AVELINA KORONELI KIMORO TanzLII

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DODOMA SUB REGISTRY AT DODOMA LAND APPEAL NO. 4425/2024 (Arising from the District Land and Housing Tribunal for Kondoa at Kondoa in Application No. 06 of 2023) AVELINI KORONELI KIMORO...............................................................APPELLANT VERSUS ISIHAKA RAMADHANI KIKANO...................................................... RESPONDENT JUDGMENT 10/12/2024 & 13/2/2025 MASABO, J:- Avelini Koroneli Kimoro, the appellant herein, was the applicant in Application No. 06 of 2023 before the District Land and Housing Tribunal for Kondoa at Kondoa (the trial tribunal). He was suing the respondent over ownership of 203/4 acres of land, allegedly, trespassed into by the respondent. After the hearing of the application, the trial tribunal found him to have not proved his suit and it dismissed it. Aggrieved, he has come to this court armed with five grounds of appeal which I summarize as follows: one, the evidence adduced by the appellant was not properly analyzed; two, the trial tribunal was biased in deciding the matter in favour of the respondent based on the alleged contradiction in the evidence adduced by the appellant and his witnesses; three, the trial tribunal erred in declaring the respondent the owner of the suit land while the evidence adduced proved that the land belongs to the appellant; four, the trial tribunal erred in deciding in favor of the respondent without considering the evidence adduced by the appellant and his witnesses particularly PW2 who participated in clearing the suit land Page 1 of 11 in 1987 and last, the trial tribunal erred in not visiting the locus in quo for proper identification and clarification of the boundaries of the suit land. Hearing of the appeal proceeded by way of written submission. The respondent was represented by Mr. Hussein Asseri, learned counsel. The appellant had no advocate. He fended for himself. Opening his submission the appellant consolidated the first, second, third, and fourth grounds of appeal and argued them as one. He then argued the fifth ground separately. Submitting in support of the consolidated grounds, the appellant argued that, he ably proved his ownership of the suit land. Through his testimony and that of his witnesses, he proved on the balance of probabilities that he acquired the suit land by clearing a bush assisted by PW2 Issa Omary Bwiti in 1987. He leased part of the land to the respondent and later on sold him three acres for a consideration price of one beehive, a goat, and TZS 10,000/=. Unexpectedly, the respondent trespassed into the whole land and when requested to vacate he did not oblige. Such evidence, he argued, was credible and ought to have been believed by the trial tribunal. He bolstered his submission with the case of Goodluck Kyando vs Republic [2006] TLR 363 and the case of Edson Simon Mwombeki vs Republic Criminal Appeal No. 94 of 20167 [2016] TZCA 266 TanzLII where it was held that every witness is entitled to credence and to have his evidence accepted unless there is good and cogent evidence to disbelieve him. Page 2 of 11 The appellant submitted further that, the contradiction on the date when he built his house in the suit land ought not to have attracted weight as it was a minor contradiction. It did not go to the root of the matter and it did not corrode the credibility of his case. Closing his submission on this ground, he cited the case of Dickson Elia Nsamba Shapwata and Another vs Republic, Criminal Appeal No. 92 of 2007[2007] TZCA 17 TanzLII to bolster his submission. Submitting on the last ground of appeal on the need to visit the locus in quo, he stressed that, under the circumstances of the case, it was crucial for the trial tribunal to visit the iocus/n quo sq as to verify the boundaries stated by the respondent and his witnesses. In his evidence, the respondent stated that, he cleared the bush in 1994 and that, the suit land borders: a cattle's pathway and wells to the North; Omary Issa Bwiti, Hamisi Juma (Mzee Mwarabu) and Omary Abdalla to the South; Omary Abdalla to the East and Yahaya Issa Isihaka Bakari and Idd Shabani to the West. This evidence had to be verified by visiting the locus in quo but it was not. Cementing his submission as to the importance of the visitation, he cited the case of Avit Thadeus Massawe vs Isidory Assenga Civil Appeal No. 6 of 2017 [2020] TZCA 365 TanzLII. He then submitted further that, the trial tribunal materially erred in its finding that the evidence of PW2 and PW3 was merely hearsay because the evidence that the appellant sold three acres to the respondent was first adduced before Ikengwa Village Land Tribunal and it was duly acknowledged by the Page 3 of 11 respondent who was present. He cannot, therefore, dispute it and label it as hearsay while he acknowledged it in the first place. He added that each case is to be decided on its peculiar circumstances as it was held in the case of Zuberi Nassor Mohamed vs Mkurugenzi Mkuu Shirika la Bandari Zanzibar, Civil Application No. 93/15 of 2018 [2018] TZCA 593 TanzLII and TANESCO vs Mufungo Leornard Majura &Fifteen Others, Civil Application No. 94 of 2016 (Unreported). Closing his submission, the appellant argued that he proved the case to the required standard. His evidence was heavier compared to the respondent's. In fortification, he cited the case of Paulina Samson Ndawavya vs Theresia Thomas Madaha Civil Appeal No. 45 of 2017 [2019] TZCA 43 5 TanzLII. In reply, Mr. Asseri, learned counsel, submitted that the appeal is without merit as the appellant failed to establish his claims. His evidence and that of his witnesses were materially contradictory. In his testimony on page 13 of the proceedings, he stated that he acquired the suit land in 1974 but in the course of cross examination, PW2 stated that the suit land was acquired in 1985. Also, in his evidence in chief, this witness claimed to have been hired by the appellant to clear the suit land in 1980 a statement he later contradicted by stating that he was hired to clear the land in 1985. It was the learned counsel's submission that these contradictions are material and undermined the credibility of the appellant's evidence. The trial tribunal was, therefore, justified in its conclusion. In fortification he cited the case of Wilfred Muganyizi Rwakatare vs Hamis Sued Kagakaki & Another [2009] TLR 346, where the Court of Appeal held that: Page 4 of 11 "A man shall not be permitted to 'blow hot and cold.1 This principle is captured in the maxim AHegans contraria non est audiendus/ meaning, 'He is not to be heard who alleges things contradictory to each other." It was also submitted further that the evidence on the boundaries of the disputed land was similarly contradictory. On page 29 of the proceedings, the appellant described the land's boundaries. This description differed from the description rendered by PW2 as seen on page 14 of the proceedings. The learned counsel argued further that ascertaining boundaries is crucial in resolving land disputes because boundaries establish the physical parameters of the claim. However, in the present case, the inconsistencies between the appellant and his witnesses were fatal as they cast doubts on the veracity of the testimonies. Citing section 110 of the Evidence Act [Cap. 6 R.E. 2022], Mr. Asseri submitted that it is settled law in our jurisdiction that he who alleges the existence of certain facts must prove that those facts exist. Since the appellant claimed to have leased the disputed land to the respondent, he had to prove it but he failed. He neither produced a lease agreement nor paraded witnesses to substantiate his claim. Also, although he alleged to have sold three acres of land to the respondent, he produced no evidence in support. He also failed to specify the boundaries of the three acres he purportedly sold to the respondent. Page 5 of 11 It was submitted further that PW3's testimony is not credible because when testifying in court he stated that he was 52 years old meaning that he was born in 1971. His evidence that in 1987 he saw two elders clearing a virgin land and he began clearing his own land, This, he argued, is incomprehensible as at this time he was still a minor aged 16 years old. Mr. Asseri submitted that, contrary to the appellant, the respondent proved his case. He presented consistent evidence demonstrating that he cleared virgin land in 1994 and subsequently developed it. He described the boundaries of the disputed land clearly and unambiguously. Also, he testified that he constructed houses on the suit land in 2005, he resides therein with his family and he uses the remaining portion of the land for cultivation and grazing. His testimony was corroborated by his witnesses. Thus, it outweighed the appellant's evidence both in consistency and credibility and for that reason, the trial tribunal's decision favored him. On the visitation of the locus In quo, it was submitted that the appellant was the one who requested the visit. The respondent did not object, and the tribunal granted the prayer. During the visit, the tribunal duly complied with the principles articulated in Nizar M.H. Ladak v. Gulamali Fazal Janmohamed [1980] TLR 29, which require the presence of the parties and their advocates (if any). Also, both parties were accorded the opportunity to present evidence and cross-examine. In conclusion, Mr. Asseri submitted that, the appellant failed to establish his Page 6 of 11 claims to the required standard as his evidence was riddled with contradictions. Thus, he failed to discharge his burden of proof while the respondent presented a cogent and consistent case supported by credible evidence. Based on this he invited this court to uphold the trial tribunal's decision and dismiss the appeal for want of merit. I have considered the submission by the parties and thoroughly read and considered the trial tribunal's record alongside the five grounds set out in the petition of appeal. The ultimate issue to be determined is whether the appeal has merit and should be allowed. This being a first appeal I am principally, mandated to critically re-evaluate the evidence on record to test the soundness of the trial tribunal's finding and come up with a finding that need not be similar to the trial tribunal's finding as held in the case of Registered Trustees of Joy in The Harvest vs Hamza K. Sungura (Civil Appeal 149 of 2017) [2021] TZCA 139 TanzLII where it was stated that:- "...... the obligation imposed on the first appellate court in handling an appeal is not a light duty, it is a painstaking exercise involving rigorously testing of the reliability of the findings of the court below." I will start with the visitation to the locus in quo which is the appellant's gravamen in the fifth ground of appeal. Through this ground, the appellant challenged the trial tribunal for not vising the locus in quo and henceforth relying on weak evidence rendered before it by the respondent and his witnesses. It was cemented in the course of submission in chief that, Page 7 of 11 considering the circumstances of the case, visitation to the focus in quo was exceedingly crucial for purposes of ascertaining the boundaries of the suit land. While I agree with the appellant that visitation to the locus in quo may be crucial in ascertaining the boundaries of the suit land, his complaint appears to be oblivious of the fact that visitation of the focus fn quo is not a mandatory legal requirement. It is done at the discretion of the court or the tribunal only when it is necessary to verify the evidence adduced by the parties during the trial (see Bomu Mohamedi vs Hamisi Amiri, Civil Appeal No. 99 of 2018 [2020] TZCA 29 TanzLII). In the present appeal, the trial tribunal's record shows that after the respondent had closed his case on 16/10/2023, the appellant prayed for visitation of the locus fn quo. And, as correctly submitted by Mr. Asseri, the prayer was not objected to by the appellant hence it was granted. The visit was scheduled on 19/10/2023 on which date, the tribunal consisting of the chairman, two assessors and a clerk, went to the focus fn quo. The parties were also present and each of them had an opportunity to give evidence on the suit land and its boundaries and they were allowed to cross examine. A sketch map of the suit land was also drawn. In the foregoing, there is no dispute that the tribunal visited the locus in quo. The immediate question from this finding is whether the visitation was properly conducted. As already stated, it is a settled position of law in our jurisdiction that much as the visit to the focus In quo is not mandatory, once Page 8 of 11 the court or tribunal opts to visit the locus In quo, it should comply with the procedures as set out in the case of Nizar M.H. v. Gulamali Fazal Janmohamed [1980] TLR 29 where it was instructively stated that: "When a visit to a locus In quo is necessary or appropriate, and as we nave 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 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. 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 Kimonidimtri Mantheakis v Ally Azim Dewji & 14 others, Civil Appeal No 4 of 2018 [2021] TZCA 663 TanzLII, the Court of Appeal held that: "... for the visit of the locus In quota 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. Five, record any observation, view, opinion or conclusion of the court including drawings, a sketch plan, if necessary, which must be made known to the parties Page 9 of 11 and advocate if any." Also, see the case of Avit Thadeus Massawe vs Isidory Assenga, Civil Appeal No. 6 of 2017 [2018] TZCA 357 TanzLII and Sikuzani Saidi Magambo & Another vs Mohamed Robie, Civil Appeal No. 197 of 2018 [2019] TZCA 322 TanzLII) where the above guidelines and procedures were reiterated. Looking at the proceedings recorded on the visit, I have observed that it is conspicuously silent on witnesses. Thus, it is uncertain whether or not they are tended. As their presence cannot be assumed, it is taken that they did not attend. This means that the visitation to the locus In quo was fraught with irregularities. I say so considering that testifying as PW1, the appellant did not describe the boundaries of the suit land. The description of his land was provided by PW2, Issa Omari Bwiti. Thus, for the appellant's side, the verification of the boundaries could not be done in the absence of the witness who described them. His absence from the locus in quo was a fatal irregularity that vitiated the proceedings. In the foregoing, the fifth ground of appeal is allowed. The finding above suffices to dispose of the appeal. Thus, I will not deliberate on the first four grounds of appeal which were argued as a consolidated ground. Based on this sole ground of appeal, the appeal is allowed. I hereby nullify, quash and set it aside the proceedings of the trial tribunal. Its judgment and Page 10 of 11 decree are subsequently quashed and set aside. It is further ordered that the record be remitted to the trial tribunal for an expedited trial. The costs shall follow the events. DATED and DELIVERED at DODOMA this 13th day of February 2025. J. L. MASABO JUDGE Page 11 of 11