elia chinolo

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DODOMA DISTRICT REGISTRY AT DODOMA LAND APPEAL NO. 25399 OF 2024 (Originating from the decision of the District Land and Housing Tribunal for Dodoma at Dodoma in Land Application No. 59 of 2017) ELIA CHINOLO................................................................. 1st APPELLANT JANETH CHINOLO............................................................ 2nd APPELLANT VERSUS AMOSI SIMON MSENGI....................................................... RESPONDENT JUDGMENT Date of last Order: 12/02/2025 Date ofJudgment: 28/02/2025 KHALFAN, J. Before the District Land and Housing Tribunal for Dodoma at Dodoma (hereinafter referred to as "the trial tribunal"), the respondent sued the appellants for recovery of a piece of un-surveyed land situated at Madukani area, Ihumwa ward within Dodoma city (hereinafter referred to as "the suit land"). It was the respondent's claim that, he acquired the suit land by clearing a virgin land in 1989 and he constructed thereon a mud house. i The respondent claimed further that, in 2019, he demolished his mud house intending to build a house for business purposes. The respondent claimed that, he was stopped from constructing the business house by the 1st appellant who claimed to be the lawful owner of the suit land. The matter was referred to the Street Executive Officer in order to seek amicable solution but in vain. In their joint Written Statement of Defence (WSD), the appellants disputed the respondent's claim. Each of the appellants claimed to be the lawful owner of the suit land. The 1st appellant claimed to have been given the suit land by his parents while the 2nd appellant claimed that she jointly acquired it with her late husband and it was once lent to the respondent's brother in 1989. After hearing the matter, the trial tribunal declared the respondent as the lawful owner of the suit land. The appellants were displeased with the trial tribunal's decision hence they preferred the instant appeal with three grounds of appeal which after a careful scrutiny, can be conveniently summarised and reduced to one ground of appeal. 2 1. That the trial tribunal erred in declaring the respondent as the lawful owner of the suit land. Hearing of the appeal proceeded by way of written submissions. The appellants were represented by Mr. Ayubu David Suday, learned advocate whilst the respondent was represented by Mr. Hamisi Hamisi, learned advocate. In his lengthy submission, Mr. Suday faulted the trial tribunal for declaring the respondent as the lawful owner of the suit land. He submitted that, in the application form filed before the trial tribunal, the respondent did not give sufficient description of the suit land in terms of size and location. He argued that, the application form does not state the location and boundaries of the suit land. He argued that, the judgment by the trial tribunal that pronounced the respondent to be the legal owner of the land at Ihumwa Dodoma, is ambiguous since Ihumwa is a huge area. He submitted that, there were serious contradictions in the evidence adduced by the respondent and his witnesses regarding the size of the suit land. He pointed out that, the respondent (PW4) testified that the suit land measures 14 by 30 paces, while PW1, during cross-examination, stated that the suit land measures 10 by 15 paces. He averred that in cross 3 despite tne tact mat it was tne discretion or me mai tnounai to visit me locus in quo, the circumstance of the case at hand made it necessary for the trial tribunal to visit the locus in quo. As to whether the respondent was able to prove his claims, the learned advocate for the appellants argued that the evidence adduced by the respondent did not prove his claims to the standard required. He argued that, the respondent's evidence was full of contradictions regarding the size of the suit land as pointed above. On the other hand, he submitted that, the appellants' evidence proved that the suit land was originally owned by Wilfredy Chinolo, who was the father of the 1st appellant and 4 husband of the 2nd appellant. He argued that, after Wilfredy Chinolo died, the ownership of the suit land was placed under the 2nd appellant who later gave it to the 1st appellant. He further submitted that, the suit land was given to the 1st appellant and he has been paying taxes and he also tendered receipts which were admitted as exhibits DI, D2 and D3. The learned advocate faulted the trial tribunal chairperson, on his findings that the evidence of DW2, DW3, DW4, DW5 and DW6 did not state how the appellants got the suit land. He argued that, the evidence on record speaks for itself as the evidence of DW3, DW4 and DW6 clearly shows that the land in dispute was acquired by clearing a bush land during Operesheni Vijiji He further argued that, the evidence of DW1 states about the size of the suit land at page 17 of the typed proceedings to be 14 by 10 paces. He therefore urged this court to allow the appeal and decision of the trial tribunal be quashed and set aside. Mr. Hamis argued that, the respondent was able to prove his claims to the standard required in civil cases. He further argued that, there are no contradictions as claimed by the advocate for the appellants. He submitted that, the respondent's evidence proved that he acquired the suit land 5 measuring 14 by 30 paces by clearing the bush and he started to live on the suit land in 1989. As to the contradictions pointed out by the learned advocate for the appellants, Mr. Hamis argued that, there were no material contradictions as submitted by the learned advocate for the appellants. He urged the court that, if there are any contradictions, this court should consider them as minor and as such, they do not go to the root of the matter. He submitted that, the appellants failed to prove their claims as they could not explain how they got the suit land. He argued that, even the appellants could not state the size and location of the suit land. He argued further that, while the 2nd appellant claimed to be the lawful owner of the suit land as she jointly acquired it with her late husband, the 1st appellant also claimed to be the lawful owner of the suit land after being given by his parents. The learned advocate submitted that there was a contradiction as to who is the lawful owner of the suit land between the appellants. He argued that, the respondent's evidence was stronger than that of the appellants regarding the ownership of the suit land. As to the need to visit the locus in quo in order to ascertain the location of the suit land, the learned advocate for the respondent 6 contended that, the description given on the application form was sufficient to describe the suit land. For that reason, he maintained that, there was no need of visiting the locus in quo. He submitted that, it is not always mandatory to visit the locus in quo. To buttress his arguments, he referred to the case of Sikuzani Saidi Magam & another vs. Mohamed Roble, Civil Appeal No. 197 of 2018 Court of Appeal of Tanzania (unreported). He further submitted that, the visit of the locus in quo can only be done where there are exceptional circumstances such as dispute as to the boundaries. He argued that, in the instant matter, there was no exceptional circumstance for the trial tribunal to visit the locus in quos\x\ze there was no dispute concerning the boundaries. He referred to the case of Salum Mayombya & another vs. Lucas Ndahuzi, Civil Appeal No. 97 of 2021 (unreported). He thereupon urged the court to dismiss the appeal with costs. In rejoinder, the appellants' advocate essentially reiterated his submission in chief. Having gone through the parties' rival submissions and the records of the trial tribunal, the crux of the appellants' arguments is that the trial tribunal erred in declaring the respondent as the lawful owner of the suit 7 land while the appellants adduced sufficient evidence to establish that they are the lawful owners of the suit land. Therefore, in determining the appeal before me, this court sitting on the first appeal, will re-assess the evidence on record and where possible, it will make its own findings. It is settled law that in civil matters like the one at hand, the claimant is required to adduce evidence to strictly establish his claims to the standard required in civil matters, that is, on balance of probability. Equally, where the defendant lays a claim against the plaintiff, he is equally required to prove the claims to the same standard. In his submission, the learned advocate for the appellants maintained that the respondent did not sufficiently describe the suit land. I have gone through the application form; paragraph 3 thereof gives the description of the suit land as follows: Location and address of the suit premises land: Ihumwa within Dodoma City. The fundamental question is whether such description was sufficient to identify the suit land. At the outset, I wish to point out that, the application form which is used to institute a matter before the land tribunal is essentially equivalent to a plaint. It is expected that; the applicant is duty 8 bound to give a detailed description of the suit land. If it is a surveyed land, it is important to indicate the plot, block and title number and its location. If it is un-surveyed land, the applicant is required to indicate the location, size and boundaries/neighbours. This is necessary for the tribunal to determine whether it has jurisdiction to try the matter as well as to facilitate smooth execution. In the instant matter, the application only shows that, the suit land is situated at Ihumwa within Dodoma. Its neighbours/boundaries were not disclosed. Equally, its size was not described at all in the application form. Consequently, I am satisfied that by merely indicating in that suit, that the suit land is situated at Ihumwa within Dodoma by itself; was not sufficient to describe the suit land. The respondent had the services of an advocate; hence he was required to give detailed description of the suit land since Ihumwa has many plots of land; not the suit land alone. I have carefully gone through the evidence adduced by the respondent and his witnesses. PW1 claimed that the suit land measures 10 by 15 paces, PW2 and PW3 could not tell the size of the suit land while PW4 claimed that the suit land measures 14 by 30 paces. It is on the record that, neither the respondent nor his witnesses could tell exactly the 9 location of the suit land in terms of its boundaries/neighbours. Consequently, with such failure, I am of the settled view that, the learned trial chairperson erred in declaring the respondent as the lawful owner of the suit land as there was no sufficient description of the same. In the case of Olorubare Nginyu vs. Kilempu Kinoka Laizer Civil Appeal No. 416 of 2021 Court of Appeal of Tanzania at Arusha (unreported), the Court of Appeal interpreted the provision of Order VII Rule 3 of the Civil Procedure Code [Cap 33 R.E 2019], (hereinafter referred to as "the CPC") and insisted that since the land in dispute was un­ surveyed piece of land (like in the instant matter), the plaint should have disclosed the boundaries, names of the owners of the adjacent parcels of land which are necessary particulars in describing the suit land. On that account, such failure to describe the suit land; in my view, went to the root of the matter and when taken cumulatively with the contradictions regarding the size of the suit land as testified by the respondent and his witnesses as I have pointed above, renders the respondent's case unproved. In his submission, the learned advocate for the respondent claimed that, the provisions of the CPC are not applicable to matters before the trial tribunal regarding the requirement of giving sufficient description of the suit land. It is in my view that, the CPC is applicable where there is inadequacy in the Land Disputes Courts (District Land and Housing Tribunal) Regulations GN No. 174 of 2003 (hereinafter referred to as "the Regulations") as stipulated under section 51(2) of the Land Disputes Courts Act [Cap 216 R.E 2019]. With respect to the learned advocate for the respondent, Regulation 3 (2) of the Regulations require a proper description of the suit land in terms of its location and address be shown on the application form. However, in this matter, the respondent did not comply with the requirements of Regulation 3 (2) for he did not give proper address and location of the suit land sufficiently to describe it. That said, failure to comply with the mandatory provisions of the law, made the application incompetent. Since the trial tribunal rode on an incompetent application, this makes the resultant proceedings and judgment a nullity. Therefore, the trial tribunal erred in declaring the respondent as the lawful owner of the suit land. The order is accordingly quashed and set aside. li This court has considered the appellants' submissions that, the evidence on record is sufficient to prove that they are the lawful owners of the suit land. As I have pointed out above, since the appellants who were respondents before the trial tribunal laid a claim over the suit land, they also had a burden to strictly prove their claims on the balance of probability. I have carefully gone through the appellants' evidence adduced before the trial tribunal; each appellant claimed to be the lawful owner of the suit land. In his evidence, the 1st appellant claimed that the suit land belongs to him as he was given the same by his parents. On the other hand, in her testimony, the 2nd appellant claimed that the suit land belongs to her. From the evidence adduced by the appellants, while the 1st appellant claimed that he was given the suit land by his parents, he did not tender any evidence to substantiate his claims. He could not even tell when he was given the suit land. After all, the 2nd appellant who is 1st appellant's mother never said the suit land was ever given to her son, rather she insisted that the suit land is her property. I have closely gone through the evidence by the 2nd appellant. She could not tell how she acquired the suit land. Her evidence is conspicuously 12 X4 silent on how she came to own the suit land. It suffices here to say that, neither the respondent nor the appellants adduced sufficient evidence to substantiate their claims over the suit land. In the upshot, the appeal partly succeeds to a limited extent that, the trial tribunal erred in declaring the respondent as the lawful owner of the suit land, the order which I proceed to quash. I am satisfied that the appellants' evidence falls short of proving their ownership of the suit land. The appeal is allowed to the limited extent shown above. In the circumstance, I will not make an order as to costs. It is so ordered. Dated at Dodoma this 28th day of February 2025. F. R. KHALFAN JUDGE 13