JOSHUA TLUWAY ASKWARI VS

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA ARUSHA SUB - REGISTRY AT ARUSHA LAND APPEAL NO. 14007 OF 2024 (Originating from Land Application No. 19 of 2022- District Land and Housing Tribunal for Karatu at Karatu) JOSHUA TLUWAY ASKWARI..................................................... APPELLANT VERSUS ANASTAZIA LALA LOHAY............................................................RESPONDENT JUDGMENT 26th September & 12th November, 2024 KAINDA, J.: The appellant, Joshua Tluway Askwari, unsuccessfully sued the respondent, Anastazia Lala Lohay for a piece of land measuring 10 by 25 paces (suit land). He averred that the suit land is part of the three acres allocated to him by the Kilimatembo Village Council in the year 1993. The appellant's complaint at the trial Tribunal was that; in March, 2021, the respondent trespassed into the suit land. He prayed for the following reliefs; 1. A declaratory order that the appellant is the lawful owner of the suit land 2. The respondent to be ordered to vacate the suit land. i 3. Perpetual or permanent injunction restraining the respondent from trespass into the suit land. 4. Costs of the application. In her Written Statement of Defense, the respondent refuted the claim. At the start of hearing of the matter, the following two issues were framed; one, who is the lawful owner of the suit land; two, what reliefs are the parties entitled to. The trial Tribunal heard the evidence from both sides. At the end of the day, it found the claim not proved and proceeded to dismiss the claim with costs. In its considered decision, the tribunal held at page 3 of the typed judgement thus; " Baada ya kuchunguza kwa kina mae/ezo ya wadaawa Pamoja na vieieiezo vyao, naona Ushahidi wa mdaiwa na kieieiezo chake na mashahidi wake una nguvu zaidi kwasababu ni kweii viongozi wa Senkali ya Kijiji wamethibitisha kwamba mgao wa plot uiiofanyika ni uie wa 1984 tu na hakuna mwingine, na watu waiigawiwa hatua 15x20 na kwamba madai yamdai kumuuzia Meiau hatua 30x20 hayakuthibitika kwani aiiieta photocopy na haikukubaiiwa kupokeiewa katika Baraza hili, na kwamba 2 kutokana na maeiazo\ya viongozi wa kijiji na hasa aliyekuwa VEO wa wakati wakiuziana Saluni Mealau na Anastazia eneo la mgogoro iiiikuwa eneo la wazi la Kijiji z hivyo, mdai a/imuuzia eneo Salunu Melau ambalo hakuidhinishwa na Serikali ya Kijiji, hivyo kwakua kuiikuwa na eneo ia wazi, Saluni Melau naye akajiongezea eneo ia wazi hatua 20x25 na kumuuzia mdaiwa hatua 45x40, na kwa kuwa kwasasa jina iinaiosomeka katika ieja ya Kijiji ni ia mdaiwa, hivyo, kimsingi yeye sasa ndiye mmiiiki wa eneo hiio" The trial Tribunal proceeded to declare the respondent a lawful owner of the suit land. Aggrieved, the appellant is before this court with an appeal premised on the following five grounds; one that, the trial Chairman erred in law and in fact for failure to scrutinize the evidence adduced by the appellant's witnesses which could move the Tribunal to the fair and justiciable decision; two that, the trial Chairman erred in law and in fact for rejecting the sale agreement which was genuine document tendered by the appellant during trial as a result, the Chairman based his decision on weak evidence; three, that the trial Chairman arrived at erroneous decision as it was made on a wrong reasoning as it failed to discover the respondents evidence based on the suit land which boundaries are not known; four that, the trial Chairman erred in law and 3 in fact for as he wrongly admitted a sale agreement document between Saruni Melau Paulo (seller) and Anastazia Lala Lohay (buyer) despite the fact that the document was endorsed by the sub-Village Chairman one Boniface Gwaatema Bura who was not elected as Chairman; five that, the trial Chairman erred in law and in fact for ignoring the issue of locus in quo which was raised by the appellant at the beginning of the hearing of the land dispute as a result, the Tribunal arrived at erroneous decision. Accordingly, the appellant prayed for the court to allow the appeal, set aside the trial Tribunal orders; to declare the appellant a lawful owner of the suit land and that costs of the appeal to be on the respondent's shoulder. At the hearing of this appeal, the appellant abandoned the second ground. The hearing of the appeal was by written submissions. Submitting on first grounds of the appeal the appellant complaint is that the trial Tribunal largely based its decision on the sale agreement without considering the evidence of the appellant. In other word, the decision was based on selective consideration of the evidence without evaluating it in its totality. In third ground, the appellant submitted that the testimonies of DW1, DW2, DW3 and DW4 contradicted in terms of those who borders the suit land. He argued that, the trial court had a duty to address the 4 inconsistencies and contradictions contained in the witnesses' testimonies as it was held in the case of Sylvester Stephano v. The Republic, Criminal Appeal No. 527 of 2016. As to fourth ground, it was argued that, for a sale to be valid, the same has to be approved by the village land council which was not a case in the sale agreement between the respondent and one Saluni Melau, a subject of the decision in this case. The appellant was of opinion that, the sale agreement under consideration, is null and void. On fifth ground of appeal, the appellant was brief. He submitted that the testimonies on the parties' witnesses are noted with several variations that could have been addressed and avoided if the trial Chairperson had accepted the appellants prayer of vising the suit land. In reply to first ground, the respondent argued that the trial Chairman summarized and evaluated the evidence on record as it can be noted at page 1 to 3 of the judgement. The respondent went on, even if it is assumed that the trial chairperson did not thorough evaluate the evidence as adduced by the appellant, which is not the case, the remedy available to this court is to re evaluate it and come up with its own finding referring to the holding in Phillipo Joseph Lukonde v. Faraji Ally Saidi, [2020] TLR 576. The respondent submitted, the appellant who was the claimant before the trial Tribunal had a duty to prove his claim of 5 ownership of the suit land, in this respect a piece of land measuring 10 by 25 paces. Further, was required to prove that the respondent trespassed into the said piece of land. However, as it can be gleaned from the record, the appellant did not discharge that burden. It was the respondent argument that the appellants' testimonies had discrepancies and contradictions. Neither the appellant nor his witnesses were able to tell the Tribunal precisely as to the location of the suit land, in terms of hamlet, village and ward; genesis of the title to the appellant if any, its previous use and how and when the respondent trespassed into the suit land. As to third ground, that the sale agreement executed between Saruni Melau Paulo and the respondent for being endorsed by Boniface Gwaatema Bura, who was not, at material time, a hamlet chairman, the respondent submitted, is a new ground introduced during submission without leave of the court contrary to Rule 2 Order XXXIX of the Civil Procedure Code, (Cap 33, R.E.2019). In relation to the fifth ground of appeal, that the trial chairman erred in ignoring the appellants' request to visit the locus quo, the respondent argued that; it is not the law that visiting the suit land is a must. It can only be conducted in special circumstances. If at all, there were any variations in the respondent's testimony, he was bound to point it out and cited the case of this court Klara Nada & Another v. Margreth Bura 6 & 3 Others, Land Appeal No. 119 of 2022 (Tiganga J.) at page 15 where it was held that; a person pleading contradiction must prove existence of the same and that it goes to the root of the case entitle adverse order against the decision under challenge. Above all, it was submitted, in the Tribunals record, there is nowhere shown that the appellant prayed for a visit. I have considered the complaint in this ground, the parties' submissions and the record. I choose to start my deliberations with fifth ground. The parties are at one on the issue of the measurement of the suit land in relation to the evidence that was adduced. The appellant complained that there have been noted several variations in the respondents' case which, could have been addressed if there was a visit on locus quo. On his party, the respondent averred that, in his testimony, as reflected at page 5 of the typed proceedings, boundaries of the suit land appear to be different from the one described on the appellants' pleadings. Paragraph 6 (a) reads; "... mjibu maombi kavamia eneo langu ienye hatua 10 kwa Magharibi na 25 kwa Kusini... eneo la mgogoro linapakana na Korongo kwa Magharibi, Anastazia L. Lohay & John Stephano kwa Kaskazini, shamba la Joshua T. Askwari kwa Kusini na nyumba za kuishiza Joshua kwa Mashariki..." 7 PW1 (appellant) while under examination in chief testified that; "eneo langu kwa ujum/a ni ekari 3, (hatua 25x10), yenye mgogoro, ienye mipaka, majirani wake ni Lazaro Bura, Boay Erro, John Stephano, naomba kutoa kielelezo cha mkataba..." I understand that visiting locus in quo\s not mandatory. It depends on the circumstances of each case. The circumstances of the case at hand, in respect of the pleadings and the evidence is confusing. The purpose of visiting the locus in quo is to examine and ascertain the suit land properly. In my view, this is a fit case that requires ascertainment for the following reasons; one, the claim filed in the trial Tribunal on 23rd March, 2022 does not state the proper description of the suit land. The description paragraph of the suit land as to number of acres, hamlet, village, ward and district is found in Paragraph 6 of the application. However, in the matter at hand, as correctly argued by the parties, the suit land was not described in terms of its location. Neither the claim filed in the trial Tribunal nor the evidence adduced mentioned the location of the suit land in terms of hamlet, street, village or ward. Order VII Rule 3 of the Civil Procedure Code (supra) put it mandatory for the plaint to contain a description of the immovable property sufficiently to identify it failure of which the suit is rendered incompetent. In Athuman Salehe Magogo 8 & 14 Others v. Gabius Edger Maganga & Another, Land Case No. 206 of 2021, it was held at page 4 that; " The logical basis of the provision of Order VII rule 3 supra, can simply be said that, the purpose of proper description of the subject matter is to just distinguish a suit land from other pieces of land in the same area." In the High Court decision of Joel Kondela Maduhu v. Siya Ndeja, Land Appeal No. 3 of 2021, it was held at page 8; " The two acres claim was determined without defining its location and boundaries. It is a settledprinciple of the law that, any claim of land should comprise a proper description of the suit land for definite and complete execution order." In Fereji Said Fereji v. Jaluna General Supplies & Others, Land Case No. 86 of 2020 it was held that; such description may include location, title number for surveyed plots, neighbors or boundaries for unsurveyed plots, or any form of description that would sufficiently identify and distinguish the suit property from other properties. It is a settled principle of law that where contradictions regarding boundaries arise in land dispute, the court needs to satisfy itself as to what is the real dispute between the parties and it becomes necessary and inevitable for the Tribunal to visit the locus in quo. In Mariam F. 9 Kalengela v. Victoria Swai, Land Appeal No. 290 of 2021, which quoted with approval Martin Mgando v. Michael F. Manyanga, Land Appeal No. 93 of 2019, it was held that; one, courts should undertake a visit to the locus quo where such visit will clear the doubts as to the accuracy of a piece of evidence when such evidence conflicts with another evidence; two, the essence of a visit the locus in quo in land matters includes the location of the disputed land, extent, boundaries, boundary neighbor and physical features; three, to eliminate minor discrepancies as regards the physical condition of the land dispute. Following the hereinabove finding and analysis, I invoke the provision of Section 43 (1), (b) of the Land Disputes Courts Act, Cap 216 which confers revisional powers on this court and proceed to revise the proceedings of the trial District Land and Housing Tribunal for Karatu at Karatu in Land Application No. 19 of 2022 in the following manner; one, the trial Tribunal judgment and the decree thereon is hereby quashed and set aside; two, I remit the case file to the trial Tribunal to visit locus in quo to ascertain the measurement and boundaries of the suit land; three, the Chairperson to compose a new judgement within six (6) months from the date of this judgement. In consideration of the circumstances of this case, I make no order as to costs. It is so ordered. 10 7 vUaAXm/Az S. J. KAINDA JUDGE 12.11.2024 Judgement delivered under my hand and seal of this court in Chambers this 12th November, 2024 in the presence of the appellant and the respondent in person. Right of appeal to the Court of Appeal explained. S. J. KAINDA JUDGE 12.11.2024 li