20190219 TZHC Mwanza

'I l ,.I I , IN THE HIGH COURT OF TANZANIA AT MWANZA LAND APPEAL NO. 01 OF 2017 iI Q {From the Decision of the Land and Housing Tribunal of the Musoma District, at Musoma, In Land Case No. 133 of 2014} METOHA OSTRICH COMPANY LTD ................................ APPELLANT gj;6i3:S}~~,;:.::;'~VE RSU S j ,j WAMBURA TAIBOYA .......................................... 1 sT RESPONDENT ., I i MANG'ERA CHACHA .......................................... 2No RESPONDENT MANCHANDI MATIKU KIRUKU ........................... 3R 0 RESPONDENT JUDGMENT OF THE COURT 07/02/2019 & 19/02/2019 Gwae, J In the District Land and Housing Tribunal for Mara at Musoma (trial tribunal hereinafter), the appellant, a legal entity known by. name of / Mtoha Ostrich Company Limited instituted a dispute against three respondents named· above claiming to be owner of the land in dispute measuring 100 acres for agriculture and pastoralist activities. 1 i J -~ The appellant claim to be a holder of Right of Occupancy of the ,j ',1 :l farms, farm 226 and 227 since 2007 and he further claimed before the trial tribunal that the respondents trespassed into the suit land in the 2011. The trial tribunal, after its final analysis of the evidence before it, pronounced its judgment in favour of the respondents by dismissing the appellant's application entirely. Aggrieved by the trial tribunal decision, thus appeal comprised of three (3) grounds of appeal, to wit; -1.-That, the trial tribunal erred in:law··,fnd fact-on the finding that the appellant is not the lawful owner of the land in dispute inspite of the evidence adduced thereto. 2. That, the trial tribunal erred in law and fact by failing to admit the documentary evidence tendered by the appellant during trial 3. That, the trial tribunal erred in law ·and facts for failure to identify that the disputed land is allocated in Serengeti District in Mara Region At the hearing of this appeal, Mr. Erick Kahangwa and Mr. Kishosha, both the learned advocates appeared for the appellant a n d ~ respondents respectively.· 2 .·-i I .. , I ' ,), The learned advocate for the appellant abandoned 3rd ground of appeal and opined to argue 1st and 2nd ground of appeal jointly. Having abandoned the said grounds of appeal, Mr. Erick proceeded arguing the 3rd ground by stating that the appellant's documents were to be admitted under section 83 (a) (ii) & (iii) of Tanzania Evidence Act, Chapter 6 Revised Edition, 2002 (TEA) as the same were categorically public documents and that the appellant's documents were certified copies admissible under section 65 of the Cap 6 (supra). Opposing the appellant's appeal, the respondents' counsel submitted that the evidence adduced by both sides was considered and that appellant did not produce any document to support his claims. However the counsel for the respondents, on the complaint of the purported rejection of the appellant's documents, left it for the court to judicially decide adding that the appellant -ought to produce a certificate of title as opposed to the respondent who proved their ownership by adverse possession. In his rejoinder, the appellant's counsel focusedly stated that even if the· appellant's documents would have been rejected legally yet the a._ evidence adduced by one Kenyunko Mahiti (PW2) was credible and~ more so it was not shaken by the respondent's evidence. 3 if Looking at the record of the trial tribunal, it is glaringly clear that the appellant, when appeared for trial on 13th June 2016, sought leave to produce documents but his documents were rejected by the tribunal on the V ground that the same are copies. The appellant's counsel is now lamenting that the same were certified copies which would have been admitted by virtue of section 65 of TEA, I agree with the learned counsel for the appellant that if the documents sought to be produced were certified such documents were to be tendered and received by the appellant and the trial tribunal respectively under section 65 (a) of TEA. However, tendering of certified copies is done after issuance of the requisite notice pursuant to ' i section 68 of TEA. In our case the documents sought to be produced were public document, thus the same are admissible under s. 67 (1) (e) read together with section 83 (a) of TEA. Since the appellant's documents sought to be produced for evidential value are not with the trial tribunal except their respective annextures for instance letters from Remung'orori Village-Srengeti · dated 27 th July 2007, Village General Assembly meeting minute (annexture "A"), Right of th Occupancy dated 8 March 2012 and its ancillaries (Annextures), However~ 4 t I am mindful of the legal position that annexture are of less value in evidence to rely and act upon. Moreover I have noted that during trial there was very series issue which was to be dealt by the tribunal below that was ascertainment of the area in dispute, whether the land in dispute was clearly known to the parties as well as to the tribunal. In our case, the appellant's side was of the view that the land allocated to him was at Remung'orori village within Serengeti District (PW3-"We surveyed that land which was in Serengeti District~') .. whereas the respondents' stance is that the suit land is at Mikomariro village at Mihingo Ward within Bunda (see testimonies of DWl& DW2-"I do not know part of the land you are complaining of. It is not true that I live in your land") With the above observation and few quotes herein, I am made to believe that the nature of dispute and evidence adduced by the parties which is on record require visitation of the locus in quo so that justice and fairness of this particular case would not only be done but also to be seen to have been done. It was the duty of the tribunal plus parties to visit t h e ~ 5 /' locus in quo and take proper notes of observations and demonstrations by . witnesses on the spot. 0 According to the evidence on record, it goes without saying that there was patent uncertainty as to the land in dispute, whether it situates at Remung'orori village-Serengeti District whereas the appellant is found contending to have been allocated or at Mikomani village within Bunda District where the respondents are claiming to be residents and occupiers of certain acres. This issue, to my considered opinion, ought to have adequately been dealt with. In Nizal v. Gulamali (1980) TLR 29, the Court of Appeal of Tanzania held among other things that; 11 Where it is necessary or appropriate to visit a locus in quo the court should attend with parties and their advocates, if any, and such witnesses as may have to testify in that. .. " Since in our instant case the suit land is controversial as intimated above, particularly the parties' evidence adduced in the trial tribunal, It is therefore necessary to visit the locus in quo and have evidence o f ~ 6 l "1 necessary persons whose evidence is of assistance in dispensing justice in this case. While I am alive of the position of the law that this court being 1st appellate court, I would take additional evidence however since there is ' serious contentious issue as where the disputed land is located, I cannot therefore take additional evidence. More serious error material to the decision of the trial tribunal decision hat is nothing has been said about the 1st respondent1s failure to testify during defence yet a case against him was decided in his favour, how? That is legally wrong. If the 2nd and 3rd respondent truly owned 20 acres each by way of adverse possession as per their evidence on record, what about other 60 acres? Can it be said that the appellant's evidence is more improbable than that of the one (1st respondent) who did not appear and testify? The answer here is No. For the above observations I thus refrain from taking additional evidence. In the light of foregoing reasons, this appeal is allowed, by virtue. of section 43 of the Land Disputes Courts' Act, Cap 216 R. E, 2002, proceedings of the trial tribunal from 13th June 2016 and decision thereof~~ 7 · '. are nullified, the dispute between the parties are to be presided over by different chairperson sitting with different set of assessors. According to the nature of this case, each party shall bear its costs of this appeal and the tribunal below. It is so ordered. 8