PETER JOHN Edited 222

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

AT BABATI LAND APPEAL NO. 15343 OF 2024 (Originating from Land Dispute in Application No. 26 of 2020 in District Land and Housing Tribunal of Babati) PETER JOHN................................................ APPELLANT

VERSUS SULTAN SELEMAN............................................ RESPONDENT

JUDGMENT 29th October, 2024 & 05th February, 2025 Kahyoza, J.: Peter John sued Sultan Selemani unsuccessfully before the District Land and Housing Tribunal (the tribunal) for trespass. He alleged that the latter trespassed onto his 35 acres of land. Aggrieved, Peter appealed to this Court alleging that, the tribunal failed, one, to analyze and evaluate the evidence properly; two, to verify the description, the exact boundaries, the exact size and location of the suit land; three, that the tribunal erred to hold that the appellant ought to have sued Iddi Matata, the alleged seller; and four, that it failed to record the appellant's crucial and material evidence. Lastly, that the tribunal raised suo motto the principle of adverse possession while composing the judgment and that it misdirected itself. 1 The appellant raised six grounds of appeal, which culminated to the following issues- 1) Did the tribunal analyze and evaluate the evidence properly or it misdirected itself?

2) Was there a requirement for the tribunal to visit the locus in quo to verify the description, exact boundaries, size and the location of the suit land?

3) Was the appellant bound to sue the vendor together with the respondent, the vendee, of the suit property?

4) Did the tribunal raise the principle of adverse possession suo mottu? As it can be discerned from the record, Peter John (the appellant) sued Sultan Sulemani (the respondent) for invading his 35 acres of land located at Mbugani Maweni location within Orngadida village. Peter John alleged that the suit land was allocated to him by the village authorities in 1985. He described the boundaries of the suit land that on the North was a "Pario" and escarpment (korongo), South was Peter John, John Andres and Thobias Peter, on the West was Peter John and Sylvester Peter and on the East side was John Andrea and Cosmas Peter. Sultan Selemani refuted Peter John's claim and contended that he procured the suit land from Iddi Ramadhan Matata. He added that the suit 2 land was allocated to Iddi Ramadhani Matata by the village authorities in 1985. Given the evidence on record and the findings of the tribunal, I find it beyond dispute that the village authorities allocated land to its villagers including the parties to this suit, Sultan Selemani and Peter John toghter with Iddi Ramadhani Matata. There are impeachable documents to that effect. I had a look at the documents, which indicated the seize of the land allocated but did not state the boundaries of the allocated land. A good thing is that the committee handed over the allocated land to the allocatee, thus, it must have identified the

boundaries. A fact that there was no dispute over the boundaries from 1985 to 2019 when this suit was filed, further proves that the allocating committee pointed out the boundaries to the parties. I find it also proved that on 4.1.2007 Iddi Ramadhani Matata gave the 50 acres of land to Sultan Sulemani and executed a transfer deed before Hon. C. Magesa, the resident magistrate. Later, on 9.1.2007, the same Iddi Ramadhani Matata affirmed that he sold 50 acres of land to Sultan Selemani before Hon. Julius M. Dagharo, the primary court magistrate. The affidavit stated the boundaries of the land Iddi Ramadhani Matata transferred to Sultan Sulemani. It is on record that Sultan Sulemani took possession of the 3 suit and used it for farming. Peter John alleged that Sultan Sulemani invaded his land in 2008. He sued Sultan Sulemani in the land tribunal and won. He did not attach a copy of the judgment. He added that after Sultan Sulemani invaded his land, he fell sick until 2019 when he instituted this matter. Indisputably, Peter John obtained 60 acres of land and Iddi Ramadhani Matata did obtain 120 acres of land from the village authorities. The latter (Iddi Ramadhani Matata) sold 50 acres of his land to Sultan Suleman, the respondent. It is obvious that the dispute may be over the boundaries and the actual size of the land Sultan Sulemani procured from Iddi Ramadhani Matata. That may

have been the reason which prompted the parties and their advocates, before the suit commenced, to pray to visit the locus in quo. The tribunal granted the prayer to visit the locus in quo, however, it did not visit the locus in quo as it had ordered or give reasons for vacating its order or it may have visited the locus in quo without keeping any record. The order to visit the locus in quo was made on 27.09.2021 and revisited on 3.11.2021. Was failure of the tribunal to visit the locus in quo fatal and vitiated the proceedings? The appellant complained in the second ground of appeal, which I propose to begin with, that the tribunal erred in law and fact for failing to 4 visit the locus in quo to verify the description, exact boundaries, size, and the location of the suit land. The appellant's advocate submitted in support of the first ground of appeal that the tribunal ordered the visit of the locus in quo because of the agreement between the parties. He contended that after tribunal decided to visit the locus in quo it was bound by the procedure laid down in Nizar M. H. Ladak V. Gulamali Fazal Jan Mohamed [1890] TLR 29. He added that there is no dispute that the tribunal visited the locus in quo but there is no evidence that the tribunal compiled with the procedure laid down. To him, he argued that the nature of evidence necessitated the tribunal to visit the locus in quo.

The parties had stated different boundaries and the size of the disputed land. The judgment and the proceedings do not show if the surveyor accompanied the tribunal to visit the locus in quo. It is not clear if the advocates were given an opportunity to comment or not or whether the witnesses present at the locus in quo commented under oath or not. He concluded that failure to observe the procedure occasioned injustice to the appellant. He prayed this court to quash and set aside the judgment of the tribunal and order a retrial. 5 The respondent's advocate Mr. Masanja replied generally that the appellant's advocate referred to the judgment but he did not make the reference to the proceedings. He added that the appellant's advocate raised issues not covered by his grounds of appeal. He contended further that the appellant’s advocate was trying to impeach the judgment of the tribunal, the act not permitted. He cited the case of Halfan Sudi v Abeeza Chichili, [1998] TLR 527 to support his contention. Having heard the submissions, I wish to state that there is no law making it mandatory to visit the locus in quo. It is discouraged to visit the locus in quo as a court or a tribunal is turned in a witness. Thus, the court or tribunal should visit the locus in quo when there exists exception circumstance as held in Nizar M. H. Ladak V. Gulamali Fazal Jan Mohamed (supra). The Court of

Appeal held in Nizar M. H. Ladak V. Gulamali Fazal Jan Mohamed (supra) that- "It is only in exceptional circumstances that a court should inspect a locus in quo, as by doing so a court may unconsciously take the role of a witness rather than adjudicator. " As stated above, it is not clear whether the tribunal visited the locus in quo as the record is silent. The appellant's advocate submitted that the tribunal and the parties visited the locus in quo but violated the procedure. 6 The respondents advocate did not specifically address this issue. I am in one with the appellants advocate that if the tribunal visited the locus in quo it violated the procedure to obverse while visiting the locus in quo. There is no record of what transpired when the tribunal visited the locus in quo. It is settled that when a court or a tribunal finds it fit to visit the locus in quo it ought to comply with the procedure laid down in Nizar M. H. Ladak V. Gulamali Fazal Jan Mohamed (supra). The Court of Appeal stated that - "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 o f 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." The Court of Appeal also pronounced itself on the procedure of visiting the locus in quo in Kimonidimitri Mantheakis v. Ally Azim Dewji & Others Tanzlii [2021]), that 7 "...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. Five, record any observation, view, opinion or conclusion of the court including drawing, a sketch plan, if necessary, which must be made known to the parties and advocates, if any." There is no indication on the record that the tribunal complied with the above procedure. Thus, if the tribunal visited the locus in quo, it violated the procedure and the evidence collected was a nullity. It could be that the tribunal did not visit the locus in quo although

it had made a finding that it had found vital do so. I have already pointed out that it is not mandatory for trial court or tribunal to visit locus in quo. However, it may visit the locus in quo when exceptional circumstance exists. The issue is whether there existed exceptional circumstance in the present case for visiting the locus in quo. The Court of Appeal of Tanzania in explained circumstances under it is vital to visit the locus in quo in Avit Thedeus Massawe v. Isidory Assenga Civil Appeal No. 6/2017. It stated that- 8 "'Since the witnesses differed on where exactly the suit property is located, we are satisfied that the location of the suit property could not, with certainty, be determined by the High Court by relying only on the evidence that was before it. A fair resolve of the dispute needed the physical location of the suit property be clearly ascertained. In such exceptional circumstances courts have, either on their own motion or upon a request by either party, taken move to visit the locus in quo so as to clear the doubts arising from conflicting evidence in respect of on which plot the suit property is located. The essence of a visit to a locus in quo has been well elaborated in the decision by the Nigerian High Court of the Federal Capital Territory in the Abuja Judicial Division in the case of Evelyn Even Gardens NIC LTD and the Hon. Minister, Federal Capital

Territory and Two Others, Suit No. FCT/HC/CV/1036/2014; Motion No. FCT/HC/CV/M/5468/2017 In which various factors to be considered before the courts decide to visit the locus in quo. The factors include: 1. Courts should undertake a visit to the locus in quo where such a visit will clear the doubts as to the accuracy of a piece of evidence when such evidence is in conflict with another evidence (see OthinielSheke V Victor Plankshak (2008) NSCQRVoL 35.

2. The essence of a visit to locus in quo in land matters includes location of the disputed land, the extent, boundaries and boundary neighbor, and physical features 9 on the land (see Akosile Vs.Adeyeye (2011) 17 NWLR(Pt. 1276) p.263.

3. In a land dispute where it is manifest that there is a conflict in the 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 (see Ezemon ye Okwara Vs. dominie Okwara (1997) 11 NWLR(Pt. 527) p. 1601).

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." (Emphasis is added). In the present case, the parties owned adjacent plots of land. The appellant acquired it by allocation from the village authorities while the respondent procured it from Iddi Ramadhan Matata (Dw3) who acquired it from the village authorities. Visiting the locus in quo would have cleared the dust over the size and boundaries of the land the respondent procured from Iddi Ramadhan Matata (Dw3) and that of the appellant. Neighbours to the disputed land would have pointed out the boundaries. I find that in the present case it was vital for the tribunal to visit the locus in quo as it had ordered if it did not. io In fine, I find that if the tribunal visited the locus in quo it did so in violation of the procedure, which rendered the proceedings of visiting the locus in quo and the evidence obtained therefrom, a nullity. Consequently, I nullify the proceedings of visiting the locus in quo and the evidence obtained therefrom, if it existed. If the tribunal did not visit the locus in quo in the circumstances of this case, that was fatal omission which rendered the suit incompetently determined. For either of the

reason stated above, the judgment and decree based on nullity proceedings cannot stand, I according set aside the judgment and decree of the tribunal. Was the appellant bound to sue the vendor together with the respondent, the vendee, of the suit property? After setting aside the judgement and decree of the tribunal, I would have stopped at that but I find that there is another legal based issue, that I must answer. That is issue is whether the appellant was required to sue the vendor (Iddi Ramadhan Matata (Dw3)) and the vendee, (the respondent). It is on record that the appellant sued the respondent for trespass. The respondent refuted the allegation that he was a trespasser to the suit land contending that he bought the land from (Iddi Ramadhan 11 Matata (Dw3). Thus, the appellant sued the vendee leaving aside the vendor of the suit land. The appellant's advocate took a position that the seller was not a necessary party in the present case. He contended that the appellant who was the plaintiff, was at liberty to sue a party he wished and that principle applied to proper party but not for a necessary party. The transferor was not sued. The issue is whether the transferor was a necessary party? The Court of Appeal in Abdullatiff Mohamed Hamis v. Mehaboob Yusuf Osman and Fatna Mohamed Civil Revision No. 6/2017. He submitted that the seller was not a necessary party, so the

tribunal erred to dismiss the suit simply because he did not sue the seller. The respondent's advocate did not address the issue of whether the seller/ vendor was a necessary party or not. I will begin by saying the obvious; one, that the tribunal did not dismiss the appellant's claim for failure to join the vendor; two, that the law is settled that as stated in Juma B. Kadala Vs. Laurent Mkande (1983) (TLR) 103 that where it was held that, when a suit is for recovery of land the seller and the buyer must be joined to the suit. The Court in Juma B. 12 Kadala Vs. Laurent Mkande (supra) was of the position that a vendor was a necessary party in suit for recovery of land. The Court of Appeal in Abdi M. Kipoto vs Chief Arthur Mtoi (Civil Appeal No. 75 of 2017) [2020] TZCA 26 (28 February 2020) defined a necessary party as- ’71 party becomes necessary to the suit if its determination cannot be made without affecting the interests of that necessary party. Black's Law Dictionary, Eighth Edition, by Bryan A. Garner, defines the term interested party as- "a party who has a recognizable stake (and therefore standing) in a matter. II. The same legal work defines the term "necessary party" as: "A party who, being closely connected to a lawsuit, should be included in the case if feasible, but whose absence will not require dismissal of the proceedings. The Court of Appeal went on to state

in that case that- "At this juncture, while still on the subject, we find it irresistible to refer to our decision in Melchiad Peter Kimaro v. Riziki Samuel (as Administratrix of the Estate of the late Mama Hattasi) & 2 Others, Civil Revision No. 5 of 2017 (unreported) wherein we grappled with the circumstances under which a necessary party may be joined. In an endeavour to answer the question, we recited the position we previously took in Tang Gas Distributors limited v. Mohamed Salim Said and 2 Others, Civil Revision No. 68 of 2011 (also unreported) in which we held: 13 "... an intervener, otherwise commonly referred to as a NECESSARY PARTY, would be added in a suit under this rule [Order 1, rule 10 (2) of the Civil Procedure Code, Cap. 33 RE 2002} even though there is no distinct cause of action against him, where- a) in a representative suit, he wants to challenge the asserted authority of a plaintiff to represent him; or b) his proprietary rights are directly affected by the proceedings and to avoid a multiplicity of suits, his joinder is necessary so as to have him bound by the decision of the court in the suit; or c) in actions for specific performance of contracts, third parties have an interest in the question of the manner in which the contracts should be performed; and/or d) on the application of the defendant, it is shown that the defendant cannot effectually set up

a defence he desires to set up unless that person is called as a co-defendant. [Emphasis provided) Going by the above position of the law, if the tribunal makes the finding the disputed land is the appellant's property, the respondent will revert to the vendor for the contract price and the vendor will have to sue the appellant to recover his land. Not only that but also, the tribunal cannot declare the respondent a trespasser without stating that the seller had no title to pass 14 to him. Such a declaration would prejudice the vendor's right without being a party to the suit. Thus, the vendor's proprietary rights are directly affected by the proceedings and to avoid a multiplicity of suits, his joinder is necessary so as to have him bound by the decision of the court in the suit I am of the firm view that, the vendor, (Iddi Ramadhan Matata (Dw3), was a necessary party whose absence the decree would not be executed. I find that the suit was irregular for non-joinder of parties. It cannot be allowed to stand. Having determined the second and third grounds of appeal, I see no reason to consider the remaining grounds of appeal. In the end, I find that the suit is incompetent for non-joinder of the necessary party. Order I rule 9 of the Civil Procedure Code, (Cap. 33 R.E. 2019) (the CPC) states that that no suit shall be defeated for misjoinder or non-joinder of parties. Order 1

rule 10 of the CPC permits a court to order upon an application or suo mottu a person who ought to have been made a party to be added or who was wrongly joined to be removed. Order I rule 10(2) of the CPC states that- "10.-(l).... 15 (2) The court may, at any stage of the proceedings, either upon or without the application of either party and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added." The court of Appeal in Costantine B. Assenga vs Elizabeth Peter & Others (Civil Appeal No. 70 of 2019) [2022] TZCA 240 (29 April 2022) while interpreting Order I rule 10(2) of the CPC state that- It is abundantly clear that under the reproduced Rule, a party who ought to have been joined as plaintiff or defendant but is not joined; or who without his presence the questions in the suit cannot be completely decided may be added as party either by application of party to the suit or by the order of the trial court (see Farida Mbaraka & Farida Ahmed Mbaraka v. Domina Kagaruki, Civil Appeal No. 136 of 2006,

Tanga Gas Distributors Ltd v. Mohamed Salim Said and Two Others, Civil Revision No. 6 of 2011 (both unreported)." For the interest of justice and having considered the evidence on record, I quash the entire proceedings from the date of commencement of 16 the trial up to the date of judgment and set aside the judgment and decree. I also order the record to be remitted with dispatch to the tribunal for retrial after the vendor, the necessary party, has been joined in the suit. In addition, having determined that it was vital to visit the locus in quo, I order that should the tribunal retry the suit, it ought to visit the locus in quo before composing the judgment and do so according to the procedure discussed above. As I have partly allowed the appeal, as shown above, I make no orders to costs. I order accordingly. Dated at Babati this 5th day of February, 2025. John R. Kahyoza,

JUDGE Court: Judgment delivered in the presence of the appellant and the respondent. Mr Shedrack (RMA), the bench clerk, present. John R. Kahyoza, J. 5.2.2025 17