RODA NUBISE

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA LAND APPEAL NO. 000018453 OF 2024 RODA NUBISE .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS KASTUS LAMECK &2 OTHERS .............................. RESPONDENT / DEFENDANT JUDGMENT KAHYOZA, J, Before the District land and Housing Tribunal, herein the DLHT for Kasulu at Kasulu, Roda Nubise, the Appellant herein sued the Respondent for a parcel of land whose value was estimated at Tshs.24,000,000/-. According to the description depicted from the pleadings, the said land is found in Nyamabuye village within Kigondo ward in Kasulu District. The facts of the case can briefly be stated as follows. That the Appellant owns a land measuring 12 acres found in Nyamabuye village within Kigondo ward in Kasulu district. It is further stated that the Appellant has been in full and continuous ownership of the said shamba since 2000 up 2022 when the Respondents trespassed over the same thus compelling her to sue them, leading to the present suit. On the other hand, however, the Respondent who was sued by the Appellant stated in his Written Statement of Defence (WSD) that he does not own a land in Kigondo ward, but that he owns one in Nyansha ward and that he was allocated the same and/or purchased the same from the Nyansha Village government. It is further stated that his land only measures one acre. After a full trial, the DLHT found and held in favour of the third Respondent. In addition, the DLHT also dismissed the case against the first and second Respondents in that no case had been made out against them. The Appellant was aggrieved with that decision. She has now lodged this appeal challenging the decision of the DLHT. She has filed a petition of appeal containing three grounds, namely; 1. That, the trial tribunal erred both in law and in facts for the decision it reached basing on the reasons that the appellant did not explain anything concerning the land trespassed by the 1st and 2nd respondents while the appellant explained that the 1st and 2nd respondents sold the land in dispute to the 3rd respondent. 2. That, the trial tribunal erred both in law and in facts for the decision it reached while the evidence of the appellant had no any contradictions. Page. 1 3. That, the trial tribunal erred both in law and in facts for the decision it reached without considering the evidence of the appellant which had more weight compared to the weak evidence of the 3rd respondent. I wish to start by pointing out that the contest was between only the Appellant and the third Respondent, as the first and second Respondents, not only that they did not appear but also that they never filed any representations on their behalf. When the matter came up for hearing, both the Appellant and the third Respondent did not make any submission. On one hand the Appellant urged the court to consider her grounds of appeal, while the third Respondent on the other hand urged the court to consider his reply and decide accordingly. I have carefully and dispassionately considered the three grounds of appeal as well as the reply filed by the Respondent. My conclusion is that these three grounds of appeal in essence they boil down to one ground of appeal. This ground of appeal can be paraphrased in the following words: That the trial tribunal erred in law and in facts for not entering judgement in her favour, while shed she had proved her case on the required standards. But before delving into the merit or otherwise of this appeal, I wish to consider one aspect that has cropped up and has caught my attention. This is nothing but the location of the suit land. Reading from the pleadings, it would appear parties are claiming in respect of different parcels of land. It seems to me that apart from the fact that this issue clearly features in the pleadings, the DLHT however did not considered it. I am increasingly of the view that had the trial chairman considered this aspect, probably it would have a different impact on its decision. As it can be gathered from the pleadings, and as I pointed out earlier, the Appellant stated before the DLHT that the suit land she was claiming measured 12 acres in size. She further stated that the said suit land was located in Nyamabuye Village within Kigondo ward in Kasulu district. On the other hand, the third Respondent through his Written Statement of Defence (WSD) categorically stated that his land was only measuring one acre. He further stated that his land was not located in Kigondo ward as alleged by the Appellant. To the contrary, the third Respondents land was located in Nyansha village within Nyansha ward in Kasulu district. This is reflected in paragraphs 5 and 6 of the third Respondent’s WSD. To cap it all, the third Respondent through what he pleaded under paragraph 9 of the WSD, he invited the trial tribunal to visit the locus in quo for ascertaining these facts. I think this was kind of ringing the bell. Had the trial chairman taken on board this issue and considered it for determination, no doubt it would have an impeccable impact on the decision. From the pleadings, it is clear that parties are talking of two different suit lands. I have had an opportunity of closely examining the evidence adduced by each side. It does not look like such evidence resolved the issue. It therefore follows that even the decision reached does not seem to have decided over the real dispute. That is why, probably, neither the judgement nor the decree categorically states the size and location of the suit land. Both the judgement and decree have the following wording: Page. 2 Baada ya kueleza hayo, shauri la mleta maombi dhidi ya mjibu maombi Na.3 halina mashiko, linatupiliwa mbali. Mjibu maombi Na.3 ndiye anatangazwa mmiliki wa ardhi hiyo. [Bold supplied for emphasis]. From the above excerpt, there is no way one can identify the size and/ or location of the suit land. This means even execution of the decree is not possible. The sole and appropriate way to settle the issue was for the trial tribunal to visit the locus in quo so as to physically see the location of the suit land. In other words, this was one of the cases in which visiting the locus in quo was inevitable. It is now a settled principle, and indeed trite law that visiting the locus in quo is normally done at the court’s discretion, that is, when the court deems it necessary. See Nizar M.H. v. Gulamali Fazal Janmohamed [1980] TLR 29. But if I may add, there are cases with some compelling circumstances in which visiting of the locus in quo is mandatory in order to attain justice. The circumstances obtaining in the present case squarely fall into that category. In Avit Thadeus Massawe vs Isdory Assega (Civil Appeal No. 6 of 2017) [2018] TZCA 357 (14 December 2018) the Court of Appeal underscored the importance of visiting the locus in quo where and when the circumstances so demand. Borrowing a leaf from the Nigerian case, the Court had this to say: 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 Othiniel Sheke V Victor Plankshak (2008) NSCQR Vol. 35, p. 56. 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 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 Ezemonye Okwara Vs. dominic 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 added). As indicated earlier, each party claims a different location as to where the suit property is found. While the Appellant says that the suit property is located at Nyamabuye village within Kigondo ward, the third Respondent maintains that the suit land is located in Nyansha village within Nyansha ward. As it is, these are conflicting averments as regard the location of the suit property. It was only by visiting the locus in quo that questions of location and boundaries would have been ascertained. Failure to do so left the real issue unresolved, thus Page. 3 occasioning miscarriage of justice. Now, as amply demonstrated above, the trial tribunals failure to visit the locus in quo amounted to fundamental error, thus occasioning miscarriage of justice. Just for the purpose of curing this anomaly, I hereby quash the judgement of the trial tribunal along with its resultant decree. I order that the record be remitted to the trial tribunal for it to visit the locus in quo in accordance with the laid down procedures, and thereafter compose a fresh judgement, which will also incorporate fresh opinion of assessors. Just for avoidance of doubt, the visit to the locus in quo shall be done by the same chairman and the same set of assessors unless they are no longer at the station. Whoever shall be aggrieved by that decision shall be at liberty to appeal from that decision. Thus, the appeal is allowed to the extent explained above. Each party shall bear own costs. Right of appeal is duly explained. Dated at KIGOMA this 24th of February 2025 . P. R KAHYOZA JUDGE OF THE HIGH COURT Page. 4