emmanuel magangaadministrator of the estate of the late jonathan maganga vs michael msome 2 others 2023 tzhclandd 16899 18 september 2023

IN THE HIGH COURT OF TANZANIA LAND DIVISION LAND APPEAL NO. 270 OF 2022 (Originated from the decision of Ilala District Land and Housing Tribunal in Land Application No. 19 of 2016 before Hon. A.R Kirumbi- Chairman) EMMANUEL MAGANGA (Administrator of the estate of the late JONATHAN MAGANGA)................................................ APPELLANT VERSUS MICHAEL MSOME....................................................................... RESPONDENT PAZI HAMIS MWINYIMKUU............................................ 2nd RESPONDENT HASSAN MBWANA CHUMBWI......................................... 3rd RESPONDENT JUDGMENT Date of last 0rder:09/09/2023 Date ofJudgment:18/09/2023 K. D. MHINA, J. This is the first appeal. It stems from the District Land and Housing Tribunal ("the DLHT") for Ilala in Land Application No. 19 of 2016, whereby, Emmanuel Maganga (Administrator of the late Jonathan Maganga), the applicant who is now the appellant, claimed for the nullification of the Judgment and proceedings of application No. 30 of 2010 of the Kinyerezi Ward Tribunal, the declaration that the owner of land in dispute was the late Jonathan Saulo Maganga and the order of the nullification of the sale agreement of a parcel of land measuring two and a half acres located at Kifuru Msigwa within Ilala District to the second respondent. i The brief facts which led to the institution of Application No. 19 of 2016 before the DLHT are the allegations that the suit land was owned by the late Jonathan Saulo Maganga, who died in 2001. The deceased purchased that land from the late Charles Mande. In 2004 the deceased family placed the land under the care of the first respondent, who was the ten cell leader at Kifuru Village. Upon visiting the suit land in 2010, the wife of the deceased found orange trees planted therein, and when she inquired, she discovered that the first respondent had sold the land to the second respondent. When she filed the complaint at the Ward Tribunal (WT) against the second respondent. The WT dismissed her claims for the reason that she was not the administrator of the late Jonathan Saulo Maganga. This background prompted the appellant (the administrator of the estate of the late Jonathan Saulo Maganga) to rush and seek redress in the DLHT. After the full trial, the DLHT dismissed the application for want of merits and declared the second respondent as the lawful owner of the suit land. In discontent, the appellant appealed to this court and preferred the following grounds to fault the DLHT decision; 2 1. The Chairman erred in law and fact by holding that the second respondent was the lawful owner of the disputed land without considering how the third respondent acquired that piece of land and has a good title to pass to the second respondent. 2. The Chairman erred in law and facts by ignoring to visit the locus in quo where such a visit would dear doubts as to the accuracy and to ascertain the size mentioned during the testimony of the parties. 3. The Chairman erred in law and fact in arriving at a judgment that the second respondent is the rightful owner of the piece of land in dispute without visiting the focus in quo. 4. The Chairman erred in law and fact in not taking into consideration the evidence given by the appellant and his witnesses in supporting that the piece of land bought by the appellant's father (deceased) from one Charles Mande. The appeal was argued by way of written submissions. The appellant was represented by Mr. Mathew Kabunga, Advocate, while the 2nd respondent was represented by Ms. Rosalia Mkale, Advocate. Both drew and filed their written submissions. The 1st and 3rd respondents were absent despite being duly served by way of substituted service dated 13 May 2023. The way the submissions to support the appeal were couched, it is clear that the counsel for the appellant decided to argue the grounds of appeal together. The submission goes thus: the primary complaint and 3 dissatisfaction by the appellant was on the evidence which was not evaluated and the failure of the Tribunal to visit Locus in quo without giving reasons to that effect. Mr. Kabunga argued that the trial Tribunal, in reaching its decision, completely ignored the evidence given by the appellant’s witnesses and intentionally refused to weigh the evidence to the required standard, resulting in a wrong decision. He further submitted that the appellant was claiming his land of 2.5 acres, which was bought from one Charles Mande by his late father, Jonathan Saulo Mganga. During the trial, the appellant called three witnesses to testify. He further stated that his piece of land was on the North of the river crossing along that area. On the other hand, the second respondent testified that he owned that piece of land of 5 acres bought from one Hassan Mbwana Chubwi on 29/09/1985. He further testified that his piece of land is on the south side of the river crossing along that area. However, looking at evidence adduced during the trial, nowhere indicated how the third respondent acquired a good title to pass to the second Respondent. 4 He further stated that after evidence had been concluded, the appellant's advocate requested the Tribunal to visit the locus in quo to clear doubts on the size and location of that particular piece of land in dispute due to the conflicting evidence adduced by the parties into a piece of land in dispute. After that request, the Tribunal held that it would decide on that issue after analyzing the evidence and receiving the assessors' opinion. But after the opinion of members read to the parties, the Tribunal did not bother to deliver a ruling on the request visiting the locus in quo and instead pronounced Judgment without visiting the locus in quo. To support his argument, on the importance of visiting locus in quo, he cited Nizar M. H vs. Gulamali Fazal Janmohamed [1980] TLR 29, and Kimomdimitri Mantheakis vs. Ally Azim Dewji and seven others, Civil Appeal No. 4 of 2018 (Tanzlii) He concluded by praying this Court to set aside the decision of the Ward Tribunal and the District Land and Housing Tribunal and declare the appellant as the lawful owner. In response, Ms. Makale vehemently disputed both grounds of appeal. Regarding grounds 1 and 4, she submitted that during the trial, one of the 2nd respondent's key and valuable witnesses was one Julius Charles 5 Mande, testifying as DW3 and who was the biological son of Charles Mande from whom the appellant claimed that his deceased father purchased the disputed land. She stated that in DW3's evidence, he confirmed to knew the 2nd respondent as the only lawful owner of the disputed land since 1986 after purchasing it from the 3rd Respondent, whom he again knew since his childhood up to the 3rd Respondents demise in 2017. DW3 also denied having ever known Jonathan Saulo Maganga living at or even owning any landed property in the area where the disputed land is located, to have ever witnessed any sale transaction between his father, the said Charles Mande, with whom the DW3 was living until his demise, denied the signature of his late father on the alleged sale transaction, i.e. exhibit M- 3, to have ever known or even met any member of the family of the Appellant's father. Also, DW3 testified that in 1985 [ i.e. at the time of the alleged sale transaction between the appellant's father and DW3's father], the family of Charles Mande had already disposed of most of the landed property they owned; therefore, Charles Mande had no landed property of two and a half acres to sale; 6 Ms. Makale submitted that the Tribunal conducted the matter by observing all the requirements of the Law of Evidence Act, Cap. 6, R.E. 2022, especially S. 110, based on the principle of "He who alleges must prove". The same principal was emphasized by this Court in Hemedi Said vs. Mohamed Mbilu, TLR (1984) 113. She further submitted that the Tribunal considered the provisions of S. 119 of the Law of Evidence Act, Cap. 6 R.E. 2022, whereby, apart from being heard orally, all the parties were given an opportunity to produce any document(s) in a bid to prove each claim. The Tribunal also allowed the parties to call their witnesses, but for reasons known to himself, the appellant failed even to call his mother, Gaileth Maganga. She concluded by submitting that the Chairman properly decided and declared the 2nd respondent the lawful owner after considering and evaluating the evidence before the Tribunal. Arguing the 2nd and 3rd grounds, Ms. Makale submitted that it was absurd for the appellant to insist on conducting the visit to locus in quo because, at the time time of the alleged purchase, i.e. 1985, he was not at the site to witness the transaction on grounds as he was still a minor hence did not know even the boundaries of the disputed land and the 7 proper person who was to testify was Gaileth Maganga, who claimed that the disputed land belonged to her, but admitted and confessed that she did not witness the sale transaction and did not even know the location as per the records of the Kinyerezi Ward Tribunal in its Decision under Ref. No. BZK/KINY/IL/2/14/2011 dated 18/01/2011. She further submitted that the essence of visiting locus in quo in land matters includes the location of the disputed land, the extent, boundaries and neighbours, as well as physical features on the land and not issues of ownership. To clear doubts arising from conflicting evidence about the boundaries and not establish the claims or allegations of ownership. She cited the decision of the Court of Appeal in Avith Massawe vs. Isdory Asenga, Civil Appeal No. 6/2017 (Tanzlii) and submitted that visiting locus in quo is not mandatory. It is only necessary for issues of boundaries and not ownership. She distinguished the cited cases of Kimonidimitri Matheakis and Nizar M. H. (both supra), the cited cases related to matters of physical condition, location and boundaries contrary to the present appeal, whose finding was based on the issue of ownership. 8 She concluded by submitting there was no dispute regarding boundaries and demarcations, objects at the site or conditions at the site in the instant appeal; the dispute was the issue of ownership. I have dispassionately considered the rival submissions by the counsel for the parties and have gone thoroughly through the grounds and record of appeal. Issues for my consideration are as follows: one, whether the evidence at the Trial was properly evaluated (This will answer the 1st and 4th grounds) and two, whether it was mandatory to visit locus in quo (This will answer the 2nd and 3rd grounds). I will start with issue number two, regarding visiting locus in quo. And on this, the entry point is the cited case Nizar M. H (Supra). The important verse is as follows; I quote; "It is only in exception circumstance 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. " Also, in the cited case of Kimonidimitri Mantheakis (supra), it was held that; "Whereas the visit of the locus in quo is not mandatory, it is trite law that, it is done only in exceptional circumstances as by doing so a court may unconsciously take a role of witness rather than adjudicator. In this regard, where the court deems it warranted, 9 then it is bound to carry it outproperly so as to establish whether the evidence in respect of the property is in tandem with what pertains physically on the ground because the visit is not for the purposes of filling gaps in evidence." From the above-cited cases, it is quite clear that, one, it is not mandatory to visit a locus in quo, and two, there must be exceptional circumstances for the Court or Tribunal to visit the locus in quo. The question is, what are those special circumstances? In William Mukasa vs Uganda [1964] E.A 696 at page 700, quoted in the cited case of Kimonidimitri Mantheakis (supra), it was held that; "A view of a locus in quo ought to be, I think, to check on the evidence already given and, where necessary and possible, to have such evidence ocuiary demonstrated in the same way a court examines a plan or a map or some fixed object already exhibited or spoken of in the proceedings. Further, in the cited case of Avit Thadeus Massawe (Supra), it was held: "The essence of a visit in locus in quo in land matters includes the location of the disputed land, the extent, boundaries and boundary neighbour, and physical features on the land. The purpose is to enable the Court to see objects and places referred 10 to in evidence physically and to dear doubts arising from conflicting evidence, if any, about physical objects." The two above cases provide the circumstances where the Court or Tribunal may visit a locus-in-quo. The locus in quo may be visited if there is a dispute over the boundaries or when there is a dispute, doubt or conflicting evidence regarding the physical object on the disputed land or the dispute on the location of the land. Those special circumstances may trigger a Court or Tribunal to visit in locus in quo if it sees fit to do so. Therefore, it is not in all cases that the Court or Tribunal is required to visit locus in quo, and even in those cases in special circumstances above still, it is within the discretion of the court or tribunal, depending on the evidence on record may decide to visit or not to visit the locus in quo. Therefore, it is not a mandatory procedure or step. In the instant appeal, it is evident that, on 22 June 2022, after the close of the defence case, the counsel for the appellant prayed to the Tribunal to visit a locus in quo on advancing the ground that there was conflicting evidence regarding the size of the land in dispute. After that prayer, the Tribunal held that it would decide on that issue after analyzing the evidence and receiving the assessors' opinion. But he later pronounced the Judgment without visiting the locus in quo. 11 In my opinion, that cannot vitiate the proceedings of the trial Tribunal and affect the resultant judgment. My reasons are; One, as alluded to earlier, visiting locus in quo is not mandatory. Therefore, despite the appellant’s prayer, it was not mandatory for the Tribunal to grant his prayer to visit the locus in quo. Two, the actual dispute between the parties was not on the size of the disputed land. The dispute was on the ownership of the land. As per the cited decisions above, the dispute over the ownership of the land is not among the circumstances where it is recommended to visit locus in quo. Still, the issue was at the discretion of the Tribunal. Therefore, the omission is not only not a mandatory procedure but, in any way, did occasion a miscarriage of justice. Thus, the 2nd and 3rd grounds of appeal lack merits. Regarding the grounds based on the evaluation of evidence, the starting is the principle of law that Courts and Tribunals must evaluate evidence and give reasons for the decision. See the decision of this Court in Ramadhani Mtulia Mwega vs. Shaweji Salum Mndote, Land Appeal No. 50 of 2019, where it was held that; "There must be evaluation of evidence." 12 In the instant appeal, the centre of complaints by the appellant was predicated on the issue that there was no evidence of how the 3rd respondent acquired that piece of land and passed it to the 2nd respondent and that the Tribunal did not take into consideration the evidence of the appellant and his witnesses that his late father purchased the suit land from Charles Mande. The law is clear that under Section 110 of the Evidence Act, Cap. 6 [R.E. 2019], which reads "Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist." The position was cemented in the cited case of Hemedi Said (Supra), where it was held that; "He who alleged must prove the allegation." Having gone through the record, I find that the evidence of the appellant and his witnesses regarding the ownership of the suit land was evaluated, and the Tribunal made findings and comments on that evidence. In the end, after determination, it was found to lack merits on the balance of probabilities. 13 At pages 14 and 15 of the typed judgment, the Tribunal found that the sale agreement was doubtful; it lacked even the neighbours to the suit land. The Chairman hold that; "Mdai ametoa kiieiezo M3 akisema ndiyo had ya mauziano ya eneo bishaniwa wakad marehemu Jonathan Sauio Maganga aliponunua eneo bishaniwa. Hata hivyo kieieiezo hiki hakionyeshi wapakani wa eneo. Mdai pia aiikuwa na eneo Hngine huko Kifuru, sasa kutofaudsha maeneo hayo mawiii iiipaswa ionyeshe wapakani kwani Baraza haiiwezi kuwa na uhakika kama kweii nyaraka hiiiiihusu ununuzi wa eneo bishaniwa''. I also perused the sale agreement (M3), and I find that apart from mentioning the parties to the agreement and the general location of the land, Kifuru. There was nothing to describe the land. Further, the Chairman, in further evaluation of the appellant evidence and that of his evidence, found contradictions in their evidence regarding the neighbours to the suit land. At page 15 of the judgment, the contradictions were evaluated. One witness (PW3, Richard Clement Mwanauta) testified that the appellant was his neighbour in Karakata area and not Kifuru. Each witness mentioned the names of the neighbours in contradiction to another. 14 The complaint that there was no evidence of how the 3rd respondent acquired that piece of land and passed it to the 2nd respondent. This should not detain me long because it was never an issue at the Trial, and for that reason, even on his side, the appellant did not give any evidence as to how the person he alleged sold the land to his late father acquired the land. Therefore, flowing from above, the evidences of the appellant and his witnesses were evaluated properly by the trial Tribunal, resulting in a proper decision. Therefore, the 1st and 4th grounds also have no merits. In the upshot and finally, having scrutinized and re-evaluated the oral and documentary evidence adduced at the trial, the submissions from the learned counsel, I agree with the trial DLHT decision. It properly analyzed the evidence and arrived at the correct decision. Therefore, the appeal is not merited, and consequently, I hereby dismiss the appeal in its entirety with costs. I order accordingly. 18/09/2023 15