Jafari Rajabu

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI LAND APPEAL NO 66 OF 2023 (Arising From Land Application No 38 of2021 of the District Land and Housing Tribunal at Babati) JAFARI RAJABU......................................................................... APPELLANT VERSUS FADHILI JUMA MSHANA........................................................RESPONDENT JUDGMENT 2dh March and lCfh May, 2024 MIRINDO, J.: Fadhili Juma Mshana and Jafari Rajabu, farmers and neighbours at Kisangaji Village, Babati District in Manyara Region, are holders of customary right of occupancies over plots measuring 5.380 acres and 4.051 acres respectively. In 2021, Fadhili Juma Mshana, the respondent went before Babati District Land and Housing Tribunal claiming that Jafari Rajabu, the appellant, trespassed on his portion of land measuring 50 paces width to 70 paces length by cultivating it. After hearing the parties and viewing the locus in quo, the Tribunal held that the appellant purchased a plot measuring 4.6 acres but the measurement at 1 locus in quo showed his plot's size to be six acres. It also held that there was an arrangement in which the appellant was refunded for using the disputed land so that he could leave it to the respondent. For both reasons, the respondent was declared the lawful owner of the disputed land and the appellant was ordered to leave the disputed land. The Tribunal issued a permanent injunction against the appellant and his agents from accessing and disturbing the respondent in using the disputed land. From these findings, Jafari Rajabu appealed to this Court complaining about non-compliance with the procedure of viewing the locus in quo and the tribunal's failure to analyse the evidence. At the hearing, Mr Kuwengwa Ndonjekwa, learned advocate appeared for the appellant and the respondent had the services of Mr Joseph Masanja , learned advocate. The fate of this appeal rests on the second ground of appeal. On a first appeal like the present one, this Court will re-evaluate the evidence adduced at the trial tribunal and draw its own conclusions. At the centre of the dispute before the Tribunal is the ownership of a gully which acts as a natural waterway and forms part of the boundary between the appellant, Jafari Rajabu and the respondent, Fadhili Juma Mshana. 2 It is noticeable that the respondent's claim for trespass on the disputed land is inquisitively silent as to the location of the trespass. Nevertheless, there is ample evidence that the claim relates to the western boundary between the respondent and the appellant where there is a natural waterway. I will re­ examine this version of evidence from the handwritten version of the proceeding. Part of the respondent's response in cross-examination in Kiswahili is that: ...Kuna mfereji unapitisha maji unatenganisha maeneo yetu. Mfereji unatumiwa na sisi na watu wengine kwa umwagiliaji.... A little while he stated: ...Mfereji upo katika eneo langu. The location of the gully, located either within the respondent's plot or at the boundary between the respondent and the appellant, was expressed differently by the respondent's witnesses. Mlemba Daudi Mkuzi, a witness to the sale agreement between the respondent and Dismas Shishe, the seller, appeared as the second respondent's witness and responded in cross-examination that: ...Ndani ya eneo la Fadhili kuna kamfereji... Eneo lililovamiwa ni hatua 70 kwa 50. Eneo la Fadhili limevamiwa kwa upande wa Magharibi-Kusini The third respondent's witness, Mikidadi Auni Juma, testified in part that: 3 ...Jafari Rajabu Kavamia eneo lake alilonunua mwanzo hatua 50 kwa 70 upande wa Magharibi na shamba la Fadhili." Kefa Paulo, the fourth respondent's witness was a little bit detailed in cross- examination and examination by the tribunal. In cross-examination he said: ...Shamba la Jafari lipo upande wa pili na mto toka eneo la Fadhili. Fadhili ndio aliniambia kuna mgogoro kati yake na Jafari mwaka 2021 kwasababu mie ndiye niliefungua shamba najua mipaka. Mimi sijawahi kuona mkataba wa Mshana. Katika shamba la Mshana kuna korongo au mfereji unakatiza. Ukivuka korongo hilo kuna eneo la Mshana halafu unafika kwenye mto unatenganisha eneo la Mshana. On examination by Mr Barie, tribunal's assessor, the witness mentioned the location of the trespass: Upande aliovamia Jafari ni upande wa Magharibi na shamba la Fadhili kutoka kwenye mto kuelekea kwenye mfereji... From these pieces of evidence, there is no doubt that the disputed land consists of a gully between the appellant and the respondent. Who is the owner of the gully? Part of the respondent's testimony reproduced above is unclear as to the ownership of the gully. On one hand, he stated that the gully is part of the boundary, on the other, he stated that it is part of his plot. A portion of the second respondent's evidence is that the gully is 4 within the respondent's plot. However, the fourth respondent's witness testimony suggests that the gully is part of the boundary. Of particular importance is the testimony of Ebiudi Makala Shou, the respondent's eighth witness. Being the seller of the plot to the appellant, he appeared to be knowledgeable of the disputed land. His evidence in chief was that: ...Sikua nashida na Jafari ila kuna kipindi Fadhili Mshana aliniita kwakuwa Jafari Mshana [?] alikuwa amevuka mpaka Kwenda mpaka kuvuka korongo. Mimi mpaka ulikuwa haufiki kwenye korongo kaskazini magharibi mwa eneo langu. Nilipoitwa nilieleza katika usuluhishi pale shambani nilisema eneo lile sio nililomuuzia... In cross-examination, he repeated that: ...Eneo la mgogoro hapa halinihusu na sikumuuzia Jafari Rajabu. Suluhu ile ilikua kati ya mdaawa ila mimi nilifika kuonyesha mipaka. Eneo langu halifiki kwenye korongo huko kunapong'ang'aniwa na Jafari. On being examined by the Tribunal, the assessor Ms Sulle, he maintained that: Mimi niljua eneo hilo halina mwenyewe kwasababu niliona ni korongo ng'ombe walikuwa wanavuka.... 5 The following issues are evident from the eighth respondent's witness: (1) the gully does not belong to the appellant as it was not part of the plot he sold to him; (2) the gully is an easement for cattle access. The fact that the gully is an easement was corroborated by the appellant's testimony. The appellant testified in-chief that the respondent cultivated the gully which is a source of water. The second appellant's witness, Zakia Ally, Kisangaji Village Executive Officer, on being examined by Ms Sulle, responded that: ...Korongo huwa halimilikiwi na yeyote kwa kuwa ni korongo za matuta ketenganisha mashamba na hilo korongo. Korongo husimamiwa au kumilikiwa na Kijiji... That was also the testimony of the fourth appellant's witness, Emmanuel Elia, Kazaroho Village Executive Officer and a farmer at Kisangaji Village who stated in cross-examination that: Korongo sio la wadaawa. The respondent sought to trace his ownership of the gully from the arrangement he made by his eighth witness, Ebiudi Makala Shou. At the trial he testified that the size of the plot he sold to the appellant did not extend to the gully and he was called by the respondent to settle the dispute between the respondent and 6 the appellant. During the settlement it appeared that the respondent claimed ownership of the gully and demanded compensation for activities he undertook there. Ebiudi Makala Shou volunteered to make the payment and claimed to have affected the payment so that the appellant vacates the area. The appellant admitted receiving payment from the respondent's eighth witness but not for the purposes of settlement. It was payment for clearing the gully because he purchased the plot surrounding the gully. This arrangement is not without some concern. Why should Ebiudi Makala Shou volunteer to the appellant for the gully which was not part of the plot he sold. On one hand, Ebiudi Makala Shou testified that the gully was not owned by anyone. On the other hand, he testified that it belonged to the appellant. Both the appellant and the respondent were new purchasers in that area. Their immediate sellers were Ebiudi Makala Shou who sold the plot to the appellant and Dismas Shishe who sold two plots to the appellant. There is no explanation why Dismas Shishe was not involved in this arrangement. These unsettled issues suggest that Ebiudi Makala Shou enabled the respondent to acquire the gully over which Ebiudi Makala Shou had no ownership. It was for this reason that he volunteered to settle the dispute between the appellant and the respondent. In the natural course of events, 7 Ebiudi Makala Shou would have testified for the appellant and Dismas Shishe for the respondent. But since Ebiudi Makala Shou was conflicted, he chose to testify for the respondent. This being the case, it is clear to me that at the time the new purchasers arrived at the locality, the gully was a communal land. From the evidence of Ebiudi Makala Shou and the appellant's witness, the gully is part of the communal land at Kisangaji Village. As defined by Olong, AMD (2012), Land Law in Nigeria, 2nd edn, Lagos: Malthouse Press Ltd, 2012, at page 41: ...Communal land in sum refers to any land in which all the members of a community have a common interest, all of whom are jointly, severally and directly liable for debts properly incurred with respect thereto One of the categories of land under section 12 of the Village Land Act [Cap 113 RE 2019] is a communal land described as "communal village land" and it is not liable to "individual occupation and use by any person through a grant of a communal or individual customary right of occupancy or a derivative right or any other disposition". While it is the mandate of a village assembly to allocate portion of land as communal village land under section 13 (1) of the Village Land Act, section 13 (7) of that Act recognises pre-existing communal land in villages. Communal village land includes grazing lands and communal right of way. 8 Though not specially stated under the Village Land Act, the community right of way is part of the communal village land. Moreover, the gully provides drainage system during the rainfall and also acts as a temporary water source for irrigation and possibly for grazing cattle as testified by the respondent, the appellant, and the eighth respondent's witness. Therefore, the gully is both hazardous land under section 6 (3) of the Village Land Act [Cap 114 RE 2019] and an environmentally sensitive area that is prone to soil erosion under section 52 (i) of the Environmental Management Act, Cap 191. In light of the provisions of section 34 of the Water Resources Management Act, Cap 331 read together with the provisions of section 57 (1) of the Environmental Management Act, human activities which are "likely to compromise or adversely affect conservation" of "a water source" must be "conducted beyond sixty metres" from the water source. Even if the respondent was to be declared the owner of the gully, farming activities in the gully would be contrary to the rules of environmental and water laws. From what has been stated above, I have come to the conclusion that neither the appellant nor the respondent is the owner of the gully. The respondent's case was that after purchasing the disputed land he used it peacefully for cultivation until the respondent trespassed on it between 2019 9 and 2020. The essence of his evidence is that the disputed land which either belongs to him or forms part of the boundary has been cultivated by him peacefully until it was trespassed by the appellant. In view of my findings that the disputed land is a gully at the boundary between the appellant and the respondent, the appellant's evidence that it is the respondent who cultivated the gully in order to destroy the boundary is to be believed. The appellant argued about the fake customary right of occupancy but in view of the above findings, I find it unnecessary to address this point. At this stage there is no need to address the first ground of appeal but I will briefly comment on it because the findings on the visit to the locus in quo influenced greatly the decision of the trial tribunal and before this Court it was the appellant's major point of complaint. It was hotly argued by Mr Ndonjekwa, learned Advocate, that that there was no involvement of the parties on the view of the locus in quo and the basis of the sketch map of the locus in quo is uncertain. There is a sketch map of the disputed land on the handwritten version of the proceeding before the Tribunal. It is not clear from the record how the Tribunal came up with the map. 10 From the decisions of the Court of Appeal to which the learned advocate referred this Court, there is no doubt that the tribunal did not comply with the procedure. The record of the Tribunal is silent on material points directed by the Court of Appeal in the leading case of Nizar MH Ladak v Gulamali Fazal Janmohamed [1980] TLR 29 at page 31: (1) how the measurement of the disputed land was made and who made the measurement; (2) who drew the sketch map; (3) whether parties were allowed to call witnesses, Besides, it is clear from the record that the Tribunal did not resume hearing by reading out notes about the disputed land to the parties and affording parties opportunity to comment or offer their reservations, and then allow witnesses to testify on the facts found on the locus in quo. When this procedure is followed, the tribunal decision would be on the witness's testimony and not the notes it took. Unfortunately, in the present appeal, the tribunal's record consists only of its notes upon which it based its judgment. The conclusion is that the proceedings regarding the locus in quo were irregular and could not support the decision of the trial tribunal. In spite of this material irregularity, the proceedings before the trial tribunal cannot be vitiated as the appellant's seems to suggest. It has been re­ emphasized in recent cases of Avit Thadeus Massawe vs Isdory Assega (Civil Appeal 6 of 2017) [2018] TZCA 357; Kimonidimitri Mantheakis vs Ally li Azim Dewji and Others (Civil Appeal 4 of 2018) [2021] TZCA 663; and Said H. Lipite and Others vs Ministry of Defence and Another (Civil Appeal No. 494 of 2021) [2023] TZCA 17876, that the purpose of the view of locus in quo is to clarify evidence on record. One principle from Nizar MH Ladak is that view of the locus in quo is an exceptional procedure which should not be undertaken if witnesses can easily testify on the matter. In the present appeal, there was ample evidence of the location and boundaries of the disputed land and there was no need for view of the locus in quo. Although not necessary for the determination of this appeal, I would like to point out that at the trial the learned advocate, Mr Masanja, successfully sought leave of the Tribunal to declare as hostile the ninth respondent's witness, one Dismas Shishe. The learned counsel did not lay foundation for declaring the ninth witness as hostile. The simple fact that the witness disclaimed the exhibit which was the customary right of occupancy and thus adverse to the respondent's case was insufficient for leave to issue. The nature of the foundation necessary for leave has been articulated in Rao K (2009), Sir John Woodroffe and Syed Amir's Law of Evidence, 18th edn, Vol 4, Nagpure: Lexis Nexis Butterworths Wadwa, at page 6414-6415: No hard and fast rule can be laid down as to when a witness can be called an adverse or hostile witness. It can, however, broadly be stated that a court can 12 allow a party to cross-examine his witness, firstly, when his temper, attitude, demeanour, etc, in the witness -box shows a deliberately hostile or antagonistic feeling toward the party calling him, or, secondly, when concealing his true sentiments, he does not exhibit any hostile feeling but makes a statement contrary to what he was called or expected to prove what he deliberately told before... The other point is that after being cross-examined by Advocate Masanja, the witness was not declared hostile but was cross-examined by the opposite counsel, re-examined by Advocate Masanja and was examined by one of the assessors. There was no ruling that the witness was hostile. As this point was not directly argued before the parties to this appeal, I ignored the evidence of the ninth respondent's witness notwithstanding the irregularities I have just pointed out. Returning to the merits of the appeal, I set aside the judgment and decree of the Babati District Land and Housing Tribunal. It is hereby ordered that that the respondent, Fadhili Juma Mshana, immediately stop cultivating the disputed land, vacate from it, and leave it for communal use. This appeal is allowed. Each party to bear its own costs. DATED at BABATI this 5th day of May, 2024 13 F.W INDO JUDGE Court: Judgment delivered this 10th day of May, 2024 in the presence of the appellant in person, his advocate Kuwengwa Ndonjekwa and in the presence of the respondent in person and his advocate Joseph Masanja. B/C: William Makori present. Right of appeal explained F.M. MIRIN DO JUDGE 10/5/2024 14