CELESTINE MWANOSA scanned

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND APPEAL NO. 27973 OF 2024 (Originating From Application No. 103 of 2024, Temeke District Land and Housing Tribunal) CELESTINE MWANOSA.................................................. ..APPELLANT keksz/s' YAKUBU MHONDELE......................................................................... RESPONDENT

JUDGMENT 29/11/2024 to 20/02/2025 E.B. LUVANDA, J The Appellant is appealing against the decision of the Tribunal which dismissed his claim for want of proof. Essentially, a claim by the Appellant is for easement. According to the evidence presented suggest that there are three houses aligned along the disputed access road, starting with a land owned by one Joseph Issaya Nyakwalolando who testified as DW2, next is the suit land owned by the Respondent and ending with the house of the Appellant. Meaning that the land owned by DW2, is a gate way to the house of the Appellant and Respondent. According to DW2, previously the Respondent asked for access road from DW2 who allowed it. Thereafter the Appellant entered into an agreement with DW2 purchased a portion of road which was previously granted access free by DW2 to the Respondent for the latter to access his house by a motor vehicle. After purchase i by the Appellant, seemingly the latter extended it by forcefully creating an extension of access road on the suit land owned by the Respondent. It is when the Respondent blocked it by erecting a fence wall, while retaining and benefiting with an access road which he formerly requested for free from DW2 which latter the Appellant purchased it in view of formalizing it as an official access road. It was the testimony of DW2 that the Respondent was the first to purchase a motor

vehicle, thereafter the Appellant followed a suit. According to the question shoot on cross examination by the Appellant to the Respondent, suggest that the former attempted to request to purchase an access road on a suit land, but the Respondent refused. The answer given by the Respondent on questions put to him on cross examination, is that access road depends on a compassion or pity of land owner and the records suggest the Respondent was arrogant to the extent of advising the Appellant to block the access road purchased from DW2 which literally is used by both the Appellant and the Respondent as aforesaid. In the impugned judgment, the Tribunal denied the Appellant to have an access road on the ground that he failed to prove that it was a formal street or public road as pleaded in the application (pleading). The Appellant is aggrieved by this verdict and staged five grounds of appeal. But for the purpose of this appeal, in view of the preface above, I will only deliberate on one ground which goes thus: the Honorable Tribunal erred in law 2 and facts for delivering judgment and order without considering that the Tribunal did not bother itself to visit the area in dispute (visiting the locus in quo) contrary to the requirement of the law. The Appellant submitted that the learned Chairperson was at fault, instead of visiting the area in dispute in order to get the actual

information and to testify (sic) by its own eyes on whether the Respondent trespassed the area in dispute by building the wall, but just relied on oral evidence testified by the Respondent and his witness and delivered judgment in favour of the Respondent unjustifiably hence contravening the law. He cited Nizal vs Gulamali [1980] TLR 29. He submitted that the Tribunal did not bother itself to visit the area in dispute so as to abstain from miscarriage of justice. The Respondent did not respond to this ground. It is common ground that visiting the locus in quo is the discretion of the Tribunal. Either party can request the Tribunal to visit the locus in quow it can be done at the Tribunal's own accord proprio motu. It is to be noted that where in the course of the trial, facts dictate the visitation, the Tribunal should consider itself moving the parties to visit in view of ascertaining what is actually transpiring on the ground. In Nizal vs Gulamaii (supra), it was ruled, 3 Where it is necessary and appropriate to visit a iocus in quo the court should attend with parties and their advocates, ifany, and such witnesses may have to testify in that' As prefaced above, the situation in this case dictated the Tribunal to had formed an opinion of visiting the iocus in quo without regard that neither party had pressed for such a request. For that matter, I proceed to quash the

proceedings as from the order dated 2/09/2024 inviting assessors to give their opinion and set aside the judgment and it's award. I direct the Tribunal to visit the iocusin quo\w accordance with the law, ascertain the situation, then assessors if any should be invited to opine and thereafter the Tribunal should embark into crafting the judgment which will take into board notes taken at the iocus in quo. For avoidance of doubt, the testimony of PW1, DW1 and DW2 is retained, remained undisturbed. The appeal is partly allowed to the extent demonstrated above. No order for costs, because litigants are neighbors, therefore maintaining harmony is of 4 Judgment delivered in the presence of the Appellant and Respondent. 5