absence of the records of what transpired at the locus in quo preclude the appellate court from making a proper analysis of the entire evidence

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY) AT MOROGORO LAND APPEAL NO.8184 OF 2024 (Arising from decision ofthe KHosa District Land and Housing Tribunalin Land Application No. 35of2020 delivered by Hon. R.S Mnyukwa on 22^^ February 2024) MWANAHAMISI MBUI MOHAMEDI 1^' APPELLANT HABIBA ALLY 2"^ APPELLANT MAYUNGA JOSEPH 3-^^ APPELLANT VERSUS AGNES JANGENI RESPONDENT JUDGMENT 15/07/2024 & 29/08/2024 KINYAKA,3.: The subject matter of the dispute before the District Land and Housing Tribunal of Kilosa at Kilosa Hereinafter, the "Tribunal" that escalated to the present appeal before this Court, is a parcel of land measured half an acre situated at Msowero A hamlet, in Msowero Village within Kilosa District, herein after the "suit land". According to the pleadings, the suit land was a part of 25 acres of land that were initially owned by the late Jangeni Konjela, the respondent's father. It is also gathered from the records that during his life time, the late Jangeni had bequeathed two acres of land to the Msowero Village Authority for burial 1 <^3- related activities and ten acres of land to the people who were affected by floods in the area and remained with 13 acres of land which he possessed up to his death in 1979. It was alleged in the respondent's application at the Tribunal that in 2007, one Omary Mbui Mohammed (now a deceased) sold the suit land to the 2"^ and 3'"^ appellants. From the pleadings and proceedings, the respondent being the adminstratix of the estate of the late Jangeni initiated Land Application No. 35 of 2020 at the Tribunal in which she prayed for the following reliefs against the appellants: (i) A declaration that the suit land be part and parcel of the deceased's estate; (ii) A declaration in favor of the respondent that the appellants are trespassers to the land; (iii) Eviction order of the appellants from the suit land and demolition order of the unfinished house constructed by the 2"^ appellant; (iv) Permanent injunction to restrain and prohibit both the appellants and their agents from trespassing into the suit land and interfering with the peaceful occupation of the suit land by the respondent; (v) The appellants be ordered to pay costs of the said application; and (vi) Any other relief that the honourable tribunal would deem fit and just to grant. At the height of the trial, the Tribunal found for the respondent and ordered the appellants to demolish their structures on the suit land. The Tribunal further declared the purported sale of the suit land from the late Mbui to the 2"^ and 3'^ appellants as null and void. The costs were also awarded to the respondent. The appellants were dissatisfied. They appealed to this Court armed with three grounds of complaints as spelt out hereunder: (i) That, the honourable Chairman of the District Land and Housing Tribunal erred in law and in fact for failure to properly record and consider the weight of evidence adduced by the appellants and their witnesses; (ii) That, the honourable Chairman of the District Land and Housing Tribunal erred in law and in fact for failure to properly evaluate the discrepancies on the evidence on record adduced by the respondent and her witness which emanate to wrong decision; (iii) That, the honourable chairman of the District Land and Housing Tribunal erred in law and fact for failure to account for what transpired while visiting locus in quo and thereby making a wrong decision. The present appeal was canvassed by way of written submissions as per the order of this Court dated July 2024 which were all drawn and filed by the parties herein. Relying on section 110 of the Law of Evidence Act, Cap. 6 R.E. 2022 and the case of Hemed Said Vs Mohammed Mbilu (1994)TLR 113, the appellants made their submissions on the first ground of appeal narrating that the evidence on record show that the 2"^ and 3'^ appellants bought the land from one Omari Mbui Mohammed who got the title to the land from her late mother one Amina Mohammed Makina who was also allocated the land by the village government. The appellant also relied on the decision of the High Court in case of Mathias Timothy v. R.(1984)TLR,86 to fault the Tribunal for believing the testimony of Nashon John Sagala (AW3) whose evidence was self contradictory. Amplifying the second complaint, the appellants pointed out the discrepancies between the respondent's evidence and her witness, AW3 regarding her source of title to the land. In that regard, they were of the view that the respondent's case was dismantled. In fortifying their foregoing stance, the appellants made reference to the case of Said Omary v. Criminal Appeal No. 249 of 2008 which was cited with approval by the Court of Appeal in the case of Sylvester Stephano v. R, Criminal Appeal No. 527 of 2016. In support of the third ground, the appellants cited the case of Nizar M. H. Ladak v. Gulamali Fazal Janmohamed [1980] TLR 29 and attacked the Tribunal for deciding in favour of the respondent without considering that when they visited the locus In quo, the land in dispute was different from the land owned by the appellants. On the account of the above submission, the appellants urged the Court to quash the judgment and decree of the Tribunal and allow the appeal with costs. On his part, the respondent prefaced her submission with a narrated background to the matter at hand. Submitting against the first ground of appeal, she supported the Tribunal's decision averring that the same was reached at after the Tribunal had considered the evidence adduced by the appellants and their witnesses. She cited the case of Godfrey Say! v. Anna Siame as legal representative of the late Marry Mndolwa, Civil Appeal No. 114/2012 (unreported) to cement her averment She explained that Nashon John Sagala did not make false statement as he was one among the people who were affected by floods and got the land from Jangeni Konjela's family under the supervision of Msowero Village Authority. On the second ground, the respondent contended that the Tribunal's judgment was issued basing on the evidence which was well evaluated. She said, the evidence adduced by appellants' witnesses was contradictory and that there is no any document which show that the late Amina Mohammed Makina was given the suit premise by Msowero Village authority. She cited the case of Issa Ahmed v. Mussa Abdul Mohamoud, Misc. Land Appeal No. 72/2010, HC Land Division, Dar es Salaam (unreported) where it was held that ownership must be established by clear and cogent evidence and stated that the Tribunal made the right and just decision as her evidence overweighted the appellants' evidence. In opposing the third ground, the respondent explained that in the /ccusvisit all parties appeared in person with their witnesses and all neighbours were present. She said, the Chairman of Tribunal surveyed all land in dispute and asked neighbours about ownership of land in dispute and neighbours recognize Jangeni Konjela (deceased) as the first lawful owner of the suit land a thing which made the Chairman to reach into decision in favour of the respondent. On the basis of her submissions, the respondent prayed for the Court to declare all agreements with regard to the land in dispute as null and void and declare the suit land as forming part of the late Jangeni Konjela's estates. Upon reading the appellants' grounds of appeal and the submissions of the parties, I have found it imperative to begin with the third ground of appeal in which the appellants are complaining that the Honourable Chairman of the Tribunal erred in law and fact for failure to account for what transpired while visiting focus in quodind thereby making a wrong decision. The reason for so doing is that if the proceedings reveal that the Tribunal visited the locus in quo and collected evidence that impacted the Tribunal's findings in its judgement, this Court will be able to properly determine the appellants' and 2"^ grounds of appeal on the Tribunal's failure to properly record, consider and evaluate the evidence on record. Another reason for so doing is that the ground touches the propriety of the conduct of the proceedings at the tribunal which this Court is mandated to determine in reaching its verdict that the proceedings were properly conducted resulting to a just decision. I have revisited the parties' submissions on the ground at hand. While the appellants complained of the impropriety of the Tribunal's visitation to locus in quo including failure to account for what transpired at the locus and that the land that the Tribunal visited was different land from that is owned by the appellants, the respondent submitted that Tribunal properly conducted the proceedings at the bcus in quo. The respondent contended that the locus In quo was conducted in the presence of the parties and their witnesses and all neighbours, and that the Tribunal surveyed the suit land and received evidence from the neighbours which revealed that the suit land measuring half an acre was owned by Jangeni Konjela. From the said visit, the boundaries to the suit land was also established. Although the respondent's contention in the submission which might be the true affair of what transpired at the iocus in quo, there is no account of the events in the proceedings of the Tribunal. Not only that the proceedings do not contain what transpired in the locus in quo including the evidence taken from the neighbours, what questions were asked and answers given by the parties or their witnesses, but also the Tribunal did not indicate in its judgement of its visitation to the focus in quo and the evidence it received at the locus that it considered in arriving at its decision. W My reading of the handwriting proceedings of the Tribunal reveals that on 29^ September 2021 when the suit was called for hearing, the respondent applied for the Tribunal to visit the locus in quo, the prayer which the appellants did not object. On the same day, the Tribunal visited the locus in quo where all parties were present together with the Chairman of Msowero village, Mr. Petro Sanga. There was no record if the assessors visited the locus in quo. The Tribunal recorded that the suit land was measured by feet and found that its width was 20 and length was 33, and established the neighbours bordering the disputed land at the southern, northern, and western sides. The Tribunal drew a sketch map to show the suit land. Afterwards, hearing of the suit was adjourned to 17^ August 2021. It is clear from the proceedings that there was no account of the evidence received by the Tribunal including that of the neighbours as stated by the respondent in her submission, and the persons who showed the boundaries to the Tribunal. The proceedings are also silent on the observations made by the Tribunal upon completion of the proceedings at the locus in quo and whether the same were read to the parties. It has been held in a number of cases that the visit of the focus in quo is not mandatory, but is normally done only in exceptional circumstances, and when it is necessary to conduct the same, the courts are bound to carry it out properly. The purpose of the visit to the locus in quo is to establish whether the evidence in respect of the property is in tandem with what pertains physically on the ground because the visit is not for the purposes of filling gaps in evidence. For instance, in the case of William Mukasa v. Uganda [1964] E.A.696 on page 700, Sir Udo Udoma G (as he then was) held that:- ''A view ofa focus in quo ought to be, to check on the evidence already given and where necessary and possible, to have such evidence ocuiary demonstrated in the same way a court examines a plan or a map or some fixed object already exhibited or spoken ofin the proceedings. It is essential that after a view of a judge or magistrate should exercise great care not to constitute h im self a witness in the case. Neither a view n or personal observation should be a substitute for evidence" In the matter at hand, apart from the Tribunal's observation or report of what was testified, the proceedings do not indicate the exact testimony of the witnesses; if the witnesses' testimonies were taken under oath; and if the parties were allowed to cross examine the witnesses. The entire proceedings showing exactly what transpired at the locus in quo were not recorded. As shown above, the tribunal's proceedings on the locus in quo only showed the coram without the two assessors, the parties and their witnesses, part of the boundaries and the size of the suit land which was 10 ^ measured by feet. Apparently, there is no record of any view, opinion or conclusion of the Tribunal and no record that the same was made known to the parties and their advocates. In the case of Kimonidimitri Mantheakis v. Ally Azim Dewji & Others^ Civil Appeal 4 of 2018[2021] TZCA 663(3 November 2021), the Court of Appeal articulated the guidelines when courts decide to visit locus in quo. On page 8 through to 9 of the decision, the Court held that: In the fight ofthe cited decisions, for the visit ofthe iocus in quo to be meaningful, it is instructive for the trialJudge or Magistrate to: one, ensure that aii parties, their witnesses, and advocates (ifany)are present Two, aiiow the parties and their witnesses to adduce evidence on oath at the iocus in quo; three, aiiow cross-examination by either party, or his counsel, four, record aii the proceedings at the iocus in quo; and five record any observation, view, opinion or conclusion of the court including drawing a sketch pian if necessary which must be made known to the parties and advocates, ifany. As there is no record of the proceedings evidencing the entire proceedings of the iocus in quo, there is no account of what transpired in absence of the entire record. Based on the irregularity which I find to be fundamental, I do not accept the invitation by the respondent that the proceedings at the iocus in was conducted properly, transparently and accorded both parties the right of a fair hearing. ^ 11 Based on the irregularities pointed above, this Court has been precluded from making proper analysis and re- evaluate the evidence adduced at the Tribunal including what had transpired at the visit in the locus in quos\Vi\r\^ as the first appellate court. In dealing with a similar scenario in the case of Jovent Clavery Rushaka Another v. Bibiana Chacha, Civil Appeal No. 236 of 2020 [2021] TZCA 3527(20 December 2021)the Court of Appeal on page 21 observed thus: "We have stated herein that the proceedings during the visit at the iocus in quo are not in the record ofappeal. Therefore, it is notdear as to what transpired during the visit. We are left in the dark.....In that regard we agree with Mr. Rwegasira that there was a flouting of the procedures during the visit that occasioned a miscarriage ofjustice as the Court sitting on first appeal could not make a proper re- evaluation of the entire trial evidence including as to what had transpired at the visit in the locus in quo - see: Kimonidimitri Mantheakis (supra). Accordingly, we find merit in the fifth ground ofappeal. [Emphasis added]. In consequence, the irregularity in the conduct of the locus in quo vitiates the proceedings and resulting judgment of the Tribunal. Consequently, I nullify the proceedings of the District Land and Housing Tribunal of Kilosa at Kiiosa in Land Application No. 35 of 2020, and quash the resultant judgement 12 and orders emanating therefrom. I further order an expedited retrial before another Chairperson of the Tribunal. Since the ground has sufficiently disposed of the entire appeal, I find no essence of determining the and 2"^ grounds of appeal. In the circumstances, the appeal is allowed. However, considering the irregularity was occasioned by the Tribunal, I make no order as to costs. It is so ordered. DATED at MOROGORO this 29^ day of August 2024. o« H. A. KINYAKA JUDGE 29/08/2024 jj. Court: Judgment is delivered in the presence of the respondent and the court clerk, and in the absence of the appellants who were duly notified. Right of appeal fully explained. S. P. KIHAWA 0* DEPUTY REGISTRAR cQ 29/08/2024 \ 13