MWANAIIMANI TULI SCANNED

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 29081 OF 2024 (Originating from Land Application No. 16/2023 from Kisarawe District Land and Housing Tribunal) MWANAIMANI TULI .1st APPELLANT JUMA RAMADHANI.. 2nd APPELLANT VERSUS RICHARD ELANGWA SHAIDI.......................... RESPONDENT JUDGMENT 13/02/2024 & 19/02/2025 A. MSAFIRI, J, The appellant being aggrieved by the decision of District Land and Housing Tribunal of Kisarawe in Land Application No. 16 of 2023, (herein the trial Tribunal), lodged the instant appeal challenging the said decision basing on five (5) grounds of appeal which I will not reproduce herein. The appeal was heard by way of written submissions whereas the appellants7 submission in support of the appeal and the rejoinder was drawn and filed by Ms. Tully Kaundime, learned Advocate while the reply submission by the respondent was drawn and filed by Lightness Lawrence Minja and Paul Happe, learned Advocates, J-Wf « i Initially, the applicants filed a suit before the trial Tribunal against the respondent claiming that they are the indigenous people who occupies the disputed land in Mitwini Village in Masaki Ward at Kisarawe District, Pwani Region. That they have occupied the said land from their ancestors who were the founders of the disputed land. The 1st applicant claims to own 6 acres while the 2nd applicant claims to own 8 acres. In their application, the applicants stated that the respondent claims to occupy the land situated at Sungwi area in Kisarawe District, the land which is located differently and separately from that of the applicants. They claim further that on 02/10/2021, the respondent trespassed into the applicants land at night and demolished the 1st applicants house as well as crops of both applicants. The applicants stated that the Title Deed which the respondent has was obtained illegally as it was claimed without following proper procedures. That he has used the said Title Deed to threaten the applicants and destroy their properties. They prayed for declaration that they are the lawful owners of the disputed land. In his defence, the respondent denied each and every allegation by the applicants and stated that he is the owner of the land property with Title No. 85519 situated at Sungwi, Kisarawe District and that he has no any- 2 claim in respect of property located at Mitwini, Masaki Village. He prayed that the application be dismissed with costs. After hearing of the evidence, the trial Tribunal declared the respondent the owner of the disputed land and the applicants, the trespassers. The applicants were dissatisfied and they have lodged the instant appeal. Having gone through the submissions, I will determine the grounds of appeal whereby I shall consolidate the two grounds of appeal, the first and second grounds for the reason that both are on the claim that the trial Chairperson erred when he failed to evaluate properly the evidence adduced by the appellants which shows that the disputed land is located at Mitwini Village and not Sungwi Village. That the trial Chairperson erred when he failed to address the key issue on the geographical boundaries of the disputed land and where exactly the land in dispute is allocated between the two villages i.e Mitwini Village and Sungwi Village. Having read the pleadings and the whole evidence and the findings of the trial Chairperson, I am inclined to agree with the counsel for the appellants that the key issue in this dispute was the location of the disputed land. Where exactly the disputed land was located? Was it in Mitwini, Masaki Village or in Sungwi Village? What were the boundaries of the disputed land? 3 It is my view that before determination of the ownership of the disputed land, it was important for the trial Tribunal to tackle first the issue of boundaries of the disputed land. I say so for the reason that the whole evidence including the pleadings reveals the controversy of the geographical location of the disputed land. In their application, the applicants claimed to be the occupants of the disputed land which is located at Mitwini Village in Masaki Ward at Kisarawe District, Pwani Region. On his side, the respondent stated to own the land property registered as Title No. 85519 located at Sungwi, Kisarawe. The respondent said that he has no any claim in respect of property located at Mitwini, Masaki Village. Beside the two appellants who have claimed that the disputed land belongs to them and it is within Masaki Village, there was also the evidence of SM4 Maulid Khalfani Madenge who said he was the Village Chairman of Sungwi Village since 1991 to 2023. He admitted to know the appellants and the respondent. That the appellants live in Masaki Village, while the respondent have a land in Sungwi Village which was formerly owned by his late father. He said that he knows that there was a land dispute and one day he was summoned to identify the area on which there was a demolished building^ 4 and he said that the demolished building is located on the part of Masaki Village. He further admitted that the disputed area is located within Masaki Village. Another important witness on the appellants' side was Zubeda Salum Mbwana who testified as SM5. She said that she was the Village Executive Officer (VEO) of Masaki Village from 2012 to 2023. She said that she knows the appellants and that they are the owners of the disputed land which is located at Masaki Village. She said further that there were several meetings between the leadership of Masaki Village and Sungwi Village to ascertain the location of the disputed land whereby it was discovered that the disputed land is within Masaki Village. This witness denied to know the respondent. SM6 was Ramadhani Mwinyimkuu who said that he was a Chairman of Masaki Village. That he knows the appellants as the residents of Masaki Village and they own land in the village and had constructed buildings. He said further that the Village Committees of Sungwi and Masaki Villages met to resolve the dispute of the location of the disputed land on whether it is situated in Sungwi, or in Masaki. That they visited the disputed area and found that the area is in Masaki Village. He insisted that the area is lawful owned by the 1st appellant, -o I . 5 On the part of the respondent, testifying as SU1, he said that he is the owner of a landed property with a size of 58 acres which he inherited from his late father one Elangwa Shaidi. That the disputed land is within Sungwi Village, the hamlet of Kimbalanganyi. He said that he has processed and followed all the process of registering the said land and the land was registered under Title No. 85519. The Title was produced in court and was admitted as exhibit U2. His evidence was supported by Philipo John Mtumwinyi, SU3 and Raymond Elangwa Shaidi, SU4 who both admitted that the disputed land is within Sungwi Village and it is registered with a Title. There was Jumanne Samsoni Mwampashi, SU2 said that he is a Land Officer from Kisarawe District Land Office and that it was their office which processed and eventually a Title was issued on the disputed land which is owned by the respondent. Having gone through the whole evidence, it is clear that the issue on the exact location of the disputed area was pertinent. The evidence of SM4,SM5 and SM6 who have been the village leaders of the two Villages, i.e. Masaki Village where the appellants claims that the disputed area is located and Sungwi village where the respondent claims that the disputed area is located, all stated that the disputed area is located at MasakL 6 Village. Even SM4 who was the village chairman of Sungwi Village from 1991 to 2023 hence conversant with the area, admitted that the area owned by the appellants is located at Masaki village. The appellants claims that the respondent has demolished the 1st appellant's building. It is the ruins of this building which SM4 identified to be within the area of Masaki Village. The respondent's exhibit U2 which is a Certificate of Title shows that his land is Farm No. 2994 located at Sungwi, Kisarawe District. In such circumstances whereby there is uncertainty of the location of the disputed land where the appellants and their witnesses stated the same to be in Masaki Village, while the respondent and his witnesses stated that the area is within Sungwi Village, it was very important that the trial Chairperson determine the issue of the geographical location or boundaries of the disputed land. With respect, it is my view that it was wrong for the trial Chairperson to rely solely on the Certificate of Title to base her decision that the disputed land belonged to the respondent. I am not disputing the legal position that the owner of the registered land is the one who possess a Title as correctly observed by the trial Chairperson.-Afl I _ 7 My finding is based on the facts and the evidence adduced in court which shows the contradiction on the parties on the location of the disputed land that the appellants claim to own a land situated in Masaki Village while the respondent claim to own a land situated in Sungwi Village. Is it the same land? Is the land which is registered under the Certificate of Title No. 85519 as Farm No 2994 located at Sungwi, Kisarawe in the name of Richard Elangwa Shaidi the same land which is claimed by the appellants to be their property located at Masaki? This is the case where the circumstances and the evidence incited the trial Tribunal, for the purpose of fair hearing and serving substantive justice to all parties, should have determined this key issue. Failure to determine this key issue resulted into a wrong decision which led to unfair trial which affected the parties to the dispute particularly the appellants. On the third ground, the appellants averred that the trial Chairperson erred when she denied to conduct visit on the disputed land while the same involved the boundaries between the two villages, Masaki and Sungwi. 8 In this, I agree with the submission by the counsel for the respondent that the visit of locus in quo is not mandatorily and it is solely on the courts discretion. I am also of the view that, although it is trite law that it is the court's discretion to visit locus in quo, I believe that there are circumstances which necessitate the visit of locus in quo especially where the issue concerns or touch on the contradiction on boundaries or location of the suit property. In the case of Prof. T. Maliyamkono vs Wilhelm Sirivester Erio, Civil Appeal No. 93 of 2021, CAT at DSM, the Court of Appeal set a position that a visit to the locus in quo is not mandatory and it is done only in exceptional circumstances. In the case of Avit Thadeus Massawe vs. Isdory Assenga, Civil Appeal No. 6 of 2017, the exceptional circumstances justifying visits to locus in quo were listed. The following circumstances have to be considered before the courts decide to visit the locus in quo; 1. Courts should undertake a visit to the locus in quo where such a visit will dear doubts as to the accuracy of a piece of evidence when such evidence is in conflict with another evidence. 9 2. The essence of a visit to locus in quo in land matters includes location of the disputed land, the extent, boundaries and boundaries neighbour and physical features on the land. 3. In a land dispute where it is manifest that there is a conflict in survey plans and evidence of the parties as to the identity of the land in dispute, the only way to resolve the conflict is for the court to visit the locus in quo. 4. The purpose of a visit to locus in quo is to eliminate minor discrepancies as regards the physical condition of the land in dispute. It is not meant to afford a party an opportunity to make a different case from the one he led in support of his claims. The principle hereinabove have been explained by the Court of Appeal of Tanzania in the cited case of Avit Thadeus Massawe vs. Isdory Assenga(supra), to be very relevant and crucial in providing general guidance to the courts in the event they, either on their own accord or upon request by either party, exercise their discretion to visit the locus in quo. As I have observed herein above, in the instant dispute, there is a contradiction as to the actual location of the disputed land particularly the geographical location. Considering the evidence which have already been analyzed, and in accord with the principle cited hereinabove, I find that this was a fit case for a visit to locus in quo to be made. The failure to conduct the visit resulted into unfair hearing. In the circumstances, it is my finding that the above three grounds of appeal have merit and I need not determine the remaining two grounds io as I have already touched them when I was determining the first, second and third grounds. I find the appeal to have merit on the reason that the trial Chairperson failed to determine the key issue which is the location of the disputed land. She also failed to visit locus in quo hence failed to resolve fairly, the contradiction on the physical location/ geographical location of the disputed land. I hereby quash the proceedings, set aside the judgment, decree and any subsequent orders by the trial Tribunal and order for retrial before the different Chairman and assessors. This court is of the view that the visit of locus in quo to ascertain the physical location of the disputed land is vital in this matter. The case file is remitted to the trial Tribunal for the expeditiously retrial of the case. The appeal is allowed with costs.