azizi mussa abdallah vs ally ahmed sadick 2023 tzhc 21538 29 september 2023

THE UNITED REPUBLIC OF TANZANIA.

JUDICIARY

IN THE HIGH COURT OF TANZANIA (MTWARA DISTRICT REGISTRY) ■.

ATMTWARA LAND APPEAL NO,8 OF 2022 (Originating from the District Land and Housing Tribunal for Mtwara in Land Application No.02 of2020) NLYLl. MUSSA ABDALLAH............................ ......... APPELLANT

VERSUS ALLY AHMED SADICK.................................. ..RESPONDENT

JUDGEMENT 15 &2S September 2023 LALTAIKA, J. The appellant herein AZIZI MUSSA ABDALLAH is dissatisfied with the decision of the District Land and Housing Tribunal for Mtwara (hereinafter referred to as the DLHT) in Land Application No.02 of 2020. He has appealed to this court on the foliowing grounds: /. That the trial chairman erred in law and in fact by giving his own decision departing from opinions of assessors without giving reasons^. 2, . That the trial chairman erred in law and facts by holding that the Respondent is a lawful owner of the disputed land while the same Respondent failed to show the size and demarcation of the area he claims to own. : 3. That the trial chairman erred in law and facts by solely basing his decision on new evidence taken at locus in quo without considering the fact that the land in dispute being unsurveyed and thus unregistered, the size of the iar.d owned by each party was to be determined by demarcation customarily made by original owners. Page 1 of 11 4. That the trial chairman erred in law and facts by ordering the demolition of the well drilled and wall built without considering the. fact that the well was drilled, and wall built inside the local demarcation (a remain of a coconut tree) which was acknowledged by the Respondent to be uhdisputedly owned by the Appellant.

5. That the trial chairman erred in law and facts for being bias, failure to consider and properly direct himself to the evidence adduced by the Appellant and his witnesses instead based his decision on new evidence which was never corroborated by the seller who could not show up at locus in quo. The factual background to the appeal as can be gleaned from the court records is that the respondent purchased the suit land on 12/12/2002 at a consideration of Tzs. 1,000,000/= from one Hussein Amri Dadi vide the sale agreement (admitted at the trial tribunal as Exhibit Pl). After the purchase the respondent constructed a commercial building with three rooms and rented them out to tenants. He allegedly left an area for future use. Later the respondent decided to make bricks in order to erect a house in the area which he left before. It appears that suit land is. bordering the house of the appellant's father. In 2016 the appellant allegedly trespassed into the suit land when he dug a hole and used the soil from that hole to make bricks. Seeing that, the respondent approached Mr. Jabir who is the relative of the appellant and complained against the trespass. At that moment the appellant was in Mozambique for personal endeavors. Mr. Jabiri told the respondent that he knew that the area in which the appellant had dug a pit belonged to him (the respondent). Furthermore, the respondent

reported the matter at the Village Executive Officer's (VEO's) office. A decision was reached to visit the suit land. The Village Chairman, Mr. Jabir and Sahihs Nandule (representative of the Page 2 .of 11 respondent) were among those who went to the suit land. Their finding was to the effect that the appellant had indeed encroaching the respondent's land for drilling the well. Jabir was tasked with passing over the news to his relative, the appellant, in Mozambique. When the appellant came back to Tanzania, he was informed although he went: to the VEO's office, used violent and unpleasant language against the village leaders and thereafter went back to Mozambique. The respondent struggled to settle the matter: amicably, but his efforts proved futile because the appellant was always in Mozambique. Consequently, the respondent instituted Application No. 02 of 2020 at the DLHT as alluded to above. When the appeal was called for hearing on 15/6/2023 Mr. Fa r aj i Taratibu and Mr. Alex Msalenge, learned Advocated appeared for the appellant and respondent respectively. The counsel informed the court that although parties were still willing to settle the matter amicably out of court, it was undeniable that such negotiations had taken way too long much to the dangers of the matter clogging the court. A schedule for hearing of the appeal by way of written submissions was agreed

upon and dully complied with. The next part of this judgement summarizes submissions by the learned Advocates for and against the appeal. Mr. Taratibu, learned counsel for the appellant, addressing the court in support of the appeal, stated that the appellant had raised a total of five (5) grounds of appeal and wished to argue as follows: Page 3 of 11 Mr. Taratibu argued that the trial chairman had erred in law and in fact by giving his own decision departing from the opinions of assessors without giving reasons. He referred to Sections 23(1) and (2) and 24 of the Land Disputes Court Act Cap. 216 [R.E, 2002], read together with Regulation 19(2) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations G,N. No. 174 of 2003, which provided for the composition and role of assessors. He emphasized that if the Chairman disagreed with the assessors' opinion, he must record the reasons. Mr, Taratibu argued that since there was no record of reasons for departing from the assessors' opinion, the entire proceedings were vitiated, and he prayed the court to declare the whole proceedings a nullity. He also argued that the trial chairman had erred in law and in fact by holding that the Respondent was a lawful owner of the disputed land while the Respondent failed to show the size and demarcation of the area he claimed to own. Mr. Taratibu cited the? law's requirement

that the party seeking a favorable court decision must prove their case. He pointed out that the records did not show justification for the Respondent’s claims and that the Respondent had failed to prove ownership of the land in dispute. Mr, Taratibu, counsel for the appellant contended that the trial chairman had erred in law and facts by solely basing his decision on new evidence taken at focus in quo without considering the fact that the land in dispute was unsurveyed, and the size of the land owned by each party was to; be determined by demarcation customarily made by original Page 4 of 11 owners. He argued that the chairman took his own testimony during the visit to the locus in quo to decide, which was contrary to the law. He cited the case of KIMONIDIMiTRI iMANTHEAKIS y. ALLY AZIM-pEW ANO 7 OTHERS, Xivir Appeal 4.M 2018. dAT sitting at Dar es Salaam,, which provided guidelines for a meaningful visit of locus in quo, and the case of WILLIAM MUKASA. v. UGANDA [1964] to emphasize the importance of not constituting oneself as a witness during such visits. He further argued that the trial chairman had erred in law and facts by ordering the demolition of a well drilled and wall built without considering the fact that the well, was drilled, and wall: built inside the local demarcation (a remain of a coconut tree) acknowledged by the Respondent to be undisputedly owned by the

Appellant, Mr. Taratibu emphasized the importance of the local demarcation in an unsurveyed area and argued that the chairman’s decision was prejudicial to the Appellant. Lastly, Mr. Taratibu contended that the trial chairman had erred in law and facts for being biased and failing to consider and properly direct himself to the evidence adduced by the Appellant and his witnesses. He argued that the chairman based his decision on new evidence that was never corroborated by the seller who did not show up at the locus in quo. He cited the cases of KIMDNID1MITRI MANTHEAKiSv. ALLY AZIM DEWJI AND 7 OTHERS and AVTT THADEUS MASSAWE . v. ISIDORY ASSENGA (supra). to support his argument regarding'the proper assessment of evidence. Page 5 of 11 In conclusion, Mr. Taratibu submitted that the decision of the trial court was erroneous and could not be salvaged under section 45 of the Land Disputes Act. He. requested that the appeal be allowed ’With costs in the interest of justice. Mr. Msalenge, Counsel for the respondent, in response to Mr. Taratibu's submission, stated that with regards to the 1st ground of appeal, the trial Chairman did not err in law and fact by giving his own decision departing from opinions of the assessors. He argued that the Chairman had provided a reason for that departure. He explained that whenever the Chairman chose to depart from the assessors' opinion, he was

required to state the reason, as specified under Section 23 (1), (2), and 24 of the Land Disputes Court Act Cap 216 [R.E 2002], which had been cited and relied upon by the Appellant in his submission. Mr. Msalenge emphasized that the Chairman adhered to this requirement. Mr. Msalenge asserted that the Appellant misunderstood the statement that proved the Chairman's reason for the departure. He quoted a passage from page 9, paragraphs 1 and 2 of the judgment, which stated that the Chairman's departure was due to the weight of the evidence presented by the Appellant, showing that he had successfully proved his case regarding ownership of the disputed land. This, according to Mr. Msalenge, eliminated the need for mediation between the parties, as suggested by the assessors. Page 6 of 11 Mr. Msalenge argued that the cited case of Peter Makuri v. Michael Magwega, Civil Appeal No. 107/2019 CAT at Mwanza, which quoted the case ofYakobo Mageega Gicheie. v. Penhia Yusuph,. Civil Appeal No. 55/2017 (Unreported), was different from their case, in the cited case, the Trial Tribunal had. failed to request, receive, read out to parties, and consider the assessors' opinion in the decision, leading to the nullification of the proceedings. This contrasted with their case, where the matter at hand, reasoned Mr. Msalenge, where the trial Tribunal had followed all the requirements of section

23(1), (2), and 24 (supra). Mr. Msalenge also referenced the case of Emmanuel Christopher Lukumai v. 3 urn a Omary Mri.$hor Civil Appeal No. 21 of 2013, which was quoted in Peter Makurfs case (supra). He argued that it stressed the i m po rtance of co ns id er i ng the a ssessors' opi nio n o r p r o vi ding a rea son fo r departure. In the present case, emphasized Mn Msalenge, the Tribunal chairman had stated the reason for departing, which, in his view, justified the validity of the proceedings. Finally, Mr. Msalenge concluded with a request for the dismissal of the entire appeal with costs. I have dispassionately considered the grounds of appeal, the DLHT's records and rival submissions by the learned Advocates. The entire appeal, in my opinion, is centered on the following contentions: ; .1. Whether the learned Chairman delivered decision without giving reasons of departing from the assessors'opinions.

2. Whether the learned Chairman erred in law and fact when he decided in favour of the respondent while the respondent failed to show the size and demarcation of the area he claims to: own, Page 7 ofu On the first point of contention, I have taken the liberty to go through the records of the trial Tribunal, On page 8 and 9 of the impugned judgement the ■learned Chairman stated and I quote:- "...Katika sbauri hili baada ya kuupitia ushiahidi wa pande zpte mbili, ni ushahidi wa Mleta maombi ambao ni mzito. kulinganislia na ushahidi wa Pljibu maombi;kwa sababu hiyo, m/eta maombi amefarilkiwa kuthibitisha madai yoke ya umUiki wa kipande chaardhi yenye mgogoro. Hivyo bash ninapingana na maoni ya Washout i waungwana wa Baraza hili ambao wameshabri kwamba wadaawa wakae chini Hi kuumailza mgogoro wao. Pamoja na hayo ni kwamba, madai ya mjibu maombi na mashahkii wake kwamba, madai haya yameletwa na Mteta maombi kwa sababu Mjibu maombi na ndugu zake wafigoma kumuuzia Mleta maombi nyumba ya marehemu baba yao ni madai yasiyo na msingi wowote; hivyo basi, yametupHiwa mball. ” Based on the aforementioned excerpt, it is evident that the learned Chairman provided reasons for his decision, which did not align with the opinions of the assessors. Furthermore, it is a factual matter that Section 24 of the Land Disputes Courts Act Cap, 216 [R.E. 2019] imposes a stringent obligation upon the

assessors of the tribunal to furnish their opinions. Moreover, it unequivocally mandates the Chairman to provide reasons in the event of his departure from the assessors' opinions. In the present case, the learned Chairman presented two distinct reasons. First; he based his decision on the premise that the evidence presented by the respondent held greater weight compared to that of the appellant. Second, the appellant contended that the respondent had initiated Page 8 of 1.1 legal action against him because he had refuted the sale of his father's house to the respondent. Moving forward to the second issue,: the purpose of visiting the locus in quo was elucidated by the Court of Appeal of Tanzania in the case of Avit Thadeus Massawe v. Isidory Asseng^, Civil Appea l Ho. 6/2017. The Court of Appeal expounded upon the purpose of such visits, clarifying that it sen/es to resolve doubts arising from conflicting evidence regarding the precise location of the property in dispute. The Court stated: "Since the witnesses differed on where exactly the suit property, is located we are satisfied that the location of the suit property could not, with certainty, be determined by the High Court by relying only on the evidence, that was before it. XJ fair resolve of the dispute, heeded the physical location of the suit property he dearly ascertained, fn such exceptional circumstances courts

have, either on their own motion or upon a request by either party, taken move to visit the locus in quo so as to dear the doubts arising from conflicting evidence in respect of on which plot the suit property is located. It should be emphasized that, when such a visit is not conducted, it does not resu11 in any rnisearriage of justi.ee, as ob.served 1 n Nazar M; H. Liadak v. Gulamali Fazal Janmoha med [1980] T.L.R 29, where it was noted, A visit to the locus in quo is not mandatory and is undertaken only under exceptional circumstances? I have cited the above authority to emphasize that observations made, and testimony given at the locus in quo form an integral part of the proceedings and must be considered when preparing a judgment. Upon careful examination of the dispute between rhe parties, it is evident that the Page 9 of 11 boundary between them remains unsettled. This prompted the Tribunal to visit the locus in order to ascertain the source of their contention, particularly to determine if the appellant had indeed encroached upon the respondent's land and constructed a well and wall. The failure of the sale agreement to delineate the purchased land does not diminish the evidentiary weight of the. person relying on the sale agreement to establish ownership. Ownership can be substantiated not only through a sale agreement but also through other types of evidence that may corroborate the sale agreement, further confirming ownership. Premised on the above, I see no merit to the appeal and the same is hereby dismissed with costs. Itissoordered- E.IMALTAIKA

JUDGE 29.09.2023 Court Judgement delivered this 29th day of September 2023 in the presence of Ms. Radhia Abdallah Luhuna s/o Mr. Faraji Taratibu and Radhia Abdallah Luhuna counsel respondent respectively. E.VfcALTAIKA ( '

JUDGE 29.09.2023 Page 10 of 11 Court The right to appeal to the Court of appeal of Tanzania fully explained. 29.09.2023 Page 11 of 11