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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF SUMBAWANGA AT SUMBAWANGA LAND APPEAL NO. 33 OF 2023 (Arising from the judgment arid decree of the District: Land and Housing Tribunal of Mpanda in Land Application No. 47 of2021) MCH. SHECKLAND ANAMESIA FOYA .,....... APPELLANT VERSUS JOSEPHAT RASHIDI MTOGOLO .............. ...................... 1st RESPONDENT LAISI KAMETE ............................... 2nd RESPONDENT ZENOBISANANE ............................................. ...o........3rd RESPONDENT YOLAM MALOLE............................................. -4th RESPONDENT SECILIA CREDO MIZENGO ............... 5th RESPONDENT HUSSEIN KASOMELA............................................................... 6th RESPONDENT JUDGMENT MWENEMPAZI, J. The appellant herein named is aggrieved by the decision of the District Land and Housing Tribunal of Mpanda, at Mpanda (hereinafter referred to as the trial tribunal), in Application No. 47 of 2021( Hon. G.K. Rugalema- Chairman) dated 30th June, 2023, he has filed this appeal registering five grounds of appeal namely: i 1. That, the trial tribunal erred in law by hearing the matter interparties, while there was an order of proceedings ex-parte against the 1st, 2nd and 6th Respondent 2. That, the trial tribunal erred in law and fact by its failure to observe the legal requirement s of'locus in quo' visit. 3. That, the trial tribunal erred in law arid fact by its failure to take into consideration the abundant evidence which was satisfactory to prove that the appellant discharged his burden to prove that he acquired legally the Suitland. 4. That, the trial tribunal erred in law by its failure to resolve each issue of the dispute separately as raised. 5. That the trial tribunal erred in law by purporting to agree with the opinion of the assessors without following the legal procedure of taking into account assessors' opinion. At the hearing of the appeal the appellant was being represented by Mr. Laurence John, learned advocate who entered appearance virtually and so was the 3rd, 4th and the 6th respondent who were at the Resident Magistrates' Court of Katavi at Mpanda. The 5th respondent Was absent but with notice that he was sick. The 1st and 2nd respondent were absent 2 without any notice. Parties prayed to proceed with hearing by way of written submission which prayer was granted and a scheduling order was issued. It is the appellant and on the part of the Respondents (2nd 3rd,4th and 6th respondent) who complied with the scheduling order of the court. The latter three respondents, namely the 3rd, 4th and 6th respondent filed a joint reply submission to submission in chief by the appellant and the 2nd respondent responded on his own. The counsel for the appellant submitted on the grounds of appeal at the trot, commencing with ground 1 of appeal and the respondents also followed the order of submission by the counsel for appellant. According to the appellant, the trial tribunal erred in jaw by hearing the matter inter- parties; while there was an order of proceeding ex-parte against the 15, 2nd and 6th Respondent. He has argued that it is trite law that once there is an order of proceeding ex-party by the tribunal the party aggrieved by the order, and if has a sufficient reason for non-appearance can invoke regulation 11(2) of Land Disputes Courts (District Land and Housing Tribunal) Regulations, GN. 174 of 2003 and pray for decision of proceeding ex-parte be set aside. The counsel submitted that 3 the 1st, 2nd and 6th respondent did not do so hence the act of trial tribunal allowing them to be heard on the application without setting aside the previous tribunal order was a fatal irregularity. On this ground the 3rd, 4th and 6th respondents have submitted with their stand basically acknowledging the position of law, that where there is an order to proceed ex-parte against any party to a suit or case, that person to whom an order was given, has the remedy, to apply to the same court or tribunal to file an application within thirty (30) days for setting aside the ex-parte order subject to adducing sufficient reasons or cause for setting aside an order. The respondents as the appellant did, have cited regulation 11 (2) of GN. 174/2003. They have argued, however, that the order to proceed with ex-parte at hearing of their dispute, was issued against the 1st respondent only. They have referred this court to the first paragraph of page two of the judgment. I have as well reviewed the proceedings at page 11 the record reads: "Shaun Hlianza kusikiliwa upande mmoja dhidi ya mjibu maombi wa 1 na 6". 4 According to the record, on the date of an order, one witness, SMI - Scheckland Anamesia Foya, testified. This happened in absence of 1st and 6th respondent. The record however shows the 2nd, 3rd, 4th and 6th appellant filed their defence. The 5threspondent filed a written statement of defence and an objection that she doesn't own any farm at the area. I have noted that the proceedings show consistently that the 1st and 6th appellant were absent during the hearing save for the hearing on the 16/6/2023 when the 6th respondent entered appearance and testified. The 6th respondent testified in lengthy, the noteworthy point is that at the dispute farm he has no any land. The relevant part reads: "shamba la mgogoro sina ekali hata moja. In my considered view, the appellant has no bases of complaining given that the appearance of 6th respondent was for testifying he has no interest to protect at the dispute land. I find the complaint by the appellant in ground 1 of appeal lack merit and dismiss it. On the 2nd ground of appeal, the appellant has complained that the tribunal erred in law and fact by its failure to observe legal requirement of visit at the locus in quo. The counsel for the appellant has referred the case of 5 Nizar M.H. Versus Gulamali Fazal Janmohamed [1980] TLR 29. It has been submitted by the counsel for the appellant that the visit at'locus in quo' had legal faults. One, the advocate for the appellant was absent but the tribunal proceeded without recording reasons. Two, witnesses who testified at locus in quo were not in attendance at the trial tribunal on the date the tribunal made re-assembly after a visit at locus in quo, three, parties were not invited to make any amendment to the notes obtained at 'locus in quo'and lastly, witnesses testified at 'locus in quo' without taking an oath. The counsel referred to Manaseh Jason Meela Vs. Anna Msuya (Land Appeal Case No. 45 of 2022) [2023]TZHC 17532 (25 May 2023) where it was held that* - "Moreover, I have noted that even parties evidence adduced at the locus in quo was not taken under oath, as envisaged in the case of Kimonidi Mitrimatheakis AHyAzim Dewji & Others (Civil Appeal No. 4 of 2018) [2021] TZCA 663 (3 November 2021). I am of considered opinion that the noted: irregularities are fatal". 6 The council also cited the case of Copycat Tanzania Limited Vs. Mariam Chaula [2022] CAT -LCR - 1 page 680 where it was held that: "Swearing in of a witness before testimony is a mandatory requirement, there is no gainsaying that the omission vitiates the proceedings because it renders the evidence which is not taken under oath invalid failure to follow the legal guideline". The respondents (3rd, 4th and 6th) have submitted that the guidelines on a visiting at locus quo were adhered to. They referred to section 110(1) of the Evidence Act, [Cap 6 R.E 2019] for the provision that: "Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist" Commenting on the case of Nizar M.H. Versus Gulamali Fazal Janmo hamed [1980] TLR 29 (CA), the counsel has submitted that the position is direct and clear. The respondents have argued that first according to that case, it is not mandatory for an advocate to appear while visiting at the locus quo. In case where the visit is made, the court should attend 7 with parties and their advocates, if any. The respondents have submitted that the counsel for the appellant had full knowledge of the schedule to visit the locus quo. He did not attend, for the reasons best known to himself. Under the circumstances, there is no base to complain that the right to legal representation was encroached. The proceedings were therefore not vitiated. When the trial tribunal visited the locus quo, the appellant 2nd to 6th respondent were present, court assessors were there and other persons could give and trace the historical base of the dispute land. The respondents have submitted that no witness testified at the locus in quo. They went there to ascertain and see whether the respondents trespassed into the dispute land. I have as well reviewed the record of the trial tribunal. Pages 50-51 of the proceedings, reflect what transpired at the scene. It is on record that the appellant was unable to show his land which has been trespassed, which in his claims comprises 101 acres. The record of the trial tribunal, the proceedings, show that the counsel for the applicant/appellant submitted on 27/06/2023 that he has no comment 8 on the conclusion when the tribunal re-assembled. I am sure on the date and at that time he knew that he did not attend the visit and his client was unrepresented. Yet still he did not raise the complaint. The record entails that the complains made in the appeal is an afterthought as a result of the decision of the District Land and Housing Tribunal on the application. It is my considered view, therefore, that the counsel for the appellant would have raised the concern on the 27/06/2023 when the Honorable Chairman asked them to state their views on notes from the: visit to the locus in quo. since that was not an issue to him then, there is no gain to raise at this level. The ground is dismissed. On the third ground of appeal the complaint of the appellant is that the tribunal erred in law: and fact by its failure to take consideration of the abundant evidence which was satisfactory to prove that the appellant discharged his burden to prove that he acquired the suit land legally. The appellant's counsel has submitted that they managed to prove his case on the balance of probabilities by showing concrete evidence on how the suit land was acquired through testimony and also by tendering a sale agreement/purchase agreement. The appellant's evidence was 9 corroborated by the 5th respondent (government leader) who witnesses the said sale. The counsel for the appellant has submitted that on the balance of probability, the appellant's case carried more weight than that of the respondents,.thus he was one who was entitled to Win the case. In reply the 3rd, 4th and 6th respondents have submitted that it is a principle of law that under section 3(2) b of the Evidence Act, [Cap 9 R.E 2019] which states that: fact is said to be proved when, in civil matters including matrimonial causes and matters, its existence is established by a preponderance ofprobabilities" That position is also stipulated in the case of Anthony Masanga Vs. Penina Kitiri and Lucia Maiko [2015] TLR 46 (CA) where it was observed: "It is a common knowledge that in civil proceedings, the party with legal burden bears the evidential burden and the standard of each case is on balance ofprobabilities" io It has been submitted by the respondents that it is not disputed that, the appellant purchased the disputed land from children or relatives of the late Charles Kitembala, the question here is whether the sellers had legal title or are owners of the disputed land. The respondents have argued that no interests of land can be passed from one person to another unless the seller has good title over the ownership of land. In rejoinder the appellant has called upon this court to find that the claims were proved as the appellant produced a sale agreement hence his evidence has more weight than the respondents. I have read the record in the trial tribunal and the appeal. The appellant was the applicant in the District Land and Housing Tribunal. In the application (Maombi Na. 7 of 2021) paragraph 3 of the application reads: "5. Eneo na anwani ya ardhi inayobishaniwa: Hekari 101 ziHzopo Tetieni, ndani ya Manispaa ya Mpanda katika Mkoa wa Katavi" Item 6(a) reads: "Chanzo cha dai/muhtasari wa matukio yanayosababisha mdai: kwamba mwombaji ni mmiUki halal7 wa eneo n bishaniwa amablp aiHinunua kutoka kwa familia ya Charles Kitambaia kwa mikataba tofautia tofauth Ifahamike kwamba familia hiyo ndiyo Hiyokuwa wamiiiki wa eneo ienye mgogoro. Na kwamba wajibu maombi wote kwa pamoja lakini katika nyakati tofauti tofauti wamevamia eneo la mgogoro ambayo ni mall halali ya mwombaji kisheria na wamekataa kuondoka kwa hiari hivyo maombi haya kuietwa Hi kupata msaada wa baraza kuwaodoa kwa nguvu. Na kwamba jiiihada za suiuhu zimefanywa na baraza la kata la Nsemulwa lakini hazijazaa matunda na hivyo shauri hili kuietwa katika baraza hili' tukufu Hi'kupata riafuu za kisheria" I have quoted the paragraphs above in search of the location of the dispute land. I cannot say for sure how many pieces of land with 101 acres size are in the Tulieni area, within Mpanda Municipal council in Katavi Region. I expected to find them in paragraph 6(a) when the applicant was explaining the nature of the dispute. I could not see the exact location of the dispute land. 12- In the case of Martini Fredrick Rajab Vs. Ilemela Municipal Council and Another, Civil Appeal No. 197 of 2019, Court of Appeal of Tanzania it was held that "generally in civil cases, the burden of proof has on the person who alleged anything in his favour'7, In the referred case, the court proposed to start with the pleadings in order to answer the question whether the appellant had discharged his onus. The court held thus: "Since it is the appellant who alleged to be the lawful owner of the suit property, the burden of proof was on him and the follow up question is whether he successfully discharge the onus. Since the pleadings constitute the foundation of civil case, we begin with what was pleaded by the appellant../' As quoted herein above the description was wanting. In the same cited case of Martin Fredrick Rajab Vs. Ilemela Municipal Council & Another (supra) the court held: "From what was pleaded by the appellant, it is glaring that the description of the suit property was not given 1.3 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 and Mr M.risha that it was incumbent on the appellant to state in the plaint the description of the suit property which is in terms of the dictates of order 7 Ruled 3 of the Civil Procedure Code, [Cap 33 R.E2019]". That was the also the situation in this case as it can be appreciated in the quotation of paragraphs 3 and 6 (a) of the application in the District Land and Housing Tribunal an equivalent to the plaint. Assuming that was fulfilled, parties Would obviously be limited to the pleadings as it was held in the case of Dr. A. Nkini & Associates Limited Vs. National Housing Corporation, Civil Appeal No. 72 of 2015, Court of Appeal of Tanzania at Dar es Salaam at page 12 where it was held: "...it is an elementary principle of law that parties are bound by their own pleadings and that the one who alleges must prove.., T 14 In the case of Martin Fredrick Rajabu Vs. Ilemela Municipal Council and Another (supra) it was held at page 15: "Zt is a cardinal principle of the law of Civil Procedure founded upon prudence that parties are bound by their pleadings and thus, no party is allowed to present a case contrary to the pleadings". In the evidence addused, the appellant testified that: "Mwaka 2014 na 2015 kwa nyakati tofauti nilinunua Ardhi eneo la Tulien. Kabla ya kununua nilijiridhisha kuwa nayeniuzia ndiye mmiliki, nilikwenda serikaH ya Mtaa nikahakikishiwa kuwa ni ya familia ya Charles Katambala kwa makadilio Ardhi hiyo ni ekari 101" Even the second plaintiffs witness, Benedicto Charles Kitambala (SM2) testified that the land 110 acres are an estimation. At page 19 when cross examined by Cecilia Credo Mizengo he testified that: "Ekari 110 kwa kuzikadilia ni makadilio kwa macho " In any case, it can safely be concluded that the appellant failed to prove his case against the respondents. Thus, in terms of number he might have called many witnesses but there was no proof to that effect to meet the legal standard. The 4th ground of appeal complains that the trial tribunal erred in law by its failure to resolve each issued of the dispute separately as raised. The counsel has submitted that it is the requirement of law that the trial judge/magistrate must decide/adjudicate the case based on the frames issued by claiming to adjudicate the issues jointly at page 10 of the judgment, which is wrong. The counsel has cited the case of Kukar Properties Development Ltd Vs. Maloo & Others [1990 - 1994] EA 281 where it was held: 'J4 judge is obliged to decide on each and ever/ issue framed failure to do so constituted a serious breach of procedure". The counsel has also cited the case of Cassam Remtulla Parpia Vs. Gulamhussein Hassan Mohamed Khalfan and Co, Gamshee [1918] Vol. VII E.A.L.R 75 in the cited case it was held that: "Where an issue has been framed...the court is bound to determine that issue before passing an order../' 16 It is the submission of the counsel for appellant that by committing to consider the framed issues, the trial tribunal erred and rendered the judgment defective. The counsel cited the case of Joseph Ndyamukama Vs. NJ.C. Bank of Tanzania Ltd and Others, Civil, Appeal No. 239 of 2017, Court of Appeal of Tanzania (Dar es Salaam) and also Regulation 20(1) (a) of the Land Disputes Courts (the district land and housing tribunal) Regulation 2003. The respondents have submitted that the trial chairperson resolved all issues as required by law and that can be gleaned at page 14 of the judgment. Respondents have referred to each which was raised. In rejoinder the counsel for the appellant has submitted that there was no through adjudication of the issues raised/framed by the tribunal, which was fatal in the circumstances. I have as well read the record of the tribunal. The record shows issues which were raised were: "Kama eneo la mgogolo ni mail ya mwombaji kam.a wajibu maombi wamevamia eneo hili nafuu wanazoshahiii" 17 The issues are dependent on the first issue if answered in affirmative, In the case ofJasson Samson Rweikiza Vesus Novatus Rwechungura Nkwama, Civil Appea! No. 305 of 2022, Court of Appeal of Tanzania at Bukoba it was held?: - are alive to the time bound principle of pleadings that each issue framed should be definitely resolve and that a judge is obliged to decide on each and every she framed to resolve the dispute, See, for example Alnoor Shariff Jama! (supra), Shekh Said (supra) and Kukaf Properties Development Ltd Ifs. Maioo & Others [1990 -1994] E.A 281. However, we wish to state that the above principle is not a rule of thumb which apply generally to every situation regardless of the circumstances obtaining. In our considered firm position, we are of the view that, the above principle applies where issues framed are independent from each other and not where issues are interdependent like in the instant appeal where the rest of the issues were 18 dependent upon the determination of the first issue in the affirmative" In my considered opinion, the trial chairman after he had analyzed the evidence, at page 14 of the judgment he came to conclusion that the applicant/appellant herein had failed to prove his case to balance of probability and found that the respondents are not trespassers, instead are indigenous owners of the land they are occupying. I find the 4th ground of appeal has merit and dismiss it. On the 5th ground of appeal, the counsel for the appellant has argued that the tribunal erred by purporting to agree with opinion of assessors without following the legal procedure of taking account of assessors' opinion. The counsel has commenced by citing the provision of Regulation 19(2) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2003 which reads: "Notwithstanding sub-regulation (1) the chairman shall, before making his judgment, require every assessor present at the conclusion of hearing to give his opinion is 19 writing and the assessor may give his opinion in Kiswahiii" In this case assessor's opinion and the judgment were delivered on the same date and at the same time. He is of the opinion that the chairman of the tribunal didn't have assessors. Further, the opinion was not incorporated in the trial judgment. Also, the opinion was filed/recorded at the tribunal so as to form part of the tribunal records. The respondents after acknowledging the legal requirement basing on the cited provisions of law have submitted that it is clear that involvement of assessors is mandatory, their opinion must be given after concluding hearing. The opinion must be record in the proceedings and reflected in the judgment. That the male of assessors is meaningful if they actively and effectively participate in the proceedings by giving their opinion during trial and before judgment is delivered. It has submitted by the respondents that the procedure was followed as required by law. The assessors gave their opinion after hearing of the evidence of both parties and after the tribunal had visited locus in quo but 20 before judgment. It was on the different date with the date of the judgment. I have read the record; the opinion of assessors was given or read over in the tribunal oh the same date the judgment was delivered. However, the opinion was recorded in writing by assessors on 28/06/2023 and read over in court on 30/06/2023. The trial chairperson recorded in the proceedings. That is also the date the judgment was delivered. I have read the case of Jasmine Ayoub Mosha Vs. Ramadhani Ally Mosha, Civil Appeal No. 197/2020 Court of Appeal of Tanzania at Mpshi. In that case assessors kept on changing and in the intervals of their attendant for trial, they were almost seven assessor../' in my opinion, save for the law, the fact in the case are different from the present scenario. The case of Wanlaru Magabe Vs. Teresia Mchanya, Civil Appeal No. 124 of 2020, Court of Appeal of Tanzania at Mwanza is applicable in it was held that: "Section 23 and 24 of the Land Disputes Court Act (LDCA) clearly and imperatively provide that assessors form part of the tribunal (the District 21 Land and Housing Tribunal) and their respective opinions, although not binding, should be taken, considered and should be on record" In the just cited case, the court referred to the case of Edina Adam Kibona Vs. Absolom Swebe (Shell), Civil Appeal No. 286 of 2017) unreported that: "...as a matter of law assessors must fully participate and at the conclusion of evidence, in terms of Regulation 19(2) of the Regulations, the chairman of the District Land and Housing Tribunal must require every one of them to give his opinion in writing. It may be in KiswahiH. That opinion must be in the record and must be read to the parties before the judgment is composed". In my opinion, that was done in the present case. There is nothing to fault the procedure adopted as it was in conformity to the guidelines of the court in the referred of the case of Edina Adam Kibona Vs. Absolom Swebe (supra). I find no merit to the 5th ground of appeal. Under the circumstances in this case, the appellant has failed to said through relying on the grounds of appeal raised and for that matter the 22 appeal has no merit. It is thus dismissed with costs. It is ordered accordingly. Dated and signed at Sumbawanga this 5th day of September, 2024. T.M. MWENEMPAZI JUDGE Judgement delivered virtually In the absence of the appellant but in the presence of Mr. Laurence John, Advocate for the appellant, and presence of 2nd* 3rd, 4th and 6th respondent. The 1st Respondent is absent and the 5th respondent Is reported sick. T.M. MWENEMPAZI JUDGE 05/09/2024 23 appeal has no merit. It is thus dismissed with costs. It is ordered accordingly. Dated and signed at Sumbawanga this 9th day of September, 2024. T.M. MWENEMPAZI JUDGE Judgement delivered virtually in the absence of the appellant but in the presence of Mr. Laurence John, Advocate for the appellant, and presence of 2nd' 3rd, 4th and 6th respondent. The 1st Respondent is absent and the 5th respondent is reported sick. T.M. MWENEMPAZI JUDGE 09/09/2024 23