Denis

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY AT BUKOBA LAND CASE APPEAL NO. 64 OF 2023 (Arising from the District Land and Housing Tribunal for Kyerwa, Application No, 3/2023) DENIS EZEKIA KAKUBA...... ........................... ................... APPELLANT VERSUS PASTORY PROSPERY......... ............................ ........ . RESPONDENT JUDGMENT 3rd and 19th July, 2024 BANZL J,: This appeal emanates from the decision of the District Land and Housing Tribunal for Kyerwa (the trial tribunal) in Application No. 3 of 2023 where the appellant sued the respondent for encroaching into his land measuring 90 X 80 paces located at Bihembe hamlet, Kaitambuzi village, within Kyerwa (the suit land). In his evidence before the trial tribunal, the appellant claimed that, the suit land is part of the land he inherited from his father who died in 1994. As in 1994 he was below 18 years, his land was placed under the guardianship of his paternal uncle, Obadia Kakuba until 2019 when it was handed over to him in the presence of other people. However, in 2022, the respondent trespassed into his land claiming to be lawful owner of the suit Page 1 of 12 land. His evidence was supported by five witnesses. They also claimed that, the suit land is part of the land which the appellant inherited from his father. According to Advera Leonard Byaragu (AW4), the appellant's father bought the suit land from her father, Leonard. Some of witnesses claimed to be present when the appellant was handed over his land which includes the suit land. According to them, the respondent is a resident of another hamlet, Kiheme with no land neighbouring the suit land but rather, he was using his title as a chairman to grab other people's lands. According to Mawela Salvatory Daniel (AW3), the land neighbouring to the appellant belonged to one Ernest Mshonga Rutabya who in 2012 attempted to sell it to him but before he could buy it, the seller died. He further claimed that, the respondent had never bought that land from Ernest. In his defence, the respondent denied to have encroached the suit land claiming that, he has been living in that area since 1998. In 2006, he bought the land including the suit land from Ernest Mshonga in the presence of neighbours though neither of the seller's family members participated in signing the sale agreement despite the fact that, they consented to the sale. Thereafter, he started to develop it. He tendered the sale agreement which was admitted as exhibit DI. He further stated that, the guardians to that land had approached him to see if he had encroached the appellant's land Page 2 of 12 but they were satisfied that he had not encroached the appellant's land. According to him, at the time when the appellant was handed over his land, he was not called to participate to demarcate the boundaries. His evidence was supported by DW2, Byamkama Mathew Mathias who stated that, he was one of the witnesses when appellant's father bought the land from one Leonard, Apart from being brother to the appellant's father, by that time, he was a suburb leader, therefore he knows the land that was bought by the appellant's father. He strongly disputed about the respondent to have encroached the appellant's land because he had knowledge that, the land was sold to the respondent by Ernest Mshonga. Also, DW3, Steven Joel Kakuba, who is the appellant's paternal uncle testified that, the suit land belongs to the respondent, the appellant has exceeded the boundaries and encroached the respondent's land. He further stated that, the appellant's land is demarcated by eucalyptus trees. His evidence was also supported by Eustina Fidel (DW4) who alleged that, she was familiar with the suit land because they had intention to buy it but later it was sold to the respondent. According to her, it is the appellant who has encroached the respondent's land. After receiving the evidence of both sides, the trial tribunal found that, the appellant had failed to prove his claims to the required standards, and Page 3 of12 thus, the application was dismissed with costs. Aggrieved by the findings of the trial tribunal, the appellant has filed this appeal on four grounds thus: 1. THAT, the learned Chairman of the District Land and Housing Tribunal erred in law when framed the 1st issue that never march the applicant's application; and which could not resolve the dispute as claimed by applicant's land application; 2, THAT, the learned Chairman of the District Land and Housing Tribunal grossly erred in law when failed to order for the visit of the locus for the tribunal to be in the position to see the reality ofparties'evidence versus the physical marks as stated by parties, instead of the tribunal stay in the confused state and decided the case; 3. THA T, the learned Chairman of the District Land and Housing Tribunal grossly erred in fact when supported the assessor's opinion of one Mutashaga that the boundaries be rectified but proceeded to deciare the Suitland the property of the respondent and abstain the appellant from entering the same; 4. THA T, the learned Chairman of the District Land and Housing Tribunal grossly erred in law when failed to know that the appellant discharged his burden of proof to the required standard. At the hearing, the appellant was represented by Mr. Scarius Bukagile, learned Advocate, whereas the respondent appeared in person, Page 4 of 12 unrepresented. In his submission, Mr. Bukagile argued each ground separately. For the first ground, he stated that, the trial tribunal improperly raised the issue which would not resolve the dispute as it did not conform with the dispute before it. According to him, the dispute involved the whole land but the tribunal framed the issue concerning part of the land. In respect of the second ground, he argued that, in their evidence both parties were disputing on boundaries of the suit land. In order to resolve the ambiguities, the trial tribunal was supposed to visit the locus in quo before arriving into its decision. However, the tribunal did not see the need to visit the locus in quo to resolve the prevailing ambiguities which caused injustice to the parties. He supported his submission with the decisions of this court in Said Hassan Shehoza vs The Chairman of CCM Branch and Another [2021] TZHCLandD 176 TanzLII and Isdory Francis Malata and Two Others vs Kassim Mohemedi Himbahimba (Administrator of the estate of the late Mohamedi Himbahimba) [2022] TZHC15373 TanzLII which emphasized on the need to visit the locus in quo. In that regard, he prayed for the proceedings and judgment to be quashed and order the trial tribunal to visit the locus in quo so as to take the evidence of both parties. Concerning the third ground, he submitted that, although the chairman supported the opinion of one of the assessors for rectification of the Page 5 of12 boundaries, he erred to depart from such opinion and declare the respondent the lawful owner of the suit land without giving reasons for departing from such opinion. According to him, failure to give reasons, is a fatal irregularity which vitiates the whole proceedings. He cited the case of Peter Makuri vs Michael Magwega [2022] TZCA 54 TanzLII to support his argument. Concluding with the fourth ground, he argued that, the trial tribunal failed to consider the weight of evidence of the appellant and his witnesses which proved how the suit land was acquired and how it was transferred to the appellant as some of them were present when the suit land was bought while others were present when the suit land was transferred to the appellant. Henceforth, he prayed for the proceedings to be nullified and the judgment thereof be set aside and the respondent be ordered to pay the costs of this appeal. In his reply, the respondent denied to have encroached the appellant's land claiming that, it is the appellant who has encroached his land measuring 80 X 90 paces which he acquired by purchase from Ernest Mshonga and the same was further exhibited by producing the sale agreement, exhibit DI which was approved by the appellant's uncles who explained about the boundaries. Reverting to the complaint concerning failure to visit the locus in quo, he argued that, the evidence adduced by witnesses was satisfactory, Page 6 of 12 hence, there was no need to visit the locus in quo. He prayed for the appeal to be dismissed as he is the lawful owner of the suit land. In a brief rejoinder, Mr. Bukagile insisted that visiting of locus in quo was necessary and failure to do so caused injustice to both parties. Having carefully considered the record of the trial tribunal, it is apparent that, there was a tag of war whereby each party tendered evidence to prove how the suit land was acquired. From the evidence of both parties, there is no dispute that the appellant has a land which he inherited from his father. The dispute is on the land bordering the appellant's land and the land which is alleged to be owned by Ernest Mshonga Rutabya. According to the appellant, the respondent has no land there, On his side, the respondent argued that, he owns the land which he bought from Ernest Mshonga Rutabya and he tendered the sale agreement of 7th April, 2006 which shows that AW5 and DW4 were among the witnesses to that sale. However, the issue whether the respondent lawfully bought the land of Ernest is not the issue for discussion at this stage. The neighbouring land be it of the respondent or Ernest, the Court has to determine whether encroachment was proved. Page 7 of 12 Mr. Bukagile argued that, there was no proof of encroachment as the trial tribunal had never visited the locus in quo to cure the Uncertainties. In his contention, failure to visit the locus in quo, caused injustice between the parties. On his side, the respondent contended that, the evidence of the witnesses was satisfactory, hence, there was no need of visiting the locus in quo. Considering the arguments of both parties, it is clear that, the genesis of the dispute is centred on the boundaries between the land of the appellant and that of Ernest Mshonga which the respondent contended to have purchased. In that regard, the next questions to be answered are whether it was proper for the trial tribunal to determine the dispute on boundaries without visiting the locus in quo, and whether there was a need to visit the locus in quo. Notably, there is no law that forces the tribunal to visit to locus in quo but rather, it is in the discretion of the tribunal, either on its own motion or by prayer from any party to make a visit. In the case of Sikuzan Saidi Magambo arid Another vs Mohamed Roble [2019] TZCA 322 TanzLII, it was stated that: "There is no law which forcefully and mandatorily requires the court or tribunal to conduct a visit at the locus in quo, as the same is done at the discretion of the court or the tribunal particularly when it is necessary to verify evidence adduced by the parties during trial." Page 8 of 12 It is apparent from the extract above that, visiting locus in quo is not a necessary requirement in determining land matters. Where the adduced evidence is satisfactory to determine the claims, the tribunal is not compelled to visit the locus in quo. However, where there are compelling circumstances or exceptional cases showing that before determining the dispute, visiting is necessary, the same is necessary. In his findings, the learned Chairman conceded that, there were uncertainties on the boundaries between the appellant's land and the land contended to be owned by Ernest Mshonga. At page 18 of his judgment, the learned Chairman stated that: "Kwa Ushahidi u/iotolewa ria pande zote kuhusiana na mpaka wa chini wa eneo alilonunua baba wa mleta maombi, ni Dhahiri kuwa baraza Hmeachwa kwenye changamoto ya kutatia ni upi hasa mpaka kati ya Mikaritusi, kibumbwe na jiwe, na Mnyinya ria MuHnzi, na mwingine kutaja -mitt miwiti isiyo na jina..,Na hit inaiifanya Baraza kuwa katika njia panda." Nevertheless, with all these doubts on certainty of the boundaries, still the learned Chairman decided in favour of the respondent reasoning that, those doubts have to benefit the respondent. In my considered view, having encountered with doubts and for a fair resolution of the dispute, the trial Page 9 of 12 tribunal had to visit the locus in quo in order to ascertain the boundaries of the suit land. In another case of Avit Thadeo Massawe vs Isidory Assenga [2018] TZCA 357 TanzLII, it was emphasised that, where there is uncertainty on the boundaries of the disputed land, visiting the locus in quo is needed in order to help the court to determine the appeal with clarity and certainty. In that case, the Court in the course of discussing the rationale of visiting the locus in quo where there is uncertainty, they cited with approval the Nigerian case of Akosile vs Adeye (2011) 17 NWLR (Pt. 1276) which stated that: "The essence of a visit to locus in quo in land matters includes location of the disputed land, the extent, boundaries and boundary neighbor, and physical features on the land. The purpose is to enable the Court see objects and places referred to In evidence physically and to dear doubts arising from conflicting evidence if any about physical objects on the land and boundaries." With the holding in the cited cases above, as the Chairman was confronted with uncertainties on the boundaries and the trees that are demarcating the appellants land, although either of parties prayed for visiting the locus in quo, it was necessary for the trial tribunal, on its own Page 10 of 12 motion to conduct a visit at the locus in order to clear the doubts arose from conflicting evidence concerning the boundaries of the suit land. In the circumstance, I am constrained to agree with Mr. Bukagile that, failure to visit the locus in quo caused injustice to both parties. Obviously, had the trial tribunal visited the locus in quo, it would be certain if the land is measuring 80 X 90 paces, and if the appellant's land is demarcated by the mentioned trees of Munyinya, Mullnzi, Mikaritus and other trees. Furthermore, it would see the geographical location of the land and the neighbours to the land. With the above findings, it is the considered view of this court that, the learned Chairman erred to determine the dispute without visiting the locus in quo. For those reasons, I find the second ground with merit and it suffices to dispose this appeal. I allow the appeal by invoking the provisions of section 43 (1) (b) of the Land Disputes Courts Act [Cap. 216 R.E. 2019] and nullify the proceedings starting from the order issued by the trial tribunal after the respondent had closed his defence on 24/07/2023. Consequently, I quash the judgment and set aside the decree of trial tribunal. I hereby remit the case file back to the trial tribunal for it to visit the locus in quo before taking afresh the opinion of assessors and recomposing the Page 11 of 12 judgment. It is also ordered that; the trial tribunal shall follow all legal procedures concerning visiting the locus in quo. Considering the circumstance of the case, I make no order as to costs. It is so ordered. I. K. BANZI JUDGE 19/07/2024 Delivered this 19th day of July, 2024 in the presence of Mr. Scarius Bukagile, learned counsel for the appellant, the respondent in person, Mr. Audax V. Kaizilege, Judge's Law Assistant and Ms. Peace Musasa, RMA. Right of appeal duly explained. I. K. BANZI JUDGE 19/07/2024 Page 12 of 12