JUDGMENT MUTABUZI MUTABUZI VS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF MWANZA AT MWANZA LAND APPEAL NO. 19224 OF 2024 (Arising from Application No. 507 OF 2020 of the District Land and Housing Tribunal for Mwanza at Mwanza) MUTABUZI A. MUTABUZI ………………………………………………. APPELLANT VERSUS ELIAS MUYAGI (The Administrator of the Estate of the Late John Kakungulu) ……………………………… RESPONDENT JUDGMENT 14th & 27th March, 2025 E. L. NGIGWANA, J. This appeal arises from the decision of the District Land and Housing Tribunal (DLHT) for Mwanza at Mwanza in Land Application No. 507 of 2020, handed down on the 12th day of July, 2024. Briefly, the center of the controversy revolves around the claim by the appellant herein that he is the lawful owner of the house situated in Plot No. 189, Block “F” Nyamanoro, Mwanza since 1986 however, sometime in 1990, without legal justification, the respondent encroached into said Plot and started constructing unwarranted hats. On the other hand, the respondent alleged that the appellant is his neighbor, but each one of them has a separate Right of Occupancy in Plot 187 and 189, 1 respectively, both in Block “F” Nyamanoro Mwanza. He denied encroaching into the appellant’s Plot, to wit, Plot No. 189, Block “F” Nyamanoro Mwanza. Upon trial, two assessors, F. Cheneko and Joyce Manyanda, opined in favour of the appellant, who was the applicant in the trial tribunal. However, the Hon. Chairperson disagreed with them and decided the matter in favour of the respondent. In other words, the application was dismissed for want of proof. Aggrieved by the decision of the DLHT, the appellant knocked on the doors of this court by way of appeal clothed with three (3) grounds of appeal. However, before the commencement of the hearing of this appeal, the appellant, through his advocate Mr. Julius Mushobozi abandoned grounds No. 1 and 3 and remained with one ground which reads; That the Hon. Chairperson grossly erred in law and fact for relying on the travestied locus in quo proceedings to determine the issues in the appellant’s disfavour. Wherefore, the appellant prays to the court to allow this appeal by quashing and setting aside with costs the judgment and orders of the trial 2 tribunal. At the hearing of this appeal, the appellant had the legal services of Mr. Julius Mushobozi, an advocate from Kailu Law Chambers (Advocates), while the respondent appeared in person, unrepresented. Submitting on the grounds of appeal, Mr. Mushobozi submitted that the trial tribunal visited the locus in quo on 22.2.2022, but the procedure governing the visit of the locus in quo was not observed. He cited the case of Professor T.L. Maliyamkono vs. Wilhelm Sirivester Erion (Civil Appeal No. 311 of 2022) [2023] TZCA 17910 (7 December 2023) Tanzlii to support his position. He pointed out the procedural anomalies committed by the trial tribunal as follows: one, that the locus in quo was visited on 22.2.2022, and then issues for determination were framed on 3.11.2022. Two, when the DLHT visited the locus in quo, it was not properly constituted. Three, the appellant and/or his advocate were not consulted before the visit. Four, at the locus in quo, the Hon. Chairman took notes that do not reflect the issues in controversy. Five, the tribunal did not reassemble in the tribunal room for the Hon. Chairperson to read the notes to the parties and their advocates and allow them to comment, amend, or object. He further elaborated that since the Hon. Chairperson based his decision on what transpired in the locus in quo, and since the 3 procedure was offended, the proceedings, the resultant judgment, and the orders amounted to a nullity. He concluded his submission by urging this court to nullify the proceedings, the resultant judgment and orders, and order retrial before another competent In reply, the respondent submitted that admitting that the locus in quo was visited in the absence of the appellant’s advocate. He admitted that after the said visit, the DLHT did not reassemble as per the law. He generally conceded that the procedure governing the visit of the locus in quo was not observed. Having heard the appellant’s advocate and the respondent in person and having read the record of the trial tribunal, I am now in a position to determine whether this appeal is meritorious or not. It is trite law that a visit to the locus in quo is purely at the discretion of the court, but when the court or tribunal decides to exercise such discretion, the duty of recording what transpired there is no longer discretional. This position was insisted in the case of Sikuzani Saidi Magambo & Another vs. Mohamed Roble, Civil Appeal No. 197 of 4 2018 [2019] TZCA 322 (1 October 2019) Tanzlii, where the Court of Appeal had this to say; “There is no law which forcefully and mandatorily requires the court or tribunal to conduct a visit at the locus in quo, as the same is done in the discretion of the court or the tribunal particularly when it is necessary to verify the evidence adduced by the parties during trial. However, when the tribunal decides to conduct such a visit, there are certain guidelines and procedures which should be observed” However, in deciding whether or not to visit the locus in quo, the court or tribunal must exercise its discretion judiciously, not arbitrarily or capriciously. In other words, the visit to the locus in quo is done in deserving cases. The question that is likely to arise here is: What are deserving cases? The answer is not far to fetch. Deserving cases are the ones where while giving evidence in court; witnesses allude to special features, boundaries, figures, cultural sites, landmarks, neighbors, mark- stones, buildings, old sites, graves yard, or graves whose descriptive nature requires the court or tribunal to visit the locus in quo to resolve the controversy between the parties. It should be noted that the same is never intended to fill up the gaps in evidence for either party. Failure to 5 visit a locus in quo in a deserving case may occasion a miscarriage of justice. The rationale of the court visiting the locus in quo with the parties was emphasized in the case of William Mukasa versus Uganda [1964] E.A 696 at page 700, Sir Udo] Udoma G (as he then was) held as follows: - "A view of a locus in quo ought to be, I think, to check on the evidence already given and where necessary and possible, to have such evidence oculary demonstrated in the same way a court examines a plan or a map or some fixed object already exhibited or spoken of in the proceedings. It is essential that after a view of a judge or magistrate should exercise great care not to constitute himself a witness in the case. Neither a view nor personal observation should be a substitute for evidence." In the case of Avit Thaddeus Massawe vs. Xsdory Assenga, Civil Appeal No.6 of 2017 (2018) TZCA 357;(13 December 2018) Tanzlii, the Court of Appeal of Tanzania cited with approval the Nigerian case of Akosile versus Adeye (2011) 17 NNWLR, where it was held among other things that; 6 "The essence of a visit in locus in quo in land matters includes the location of the disputed land, the extent, boundaries and boundary neighbor, and physical features on the land. The purpose is to enable the Court to see objects and places referred to in evidence physically and to clear doubts arising from conflicting evidence if any about physical objects." In the matter at hand, as submitted by Mr. Mushobozi and also reflected on pages 29-30 of the typed proceedings of the trial tribunal, the tribunal visited the locus in quo on 22.2.2022, and it did so even before framing issues for determination and before the commencement of the actual hearing. The record further revealed that on the material date, the Hon. Chairman sat without assessors. It is apparent that, according to section 23 (1) and (2) of the Land Disputes Courts Act, [Cap. 216 R.E 2019], the DLHT, when exercising its Original Jurisdiction, is properly constituted when it consists of one Chairman and not less than two assessors, who before the Chairperson composes the judgment, must be invited to give their opinion. Section 23 (2) of the Land Disputes Courts Act, [Cap. 216 R.E 2019], provides that; “The District Land and Housing Tribunal shall be constituted when held by a chairman and two assessors who shall be required to give out their 7 opinion before the chairman reaches the judgment.” As far as the case at hand is concerned, I agree with Mr. Mushobozi that the trial tribunal was not properly composed when visiting the locus in quo. I also agree with Mr. Mushobozi that the trial tribunal, notwithstanding that it was properly constituted, upon visiting the locus in quo, the procedure was not observed. In his brief submission, the respondent conceded that the procedures regulating the visit of the locus in quo were not adhered to by the trial tribunal. Indeed, the anomalies pointed out by Mr. Mushobozi in his submission are apparent in the record of the trial tribunal. To visit the locus in quo meaningfully, the Procedure or guidelines to be followed were articulated in these cases; Nizar M.H vs. Gulamal Fazal Jan Mohamed (1980) TLR 29, and Kimonidimitri Mantheakis vs. Ally Azim Dewji & Others (Civil Appeal No. 4 of 2018) [2021] TZCA 663 (3 November 2021) Tanzlii. In the former, the Court of Appeal held that; “When a visit to a locus in quo is necessary or appropriate, and as we have said, this should only be 8 necessary in exceptional cases, the court should attend with the parties and their advocates, if any, and with much each witness as may have to testify in that particular matter... When the court re-assembles in the courtroom, 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 the future. In the latter case, in which the former case was also referred, the Court of Appeal had this to say; “For the visit of the locus in quo to be meaningful, it is instructive for the trial Judge or Magistrate to: one, ensure that all parties, their witnesses, and advocates (if any) are present. Two, allow the parties and their witnesses to adduce evidence on oath at the locus in quo; three, allow cross-examination by either party or his counsel, four, record all the proceedings at the locus in quo; and five, record any observation, view, opinion or conclusion of the court including drawing a 9 sketch plan, if necessary, which must be made known to the parties and advocates, if any”. It is also a settled law that failure to comply with the guidelines on the visit at locus in quo vitiates the proceedings. This position was stated by the Court of Appeal in the case of Sikuzani Saidi Magambo and Kirioni Richard vs. Mohamed Roble (Supra) as follows: "We are therefore in agreement with both parties that the Tribunal's visit in this matter was done contrary to the procedures and guidelines issued by this Court in Nizar M.H. Ladak, (supra). It is therefore our considered view that this was a procedural irregularity on the face of the record which had vitiated the trial and occasioned a miscarriage of justice to the parties.” Since the procedure was not complied with as discussed in the foregoing pages, I agree with the learned counsel for the appellant that this appeal is meritorious and therefore make a finding that, the entire proceedings of the trial tribunal are vitiated, the result of which the decision based on the said proceedings, is affected too. In the upshot, I invoke the provision of section 43 (1) (b) of the Land Disputes Courts Act, [Cap.216 R.E 2019] and proceed to revise the 10 proceedings of the District Land and Housing Tribunal for Mwanza in Land Application No. 507 of 2018 in the following manner: (a) I quash the entire proceedings from pages 29- 61 of the typed proceedings of the trial court, set aside the resultant judgment, and decree (b) I remit the case file to the District Land and Housing Tribunal for Mwanza at Mwanza for an expeditious re-trial before another competent Chairperson and a different set of assessors. I direct the Hon. Chairperson to make sure that the trial tribunal is properly constituted but also to adhere to the guidelines regulating the visit of the locus in quo. Considering that neither of the parties is to blame for the anomalies that have led to the outcome of this appeal, I make no order as to costs. It is so ordered. DATED at MWANZA, the 27th day of March, 2025. E. L. NGIGWANA JUDGE 11 Delivered this 27th day of March, 2025, in the presence of the appellant in person, Ms. Jackline Samwel, RMA but in the absence of the respondent with notice. E. L. NGIGWANA JUDGE 27.3.2025 12