GERADA

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA LAND APPEAL NO. 000018753 OF 2024 GERADA ZACHARIA (ADMINISTRARIX OF THE ESTATE OF THE LATE ZAKARIA LUSAMBO) .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS NICODEMUS LUSAMBO (ADMINISTRATOR OF THE ESTATE OF THE LATE JULIUS LUSAMBO ) .............................. RESPONDENT / DEFENDANT JUDGMENT KAHYOZA, J, Before the District Land and Housing Tribunal (DLHT) for Kigoma at Kigoma, Nicodemus Lusambo in his capacity as an administrator of the estate of the late Julius Lusambo, sued one Gerada Zacharia Lusambo in relation to a parcel of land located at Magera – Kamala, within the district and region of Kigoma. The record shows that this Gerada Zacharia Lusambo was also sued in her capacity as the administratrix of the estate of the late Zacharia Lusambo. Among the reliefs sought was for a declaration that the applicant, Nicodemus Lusambo, was the lawful owner of the land in dispute. After hearing the parties and their respective witnesses, and also after visiting the locus in quo, the DLHT found and held in favour of the Applicant, Nicodemus Lusambo. In its decision, the DLHT held among others that the disputed land did not form part of the estate of the late Zacharia Lusambo, but it formed part of the estate of the late Julius Lusambo. The Appellant was aggrieved by this decision. She has now appealed to this court challenging the said decision. Her memorandum of appeal contains eight grounds. The same are reproduced here below: 1. That, the trial tribunal grossly erred in law and fact when it held in favour of the Respondent while the same had failed to identify the suit land in his pleading as per regulation 3 (2) (b) of the land dispute Courts Act Cap 216 R.E 2019. 2. That, the trial District Land and Housing Tribunal for Kigoma grossly erred in law and fact to held in favour of the Respondent by ignoring the strong evidence as it was added by Appellant and her witness one SOLOMONI CHIBAGO and ENERITA PAULO but relied on the Respondent’s weak evidence which were Page. 1 not supporting his clam to the required standard as the same was contradicting on the size of the suit land and the respondent pleadings. Hence the Respondent failed to prove his allegation to the required standard as per section 110 of the evidence Act Cap 6 R.E 2022. 3. That, the trial tribunal grossly erred in law and fact to determine the matter in favour of the Respondent while the same had failed to observe the principles of visiting locus inquo as it invited one ANASTAZIA PIUS CHAMPANDA who was neither the Appellant’s witness nor Respondent’s witness even the Court witness and the parties were not afforded chance to cross examine the same. Hence ungrounded judgment. 4. That, the trial District Land and Housing Tribunal for Kigoma grossly erred in law and fact when it ignored the Respondent’s witness one UMANDE MRISHO who testified in favour of the Appellant and his evidence was collaborated by SOLOMON CHIBAGO. Hence reached ungrounded decision. 5. That, the trial Tribunal grossly erred in law and fact when it failed to consider the identified boundaries and permanent sign i.e. pits “shimo” between the land which is estate of the Respondent’s father. Hence entered ungrounded judgment in favour of the respondent. 6. That, the trial Tribunal grossly erred in law and fact when it misdirect itself by relying on the respondent’s allegation that the Appellant have no any land even near the suit land contrary to the evidence as adduced by Respondent’s witness one UMANDE MRISHO which was in favour of the Appellant. 7. That, the trial District Land and Housing Tribunal for Kigoma grossly erred in law and fact when it relied on the evidence adduced by DW1 at page 23 of the impugned judgment paragraph 10-13 while could be the same consider the respondent alleged the suit land to be 21/2 acres which is equivalent to squire meter 175 hence the remained squire meter 275 belong to the Appellant as the suit land has three plots measuring about 150 meter to 50 meter each. 8. That, the trial Tribunal grossly erred in law and fact when it applied a doctrine of adverse possession without considering the Respondent’s father died 1978 more than 41 years the same could not held in favour of the Respondent while the same did not develop the suit land while the Appellant family has been occupying and developing the same for long time without interruptedly from the Respondent and his family. At the hearing, the Appellant appeared in person, unrepresented. On the other hand, the Respondent was represented by Mr. Eliutha Kivyiro, learned advocate. Being a lay person, the Appellant barely made any useful submissions in support of the grounds of appeal. She only read the grounds of appeal one after another and was also making reference to the record of appeal that was not before the court. At the end of the day, she urged the court to consider her grounds of appeal and then decide accordingly. On his part, Mr. Kivyiro addressed all the grounds of appeal an. He stated from the outset that he was going to address all the grounds together. He started by pointing out that the major complaint by the Appellant is pegged on the allegations that are raised in ground one that the suit land was not properly and sufficiently described and identified in the pleadings. According to Mr. Kivyiro, this ground is baseless because the fact that the Respondent was able to file her written statement of defense, that was evidence showing that the land in dispute was properly described and identified. It was his further submission that the issue of description of the suit land was further made clear during the trial as both sides testified in relation to that suit land and also that the visiting of the locus in quo cemented the whole issue of description and identification of the suit land. Page. 2 In determining ground one, I wish to start by pointing out that apart from raising this issue in this appeal, the Appellant had also raised it in her written statement of defense before the trial tribunal. This is reflected in paragraph three of the said written statement of defense (WSD) which I shall reproduce here below for ease of reference. 3. That the contents of paragraph 3 of the application are partly noted and partly disputed in that so long as the suit land is allegedly unsurveyed land, in the absence of clear explanation of its size, boundaries and or features that differentiates it from all other lands in Magera – Kamala, leaves much to be desired over the Applicant’s claims over what he refers as the suit land. Equally of importance, I also find it pertinent to reproduce Regulation 3 (2) (b) of THE LAND DISPUTES COURTS (THE DISTRICT LAND AND HOUSING TRIBUNAL) REGULATIONS, 2003 which is the corner stone for the complaint in ground one. It provides thus: 3. I) Any proceedings before the tribunal shall commence by an application filled by an applicant… 2) An application to the Tribunal shall be made in the form prescribed in the Second Schedule lo these Regulations and shall contain: (a) … (b) the address of the suit premises or location of the land involved in the dispute to which the application relates; (bold supplied for emphasis). Mr. Kiviryo has argued that the fact that the Respondent filed her written statement of defense is evidence that the suit land had been properly and sufficiently described. With due respect, I do not think this is a correct position. Filing of the WSD was inevitable otherwise she would have been taken to have conceded to the suit. But again, the said WSD was filed under protest whereby the Appellant categorically stated that there was no proper description of the suit land. In civil litigation, a party initiating proceedings must have a clear cause of action against the defendant. In the absence of a cause of action, the suit becomes unmaintainable at law. In land matters, description of the suit land and its location goes to the very root of the matter. It constitutes the cause of action. That is why it is important for pleadings to state clearly and sufficiently the description of the land under dispute. The pertinent question then is whether the pleadings before the District Land and Housing Tribunal (DLHT) provided a clear description of the suit land. May be before answering this question, I should reproduce the relevant paragraph of the application for a better appreciation of how the suit land was described in the pleadings. Under paragraph three of the application before the DLHT, we have the following: 3. Location and Address of the suit Premises: at Magera Kamala, within Kigoma district and Kigoma Region. Page. 3 As it appears to be, this cannot be said to be a proper and sufficient description of the suit land. It is this situation, I think, that prompted the Appellant in her WDS before the DLHT to raise alarm that the pleadings did not provide sufficient description of the suit land as to its size, boundaries and /or specific features differentiating the suit land from the rest of the lands at Magera – Kamala. It is now settled and trite law that in land matters, failure to properly and sufficiently describe the suit land renders the whole action a nullity for want of a cause of action. In Olorubare Nginyu vs Kilempu Kinoka Laizer (Civil Appeal No. 416 of 2021) [2024] TZCA 598 (18 July 2024), reported at Tanzlii, the Court of Appeal had this to say in relation to the description of the suit land. The Court stated: Where the suit involves immovable property, the plaint should include description of the property sufficient to identify it. See also Lupembe Village Government Ikolo Ward Kyela District & Another v.Bethelehamu Mwandafwa & Others, Civil Appeal No. 377 of 2020 [2023] TZCA 17313 (9 June 2023), at page 16. In this case the Court made the following observations: "On the argument that the plaint did not disclose the description of the suit land, we are aware of the provisions of Order VII rule 3 of the CPC the emphasis being where the involved subject matter in a suit is immovable property, there must be such details of the requisite property in the plaint to sufficiently enable it to be identified." Now, looking at the pleadings before the trial tribunal, it cannot be said that the subject matter of the suit was properly described for proper and accurate identification. It seems to me that the issue of proper description of the suit land becomes more relevant when the land in question is in unsurveyed area. In the Olorubare case (supra) the Court of Appeal also addressed this aspect and had this to say: It is not disputed that; the parties' dispute involves an unregistered parcel of land whose manner of description was stated by this Court in Martin Fredrick Rajab (supra) at page 13, thus: "From what was pleaded by the appellant, it is glaring that the description of the suit property was not given because neither the size nor neighbouring owners of pieces of land among others, were stated in the plaint. This was not proper and we agree with the learned trial Judge Mr. Mrisha that, it was incumbent on the appellant to state in the plaint the description of the suit property...” In this suit like in Martin Frederick Rajab, the suit land is unregistered. It was therefore imperative for the same to be fully described in the pleadings by stating its size, neighbours and so on. This was to appear in the pleadings but it was not done. Such failure rendered the matter incompetent. In Olorubare case (supra) the Court having addressed this issue at length, it concluded in the following words: Page. 4 Considering the issue cropped up in the pleadings... it was incumbent upon the trial court to address it and if satisfied, reject the plaint. Since the plaint was not rejected and the court proceeded with trial on an incompetent plaint, the resultant proceedings were vitiated and thus a nullity. Likewise, and as I said earlier, this issue was raised in the written statement of defence. It is my view that had the trial chair man taken trouble to address it, no doubt it would have formed one of the issues for determination. But this did not happen and the trial proceeded on an incompetent application. This vitiated the entire trial and the proceedings were rendered a nullity. This ground alone suffices to dispose of this appeal. However, there is also another important issue that I find it pertinent to address before penning off. This issue relates to the complaint raised in ground three about the visit to the locus in quo. The Appellant’s concern is that it was wrong for the trial chair man to allow a stranger to the case, one Anastazia Pius Chapamba to give evidence at the locus in quo. According to the appellant, the record does not show whether this witness was summoned by the parties to the case or she was a court witness. The Appellant further laments that this said witness was never cross examined in relation to what she testified. In his reaction to this ground, counsel for the Respondent, Mr. Eliutha Kivyiro submitted that the complaint was baseless because the trial tribunal did not ground its decision on the evidence of this witness. With due respect to the learned counsel, I do not think the point raised by the Appellant can be so easily brushed aside. Looking at what transpired during the visit to the locus in quo, no doubt the whole procedure was flouted. There are guidelines that must be observed while visiting the locus in quo. In Nizar M.H. v. Gulamali Fazal Janmohamed [1980] TLR 29, the Court laid down the minimum procedures to be observed while visiting the locus in quo as follows: "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 much each witnesses as may have to testify in that particular matter... When the court re-assembles in the court room, 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 witnesses. We trust that this procedure w ill be adopted by the courts in future." Again, in Kimonidimitri Mantheakis v. Ally Azim Dewji and 14 Others, Civil Appeal No. 4 of 2018 this procedure was restated and the court added more aspects including cross examining a witness testifying during the visit at the locus in quo. The Court 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 either party, or his Page. 5 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." As it can be seen from the record of the trial tribunal, none of these procedures were complied with. The tribunal did not re-assemble after visiting the locus in quo. Moreover, the trial chair man invited a witness, Anastazia Pius Chapamba who was a stranger to the proceedings. This witness was not cross examined. Worse still, it seems this witness was not an independent witness, rather, she had a purpose to serve. This is reflected from her evidence where she was recorded telling the trial tribunal that the suit land did not belong to the Respondent (now Appellant). To make things worse, the testimony of this witness is also reflected in the judgement of the trial tribunal, at pages 5 and 6. Just to say the least, these glaring irregularities had the effect of vitiating the proceedings. In Sikuzan Saidi Magambo & Another vs Mohamed Roble (Civil Appeal No. 197 of 2018) [2019] TZCA 322 (1 October 2019), reported at Tanzlii, the Court addressed a similar situation and had this to say: “It is not clear as to who participated in the said visit and whether witnesses were re-called to testify, examined and/or cross examined, as no notes were taken and the Tribunal never reconvened or reassembled in the court room to consider the evidence obtained from that visit. We are therefore in agreement with both parties that the Tribunal's visit in this matter was done contrary to the procedures and guidelines issued by this Court in Nizar M.H. Ladak, (supra). It is therefore our considered view that, this was a procedural irregularity on the face of record which had vitiated the trial and occasioned a miscarriage of justice to the parties. In the same vein, I would also say that, just like in the Sikuzan case, the irregularities in this case relating to the visit to the locus in quo are fundamental errors which vitiated the trial thus occasioning miscarriage of justice to the parties. With that said, I am of a settled view that my discussion on these two grounds of appeal, that is, ground one and three suffices to dispose of the entire appeal. Thus, I need not labour on the remaining grounds as doing so would be superfluous. Having said so, and taking into consideration of the glaring irregularities, I allow the appeal with costs to the Respondent. I nullify the entire proceedings, quash the judgement and set aside the resultant decree. Any party still interested is at liberty to restart the matter afresh. Right of appeal is duly explained. Dated at KIGOMA this 19th of February 2025 . Page. 6 P. R KAHYOZA JUDGE OF THE HIGH COURT Page. 7