DANIEL GILEKSA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE SUB REGISTRY OF MANYARA) AT BABATI LAND APPEAL N0.62 OF 2023 (Arising from Land Application No. 39 of 2018 in the District Land and Housing Tribunal for Babati) DANIEL GILEKSA...................................................... APPELLANT VERSUS MANTLE KWAANGW............................................. RESPONDENT Date of Last Order: 11.03.2024 Date of Judgement: 15.03.2024 JUDGEMENT MAGOIGA, J. The appellant, DANIEL GILEKSA aggrieved with the decision of District Land and Housing Tribunal for Babati at Babati has preferred this appeal armed with five grounds of appeal couched in the following language: - 1. That the learned Chairman of the trial Tribunal misdirected himself in declaring the respondent as the lawful owner of the suit land basing on the fact the respondent has been in occupation of the same for long period of the without considering the fact as to how the respondent came into possession of the suit land. 2. That the trial Tribunal erred in law for taking the role of a witness instead of that of the adjudicator when visiting the locus in quo. 3. That the trial Tribunal erred in law in relying on evidence in locus quo which did not adhere to the procedure required when visiting locu in quo as there was no record of the visit in locus quo; neither the parties nor their advocates with the Tribunal re-assembles in court and the notes read out to parties to ensure its correctness. 4. That the trial Tribunal erred in law and fact in declaring the respondent, who was a mere invitee invited in 1997 by the appellant in the disputed land, a lawful owner of the said disputed property in total disregard to the evidence on record. 5. That the trial Tribunal erred in law and fact for failure to properly evaluate and analyse the evidence on record, hence reached into unjustified conclusion. When this appeal was called on for hearing, the appellant was enjoying the legal services of Mr. Elibariki Happy Maeda, learned advocate, while the respondent was enjoying the legal services of Mr. Raymond Joachim Kim, learned advocate. Parties' learned advocates prayed this appeal be argued by way of written submissions. I granted the prayer. Mr. Maeda arguing the appeal told the court that will argue grounds 1 and 4 together, grounds 2 and 3 separately and that he abandoned the last ground. On ground 1 and 4 basically is that the trial Chairman erred to declare the respondent lawful owner of the disputed land without considering how the respondent came into possession of the suit land by invitation, hence invitee. According to Mr. Maeda, there is ample evidence that the respondent is an invitee and as an invitee he cannot acquire any title despite the period he has stayed therein. In support of this stance cited the cases of Musa Hassani Vs. Yohana Shedafa, Civil Appeal No. 101 of 2018, Magoiga Nyaikongoro Mriri Vs. Chacha Mroso Saire, Civil Appeal No.464 (both Unreported) in which it was held that long occupation land by invitee cannot exclude his host whatever the length of time of invitation takes place and whatever the unexhaustive improvements made to the land on which he was invited. The learned advocate faulted the trial Tribunal by holding that respondent has stayed in the disputed property as adverse possessor, buried his son there and made an exhaustive improvement as an untenable. The learned advocate for the appellant as such invited this court to find and hold that, the trial chairman misapprehended the evidence on record and arrived at a wrong and unjust decision. In reply to grounds number 1 and 4 which centers on adverse possession as against invitee, Mr. Kim was brief and focus that, the respondent has never been an invitee to the land in dispute because the appellant was young who could not own land and invited the respondent who is aged 94 while the respondent is just 40. Mr. Kim without- assigning reasons disregarded the evidence of PW3. According to Mr. Kim, the authorities cited in support of the appellant's case are distinguishable and invited this court to disregard them. Consequently, Mr. Kim invited this court to dismiss the 1 and 4th grounds of appeal. Having read and considered the evidence on record and the written submissions and the cited authorities by the contending parties, I am of the considered opinion that in civil cases the proof is on balance of probabilities and the party whose evidence is heavier must win the case. I have traced the facts pertaining this appeal from the pleadings and the oral evidence tendered and I am satisfied that as to this issue of adverse possession against the invitee, the evidence of the appellant was heavier than that of the respondent who just denied but never at all cross examined the issue of the respondent being invitee. Therefore, the evidence of the appellant on this issue remains, as far the record of the trial Tribunal is concern, unshaken and uncontroverted. The respondent did not dispute that he moved to the village and was welcomed by the appellant when he was 20 years. So, is the evidence of PW2 who was the village secretary of the village by then and described it very well. The respondent did not dispute that he moved to Mung'enyi village and if he moved one would expect him to bring evidence from leadership 4 that he reported and was granted such a land was later approved by the leaders. The argument by the appellant that he cleared the exact land that was invited as testified by the appellant is untenable in this appeal. The argument by Mr. Kim that the decisions cited in support of the 1 and 4 grounds of appeal are but misconceived. It is trite law in our jurisdiction that as rightly held in the above cited cases by the Court of Appeal that an invitee cannot own land to which he was invited to the exclusion of his host whatever length and even the exhaustive improvement made therein. Guided by the above stance, the argument by the trial Chairman that the respondent has made some exhaustive improvements and has buried his son there do not negate the fact that he was invitee and did that at his own peril. For the foregoing reasons, I find and hold that the doctrine of invitee applies in this appeal and as such the 1st and 4th ground of appeal are merited and allowed. This takes me to the second ground of appeal which was on visit of the locus in quo which the trial Tribunal turned into a witness. Mr. Maeda argued that the record of the trial Tribunal is loud and clear that the visting of locus in quo which was the basis trial Tribunal's decision was conducted in abrogation of the known procedures. According to Mr. Maeda, the whole process was marred because the trial Tribunal turned into witness and never availed parties' opportunity to show the real dispute. In support of this, the learned advocate cited the cases of Nazir M.H.Ladak Vs. Gulamali Fazal Janmohamed [1980] TLR 29 and Kimonidimitri Mantheakis Vs Ally Azim Dewji and 7 others, Civil Appeal No. 4 of 2018 (unreported) in which it was held and instructed to trial judges, magistrates (and Chairperson of the Tribunal) to observe that: one, to ensure that all parties, their witnesses (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; and five, record any observations, view, opinion or conclusion of the court including drawing sketch plan if necessary which must be made known. On the strength of the above reasons, Mr. Maeda implored this court to allow this appeal on this ground. Mr. Kim for the respondent readily conceded that, the procedures as enumerated in the cited cases were not complied, however, was of the opinion that the trial Tribunal's record be remitted back to the trial 6 Tribunal to comply with the procedure and parted ways with the suggestion to quash the whole proceedings. This ground will not detain me much. As rightly argued and conceded by the learned advocate for the respondent, the visit of locus quo was marred by not following the long-known procedures as instructed and insisted by the Court of Appeal in the cited cases as evidenced at page 26 -27 of the typed proceedings. Mr. Kim prayed that this court be guided by overriding objective and record of the trial Tribunal be remitted back to rectify the anomaly, while Mr. Maeda was of the different view that the trial proceedings and judgement be nullified. On my part and much as I have allowed the first ground of appeal which was enough by evidence on record to dispose of this appeal by declaring appellant lawful owner of the disputed land. And guided by the overriding principle that substantial justice should be upheld and the fact that visiting locus quo is not mandatory but is to be done in an exceptional circumstances as held and insisted in the case of Kimonidimitri Mantheakis Vs. Ally Azim Dewji and 7others (supra) much as no exceptional circumstances was shown to exist in the trial Tribunal, I find it imperative in order to save costs and time to parties in re-engaging in production of the same evidence which is on record and repeating to testify on the obvious, I will only allow this ground and nullify the proceedings dated 30/07/2022 which were unnecessarily done but not according to the procedure and maintain the rest of the proceedings for the interest of justice because nullifying the whole proceedings will not be for the interest of justice. Therefore, the proceedings of the trial Tribunal dated 30.07.2022 are hereby nullified for being taken in abrogation to the laid down procedure and the rest of the proceedings are to remain intact. On the above reasons, I find no need to go on to determine ground number 3 because most of the reasons were covered in grounds 1 and 4. That said and done, the trial tribunal judgement and decree are set aside and proceed to allow the appeal by declaring the appellant lawful owner of the disputed land with costs. It is so ordered. Dated at Babati this 15th day of March, 2024. JUDGE 15/03/2024