christina mwamengo another vs fungo godlove benson 2 others 2023 tzhclandd 17033 17 october 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO.319 OF 2023 (Originated from Land Appiication No. 76 of 2019 liala District Land and Housing Tribunai) CHRISTINA MWAMENGO 1®^ APPELLANT ABUBAKAR ABDALLAH MAGOMBA APPELLANT VERSUS FUNGO GODLOVE BENSON 1®^ RESPONDENT ROZENA FUNGO 2^" RESPONDENT KASELE KWIKIMA S"" RESPONDENT JUDGMENT 09th to 17th October, 2023 E.B. LUVANDA,J The First and Second Appellant named above, are challenging the decision of the trial Tribunal decreeing Infavour of the First Respondent above named, over a suit plot. Going by the pleadings, proceedings and evidence presented by all parties to the dispute. It Is Imperative to preface the brief facts as a matter of landing to an appropriate and equitable justice. The First Respondent (claimant at the Tribunal) purchased land located at Klfuru Street KInyerezI Ward, measuring 17x17x18x34, 26 metres 1 (pentagon shape form)from the Third Respondent on 26/03/2017 as per a sale agreement exhibit Ml. In 2019 when the First Respondent was about to develop his plot, he revealed it was encumbered, in a sense that the same plot was vended by the same Third Respondent to the First Appellant via a sale agreement dated 06/10/2016 part of exhibit D2,showing a size of a plot on the east, west, south and north to be 20x20x16x16 (rectangle). According to the First Respondent he revealed that the plot of the First Appellant had encroached three third of his plot. The First Respondent sued the First Appellant along the Third Respondent(the vendor), vide an application filed on 15/03/2019. Thereafter the First Respondent discovered that while the suit was subjudice, the First Appellant disposed her plot to the Second Appellant on 15/09/2018 as per exhibit D1 or part of exhibit D2. Meantime in his defence, the Third Respondent alleged that they had initial sale agreement with the First Appellant for a plot valued Tshs 1,300,000/= and after the latter failed to pay a full consideration, the agreement was frustrated and he re allocated her an alternative plot near a plot which he (Third Respondent) vended to the First Respondent. The Third Respondent accused the First Appellant to had encroached the area of the First Respondent. Upon inquiry, the Third Respondent reveaied the First Respondent had disposed his piotto one Mussa Hamisi Madiii(DW4), whom the First Respondent had named being his neigbour on the right hand side of his piot. DW4 confirmed to had purchased a piot from the First Respondent measuring 16x20 being haif of the First Respondent's piot on the top, according to DW4 the remained piot, the First Responded vended it to one Aiphonce (soidier), who have constructed a house. The Third Respondent aiieged to had failed to settie the matter out of court, foiiowing this new development. The Third Respondent heaped biame to the First Respondent that he is intending to benefit twice. On cross examination, the Third Respondent confessed that it is not the entire area which he vended to the First Respondent which is encumbered by this dispute. In the memorandum of appeal, the Appellants raised four grounds of appeal. However for purpose of determining this appeal, I cherry pick the third ground of appeal; thus, the trial Tribunal was misconceived to determine the matter without visiting the locus in quo. Mr. Bitaho Baptister Marco and Mr. Emmanuel Gikaro learned Advocates for the Appellants arguing for the third ground of appeal, they submitted that during hearing, the Tribunal arranged to go for the visit of the suit property so as to identify exactly the suit property, but the Tribunal did not manage to go to the site, instead the Tribunal proceeded to hear the matter without ascertaining the exactly suit property location. They submitted that at a trial, the Third Respondent testified that he sold two pieces of land including the suit property to two different purchasers, one being the First and Second Respondents and the other being the First Appellant, arguing this suffices to convince the Tribunal to go to the site to identify the suit property, but the Tribunal ignored and proceeded to hear the matter in obscurity. They cited the case of Avit Thadeus Massawe vs. Isdory Assenga, Civil Appeal No. 6/2017, CAT Arusha. In reply, Heimes Marceii Mutatina learned Counsel for the First and Second Respondents submitted that visiting the locus in quo is in the discretion of the Tribunal, argued nowhere in the provision of the Regulations of the District Land and Housing Tribunal (sic. The Land Disputes(The District Land and Housing Tribunal) Regulations, GN 173 of 2003) mandatoriiy for the visit of iocusIn quo. He submitted that the trial Chairperson judiciously exercised the discretion of visiting the locusIn quo more than twice. He submitted that for reasons best known to the Appellants in corroboration with the Third Respondent, ail the time they halted the process of visiting the locus In quo. He submitted that the trial Chairperson could not force parties to visit the locus In quo. He cited the case of Dar es salaam Water & Sewerage Authority vs. Didas Kameka & 17 Others, Civil Appeal No. 233/2019 CAT Dar es Salaam, for a proposition that it is not mandatory to visit the bcus in quo. Also Nizar M.H. Ladak vs. Gulamall Fazal Janmohamed [1980] TLR 29. He distinguished Avit Massawe(supra) arguing that there it was on how to clean the air when the witnesses differed on where exactly the suit property is located, which is not an issue in the matter at hand. Arguably visiting the iocus in quo is within the discretion of the Trial Tribunal after making assessment of the evidence presented before it, of course visiting at the site is not mandatory. In Didas Kameka (supra) at page 29, it was held, I quote, 'We are mindfulofthe fact that there is no iaw which forcefully and mandatoriiy requires court or tribunal to inspecta iocus in quo, as the same is done at the discretion of the court or tribunal particularly when it is necessary to verify evidence adduced by the parties during trial. This Courthas had occasion to discuss thisissue in the landmark case ofNizar M.H. Lada vs. GuiamaiiFazaUohnmohamed[1980]TLR 29. In which the Courtinteraiia heid that:- "Itis onlyin exceptional circumstances thata courtshould inpsect a iocus in quo, as by doing so a court may unconsciously take the roie of a witness rather than adjudicator" To my view the nature of evidence presented in this case as per recap above, present or fall with the domain of exceptional circumstances which necessitate the Tribunal to visit the iocus in quoXo verify what was being asserted by the parties in their testimony at the trial. This can be evidenced by the wording of the Tribunal made prior commencement of the hearing on 12/04/2021,1 reproduce, "Tribunal: The matter isfor commencement ofhearing ofthe applicant's case. Mtatina: We have one witness, we are ready. Tribunal:According to the pleadings, this case can be settled upon visitiocusin quo,so before hearing, itisprudentto make a visit, so the hearing is adjourned, after the visit iocus in quo is fixed. ORDER: Visit21/05/2021 at 10:00 hours. When the matter come on 21/05/2021, the Tribunal vacated the order for visiting the locus in quo, after Mr. Mtatina learned Counsel for First Respondent herein informed the Tribunal that parties were on disagreement regarding the order for visiting the locus in quo. Therefore, the argument of the learned Counsel for First and Second Respondent who argued that it is the Appellant who colluded with the Third Respondent to frustrate the visiting in quo for more than twice, is quietly misleading. This is because, it is the learned Counsel for First and Second Respondent who opposed the move and order of the Tribunal to visit the focus in quo. The exceptional circumstances for visiting the focus in quo, in this matter can also be ascertained from what Tribunal members (assessors) had opined. The wise assessor Jokha Lendi, made the following opinion at item 2, "2 mgogoro wa eneo bishaniwa urnesababishwa na mdai na mdaiwa Na. 1" The wise assessor Mwakaiasya, T made the following opinion, ''Katika kupitia maeiezo ya kina ya wadaawa, mdai na mdaiwa Na. 1, kiia mmoja kwa wakati wake tofauti na nia tofauti wamefanya mgogoro huu ufikie hapa kwa utata mkubwa . In view of the above, I quash the judgment and set aside the order dated 21/05/2021. And I direct the iearned triai Chairman to visit the locus in quo for the First Appeiiant (Christina Mwamiengo DWl) to locate physically her area purchased from the Third Respondent measuring 20 (on the East), 20 (on West), 16 (on the South) and 16 on the North as depicted in a sale agreement dated 06/10/2016 (part of exhibit D2); Likewise the First Respondent(Fungo Godiove Benson PW2)to locate his area he purchased from the Third Respondent measuring 17x17x18x34, 26 metres as depicted in his sale agreement exhibit Ml. Also the Third Respondent (Kaseie Kwikima, DW3)to appear at the site to exhibit Plot vended to the First Appeiiant and First Respondent. /Vssessors, if they are available according to the law,should also participate and thereafter opine afresh. In that way their opinion given on 22/05/2023 are discarded. Thereafter, the iearned Chairman should ensure that a fresh judgment is composed and delivered to parties, within ninety days counting from a date hereof. For clarity, the testimony adduced in the proceedings remain intact. The appeal Is allowed to the extent explained above. I make no order for costs. OF o c E.B. LUVANDA (O limGE 17/£o/2023 ¥ MND 0\ Judgment deTl^ere^^rough virtiaal court at 09:44 hours, where neither Mr. Bihatao Baptister Marco and Mr. Emmanuel Gikao for Appellants nor Helmehs Marceil Muitatina learned Counsel for First and Second Respondent a o G 9k \ o 7 2 E.B^VANDA /JUDGE ¥ Ianv V 717/10/2023