Chausiku 0001

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA MISCELLANEOUS LAND APPEAL NO. 000019427 OF 2024 BETWEEN EMMANUEL CHAUSI............................................................................. APPELLANT VERSUS EMMANUEL SORWA.........................................................................RESPONDENT JUDGMENT OF THE COURT 18/12/2024 & 15/01/2025 Kafanabo, J.: This is a judgment in respect of an appeal that emanates from a decision of the District Land and Housing Tribunal for Musoma, at Musoma in the Mara Region (hereinafter referred to as the 'Tribunal') in Land Application No. 65 of 2022 dated 12th July 2024. The Appellant herein instituted the application in the Tribunal claiming to be declared a lawful owner of a piece of land measuring thirty (30) paces (metres) in length and fifteen (15) paces (metres) in width, located in the Kabegi Village, Ifulifu Ward, in the Musoma District (hereinafter referred to as the 'disputed land'). The description of the boundaries is well stated in the amended application filed in the Tribunal on 15th December 2022. The Respondent filed his defence disputing the claim of the Applicant. It is on record that the Appellant obtained the disputed land from his grandfather who also obtained the same in 1974 during 'Operation Vijiji'. The total area owned by the Appellant is one acre, but it was alleged that in 2013 the Respondent trespassed into the disputed land and built therein a toilet and a house. The Respondent, on the other hand, disputed the Appellant's claim and asserted that in 1974 his grandfather Buruki Charamba had a house on the disputed land and in 1990 he bought the house from his grandfather. The house he bought is located on a piece of land measuring 50 paces in length and a width of 25 paces, but the disputed land measures 30 paces in length and 15 paces in width. Therefore, it is not in dispute that the parties own neighbouring pieces of land and thus are supposed to share a clear and defined boundary. It is the lack of a conjointly accepted boundary, and in respect of which the parties seem to have a different understanding, that had stemmed into the present dispute that commenced at the Tribunal. The application was heard by each party calling witnesses, and in order to verify the testimonies of witnesses on the ownership and bounderies of the disputed land the Tribunal visited a loqus in quo. The Appellant's case was built on the testimonies of three witnesses. PW1, the appellant herein, testified that he obtained the land in dispute from his grandfather Missana Muhinja who gave it to him before he died in 1976, and he was given the land measuring one acre. His grandfather obtained the disputed land in 1974 from 'Operation Vijiji'. PW2 Nyarugobi Misana, testified that the Respondent trespassed into the land of their father and built a house, the land was given to the Appellant by his father Missana Muhinja who owned the same since 1974. Then PW3, Veredina Zakaria, also reiterated the testimony of PW2. 2 The Respondent's defence rested on the testimonies of four witnesses including the Respondent himself (DW1). He testified that he obtained the land which had a house on it from his grandfather in 1990 when he was given the same in exchange for corrugated iron sheets which he bought for his grandfather. His grandfather, Guruki Charamba, obtained the said land in 1974. The house which the Respondent acquired was on a piece of land measuring 50 paces in length and a width of 25 paces. DW2 was Charamba Guruki, who testified that his father, Guruki Charamba, sold the disputed land to the Respondent. DW3 was Maregesi Karani who testified that on 20/02/1990 he was a ten-cell leader and he witnessed the sale of the disputed land from Guruki Charamba to the Respondent for TZS 160,000/=. DW4 was Alexander Emmanuel Sorwa who testified that he had been aware of the disputed area since 1988 when he was born and there had never been any dispute until he heard that the Appellant claiming ownership of the same. After both parties had made their cases the Tribunal visited a locus in quo and gathered what it considered relevant. Therefore, in light of the evidence on record, the Tribunal held that the Appellant's land has not been trespassed into as claimed by the Appellant because the Appellant's land commences where the Respondent's buildings (toilets) are built, sloping backward and the Respondent's land commences on the borderline where the toilets have been built following an elevation to Musoma- Majita Road. The Tribunal also observed that the Respondent simply wanted to take an additional piece of land behind the piece of land he currently owns extending 3 from Musoma-Majita Road into the Appellant's land. To that extent, the Tribunal allowed the Application. The appellant being aggrieved with the decision of the Tribunal preferred an appeal to this court marshalling eight grounds of appeal. The substance of the said grounds of appeal read as follows: 1. The Tribunal made a legal and substantive error in deciding the dispute before it without considering the weighty evidence provided by the Appellant and the witnesses. 2. The Honorable Chairman of the Tribunal misguided himself by failing to follow up on the documents exhibit DI, submitted by the respondent, which shows that there is no border that separates us, which clearly shows that when the chairman visited the disputed area, he saw how we bordered, apart from that also in that document, all those people who were involved in that document as witnesses, none of them came to testify or confirm about the boundaries of the area before the Tribunal, as important witnesses. 3. That, the Honorable Chairman of the Tribunal made a legal mistake by deciding to manage the Tribunal alone without the assessors giving opinions as required by law and thus violated section 23 (1) and (2) of the Land Disputes Courts Act, Cap. 216 R.E 2019. 4. That, the Honorable chairman of the Tribunal misinterpreted section 23(3) of the Land Disputes Courts Act, Cap. 216 R.E 2019 read together with Regulation 19(2) of G.N.No. 174 of 2003 because it does not allow the chairman to continue with the proceedings in the absence of assessors. 4 5. The Honorable Chairman of the Tribunal violated section No. 24 of the law of the Land Disputes Courts Act, Cap. 216 R.E 2019 which requires the opinion of the assessors to be taken into account. 6. That, the Honorable chairman of the Tribunal visited the disputed land on 13/06/2024 and was satisfied that the area is the property of the Appellant, and that the Respondent only wants to increase the area of his compound from the Musoma-Majita road intruding into the Appellant's area, but in giving his decision he did not instruct the respondent to demolish the toilet built in the disputed area. 7. (Abandoned/dropped). 8. The Honorable Chairman of the Tribunal misled himself in holding that the border that separates us is a toilet without considering that it was built by the respondent inside my compound. Given that the parties are unrepresented, the Court ordered that the appeal be disposed of by written submissions. The Appellant was ordered to file his submissions on 27/11/2024, the Respondent was required to file his reply submissions on 11/12/2024 and rejoinder submissions by the Appellant, if any, were to be filed on 18/12/2024 and the judgment was set on 15/01/2025. However, only the Appellant filed his submissions on 26/11/2024. The Respondent did not file his submissions and no reason was availed to this Court for the Respondent's noncompliance with the order of the Court. It is trite law that failure to file submissions is equivalent to failure to prosecute or defend a matter before the Court and it is also equated to non-appearance of the party in the proceedings. See the cases of Godfrey Kimbe vs Peter 5 Ngonyani (Civil Appeal No. 41 of 2014) [2017] TZCA 1 (25 July 2017- Tanzlii), National Insurance Corporation of (T) Ltd & another v. Shengena Limited, Civil Application No. 20 of 2007 (unreported )and Patson Matonya v. The Registrar Industrial Court of Tanzania & Another, Civil Application No. 90 of 2011 (unreported). Therefore, since the Respondent failed to defend an appeal, this appeal will be determined in light of the submissions made by the Appellant. Arguing in support of the appeal the Appellant dropped ground 7 of the appeal and clustered grounds 1, 2, 6, and 8 and argued them jointly, and also grounds 3, 4, and 5 were argued jointly. As regards grounds No. 3, 4, and 5 of the appeal it was submitted that the trial Tribunal erred in law and facts for delivering judgment in the absence of the opinion of the assessors contrary to the law. It was the Appellant's submission that the Chairman of the Tribunal acted contrary to sections 23(3) and 24 of the Land Disputes Courts Act, Cap. 216 R.E 2019 read together with Regulation 19(2) of G.N. No. 174 of 2003. In addressing this ground of appeal, the Court is guided by the provisions of the relevant law, that is sections 23(1)(2)(3) and 24 of the Land Disputes Courts Act, Cap. 216 R.E 2019. Sections 23(1)(2) and 24 provide that: "23. -(1) The District Land and Housing Tribunal established under section 22 shall be composed of at least a Chairman and not less than two assessors." 6 (2) The District Land and Housing Tribunal shall be duty constituted when held by a Chairman and two assessors who shall be required to give out their opinion before the Chairman reaches the judgment. 24. In reaching decisions, the Chairman shall take into account the opinion of the assessors but shall not be bound by it, except that the Chairman shall in the judgment give reasons for differing with such opinion. Reading sections 23(2) and 24 of the Land Disputes Courts Act, it is clear that the Tribunal is duly constituted when it is composed of the Chairman and two assessors who shall be required to give out their opinion before the Chairman reaches the judgment and in reaching its decision, the Chairman shall take into account the opinion of the assessors. However, the said sections provide a general rule whose exception is provided in section 23(3) of the Land Disputes Courts Act, which reads: (3) Notwithstanding the provisions ofsubsection (2), ifin the course of any proceedings before the Tribunal, either or both members of the Tribunal who were present at the commencement ofproceedings is or are absent, the Chairman and the remaining member, ifany, may continue and conclude the proceedings notwithstanding such absence. It is clear that if both assessors who were present in the Course of the trial are absent, in a situation akin to the present case, the Chairman of the Tribunal may conclude the proceedings although the assessors are absent. It is an understanding of this Court that the said section was enacted 7 purposely not to render the Tribunal impotent simply because the assessor (s) who heard the matter is (are) absent, cannot provide his opinion and thus would become a hindrance in delivery of the judgment. This Court is not treading in a virgin land, the Court of Appeal had, on several occasions, observed on the applicability of the above section. See the case of Awiniel Mtui & Others vs Stanley Ephata Kimaro (Civil Appeal No 97 of 2015) [2016] TZCA 2066 (26 February 2016). Also in the case of Joyce Christopher Masawe vs Amphares Geofrey Naburi (Civil Appeal No. 231 of 2020) [2023] TZCA 17930 (12 December 2023) the Court of Appeal when commenting on the way forward in the event of the absence of assessors observed that: "In case one or both assessors are absent, then, the learned trial Judge, either proceeds with the remaining assessor or without, if both are absent to the end of the proceedings." In light of the above, it is a view of this Court that since the trial Chairman of the Tribunal indicated in his judgment why the opinion of the assessors was not included in the judgment, then the judgment of the Tribunal was properly prepared. Therefore, grounds No. 3, 4, and 5 of the appeal were misconceived and have no merits and are hereby dismissed. In support of grounds 1, 2, 6, and 8 of the appeal the Appellant submitted that the learned trial Chairman erred in law and facts for failure to consider the procedures for visiting a locus in quo and evidence of the Appellant concerned to the address of the land in dispute. The Appellant submitted that the Tribunal did not follow the procedure required to be adhered to 8 when the court/tribunal visits the locus in quo as stipulated in the case of Nizar M.H vs Gulamali Fazal Janmohamed (1980) TLR 29. It was further submitted that when the Tribunal reassembled after visiting the locus in quo did not read the notes and/or report of the locus in quo for parties to comment or correct as required, instead, it proceeded to pronounce the judgment. It was also submitted that the notes taken by the Tribunal did not indicate how the parties herein bordered the disputed land. Generally, the Appellant submitted that the procedures when the Tribunal visited the locus in quo were flawed, citing the cases of Sikuzani Saidi Magambo and Another versus Mohamed Roble, Civil appeal No. 197 of 2018 (unreported), North Mara Gold Mine Limited v. Isaac Sultan, Civil Appeal No.458 of 2020 CAT (Unreported), and Prof. T. L. Maliyamkono versus Wilhem Sirivester Erio, Civil appeal No. 93 of 2021. Having in place the submissions of the Appellant as regards grounds 1, 2, 6, and 8 of appeal, the Court reviewed the proceedings of the Tribunal, especially on page 20 which bears the proceedings of 12/06/2024 when the Tribunal visited the locus in quo. The proceedings are very brief indicating that the disputed area has full-grown planted trees disputed by the parties. The area constitutes a toilet built by the Respondent and the disputed area measures 15x30 metres. However, on page four of the judgment it is indicated that after visiting a locus in quo the Tribunal was satisfied that in the disputed area there are fully grown-up trees planted by the Applicant which conjoins with another 9 area of the Applicant not subject matter of the dispute. This fact is not part of the proceedings of the Tribunal when it visited the locus in quo. Moreover, the judgment on page 4 of the judgment indicates that the Respondent has not trespassed into the Appellant's land because the Appellant's land commences where the Respondent's buildings (toilets) are situated sloping backward, and the Respondent's land commences on the borderline where the toilets have been built elevating/extending to Musoma- Majita Road. This observation is not reflected in the proceedings of the Tribunal, especially on the day the Tribunal visited the locus in quo. The Tribunal also, on pages 4-5 of the judgment, observed that when it visited the locus in quo it observed that in front of the Respondent's buildings, there are ruins (remains of buildings), which without a doubt, were the remains of the house bought by the Respondent from Guruki Charamba. The Tribunal also observed that the Respondent simply wanted to take an additional piece of land behind the land he currently owns extending from the Musoma-Majita Road into the Appellant's land. Again, the above obsen/ations are not reflected in the proceedings of the Tribunal, especially on the day the Tribunal visited the locus in quo. It follows that the guidelines and procedure regarding the visit of the locus in quo in our jurisdiction have been traversed on several occasions and are opulent. First of all, the visit to the locus in quo should only be made in exceptional circumstances. The reason was stated in the case of Nizar M.H vs Gulamali Fazal Janmohamed (1980) TLR 29 where it was held that: io ' It is only in exceptional circumstances that a court inspects a locus in quo, as by doing so a court may unconsciously take on the role of a witness rather than an adjudicator'. In light of the judgment and the proceedings as provided herein above, the Chairman of the Tribunal included in the judgment observations of the locus in quo which were not part of the proceedings of the locus in quo, and the case as a whole which is a fatal irregularity in the proceedings. Moreover, as rightly argued by the Appellant, the procedure as regards proceedings when the tribunal visited the locus in quo was not followed. In the case of Nizar M.H vs Gulamali Fazal Janmohamed (supra), it was held that: 'When a visit to a locus in quo is necessary or appropriate, and as we have said this should only be necessary in exceptional cases, the court should attend with the parties and their advocates, if any, and with such witnesses as may have to testify in that particular matter, and for instance if the size ofa room or width ofroad is a matter in issue, have the room or road measured in the presence of the parties, and a note made thereof. When the court re-assembies in the courtroom, all such notes should be read out to the parties and their advocates, and comments, amendments or objections called for and if necessary incorporated. Witnesses then have to give evidence of all those facts, if they are relevant, and the court only refers to the notes in order to understand or relate to the evidence in court given by the witnesses' 11 Also in the case of Sikuzan Saidi Magambo & Another vs Mohamed Roble (Civil Appeal No. 197 of 2018) [2019] TZCA 322 (1 October 2019) the Court of Appeal held that: "... tve are mindful of the fact that there is no law which forcefully and mandatory requires the court or tribunal to conduct a visit at the locus in quo, as the same is done at the discretion ofthe court or the tribunal particularly when it is necessary to verify evidence adduced by the parties during trial. However, when the court or the tribunal decides to conduct such a visit, there are certain guidelines and procedures which should be observed to ensure fair trial. Some of the said guidelines andprocedures were clearly articulated by this Court in the case of Nizar M.H. v. Guiamaii Fazai Janmohamed [1980] TLR 29..." Morover, in the case of Jovent Clavery Rushaka & Another vs Bibiana Chacha (Civil Appeal 236 of 2020) [2021] TZCA 3527 (20 December 2021) the Court held that: "In our recent decision in the case of Kimonidimitri Mantheakis v. Ally Azim Dewji and 14 Others, Civil Appeal No. 4 of 2018 (unreported) at page 8 of our decision we stated: "...for the visit of the locus in quo to be meaningful, it is instructive for the trial Judge or Magistrate to: One, ensure that all parties, their witnesses, and advocates (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 12 either party, or his counsel. Four, record all the proceedings at the locus in quo. Five, record any observation, view, opinion or conclusion of the court including drawing, a sketch plan, if necessary, which must be made known to the parties and advocates, if any." Also in the case of Joyce Christopher Masawe vs Amphares Geofrey Naburi (Civil Appeal No. 231 of 2020) [2023] TZCA 17930 (12 December 2023) when the Court commented on inability to comprehend what transpired during the visit at the locus in quo held that: "It is therefore not dear as who participated in the said visit and whether witnesses were re-caiied to testify, examined and/or cross examined. We are therefore in agreement with Mr. Rutaihwa that the said visit, if at all conducted, was done contrary to the procedures and guidelines issued by this Court in the above cited cases. The said omission is another procedural irregularity on the face ofrecord which had vitiated the trial court's proceedings" Further guidance on the conduct of the proceedings during a visit at the locus in quo, was stated in the case of Ally Mhidini Avambi & Others vs Sambwa Village Council (Civil Appeal No. 623 of 2022) [2023] TZCA 17940 (13 December 2023). In the said case the Court made reference to the decision in the case of Avit Thadeus Massawe v. Isidory Assenga, Civil Appeal No. 6 of 2017 (unreported) the Court was persuaded by and relied on the decision of the Nigerian High Court in the case of Evelyn Even Gardens NIC LTD and the Hon. Minister, Federal Capital 13 Territory and Two Others, Suit No. FCT/HC/CV/1036/2014; Motion No. FCT/HC/CV/M/5468/2017 which relied upon the decision in the case of Akosile v. Adeye (2011) 17 NNWLR (Pt 1276), where it was held that: "The essence ofa 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 tenable 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". Moreover, in the case of Ally Mhidini Avambi & Others vs Sambwa Village Council (supra) it was further held that: "In the instant case, it is dear from the record, particularly as evidenced by the notes made by the DLHT on its visit to the locus in quo appearing at page 99 of the record of appeal that, the locus in quo visit did not comply with the relevant guidelines and procedure. First of all, the counsel for the parties were not in attendance. Further, there is no indication that the witnesses whose testimonies in court related to the location, size and boundaries of the suit land and the Village land demarcated for pastoralists, were re-caiied to testify on that matters at the locus in quo. Worse still, there is no indication that the DLHT re assembled and that the notes made on the visit was read out to the parties and their respective counsel. 14 The ailments pointed above render the locus in quo visit evidentially valueless. The fact that the visit was not properly conducted has denied us an opportunity to properly appreciate the evidence on record and we thus cannot make any proper re-evaluation of the evidence including the evidence on what had transpired and gathered at the locus in quo on the DLHT visit." Reverting to the present case, in light of the Tribunal's proceedings during the visit of the locus in quo as indicated on page 20 of the Tribunal's proceedings, it is clear that the Tribunal did not indicate who testified at the locus in quo, no examination of witnesses, no clarification was given by the parties, it is not clear who provided the information to the Tribunal during the locus in quo and no explanation as to how the boundaries were identified by the witnesses. It is also on record that the Tribunal did not reassemble after the visit of the locus in quo in order to straighten up the facts and proceedings of the Tribunal gathered from the locus in quo. The inability of the Tribunal to follow the required procedure and the absence of proper proceedings that were supposed to be taken at the locus in quo made this Court unable to reevaluate the evidence adduced in the proceedings before the Tribunal, and properly determine the appeal before this Court. The flaw above is a serious irregularity that would, otherwise, vitiate the proceedings of the Tribunal. However, given the circumstances of the matter and the statuses of the witnesses who adduced evidence before the Tribunal, 15 this Court would not nullify the proceedings of the Tribunal. This Court chooses to follow the guidance in the case of Ally Mhidini Avambi & Others vs Sambwa Village Council (supra) when facing the akin situation, where proceedings during the visit of the locus in quo were flawed, the Court of Appeal held that: "In view of what we have endeavoured to discuss above, it is our observation that in the absence of proper and sufficient evidence obtained from the locus in quo, the DLHTcould not have resolved the dispute at handjustly, effectually and with certainty. That being the case and for the interests ofjustice, we find it apt to invoke the provisions of rule 38 of the Tanzania Court of Appeal Rules, 2009 and remit the proceedings to the DLHT with a directive that the DLHT should visit the locus in quo, collect additional evidence therefrom while observing the relevant guidelines and procedure. Having done so, the DLHT should act on such evidence together with the evidence on record to compose a fresh judgment." Considering that this Court faces an alike situation as regards proceedings taken at the locus in quo, this Court, as a first step, hereby quashes and sets aside the judgment and decree of the Tribunal. Further, in the interest of justice, this Court invokes the provisions of section 42 of the Land Disputes Courts Act (supra). The proceedings of the Tribunal are hereby remitted to the Tribunal with a directive that the Tribunal should revisit the locus in quo, and take additional evidence by 16 adhering to the relevant guidelines and procedure. After complying with the foregoing directive the Tribunal shall compose a fresh judgment taking into account the evidence it shall gather during the revisit at the locus in quo and the evidence on record previously taken. In the final analysis, this Court finds that the appeal is partly meritorious, and it is hereby allowed to the extent stated herein above. Given the nature of the decision made by the Tribunal, each party shall bear their costs. It is so ordered. Dated at Musoma this 15th day of January 2025. K. I. Kafanabo Judge The judgment was delivered in the presence of the Applicant and in the presence of the Respondent. K. I. Kafanabo Judge 15/01/2025 17