Christina Awe

THE JUDICIARY OF TANZANIA IN TH E H IG H COURT OF TANZANIA AT MANYARA CIVIL APPEAL NO. 000026140 OF 2024 CHRISTINA AWE AS AN ATTORNEY FO R / ADMINISTRATRIX OF THE ESTATE OF THE LATE TSEAMAY G ID M A Y ..................................COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS 1. HOTAY M E H H I2. DAHASHA G E G E .................................RESPONDENT / DEFENDANT JUDGMENT KAMUZORA, J, 12th March & 3rd April 2025 Before the District Land and Housing Tribunal for Mbulu at Dongobesh (hereinafter referred to as the trial tribunal), the appellant sued the respondents for recovery of a piece of land measuring about 47 x 67 square meters situated at Titiwi village, Gehandu ward in Mbulu district, (hereinafter referred to as the suit land). The appellant claimed that, the late Tseama Gidmay inherited the suit land from his father Gidmay Munde in 1986 and he has been owning the same without any dispute until 2013 when the 1st respondent trespassed into the suit land claiming to be the owner. i In their joint written statement of defence, the respondents disputed the appellant’s claim. They claimed that, the 2nd respondent sold to the 1st respondent a piece of land measuring about 190 x 77 paces in 1997. They claimed that the suit land was never owned by Gidmay Munde. j After hearing the case, the trial tribunal dismissed the appellant’s case for lack o f merits and it declared the 1st respondent as the lawful owner o f a piece of land measuring 190 x 77 paces |which includes the suit land. The appellant was displeased with the trial tribunal’s decision hence, she preferred the instant appeal with two grounds o f appeal which can be conveniently summarized and reduced into one ground that “the trial chairman did not evaluate properly the evidence on record”. When the appeal was called for hearing, the appellant appeared in person while the respondents were represented by Mr. Abdallah Kilobwa, learned advocate. In her submission in support of the appeal, the appellant challenged the decision of the tribunal which was in favour of Hotay Mehhi (the 1st respondent). She submitted that, before the trial tribunal, the 1st respondent had no witnesses and the 2nd respondent did not appear when the case was called for hearing together with their advocate. She argued that, the since the 2nd respondent who claimed to have sold the suit land to the 1st respondent did not appear, there was no evidence of the seller before the trial tribunal. She further submitted that, the suit land belonged to her husband Tseama Gidmay who was sick for a long time but passed away when the -case was still pending. She argued that, her evidence was collaborated by the tendered exhibits and the evidence o f her two witnesses, Jonathan Bura and Boay Gidmay proving that the 1st respondent trespassed into the suit land. She contended that, the evidence of Boay Gidmay was not considered by the trial tribunal. She therefore urged this court to consider her appeal and find that the trial tribunal was wrong to hold in favour of the 1st respondent who did not present any witness before the tribunal. The appellant also submitted that, those who witnessed the sale agreement were not called to testify before the trial tribunal. That, while the 1st respondent claimed that the suit land was sold to him in 1986, the trespass started in 2013 meaning that, he was not using that the suit land until when he trespassed into it. She added that, she requested the trial tribunal to visit the locus in quo to verify the evidence but did not visit. She thus urged this court to allow the appeal. In reply, Mr. Kilobwa supported the decision of the trial tribunal and submitted that despite the fact that the 1st respondent had no witnesses, the trial tribunal considered the strength of his evidence and not a number of witnesses. He argued that, the 1st respondent tendered the sale agreement proving how he purchased the suit land and the exhibit tendered was enough to prove that the 1st respondent purchased the suit land from the 2nd respondent. He was of the view that, the appellant was unable to prove on how she acquired the suit land as she even failed to tender any exhibit proving how she acquired the land. The respondents’ counsel further submitted that, the appellant’s witnesses failed to describe the land trespassed into by the 1st respondent. That, while the appellant claimed the size of land to be 67 x 47 feet, her witness claimed that the 1st respondent constructed a house on the suit land but did not describe the size of the suit land. He contended that, the appellant’s witnesses also acknowledged the sale agreement between the respondents. He claimed that, for the whole period when the appellant's husband was still alive, he has never caused disturbance to the respondent. That, the suit land is the property of the 1st respondent and the appellant has no right over the same. On the argument that the trial tribunal did not visit the locus in quo, Mr. Kilobwa submitted that, the record does not show if the appellant prayed for the visitation of the locus in quo. He argued that, not visiting the locus in quo cannot prevent the court from making decision based on the evidence brought before it. He urged this court to dismiss the appeal with costs. In rejoinder, the appellant insisted that, she prayed for visitation of the locus in quo. She urged this Page. 2 court to visit the locus in quo for purpose of verifying the size of the suit land and1the fact that the 1st respondent constructed a house. Having gone through the parties’ submissions and the record before me, the sole issue for determination is whether there was thorough evaluation of the evidence on record. This is essentially the complaint in the grounds o f appeal. In holding that the 1st respondent proved ownership the trial tribunal chairman reasoned that, the 1st respondent has been occupying the piece of land he purchased from the 2nd respondent without any disturbance. He also referred the evidence of the appellant’s witnesses, Jonathan Bura (SM2) and Boay Gidmay (SM3) found that they admitted that the 1st respondent purchased the suit land from the 2nd respondent. Thus, the argument that the evidence of Boay Gidmay was not considered by the trial tribunal is unfounded. However, since the trial tribunal is being reproached for not properly evaluating the evidence on record, I undertake the duty to re-evaluate the evidence on record and where possible to make my own findings. 1 It is on record that, the appellant claimed a piece of land measuring 47 x 67 square meters. On the other hand, in his written statement o f defence, the 1st respondent claimed that he purchased from the 2nd respondent a piece of land measuring about 190 x 77 paces. In his decision the learned trial chairperson held that the piece of land claimed by the appellant which was 47 x 67 square meters is within the piece of land purchased by the 1st respondent measuring 190 x 77 paces. In their testimony, both SM2 and SM3 admitted that, the 1st respondent purchased a piece of land from the 2nd respondent. However, they claimed that, the 1st respondent left the piece of land he purchased and instead, he trespassed into the piece of land owned by the appellant. Going through the evidence, there is no doubt that, the learned trial chairperson misconceived the gist o f the evidence adduced by SM2 and SM3 by holding that they supported the respondents’ evidence. The two witnesses SM2 and SM3 admitted that, truly the 1st respondent purchased a piece of land from the 2nd respondent but it is not the land in dispute rather a separate land. Therefore, the decision that the two witnesses supported the fact that the piece o f land claimed by the appellant is part of the land purchased by the 1st respondent is unfounded because they were referring a different piece of land. However, while the 1st respondent testified that, the piece of land claimed by the appellant is within the land he purchased, the appellant and her witnesses testified that the land sold to tlje 1st respondent is separate from the suit land. Again, the 1st respondent was unable to describe the boundaries of the suit land or the land he claimed to have purchased from the 2nd respondent as he only claimed that there is a road between his land and that of the appellant. The appellant on the other hand described the suit land as the land bordered with cattle path, Ingi Akonay Daniel Emmanuel, Tluwa Bayo, Dahasla Gege and Tseamay Gidimay. With such evidence, there is uncertainty on the location of the suit land. The learned trial chairperson opted to consider the 1st respondent’s evidence over that’of the appellant in concluding that the suit land is part of the land purchased by the 1st respondent. It was however wrong for the learned trial chairperson to hold that the piece of land claimed by the appellant which was 47 x Page. 3 67 square meters is within the piece of land purchased by the 1st respondent measuring 190 x 77 paces without considering that there was uncertainty in evidence regarding the boundaries of the suit land and whether it was part of the land allegedly purchased by the 1st respondent. In fact, there is unanswered question on whether the suit land is a separate land from the land allegedly sold to the 1st respondent or not. In order to resolve this issue, it is my considered view that, this was a fit case for the trial tribunal to visit the locus in quo in order to determine the location of the two pieces of land referred in evidence and whether one is part of the other or not before making its decision. In her submission, the appellant argued that, after hearing of the matter, she requested the trial tribunal to visit the locus in quo but such prayer was rejected. I have visited the record and as correctly argued by Mr. Kilobwa, there was no such prayer. However, the circumstance of this case makes it necessary for visit of the locus in quo. For that reason, I quash the judgment of the trial tribunal and remit the case file before the trial tribunal with direction for the trial chairman to visit the locus in quo in accordance with the legal requirements in order to resolve the above pointed issue and new judgment be composed thereafter. In the circumstance, I will not make an order as to costs. Dated at THE HIGH COURT OF TANZANIA AT MANYARA this 3rd o f April 2025 . JUDGE OF THE HIGH COURT Page. 4