HADIJA MBASA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DODOMA SUB-REGISTRY AT DODOMA LAND APPEAL NO. 15431 OF 2024 (Originating from Land Application No. 40 of 2023 before the District Land & Housing Tribunal for Kondoa) HADIJA MBASA...................................................................................... APPELLANT VERSUS AYUBU HAMISI BARAKUSA............................................................. RESPONDENT JUDGMENT Date of Last Order: 31/10/2024 Date of Judgment: 22/11/2024 MASABO, J.: The appellant was the applicant in Land Application No. 40 of 2023 before the District Land and Housing Tribunal for Kondoa (the trial tribunal). She instituted the application against the respondent before the trial tribunal. She alleged that the respondent unlawfully trespassed into a parcel of land measuring four (4) acres. The respondent refuted the claims and asserted that he lawfully owned the suit land having inherited the same from his father in 1988. As per the record, when the application was called on for hearing, the appellant paraded 3 witnesses in proof of her case and the respondent paraded 5 in opposition. For the appellant, the appellant testifying as PW1, told the trial tribunal that her husband, Arosto Mganyizi, was allocated the suit land by Chemba Village Council. After that, he gave it to her. She started Page 1 of 9 utilizing it as the family property. In 2022 the appellant had an accident whereby she sustained injuries. The respondent took advantage of the appellant's sickness/injuries. He trespassed into the suit land and started using it. PW2 testified that the suit land is the property of one Mwenda who is his neighbour. PW3 on his part testified that his land borders the suit land which he described as the appellant's land. He told the court that, he and the appellant acquired their land at the same time. On his part, the respondent testifying as DW1, told the court that the appellant trespassed into his land measuring seven acres. Initially the suit land belonged to his father, Hamisi Barakusa who died in 1988. After his demise, the suit land was given to his brother (respondent's brother) who after using it for a short period, started to suffer from mental health. Then, the suit land was given to the respondent who started to use it and was still using it when the appellant trespassed into it. DW2 and DW3 who are the former village chairman and executive officer for Chemba, respectively testified that during the tenure of leadership, that is, from 1994 to 1999, and from 1997 to 2000 they did not allocate the suit land to the appellant's husband. DW4 on his part testified that the suit land belongs to the respondent. It borders his land on the west side. The last witness on the respondent's side was DW5 who is the respondent's wife. She testified that the suit land is owned by the respondent. At the closure of the trial, the tribunal paid a visit to the locus in quo. Page 2 of 9 Having assessed this evidence and having considered what transpired during the visit at the locus in quo, the trial tribunal found the appellant to have not proved his case and dismissed it with costs. Determined to pursue his right further, the appellant has knocked on the door of this court with an appeal based on the following four grounds: 1. That, the trial chairman erred in law and in fact by hearing and delivering the decision against the law. 2. That, the trial chairman misdirected himself, was biased and unfairly analyzed the evidence adduced by the appellant. 3. That, the evidence adduced by the respondent was weak, contradictory and wanting. When called on for the hearing which proceeded by way of written submission, both parties were represented. The appellant was represented by Ms. Magreth Mbasha, learned Advocate. The respondent was represented by Mr. Moses Cyril Masami, a learned advocate as well. Submitting in support of the appeal, Ms. Mbasha abandoned the second and third grounds of appeal. She confined herself to the first ground of appeal. Submitting on this sole ground, she argued that it has two points. First, the procedures governing visitation to the locus in quo were not observed by the tribunal. She clarified that a visit at the locus in quo is done at the discretion of the tribunal/court. There is no such legal requirement. However, if the tribunal/court opts to visit the locus in quo it is bound to observe several requirements. The parties and their advocates if any should be presented Page 3 of 9 during the visit. After the visit, they should reassemble and the notes taken during the visit should be read out to the parties. In case there are comments, amendments or objections should be incorporated (Sikuzani Said Magambo &Another vs Mohamed Roble Civil Appeal No. 197 of 2018 [2019] TZCA 322 TanzLII). She then argued that the trial court's visit to the locus in quo was noncompliant with the procedures stated above. The assessors were not part of the coram. They did not hear the parties giving their explanation at the locus in quo and did not see the boundaries of the disputed land. After the visitation, the trial tribunal did not reassemble to read the notes taken during the visit. These irregularities vitiated the proceedings and decision of the trial tribunal. She argued further that, the second irregularity concerned the opinion of the assessors. Such opinions were not properly recorded in the tribunal's proceedings contrary to sections 23(1) and (2) of the Land Disputes Act Cap. 216 R.E. 2019 and Regulation 19(2) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2003 which provides that after completion of the hearing of the case, the trial chairman should record the opinion of assessors in the proceedings and judgment. On the contrary, the opinions of assessors were not recorded in the proceeding as required by the law. Rather, they were merely attached to the proceedings in separate papers signed by the assessors making it difficult to gauge whether the assessors gave their opinion and if they did, whether their opinions were read to the parties. In fortification, she cited the case of Peter Makuri vs Michael Magwega, Civil Appeal No. 107 of 2019 and the case of Edina Page 4 of 9 Adam Kibona vs Absolom Swebe (Sheli), Civil Appeal No. 286 of 2017 [2018] TZCA 310 TanzLII and she argued that in these cases it was held that failure to record and read out the assessor's opinions vitiates the proceeding and judgment. Based on these two irregularities, Ms. Mbasha prayed that the appeal be allowed. The trial tribunal's proceedings be nullified, quashed and set aside and so is the judgment and the decree of the trial tribunal and its subsequent orders. In reply, Mr. Masami started with the second irregularity as regards the opinion of the assessors. He argued that sections 23(1) and (2) of the Land Disputes Courts Act require the trial tribunal to be composed of a chairman and not less than two assessors who are required to give their opinion before the chairman delivers the judgment. In the present case, the trial tribunal's record shows that, when adjourning the matter on 19/4/2024, the chairman set it for reading the opinion of assessors on 13/5/2024. As per available records, the opinions were given, recorded in the proceedings and read to the parties. The case of Sikudhani Said Magambo (supra) and Peter Nakuri (supra) are, therefore, distinguishable from the case at hand. On the visit to the locus in quo, it was argued that the complaint is an afterthought. The circumstances in Sikuzani Saidi (supra) are also distinguishable because the visitation was done in the presence of the assessors and witnesses. The tribunal took notes of every event, drew a Page 5 of 9 sketch of the suit land and recalled witnesses to testify and to be cross- examined. Further, the coram shows the parties who attended. Mr. Masami submitted further that, the visit was conducted after the parties had closed their case and its purpose was to verify the boundaries of the suit land and not to support the appellant's case. Besides, the trial tribunal's judgment dwelled much on the evidence adduced by the parties during the trial and not what was found in the locus\n quo. In the foregoing, he beseeched the court not to attach any weight to the complaint as it is devoid of any merit. He added that looking at the evidence adduced, the respondent proved the case to the required standards as his evidence was heavier than the appellant's. In conclusion, he prayed that the appeal be dismissed with costs. In rejoinder, Ms. Mbasha reiterated her submission in chief that procedures on visit to the locus in quo were not adhered to by the tribunal. After the visit, the tribunal did not reassemble and the opinion of the assessors were not recorded in the trial court proceedings. I have carefully considered the ground of appeal in the light of the records of the trial tribunal which I have thoroughly read alongside the submissions by the parties. I will start with the visitation to the locus in quo. As correctly submitted by Ms. Mbasha, visitation to the locus in quo is not a mandatory legal requirement. It is done at the discretion of the court or the tribunal only when it is necessary to verify the evidence adduced by the parties during the trial (see Bomu Mohamedi vs Hamisi Amiri, Civil Appeal No. 99 of 2018 [2020] TZCA 29 TanzLII). However, once the court or tribunal opts to Page 6 of 9 visit the locus in quo, it should comply with the procedures as set in the case of Sikuzani Saidi Magambo & Another vs Mohamed Roble, (supra). In that case, the Court of Appeal set out the guidelines and procedures which should be observed during the visit to ensure a fair trial. It cited with approval the decision in the case of Nizar M.H. v. Gulamali Fazal Janmohamed [1980] TLR 29 where it was instructively stated 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 much each witness as may have to testify in that particular matter... When the court re-assembles in the court 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 will be adopted by the courts in future." Cementing this position in Kimonidimtri Mantheakis v Ally Azim Dewji & 14 others, Civil Appeal No 4 of 2018 [2021] TZCA 663 TanzLII, the Court of Appeal held that: "... 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 Page 7 of 9 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 counsel. Four, record all the proceedings at the locus in quo. Five, record any observation, view, opinion or conclusion of the court including drawings, a sketch plan, if necessary, which must be made known to the parties and advocate if any." Also, see the case of Avit Thadeus Massawe vs Isidory Assenga, Civil Appeal No. 6 of 2017 [2018] TZCA 357 TanzLII where the above guidelines and procedures were reiterated. In the case at hand, the records read that on 25th March 2024, the appellant prayed to the tribunal to visit the locus in quo. The prayer was granted and the visit was scheduled on 19th April 2024. On the scheduled date the visit was conducted. The coram on that date constituted: the trial chairman, and the parties appearing in person. The assessors and the witnesses were not in attendance. The appellant and respondent gave their explanation with respect to the suit land and its borders. They were allowed to cross-examine each other and the sketch map was drawn. Thereafter, the matter was scheduled for reading the opinion of assessors on 13th May 2024 at 9.00 am and for judgment on the same date at 12.00 hours. It is crystal clear from these proceedings that there was partial compliance with the procedures for visiting the locus in quo. The absence of the assessors means that the tribunal was improperly constituted. The absence Page 8 of 9 of the witnesses is yet another anomaly and so is the omission to read the notes taken at the locus in quo. I am, therefore, in agreement with the appellant's counsel that the tribunal's visit in this matter contravened the procedures and guidelines issued by the Court of Appeal in Nizar M.H. Ladak, (supra). Hence, there is procedural irregularity on the face of the record which vitiated the trial and occasioned a miscarriage of justice for the parties. In the foregoing, I hereby declare the trial tribunal proceedings as a nullity, quash and set it aside. Its judgment and decree are subsequently quashed and set aside. It is further ordered that the record be remitted to the trial tribunal for an expedited trial before another Chairman with a new set assessor. This sole irregularity suffices to dispose of the appeal. Thus, the second irregularity will not be deliberated. The appeal is, therefore, allowed. Costs to follow the events. DATED at DODOMA this 22nd day of November 2024. Page 9 of 9