LAND APPEAL NO

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA LAND APPEAL NO. 28220 OF 2024 (Originating from the decision of the District Land and Housing Tribunal for Lindi at Lindi in Land Application No. 34 of2023) MOHAMED ANAFI............................................................................... APPELLANT VERSUS NAJUMU MOHAMED RAMADHANI (Administrator of the Estate of the Late MOHAMEDI RAMADHANI DAMODA)...................................................RESPONDENT JUDGMENT 13th February & ItF1 March 2025. DING'OHI, J; Concisely, it cropped up that, the respondent herein, who stood as the Administrator of the Estate of his father, the late Mohamedi Ramadhani Damoda, sued the appellant in the District Land and Housing Tribunal for Lindi at Lindi (the trial tribunal) for trespassing one acre out of 41.8 acres of his inherited farmland located at Ng'apa village within Lindi Municipality with Certificate of Title No. 30419. Page 1 of 15 At the trial tribunal, the respondent contended that the land in dispute was owned by his late father. The respondent's father inherited the same from his late grandmother in 1973. According to the respondent, the disputed land was surveyed in 1980, and in 1985 the Certificate of Title no. 30419 was issued. The respondent's father owned the said shamba without interruption up to 2012 when he died. After the demise of his late father, the respondent developed the shamba by planting coconut trees. He was also paying the land rent. The certificate of title was admitted at the trial tribunal as exhibit M-l without objection. The different receipts for payment of land rents were also admitted without objection as exhibit M-3. Later, according to the respondent, the appellant started to trespass into his shamba. Upon seeing so, the respondent replanted coconuts and bananas on the boundaries, which the appellant had previously removed. To get more assurance about the boundaries of the land, the respondent decided to call a land surveyor from Lindi Municipality to re­ measure the disputed area. After measuring, it was seen that the appellant had entered a part of the respondent's land. The respondent's testimony was also supported by Seif Abdallah Mangata (SM2), the village chairman who Page 2 of 15 witnessed the land surveying, along with Kisna Mgheni (SM3), who surveyed the area. In his defense, the appellant told the trial tribunal that the area in dispute was his. As to how he acquired the same, the appellant stated that he was given it by his late father in 1995, who died in 1999. He further avowed that the respondent is not the owner of the piece of land in dispute. On the land, he has cultivated short-term crops in the area in dispute for 27 years without any interruption. His testimony was supported by Saidi Rais Juma (SU2), who said he saw the SM3 the respondent, and others putting bricks on the land of the appellant. In due course, the trial tribunal also visited the locus in quo to satisfy itself with what was stated by the parties in their evidence. Unfortunately, the record is not clear on what the trial tribunal made with the parties and witnesses at the visit. After a full trial, the tribunal found for the respondent. It declared him, as the administrator of the estate of the late Mohamedi Ramadhani Damoda, the rightful owner of the suit property. Unhappy with the decision of the trial tribunal, the appellant expressed through the petition of appeal five grounds of grievance. For convenience, I will not recite them here. This will be seen in the cause of discussing them. Page 3 of 15 When the appeal was placed before me for hearing, the appellant appeared in person, unrepresented, whereas the respondent was represented by Mr. Emmanuel Ngongi, a learned advocate. When the appellant was invited to submit his grounds of appeal he prayed that his grounds of appeal be adopted as part of his submissions in support of the appeal. On his part, Mr Ngongi, from the very outset, did not support this appeal together with all prayers made by the appellant. In his submission to the first complaint that the trial chairman failed to evaluate the evidence and reached an erroneous decision, he stated that in this matter, the learned chairman of the trial tribunal properly evaluated the whole evidence in the record and reached the required proper decision. The learned advocate referred to this court to pages 3, 4, 5, 6, and 7 to 8 of the trial tribunal's Judgment. According to him, there was no clear explanation from the appellant on what the trial tribunal failed to do, which may make the appellant believe that the decision was not right on his part. However, Mr Ngongi was of the view that since this is the first appellate court, it has to re-evaluate the evidence and arrive at its own decision. In Page 4 of 15 doing so, the learned advocate opined that the court should consider that one who has a title certificate is the true owner of the land. Submitted to the appellant's second complaint that the procedure required for visiting the locus in quo was not followed, he asserted that no law mandates the trial tribunal to visit the locus in quo. According to him, it is the discretion of the court or tribunal to visit the locus in quo as stated in the case of Bomu Mohamed vs. Hamisi Amiri (Civil Appeal No. 99 of 2018) [2020] TZCA 29. However, Mr Ngongi argued further that in this case, the parties herein and their witnesses visited the locus on 18/08/2024. At the visitation, parties, and witnesses were given the chance to show the boundaries, whereby SM3 explained in detail the beacons that separated the boundaries. According to him, the records at the locus show that the appellant is a trespasser as he entered within the respondent's surveyed land. Regarding the third and fourth grounds of appeal, in which the appellant faulted the trial tribunal for applying the principle of adverse possession in favor of the respondent whilst the disputed area is surveyed and in lieu thereof, the learned chairperson erred in law and fact by deciding that the appellant is time bared for his claims on the disputed land. Mr Page 5 of 15 Ngongi submitted that the issue of adverse possession was not among the issues in the trial tribunal. However, on the analysis of the evidence and to arrive at the right position, the trial tribunal applied the principle of adverse possession. It's Mr Ngongi's further submission that the trial tribunal was referring to the appellant who was maintaining that he was given the area by his father for a long time, a fact which, according to Mr Ngongi, he failed to prove because there was no deed of gift to prove the giving. On the last ground of appeal, it was a complaint by the appellant that the trial tribunal decided that the appellant trespassed on the disputed property in 2021 while the respondent was appointed as administrator of the estate in 2023. Mr Ngongi expostulated that it is true that the respondent was appointed the administrator of the estate of his father, Mohamedi Ramadhani Damoda, in 2023, and that is why he got the locus to file the case concerning part of the estate, which he is administering. According to the learned advocate, the respondent would have filed the Probate cause in 2021 when the appellant trespassed the area, but by then, he was not the administrator of the estate. Page 6 of 15 In a brief rejoinder, the appellant maintained that his father started to own the shamba when the respondent's father was still alive. He added further that the respondent's shamba is different from that of his father, as the shamba of his father has no title, while the respondent's shamba has a title deed. In my part, having examined the record of the appeal and considered the submissions made by the parties herein, the issue for determination is whether the instant appeal has merit. In determining the merit of the appeal, I propose to address the grounds of appeal in sequence and combine them the same way as done by the learned advocate for the respondent. The first complaint by the appellant is that the trial chairman failed to evaluate the evidence and reached an erroneous decision. As rightly argued by the learned advocate for the respondent, the appellant was unable to explain to what extent the trial chairman failed to re-evaluate the evidence to the extent that he reached the erroneous decision as he claims. However, this cannot bar this court from intervening in the proceedings of the trial tribunal and examining whether the trial chairman had fulfilled his legal duty to evaluate the evidence of both parties or not. Page 7 of 15 At the outset, I wish to state that this is the first appeal, therefore, this court is entitled to re-evaluate and consider the entire evidence in the record of the appeal and, if warranted, to arrive at its conclusion of fact. There are many judicial pronouncements in support of that proposition. See for instance, FB General Contractors and Another vs. Bank of Baroda Tanzania Limited (Civil Appeal No. 202 of 2022) [2025] TZCA 61 (24 February 2025), and Marko Kivamba vs. Republic (Criminal Appeal No. 18 of 2022) [2025] TZCA 191 (13 March 2025). In the instant appeal, upon carefully scanning the records, particularly the trial tribunal's proceedings there is no doubt that the respondent relied on the certificate of title (Exhibit M2) to prove the ownership of land, while the appellant relied on the allegation that the land in dispute was previously owned by his late father. In its judgment, explicitly from pages 6 to 8, the learned trial chairman had properly evaluated and examined the evidence adduced by the parties and was satisfied that from the evidence adduced the respondent was the rightful owner of the disputed land. Under the circumstances, I thus find no substance in the first complaint of appeal and I hereby dismiss it. Page 8 of 15 The complaint in the second ground of appeal is on the visiting locus in quo; that the procedure of visiting was not followed. The learned advocate entreats me to find this complaint to be misconstrued based on the fact that at the visitation of the locus in quo parties, witnesses were given the chance to show the boundaries, whereby SM3 explained in detail the beacons that separated the boundaries. I am mindful of the fact that, as rightly submitted by the learned advocate, there is no law that 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 particularly 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, certain procedures should be observed to ensure a fair trial. Some of the said procedures were clearly articulated by the Court of Appeal in the case of Salum Mayombya and Another vs. Lucas Ndahuzi (Civil Appeal No. 97 of 2024) [2024] TZCA 639, where the Court quoted with approval the decision in the case of Nizar M.H. Ladak vs. Gulamali Fazal Jan Mohamed [1980] TLR 29, where the Court, inter a/ia stated that; Page 9 of 15 '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 such each witness 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.' In the case at hand, the trial tribunal records indicated that on 16th August 2024, the trial tribunal, together with the parties and the respondent's advocate, visited the locus in quo. However, the same records do not show whether witnesses were re-called to testify, examined, and/or cross-examined, as no notes were taken down on that particular date. More to that, the records do not suggest if the trial tribunal reconvened or Page 10 of 15 reassembled in the courtroom to read out the notes obtained from the locus to the parties and their advocate. It is also not evident if the parties were given a chance to give their comments, amendments, or objections to the evidence obtained from that visit. The trial tribunal records suggest that after the visit, the learned trial chairman continued with pronouncing the judgment. Right away, I may agree that the procedures of visiting locus in quo were not followed per the law, and in a proper case that would vitiate the judgment. However, under the circumstances of this case, even if the procedures of visiting locus in quo were not followed, and since the circumstances of this case the proper finality did not require any evidence from the visit, the exercise of the visit done by the trial tribunal was mainly luxurious. The court of law does not act on luxuries. I say so because there was already a certificate of title (Exhibit M2) issued by the respondent in which the boundaries were set out by the relevant authority to demarcate the suit land from others. The demarcation was done by the Lindi district council, not party to this case. The law is now long settled that visiting locus should be done only in exceptional circumstances to ascertain the state, size, location, and so on of the premises in question on which in the case at hand Page 11 of 15 » ■ ' "- • . ’ the issue of size, and location could have been determined by looking at Exhibit M2. In Avit Thadeus Massawe vs. Isdory Assega (Civil Appeal No. 6 of 2017) [2018] TZCA 357 (14 December 2018), the Court of Appeal quoted an excerpt from the case of Nizar M. H. (supra), which I find worth recitation here, the Court stated; 'It is only in exceptional circumstances that a court inspects a locus in quo, as by doing so a court may unconsciously take on the role of a witness rather than an adjudicator. At the trial, we ourselves can see no reason why the magistrate thought it was necessary to make such a visit. Witnesses could have given evidence easily as to the state, size, location and so on of the premises in question. Such evidence could, if necessary, be challenged in cross-examination. But at least the magistrate made his visit on the application of a party to the trial. We completely fail to see why the first appellate judge thought it was necessary for him to visit the premises. He was dealing with an appeal.' Page 12 of 15 Under the circumstances, the complaint by the appellant in the second ground of appeal is therefore without merit and dismissed. Next for consideration is the complaint on grounds three and four of the petition of appeal in which the appellant faults the trial tribunal for applying the principle of adverse possession in favor of the respondent whilst the disputed area is surveyed. He also claims that it was wrong for the trial tribunal to decide that the appellant was restrained by time for his claims on the disputed land. The learned advocate for the respondent rightly, in my view, submitted that the issue of adverse possession was not among the issues in the trial tribunal. Logically, it was not the duty of the first appellate court to resolve the issues that were not framed by the trial court and made parties to be heard on that. This being an appellate court will not entertain a new issue that was not subject to the decision of the trial tribunal in this appeal. To appease the appellant, the learned chairman of the trial tribunal did not apply the principle of adverse possession to determine the rights of the parties. What was done by the learned chairman is pointing out his reasoning in its judgment on how would be possible for the appellant not to take any action for 39 years the respondent stayed on the land without the complaint from Page 13 of 15 him! The complaint by the appellant therefore without substance. I will dismiss it. The appellant also complained on the last ground of the petition of appeal that the trial tribunal decided that the appellant trespassed on the disputed property in 2021 while the respondent was appointed as administrator of the estate in 2023.1 think this complaint should not detain me much because the records suggest that the disputed land was surveyed in 1980 and continued to be used by the respondent's late father until 2012. It has no relation therefore with the time of the respondent being appointed the administrator of the estate of his late father. What was necessary for the trial tribunal was to weigh the evidence it received from both sides, which in my view was rightly done. I will agree with the trial tribunal that the respondent has been able to prove by evidence that the disputed land is the property of his late father who is a holder of the title deed over the suit landed property. In a dispute over the ownership of land, the evidence of the title deed is usually stronger than the oral evidence of the ownership of the same property. Given the position above, I find the entire appeal lacking merit. It is hereby dismissed with costs. Page 14 of 15 Dated at Mtwara on the 18th day of March 2025. COURT: Judgment delivered this 18th day of March 2025 in the presence of Mr Emmanuel Ngongi, the learned advocate for the respondent, and the appellant who appeared in person. Page 15 of 15