PAULO BOI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MANYARA

AT BABATI LAND APPEAL NO. 12288 OF 2024 (Originating from Land Application No. 85 of 2020, District Land and Housing Tribunal for Manyara region at Babati) PAULO BOI............................................................................APPELLANT

VERSUS JUMA MNYARUGE.......................................................... 1st RESPONDENT IDRIS ALLY................................................................. 2ND RESPONDENT HAMISI RAMADHANI...................................................3rd RESPONDENT HAMZA SADALA........................................................... 4th RESPONDENT RIFATIIDDI................................................................ 5th RESPONDENT HALIDI MNYARUGE..................................................... 6th RESPONDENT IBRAHIM ADAM........................................................... 7th RESPONDENT

JUDGMENT 25th September & 6th November 2024 D. C. KAMUZORA, J. Before the District Land and Housing Tribunal for Manyara at Babati (hereinafter referred to as the trial tribunal), the respondents sued the appellant for recovery of piece of land measuring 31/2 acres situated at Page 1 of 9 Homari village formerly Masakta village. According to the respondents, each of them was allocated V2 acre by the village following a village meeting held on 04/06/2014. The respondents alleged that, in early February 2017, the appellant trespassed into the suit land. The dispute was referred before Masakta ward tribunal which decided in favour of the appellant but the decision was quashed on appeal. On his part, the appellant filed a written statemen of defence and disputed the respondents' claims. He claimed that he has been in occupation of the suit land since 1990 after being given the same by his parents. After hearing the parties, the trial tribunal decided in favour of the respondents who were declared lawful owners of the suit land. The appellant was adjudged a trespasser on the suit land and ordered to vacate. The decision of the trial tribunal irked the appellant who preferred the instant appeal on the following grounds; 1. That, the trial tribunal erred in law to decide in favour o f the respondents without clearly observing the necessity o f visiting the locus in quo.

2. That, the trial tribunal erred in law to decide in favour o f the respondents without clearly observing that there is documentary evidence on surveyed land. Page 2 of 9 When the appeal was called for hearing, the appellant was represented by Mr. Raymond Kim learned advocate while the respondents were represented by Mr. John Lundu, learned advocate. In his submission in support of the 2nd ground of appeal, Mr. Kim submitted that, the suit land was full surveyed and the customary right of occupancy was admitted before the trial tribunal. He argued that, where there is document, any other evidence is excluded. He referred section 101 of the Evidence Act [Cap 6 R.E 2022], which refers exclusion of oral evidence where there is written evidence. He explained that while the appellant had customary right of occupancy, which was registered as 40/HNN/2019 and was later issued on 17/11/2020, the respondents had no customary right of occupancy. On the 1st ground of appeal Mr. Kim submitted that, if the trial tribunal was of the view that there was contradiction it should have visited the locus in quo. He argued that, the proceedings and judgment are doubtful for not visiting the locus in quo. He therefore urged the court to nullify the proceedings and the judgment of the trial tribunal. In reply to the 2nd ground of appeal, Mr. Lundu submitted that the pleadings show that the dispute

over the suit land started in February 2017 and the suit was filed before the ward tribunal as Land Application No. 4 of 2017. That, the 1st respondent was the sole applicant and the Page 3 of 9 ward tribunal decided in favour of the appellant but on appeal to the DLHT in Land Appeal No. 67 of 2017, it was decided that, since the dispute involved several people then the matter be filed afresh. Therefore, the instant matter was filed involving 7 applicants. He added that, the process for exhibit D1 started in 2019 thus, the appellant was aware of dispute when processing for the title. He therefore argued that, the title was obtained fraudulently. He insisted that, the trial tribunal correctly decided in favour of the respondents despite there being customary right of occupancy it was satisfied that the customary right of occupancy was obtained fraudulently. In his reply to the 1st ground of appeal, Mr. Lundu submitted that, none of the parties applied for visitation of the locus in quo. That, it is not necessary that in each case, the court has to visit the locus in quo. To buttress his arguments, the learned advocate referred case of Salum Mayombya & another vs Lucas Ndahunzi Civil Appeal No. 97 of 2024 [2024] TZCA 639 in which the Court of Appeal held that, there must be exceptional circumstances for visiting of the locus in quo. He argued that, the learned advocate for the

appellant was unable to show existence of such circumstance which could force the trial tribunal to visit the locus in quo. He also referred the decision from High court of Uganda in David Acar and 3 others Vs. Alfred Acal Aloro, (1982) on the need for sound Page 4 of 9 reason in visiting the locus in quo. He urged this court to dismiss the appeal with costs. In rejoinder, the learned advocate for the appellant insisted that the customary right of occupancy was issued by a proper authority thus, there was a need to visit the locus in quo in order to obtain evidence on how the customary right of occupancy was issued. Having gone through the parties' rival submissions and the record of the trial tribunal, I will determine the grounds of appeal starting with the first ground. On the 1st ground of appeal, I agree with the learned advocate for the respondents in view of the authorities referred that, visiting of the locus in quo should be preferred in exceptional circumstance. In the instant matter, I am of the settled view that visiting of the locus in quo was not necessary. First, neither of the parties sought for visiting of the locus in quo. Second, there was no important issue like challenge in boundaries or location that was raised by the parties suggesting that there was a need for visiting the locus in quo. The argument by the learned advocate for the appellant that visiting

of the locus in quo was necessary in order to know how the customary right of occupancy was obtained, is baseless. The manner on how the customary right of occupancy was obtained does not need to be proved by visiting of the locus in quo. Page 5 of 9 Therefore, the 1st ground of appeal is not merited and it is hereby dismissed. On the 2nd ground of appeal, the learned advocate for the appellant faulted the trial tribunal for deciding the matter in favour of the respondents and ignoring the documentary evidence tendered by the appellant. It is on record that, before the trial tribunal, one issue was framed as to who is the lawful owner of the suit land. Three witnesses testified for the respondents including the 1st respondent (AW1), agricultural officer (AW2) and the then village chairman (AW3). The trial tribunal was satisfied that the respondents were able to prove their claims on the strength of the evidence of AW2 and AW3. The tribunal chairman was satisfied with their evidence and the contents of minutes of the village meeting showing that the respondents were allocated the suit land by village. Going through the evidence, the agricultural officer (AW2) claimed to have participated in surveying the land measuring 22 acres. According to AW2, the said land was specifically reserved and allocated to the youths including the respondents. AW3 claimed to be the village

chairperson who convened the meeting which came up with land use plan and allocation of land to the youths. He supported the evidence of AW2 that the respondents were among the youths who were allocated Vi acre each Page 6 of 9 land out of 22 acres. It is unfortunate that the said minutes for the village meeting was never made part of the evidence. Although annexed to the pleadings, it was never tendered and admitted as exhibit thus, the trial tribunal wrongly referred the said minutes which was not part of the respondents' evidence. Beside, the record shows that out of 7 respondents, only the 1st respondent appeared and testified before the trial tribunal. In his evidence, the 1st respondent claimed that, he was among 35 youths who were allocated land. He never specifically mentioned his fellow respondents or tendered any document to substantiate his claim. Since each of the respondents was claiming a separate piece of land of Vi acre, it was necessary for each of them to appear and prove his claim. This position was underscored in the case of Security Group (T) LTD vs Samson Yakobo & 10 others Civil Appeal No. 76 of 2016 (unreported) in which reference was made to the case of Agriculture and Food Corporation vs Mulbadaw Village Council and Others [1985] TLR 88. In that regard, this court finds that failure by the 2nd to 7threspondents to appear before the trial tribunal to

testify means that they did not prove their claims. In addition, the available evidence does not prove that the respondents were legally allocated the suit land. The respondents being the claimants before the trial tribunal were required to lead evidence to Page 7 of 9 establish their claims on the balance of probability. As I have discussed before, the respondents did not discharge that duty for the reasons stated. Therefore, the learned trial chairperson erred in deciding in favour of the respondents. On the other hand, the appellant claimed that, the suit land belongs to him as he was given the same by his parents in 1990. He processed for survey and was issued with the customary right of occupancy which was admitted as exhibit Dl. In his decision, the learned trial chairperson observed that the appellant illegally surveyed the suit land and obtained a customary right of occupancy for he had no right over the suit land. I do not agree with such conclusion for the following reasons; one, the said customary right of occupancy was issued for the land located at Homari village and it was signed and stamped by the village chairman and village executive officer. Two, when the customary right of occupancy was tendered before the trial tribunal, no objection was raised to challenge its admission and the witness who tendered it, was not cross examined over the said document. Thus,

the arguments by the learned advocate for the respondents that the customary right of occupancy was obtained fraudulently is, baseless and an afterthought. The fact that the same was obtained during the pendency of this dispute does not justify any illegality. Besides, the said customary right of occupancy was issued in 2019 and Page 8 of 9 was registered on 17/11/2020 while the matter before the trial tribunal was filed on 21/12/2020. It is settled law that, possession of title ipso facto proves ownership of the land unless there is evidence that, such title was obtained by fraud. In the instant matter, there was no evidence proving that the appellant fraudulently obtained the customary right of occupancy thus, he is considered a lawful owner of the suit land. On that basis, the 2nd ground is merited. Basing on the above discussion, I find the appeal to have merit and proceed to quash and set aside the judgment and decree of the trial tribunal. The appellant is hereby declared the lawful owner of the suit land. The appeal is therefore allowed with costs. DATED at BABATI this 6th day of November, 2024. Page 9 of 9