO. 15 OF 2023 ANANIA NYAVA (Holder of Power of Attorney for GETRUDA MGUNDA) ..................................... APPELLANT VERSUS VICENT MGAYA ............................................................... RESPONDENT (Appeal from the decision of the District Land and Housing Tribunal for Njombe) (Hon. G. F Nq'humba (Chairperson)) Dated the 1st day of December 2022 in Land Application No. 12 of 2021. JUDGMENT Date of last order: 22/08/2024. Date of Judgement: 23/09/2024. S.M. KALUNDE, J.: In the District Land and Housing Tribunal for Njombe sitting at Njombe ("the trial tribunal"), the appellant herein, in his capacity as a holder of the power of attorney of Getruda Mgunda, lodged a suit against Vicent Mgaya, the respondent. He claimed to be the lawful owner of a piece of unsurveyed land measuring 25 acres located at Inegho, Mtwango Area, Imalinyi Village, Wanging'ombe District in Njombe Region ("the suit property"). She claimed to have inherited the suit property from her father, Mtunguvihe Mgunda who passed away in 1940's. Thereafter, she enjoyed uninterrupted enjoyment of the suit property and assigning it to other people who utilized the same without any disturbances. Later, she permitted her brother Erasto Kitaponda to utilize part of the suit property for cultivation of agricultural products. respondent had trespassed into tne suit property, appropriated iuui acres of land. The respondent proceeded to plant maize and trees in the said portion of land. On that account, the appellant sought for declaratory orders against the respondents to the effect that: one, that she is the rightful owner of the suit property; two, that he respondent is a trespasser; three, an order for vacant possession; four, permanent injunction against the respondent; and general damages as may be assessed by the tribunal; and costs of the application. The respondent resisted the application by lodging a written statement of defense. He pleaded that no portion of the suit property was owned by the appellant father. Conversely, the respondent contended that his father gave him the suit property in 1998 before his demise in 2006. The respondent alleged that the suit property has been used for agricultural purposes by generations of his family including his grandfather Zacharia Mgaya. According to the respondent, his grandfather acquired the suit property in the 1920's, thereafter, his father inherited the plot around 1955 before handing it over to the respondent in 1998. The respondent contended that he has been in peaceful possession and enjoyment of the suit property for 21 years, from 1998 to 2019. Regarding the involvement of Erasto Kitaponda, the respondent alleged that he trespassed into the suit property in 2017, and he successfully sued him before the Imalinyi Ward Tribunal through Land Cause No. 4 of 2017. Considering the above averments, the respondent pleaded that the appellants suit be dismissed with costs for being devoid of merits. 2 me dispute oerween tne parties, tne inai Lriouridi irdineu iwu ibiucs for determination as follows: (1) Who is the rightful owner of the suit property; and (2) What are the reliefs of the parties. Thereafter, a full trial followed. During trial, the appellant paraded two witnesses; Anania Nyava (SMI) and Clemence Gunda (SM2). He also tendered in evidence one documentary exhibit to wit; a Special Power of Attorney executed in his favor by Getruda Mgunda (Exhibit Pl). The respondent, Vicent Mgaya (SU1) was the sole defense witness. He also tendered in evidence proceedings of the Imalinyi Ward Tribunal in Land Cause No. 4 of 2017 (Exhibit DI). At the conclusion of the defense case, on the 30th day of March 2022, the learned counsel for the respondent Mr. Amani Mwakolo, requested that the trial tribunal and its members visit the locus in quo. The learned counsel for the appellant, Mr. Frank Ngafumika, seconded the motion. A visit to the locus in quo was conducted on the 16th day of May 2022, with the parties and their advocates present. Thereafter, the assessor who had heard all the evidence delivered her opinion. In its judgment delivered on the 1st day of December 2022, the trial tribunal resolved the case in favor of the respondent. Regarding issue number one, the learned trial chairperson was satisfied that the appellant failed to prove, on the balance of probabilities, that he was the lawful owner of the suit property. On the other hand, the tribunal was content that the respondent's case was more cogent and believable. The trial tribunal's findings were greatly influenced by the observations made during the visit to the locus in quo. The 3 different from what was observed at the locus in quo. The aftermath was that the appellant's suit was dismissed with costs. Aggrieved with the dismissal, the appellants filed the present appeal advancing seven grounds, namely: 1. THAT, the District Land Tribunal erred in law and fact in failing to entertain the dispute in compliance with the procedural requirements. 2. THAT, the District Land Tribunal erred in law and fact in failing to critically analyze evidence on record thereby arriving at an erroneous decision. 3. THAT, the District Land Tribunal erred in law and fact in failing to properly interpret and apply the laws thereby reaching at a wrong decision. To argue the appeal, Mr. Frank J. Ngafumika, learned advocate, appeared on behalf of the appellant whereas the respondent enjoyed the legal representation of Mr. Marco Kisakali, learned advocate. In submissions, Mr. Ngafumika abandoned the second and third grounds appeal and solely submitted in respect of the first ground of appeal. He believed that the first ground of appeal was sufficient to resolve the appeal. Concerning the first ground of appeal, Mr. Ngafumika argued that the trial tribunal violated the procedure for visitation to the locus in quo. The learned counsel argued that the records show that the learned trial chairperson did not record the evidence of the parties at the locus in quo. The counsel added that, while the records show that the visit was attended by the advocates of the parties and that each party 4 witnesses who testified at the locus in quo. According to Mr. Ngafumika, the failure to record the name of the witnesses who testified was a fatal irregularity which vitiated the whole trial. To support his contention the learned counsel cited the decision of the court of appeal in the case of Sikuzani Saidi Magambo & Another vs Mohamed Roble (Civil Appeal No. 197 of 2018) [2019] TZCA 322 (1 October 2019) TANZLII; and the decision of this court in the case of Phanuel Kisota (suing as the Legal Representative of the late Syra Mburumburu) vs Joseph Mungaya and 2 Others (Land Appeal 13 of 2020) [2022] TZHC 3097 (29 April 2022) TANZLII. Mr. Ngafumika added that the trial chairperson failed to record the proceedings of the visit to the locus in quo. The learned counsel submitted that the failure to record the full proceedings of what transpired at the locus in quo was also a fatal irregularity which vitiated the proceedings of the trial tribunal. To support this, the learned counsel referred to the case of Avit Thadeus Massawe vs Isdory Assega (Civil Appeal No. 6 of 2017) [2018] TZCA 357 (14 December 2018) TANZLII. On the way forward, Mr. Ngafumika urged the court to nullify the entire trial tribunal proceedings, quash the judgment. He implored that a retrial should be ordered. In response, Mr. Kisakali had two arguments; first, he contended that procedural irregularities at the locus in quo were curable under section 45 of the Land Disputes Courts act [Cap. 216 R.E. 2019] ("the LDCA"). Second, the learned counsel argued that the counsel for the respondent has failed to demonstrate that the violation of the procedure for site visit has occasioned injustice 5 learned counsel argued that, even assuming that tne procedure ror site visit was violated, the effect would be to nullify the proceedings of the trial tribunal on the date of the site visit and not the entire proceedings of the trial tribunal. To support this contention, the learned counsel cited the case of T.L. Maliyamkono vs Wilhelm Sirivester Erio (Civil Appeal No. 93 of 2011) [2022] TZCA 39 (18 February 2022) TANZLII. In light of the above submissions, the learned counsel invited the court to dismiss the appeal with costs. In a one-page rejoinder, Mr. Ngafumika submitted that the violations of the procedure for cite visit were not salvageable under the provisions of section 45 of the LDCA. The learned counsel insisted that the violation of the procedure for site visit rendered the entire proceedings and judgment of the trial tribunal incurably defective and null. As for the way forward, the learned counsel advised the court to allow the appeal by nullifying the entire proceedings of the trial tribunal and quash and set aside the resultant judgment and decree. For my part, having considered the records of appeal and the submissions of the parties, I gather that this court has been invited to determine the propriety or otherwise of the trial tribunal proceedings and the respective judgment. It is glaring from the records that upon closure of the respondents' case, the learned counsel for the respondent, Mr. Amani Mwakolo, invited the tribunal to visit the disputed property to satisfy itself with what has been testified in court. It is also not 6 appellant supported the prayer, bince parries agreed inai trie vibit was relevant the trial chairperson ordered the visit to the locus in quo be scheduled on the 16th day of May 2022. The records bear that on the respective date a visit was indeed carried out. As for what transpired, I will let the records speak for itself, as at page 15 of typed proceedings: "16/05/2022 Akidi: G. FABIAN NG'HUMBA, MWENYEKITI Mjumbe: i. Bi. Grace Mbwilo ii. Mleta maombi: Yupo/Wakili Frank Ngafumika Mjibu maombi: Yupo/Wakili Amani Mwakolo Wakili Frank Ngafumika: shauri leo ni kwa ajili ya kuangalia eneo, tupo tayari kuonyesha eneo bisha niwa. Imesainiwa Mwenyekiti 16/05/2022 Wakili Amani Mwakolo: Tumefika eneo la mgogoro tupo tayari kuonyesha. Imesainiwa Mwenyekiti 16/05/2022 Baraza: Waadawa na mashahidi wao wataanza kuonyesha eneo gombaniwa. Imesainiwa Mwenyekiti 16/05/2022 Wadaawa wote wameaonyesha eneo gombaniwa. 7 I 16/05/2022" The above proceedings show that on the fateful day the counsel for the appellant intimated that the matter was scheduled for a site visit. Counsels from both sides informed the court that they were ready to show their respective properties. The trial tribunal allowed each party to show the boundaries of their property. Thereafter, the tribunal recorded that all the parties exhibited their property. The matter was then adjourned to alter date for assessors to read their opinion. From the above quoted proceedings, it is clear that the witnesses who testified at the locus in quo were sworn. It is also evident that, other than a remark that each party have shown their respective areas, the learned trial tribunal did not record any evidence or notes regarding what transpired at the locus in quo. It is also not clear whether after the visit, parties re-assembled in court and the notes and observations made by the tribunal were read to the parties and whether they had an opportunity to correct, reject or make some amendments. Despite the foregoing, the learned trial chairperson considered the observations he made at the site visit in composing his judgment. For example, in rejecting the appellants evidence, at page 4 of the typed judgment, the learned trial chairperson made the remarks: "Kwa mujibu wa Kielelezo Na. 1 eneo lililokuwa linalalamikiwa na Vicent Mgaya ni miongoni mwa eneo linalolalamikiwa leo. Ushahidi wa mwombaji katika kutaja mipaka ametaja mipaka ya hekari 25 anazomiliki lakini lenye mgogoro ni hekari 4 ambapo mjibu maombi mipaka aliyotaja ya eneo 8 nnpotenweiea imona kuu Kite Kite. vilu viiivyuLajwci na mwombaji kuwa vimo ndani ya eneo kwa mfano pagale, baraza liliona pagale lipo nje ya eneo gomaniwa pia halikuona makaburi Kwa mujibu wa kielelezo Na.l eneo lilikokuwa linalalamikiwa na Vincent yanayotajwa kuwepo ndani ya eneo. Kwa kuangalia mambo hayo baraza hili linaona kuwa mjibu maombi ametoa Ushahidi wenye nguvu na mzito kuliko ule wa mwombaji Hi kurithibitisha baraza kuwa eneo gombaniwa siyo mali ya mwombaji." The above excerpt from the judgment of the trial tribunal may be translated as follows: "In accordance with exhibit DI the land claimed by Vicent Mgaya is among the part that is in dispute in these proceedings. In his testimony, the applicant stated the boundaries of 25 acres she owns but the disputed property is just 4 acres, whereby the respondents boundaries are similar to what the tribunal observed during the visit. All the items alleged by the applicant to be inside the suit property, such as the pagale, the tribunal observed that the pagale was outside the disputed property and the tribunal did not see any graveyard inside the disputed property. In light of these circumstances, the tribunal is satisfied that the evidence adduced by respondent is heavier than that of the applicant and confirms that the suit property is not the property of the applicant" It is evident as per the above quoted proceedings that the observations made by the learned trial chairperson in the judgment were not part of the records of the visit to the locus in quo. It must also be recalled that the entire visit to the locus in quo was marred 9 irregularities, I find it enlightening to highlight, albeit briefly, the law and procedure for visit to the locus in quo. To start with, there is no law which forcefully and mandatory requires the court or tribunal to conduct a visit at the locus in quo, as the same is done at the discretion of the court or the tribunal particularly when it is necessary to verify evidence adduced by the parties during trial. However, when the court or the tribunal decides to conduct such a visit, there are certain guidelines and procedures which should be observed to ensure fair trial. See Sikuzani Saidi Magambo & Another vs Mohamed Roble (supra). It is also trite that a site visit may be conducted at the request of either of the parties or at the courts discretion where there is a need to verify the evidence presented in court especially where there disputed issues regarding the state, size, location, or boundaries of the suit property. Guidelines and procedures to be observed during site visit were articulated by the Court of Appeal in the case of Nizar M.H. vs. Gulamali Fazal Janmohamed [1980] TLR 29, where the Court, inter alia said: - "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 witnesses as may have to testify in that particular matter... When the court re­ assembles in the court room, all such notes should be readout to the parties and their advocates, and comments, amendments, or objections called for and if necessary incorporated Witnesses then have to give 10 ' "7 understand, or relate to the evidence in court given by witnesses. We trust that this procedure will be adopted by the courts in future." [Emphasis added]. Similarly, in Kimonidimitri Mantheakis vs Ally Azim Dewji & Others (Civil Appeal No.4 of 2018) [2021] TZCA 663; (03 November 2021) TANZLII, having quoted the case of Nizar M.H. vs. Gulamali Fazal Janmohamed (supra) and Avit Thadeus Massawe vs Isdory Assega (supra) and authorities from Uganda and Nigeria, the Court (Mugasha, J.A) recapitulated the procedure in the following terms: "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 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." In the matter under scrutiny, beside the opening statements made by counsels for the respective parties, nothing was recorded during the said visit. Thus, in the absence of what transpired on the day this court cannot discern as to who testified or whether parties were allowed to give their evidence to clarify what they stated at ii apparent if parties were given an opportunity to maKe cross- examinations. As pointed out above, the trial chairperson did not record any observations, views, opinions, conclusions, or sketch plans. Since no observations, views, opinions, conclusions, or sketch plans were recorded it is obvious that parties and their advocate did not reconvene in court so that the said notes would be readout so that they can comment, amend, or object what was recorded. It is glaring that the above irregularities occasioned an injustice. I say so because now that the matter is at appellate level, it cannot be said that the court is seized with the entire records of what transpired at the trial court including what had transpired at the visit in the locus in quo for it to re-evaluate and reappraise. Otherwise, I will be forced to guess what might have transpired during the site visit. In light of these observations, I am satisfied that the omission by the trial tribunal was fatal, it occasioned injustice and vitiated the decision of the trial tribunal. As for the way forward, Mr. Ngafumika advised the court to nullify the entire records of the trial tribunal and thereby quash as set aside the judgment and decree. Mr. Kisakali on the other hand, relied in the case of T.L. Maliyamkono vs Wilhelm Sirivester Erie (supra) to invite the court to nullify the proceedings of the dated 16th day of May 2022, during the locus in quo. He was not specific about what to follow. Fortunately, I am not venturing into a new territory, this matter has been dealt by the superior court in several of its decisions including in the case of T.L. Maliyamkono vs Wilhelm Sirivester Erio (supra) cited by Mr. Kisakali and Said 12 Appeal No. 494 of 2021) [2023] TZCA 17876 (22 November 2023) TANZLII. In T.L. Maliyamkono vs Wilhelm Sirivester Erio (supra), the Court of Appeal observed that the trial court did not adhere to the laid down procedure when it visited the locus in quo. Thereafter, the Court (Kwariko, J.A) at page 13 stated: ’We thus nullify the trial court's proceedings with effect from 8th November, 2019 when the visit of the locus in quo was ordered, quash the resultant judgment which was delivered on 22nd November, 2019 and set aside all orders emanating therefrom. The proceedings before the order of the visit have no problem and thus, they are left undisturbed." [Emphasis added]. A similar approach was adopted by the Court in the case of Said H. Lipite & Others vs Ministry of Defence & Another (supra), where the Court (Mwandambo, J.A), at page 13, observed that: "The position in the instant appeal is that the visit to the locus in quo was made after the conclusion of the trial only to be reopened later upon the learned trial judge finding it necessary to do so. If the need for more clarification from the parties had not arisen, the trial court could have proceeded to compose judgment already on record. In effect, the only part of the proceedings which is offensive relates to the observations made after the visit. In our view, it does not appear to us to be in the interest ofjustice to nullify the trial proceedings and order 13 conciuaeu waiting iui juuyiiiciiL. inai ucmy *.««w case, we do not, with respect, accept the invitation extended to us by the /earned advocate for nullification of trial proceedings as he put it." [Emphasis added]. Having taken note that the only part of the proceedings which is offensive relates to the observations made after the visit to the locus in quo. The Court stated: "On the contrary, we are firm that, logic, common sense and justice dictate quashing the offensive observations of the locus in quo as appearing at pages 356 as well as the judgment and the decree which we hereby do is the right course of action. Having so done, we remit the record of the High Court to the trial court for conducting a fresh visit to the locus in quo by another judge if that will be necessary before composing a fresh judgment based on the evidence already on record." In all the two cases cited above, the only proceeding which were nullified were those related to the visit to the locus in quo. The remaining were left intact and undisturbed. Reverting to the case at hand, I pointed out earlier that the prayer for a visit to the locus in quo was made by the learned counsel for the respondent, Mr. Amani Mwakolo, on the 30th day of March 2022, at the closure of the defense case. It seems to me that, up to this point, no irregularity in the proceedings has been pointed out. The only irregularity pointed out relates to the proceedings of 14 These are the only proceedings that have been declared a nullity. As was stated in Said H. Lipite & Others vs Ministry of Defence & Another (supra), logic, common sense and justice dictate quashing the offensive proceedings of the locus in quo dated 16th day of May 2022, as appearing at pages 15 of typed proceedings, as well as the resultant judgment and the decree. That said, I quash the proceedings dated 16th day of May 2022 and the judgment dated 1st day of December 2022 that followed. I also set aside the resultant decree. I remit the record to the trial tribunal for conducting a fresh visit to the locus in quo by a different chairperson, if that will be expedient, before composing a fresh judgment based on the evidence already on record. In the result, the appeal is allowed on the strength of the first ground of appeal. This being the fault of the trial tribunal, I make no order as to costs. It is so ordered DATED at IRINGA this 23rd day of SEPTEMBER, 2024. 15