IKUNGI DISTRICT COUNCIL Vs

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY)

AT DODOMA LAND APPEAL NO. 4790 OF 2024 (Arising from the Judgment and Decree of the District Land and Housing Tribunal for Singida at Singida in Land Application No. 104 of 2018 dated 16/01/2024) IKUNGI DISTRICT COUNCIL………………………………………..……….APPELLANT

VERSUS JOHN DANDI………………..……………..…………..…………………..1ST DEFENDANT TATU TAYUKA @ MAMA ZEPHANIA…………………………..…......2 ND DEFENDANT MBIO MBIO……………………………………………………………..….3RD DEFENDANT POSO BIN POSO……………………………………………………….….4TH DEFENDANT ELIMBOTO SAID MAJENGO……………………………..……….…….5TH DEFENDANT DANIEL MALOLO……………………………………..……………….….6TH DEFENDANT BALA DAUDI………………………...……………………………………..7TH DEFENDANT YOTHAM SAID MAJENGO………………………………..……………..8TH DEFENDANT

JUDGMENT Date of Last Order: 29th August, 2024. Date of Judgment: 22nd November, 2024. E.E. KAKOLAKI, J. 1 Before the District Land and Housing Tribunal for Singida at Singida in Land Application No. 104 of 2018, the respondents herein successfully sued the appellant over the suit land measuring 18 acres which its value is estimated at Tshs. 100,000,000/- located at Mkunguwakihendo village, Kikio ward within Ikungu District, Singida Region, when declared to be lawful owners of the suit land. Further to that appellant was ordered to cover costs of the suit. Displeased with the said decision the appellant has approached this court with registered grievances in five grounds of appeal stated thus: 1. That, the trial tribunal erred in law and fact by holding that the respondents are lawful owners of the suit land basing on the weak evidence by the appellant regarding ownership of the land that all the respondents acquired the said land after death of their parents without having administrators of the estate of their late parents from the court.

2. That, the trial tribunal erred in law and fact by delivering the judgment in favour of all the respondents while some of them, that is 2 nd, 4th, 6th and 7th respondents did not appear to testify on their case.

3. That, the trial tribunal erred in law and fact by holding that all disputed land belongs to the respondents, that is 18 acres while in the evidence 2 adduced by the respondents before the tribunal prosecuted for 13 and a half acres only.

4. That, the trial tribunal erred in law and fact for failure to consider what they saw during the site visit, the infrastructure which the government built there since 2011 and the children who are studying there and the exhausted improvement made by the applicant within the school area in which the respondents despite of being provided with alternative land as compensation move into.

5. That, the trial tribunal erred in law and fact by failure to evaluate evidence properly in reaching its decision like minutes of Mkunguwakihendo village council dated 08/08/2011 and Mkunguwakihendo village assembly minutes dated 26/08/2018. In view of the above grounds the Court is prayed by the appellant to reverse the trial tribunal’s judgment and decree and declare the suit land as Mkunguwakihendo secondary school’s property. And further to that, the respondents be ordered to vacate the suit land and move to the given alternative lands and be permanently restricted from trespassing over the disputed land anymore. Additionally, costs of this appeal be paid for. 3 In order to properly and smoothly determine this appeal, I find it apposite albeit briefly to narrate the background story behind the parties’ dispute. Before the trial tribunal nine (9) respondents who claimed to be owners of 18 acres neighbouring Mkunguwakihendo Secondary Schoool sued the appellant who manages and supervise affairs of the said school after the Kikio Ward Executive Officer had issued and served them with a letter (notice) dated 01/06/2018, without any justification demanding them to vacate the suit land on the ground that, it is part of the said secondary school’s land. It was their further claim that, all of them were living in the disputed land since time immemorial after acquiring and

improving it by way of erection of permanent buildings and planting of permanent trees. According to them, the land for building the secondary school was donated to the appellant by them with specified demarcations before the said school unlawfully extended the boundaries and unjustifiably claimed the disputed land to be hers. They thus moved the tribunal for a declaration that were lawful owners of the disputed land, nullification of the said letter (notice) dated 01/06/2018, general damages and costs of the suit. Their claims were vehemently resisted by the appellant who accused them of unlawfully occupying the suit land which belonged to the secondary school 4 stating that the only remedy for them was to procure vacant possession to the lawful owner of the suit land who is Mkunguwakihendo secondary school. During the trial the respondents/applicants (before the trial tribunal) paraded nine (9) witnesses and relied on two exhibits which were Demand Notice to the appellant (exhibit P1) and the written agreement donating the land to government for construction of the school (exhibit P2) in a bid to establish their claims. On the appellant/respondent’s side, two witnessed testified in her favour and relied on the minutes of the village council meeting dated 08/08/2011, with the agenda of secondary school boundaries (exhibit D1). The appellant/respondent having closed her

defence, counsel for the respondents/applicants on the 09/02/2023 moved the tribunal to visit the locus in quo the exercise which took place on 04/10/2023, in the presence of all parties save for Mbio mbio (3rd respondent), Jacob Daudi and Daniel Malolo who were claiming 3½, ½ and 3 acres respectively, where the present parties had the opportunity of describing boundaries of their lands. It is also garnered from the record that; more than 90 days had lapsed since the 8th applicant before the tribunal, now the 7 th respondent in this appeal (Bala Daudi) had passed away on 06/04/2024 without having administrator of his estate appointed hence abatement of his case on 13/10/2023. Having 5 weighed both side’s evidence on the balance of preponderance the trial tribunal in its decision handed down on 16/01/2024 was satisfied that, the respondents were lawful owners of the disputed land hence declared them so while condemning the appellant to bear costs of the case. It is from that decision which the appellant considered unpleasant to her this appeal is preferred premised on the above narrated grounds of appeal. It noteworthy also that, name of the alleged deceased person Bala Daudi whose case abated featured in the title of the impugned judgment as one of the eight (8) remaining applicants as well as in the memorandum of appeal as the 7 th respondents. At the hearing of appeal both

parties appeared represented and the matter proceeded in written form in which all parties adhered to the schedule for filing of written submissions. For the appellant it was Ms. Agnes Makubha, learned State Attorney while the respondents proceeded defended by Mr. Cosmas Luambano, learned advocate. Before the Court could delve into consideration and determination of the grounds of appeal on merit, suo moto raised three issues as to whether it was proper for the judgment to include the deceased name whose case had abated, second, whether the procedure for visiting a locus in quo was followed and lastly whether the appeal is 6 competent before the Court for including the deceased person. In response to these three issues parties were summoned and asked to address the court on the same in which they complied with and appeared in Court on the 11/10/2024 through their respective counsel. Addressing the Court on the first issue Ms. Makubha submitted that, it was wrong for the trial tribunal to keep the name of 7 th respondent Bala Dandi as appearing in the proceedings as well as its judgment and for the appellant to maintain it in her petition of appeal, after an order for its abatement was issued by the trial tribunal following his death and failure to appoint administrator of his estate within 90 days. According to her, it was for the respondents who featured as applicants before

the trial tribunal to act under section 51(2) of the Land Disputes Courts Act, [Cap.216 R.E 2019] providing for application of the Regulations and Civil Procedure Code (CPC) where the regulation is inadequate, to pray for amendment of the pleadings to remove the said Bala Daudi (deceased) from the proceedings under Order XXII Rule 3(2) of the Civil Procedure Code, [Cap. 33 R.E 2019] (the CPC) read together with Regulation 16 of the Land Dispute Court (The District Land and Housing Tribunal) Regulation GN. No. 174 of 2003. In her view, since no prayer for amendment of pleadings was advanced by the respondents the whole 7 proceedings after abatement order and the resultant judgment and decree were nullity. She referred the Court to the case of Juma A. Zomboko and 142 Others vs. AVIC Coastal and Development Co. Ltd and 4 Others, Civil Application No. 576/17 of 2017(CAT) Tanzlii where by the Court of Appeal held that the provision of Order XXII Rule 3(1) and (2) of the CPC, applies to the circumstances where the plaintiff (deceased) was a party to the suit before his death. In his response submission Mr. Luambano concurred with the sound submission made by Ms. Makubha while adopting them to form part of his reply. Having examined the record and considered the submission by the parties I agree with both parties that, the 7th respondent’s case having ordered abated the trial tribunal

wrongly proceeded to maintain his name in the proceedings the result of which continued to feature in its judgment and decree as well as appellant’s petition of appeal. I so opine as once party’s case is declared abated on the reason of death his claim dies with him/her. The only remedy after abatement order is entered, is for the remaining plaintiff if any to pray for amendment of pleadings in which under the circumstances of this the applicable laws were Order XXII Rule 3(2) of the (the CPC) read together with Regulation 16 of the Land Dispute Court (The 8 District Land and Housing Tribunal) Regulation GN. No. 174 of 2003 as correctly submitted by Ms. Makubha. See also the case of Juma A. Zomboko and 142 Others (supra). Much as the trial tribunal maintained the deceased name whose case had already abated since 13/10/2023, I find the whole proceedings thereafter and the trial tribunal’s judgement and decree were rendered nullity with no effect to the parties. The first issue is therefore answered in negative that, it was improper for the trial court and appellant to include the deceased names in the impugned judgment and petition of appeal. Next in consideration is the second issue as to whether the procedure for locus in quo visit were followed. It was Ms. Makubha’s argument on this issue that, the whole exercise of locus in quo visit was marred with procedural irregularities

that vitiated the proceedings. According to her, the law is very clear as adumbrated in the case of Depson Balyagati vs. Varonica J. Kibana, Civil Appeal No. 21 of 2021(CAT) when the Court referred to the case of Nizar M. H. Ladak vs. Gulamali Fazal Jan Mohamed [1980] TLR 29 that, when visiting the locus in quo all parties must be present and adduce evidence in respect of the disputed land by showing their boundaries and other features if any, so that size and 9 boundaries of the disputed land is established. In this matter she contended as reflected at page 54 of the typed proceedings the 3 rd, 4th and 7th applicants who are also the 3rd and 6th respondents in this appeal save for the 4th applicant who did not even testify before the Tribunal, were not part of the proceedings on 04/10/2023 when the trial tribunal visited the locus on quo on that day. Further to that she averred, the 7 th appellant’s wife seems to have attended the said proceedings while in fact she was not a party to the case nor a witness called for that purpose. It was therefore her submission that, in view of all those glaring irregularities the whole exercise was rendered a nullity for violating the mandatory procedures. On his side Mr. Luambano who also joined hands with appellant’s submission argued in addition that, the mandatory procedures for visiting the locus in quo as emphasized by the Court of

Appeal in the case of Sikuzani Said Magambo and Another vs Mohamed Roble, Civil Appeal No. 197 of 2018(CAT) Tanzlii when referring to the case of Nizar M. H. Ladak (supra), were violated as parties in attendance during locus in quo visit by the tribunal were not availed with right to cross examine the opposite parties as reflected at page 54-56 of the typed proceedings, more particularly the appellant. To add salt on the fresh wound, he stated, wife of the said Bala Dandi 10 (7thRespondent) testified as a party to the case while in fact she was not, something that rendered the whole proceedings a nullity since such violation seriously affected parties’ rights in the case. He therefore invited the Court to nullify the proceedings as well as the judgment and its orders. Having internalised both parties’ submissions and reviewed the trial tribunal proceedings and the impugned judgment, it is evident to this Court that the procedures for paying visit to the locus in quo at the auspices of respondents’ counsel were seriously infracted by the trial tribunal. The trite law is that, there is no law which forcefully and mandatorily requires the court or tribunal to conduct a visit at the locus in quo, as the same is done at the discretion of the court or the tribunal, more so 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 always must be observed to ensure fair trial. See the case of Sikuzani Saidi Magambo and Another Vs. Mohamed Roble, Civil Appeal No. 147 of 2018 (CAT-unreported). The guidelines and procedures to be observed were stated in the celebrated case of Nizar M.H. v. Gulamali Fazal Janmohamed [1980] TLR 29, where the Court of Appeal, inter alia observed that: - 11 "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 will be adopted by the courts in future." [Emphasis added]. Much more interpolation on the guidelines and procedures to be adopted by the court or tribunal during locus in quo visit was given in the case of Kimonidimitri Mantheakis Vs. Ally

Azim Dewji & Others (Civil Appeal No. 4 of 2018) [2021] TZCA 663 (3 November 2021, TANZLII), when it was stated 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 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 drawing, a sketch plan, if 12 necessary, which must be made known to the parties and advocates, if any." [Emphasis added. Applying the mandatory guidelines and procedures above narrated to the present matter it is noted as correctly submitted by both parties that, not all parties were in attendance during the tribunal visit of the suit land, for instance the 3rd and 7th applicants who also featured as 3rd and 6th respondents in this appeal, leave alone the 4th applicant who never appeared before the tribunal to testify. As to the requirement of parties to testify under oath, it is evident also from the record that, none of the parties who testified during that day led his/her evidence under oath nor were they cross examined by the opposite parties as provided in the third guideline in

the above cited case of Kimonidimitri Mantheakis (supra). To add the salt on the fresh wound, the trial tribunal allowed the wife of the 7 th respondent to testify before it as if she was a party to the case while in fact she was not as correctly put by Mr. Luambano. All these irregularities no doubt contravened the 1st, 2nd and 3rd guidelines as stated in the case of Kimonidimitri Mantheakis (supra) which I hold must be observed conjunctively. That aside, there is no evidence to the effect that a sketch map was drawn by the trial tribunal and shown or explained to the parties 13 during the reading exercise of the notes reduced down during site visit for the parties to appreciate as to whether what drawn and recorded was the correct version or not, of what actually transpired at the locus in quo as provided in the fifth guideline. Much as there was serious departure from the said guidelines and procedures by the trial tribunal, it is the findings of this Court that, the omission vitiated the proceeding from 04/10/2023, the date when the tribunal visited the locus in quo, hence rendered nullity the judgment and its orders arising therefrom. I therefore find the second issue is also answered in negative as the guideline and procedure for visiting locus in quo were not adhered to. Lastly in determination is whether the appeal is competent before the Court for including the

deceased person. I think this issue need not detain much this court. I so view as it is already established when deliberation on the first issue that, the deceased person (7th respondent) wrongly continued to be included in the proceedings, impugned judgment and petition of appeal, upon his case being ordered abated on 13/10/2023. Additionally, the guidelines and procedures for visiting the locus in quo were not followed by the trial tribunal the omission which vitiates the proceedings conducted at the locus in quo and thereafter, hence rendering the whole judgment and 14 orders of the trial tribunal a nullity. In view of such glaring irregularities, I find the appeal before this Court incompetent for emanating from the null judgment and decree. Thus, the third issue is also answered in negative. The above omission and irregularities in my considered view suffices to dispose of this appeal. The resultant consequences therefore are to quash the proceedings before the District Land and Housing Tribunal for Singida at Singida in Land Application No. 104 of 2018 and set aside the judgment thereof and its orders, the order which I hereby enter. I further order that, interested parties are at liberty to institute a fresh suit before the same tribunal subject to law of limitation. Should the suit be instituted the same is ordered to be heard by separate chairperson and new set of assessors. As the issues disposing of the appeal originate from this Court, I order each party to bear own costs. Order accordingly. Dated at Dodoma this 22nd of November, 2024. E. E. KAKOLAKI

JUGDE 22/11/2024. 15 Court: The Judgment has been delivered at Dodoma today on 22 nd day of November, 2024, in the presence of Ms. Agnes Makubha, State Attorney for the appellant, Mr. Costantino Gwivaha, advocate holding brief for Mr. Cosmas Luambano advocate for the Respondents and Ms. Veradina Matikila, Court clerk. Right of appeal explained. E. E. KAKOLAKI

JUGDE 22/11/2024 16