SALUMU BEYA CHIBILI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DODOMA SUB REGISTRY AT DODOMA LAND APPEAL NO. 16419 OF 2024 (Arising from Land Application No. 50 of 2023 before the District Land and Housing Tribunal for Kondoa at Kondoa) SALUMU BEYA CHIBILI................... APPELLANT VERSUS HUSSEIN ISSA HOTI........................... RESPONDENT JUDGMENT 14™ February 2025 MASABO, J.:- This is a first appeal. It has emanated from the Land and Housing Tribunal for Kondoa (herein referred to conveniently as the trial tribunal). It is based on four grounds which I summarize as follows: one, the complainant was denied the right to be heard because the trial tribunal did not hear his testimony. It only heard his witnesses. Two, the tribunal did not visit the locus in quota appreciate the nature of the dispute. Three, the tribunal did not correctly analyze the evidence before it and last, the trial tribunal erroneously disregarded the fact that the appellant proved his case to the required standards of proof. From the record, it is discerned that, the appellant filed an application before the trial tribunal alleging that the respondent had trespassed into his parcel of land measuring 5-acres. The respondent refuted the claims and maintained that the suit land is his. When the application went for trial, the appellant paraded two witnesses and so did the respondent. From their Page 1 of 10 evidence, the trial tribunal was fortified that the appellant failed to prove his claim and declared the respondent the lawful owner of the suit land. It is this finding that has aggrieved him. The hearing of the appeal proceeded in writing. The appellant was not represented. He fended for himself. The respondent was represented by Mr. Moses Cyril Masami, learned counsel. Submitting in support of the first ground of appeal, the appellant referred to the provision of Article 13 (6) (a) of the Constitution of the United Public of Tanzania, 1977 and submitted that the right to be heard is a constitutional right. Thus, it is now a cardinal principle that no one should be condemned unheard. Further, citing the case of Highland Estate Ltd. vs. Kampuni ya Uchukuzi Dodoma Ltd & Another, Civil Application No. 183 of 2004 (unreported), Halima Hassan Marealle vs Parastatal Sector Reform Commission, Civil Application No. 84 of 1999 (unreported), Abbas Sherally and Another vs. Abdul S.H.M. Fazalboy, Civil Application No. 133 of 2002[2005] TZCA 105 TanzLII Director of Public Prosecutions vs. Yassin Hassan @ Mrope, Criminal Appeal No. 202 of 2019 [2020] TZCA 1733 TanzLII , Margwe Erro and 2 Others vs. Moshi Bahalulu, Civil Appeal No. Ill of 2014 [2015] TZCA 282 TanzLII and National Housing Corporation vs. Tanzania Shoe Company Limited and Others [1995] TLR 251, he submitted that, the law is now settled that, violation of the right to be heard is fatal. It vitiates the proceedings and the decision. Page 2 of 11 He proceeded that in the present case, the tribunal offended this principle as it proceeded with the hearing without affording the appellant the right to be heard. He only paraded two witnesses but did not himself testify before the tribunal although he is the one with the best knowledge of the suit land. Thus, it is in the interest of justice that the decision of the trial tribunal and its proceedings be quashed and set aside. Regarding the second ground of appeal, it was submitted that it is a settled principle in our jurisdiction that a visit of the locus in quo is not mandatory. It is done only in exceptional circumstances, notably when the circumstances, the nature of the case and the interest of justice so require (see Said Mnyangule vs Maimuna S. Mkwata, Appeal No.90 of 2016, High Court of Tanzania (unreported). The present case, he argued, was of the nature that necessitated the visit to ascertain the boundaries of the suit land as they were contested. It was therefore mandatory for the trial tribunal to visit the locus in quo. Irrespective, the tribunal did not visit the locus in quo. Hence, defeated the ends of justice. The third and fourth grounds of appeal were consolidated and argued as one. It was argued that the trial tribunal materially erred by its failure to analyze the evidence and declare the respondent the lawful owner of the suit land. To remedy the injustice, the appellant invited this court, being the first appellate court to step into the shoes of the trial tribunal so as to analyze and reevaluate all the evidence given during the trial and enter a judgment in the appellant's favor. He specifically drew the attention of this court to Page 3 of 11 page 5 of the trial tribunal's judgment and submitted that, the tribunal was wrong in holding that the respondent acquired the suit land in 1985. Such a finding was not backed with any evidence and it, therefore, suggests as shown in page 5 of the judgment that the trial chairman decided the dispute based on his belief as opposed to the evidence on record. Fortifying his prayer for re-evaluation of the evidence, the appellant cited the decision of the Court of Appeal in Yasin Ramadhani Chang'a vs. Republic [1999] T.L.R. 489, He lastly prayed that the appeal be allowed with costs. The proceedings, judgment and decree of the trial tribunal be quashed and set aside. In his rebuttal, Mr. Masami, learned counsel, submitting on the first ground of appeal argued that indeed the right to be heard is a constitutional right and a principle of natural justice. Also, it is trite in our jurisdiction that no person should be condemned unheard. However, unlike the respondent, he submitted that the trial tribunal's proceedings are well in order as they were conducted in full compliance with this principle. Both parties were accorded the right to be heard and they paraded the witnesses in support of their respective cases. He submitted further that, as per the record, the appellant did not personally prosecute his application. It was prosecuted by his attorney, Ramadhan Salum Beya. When the matter was called for a hearing, the attorney paraded two witnesses who are PW1 Iddi Mohamed Nori and PW2 Hasan Salumu Busi. At the end of PW2's testimony, he told the tribunal that he had no other witnesses and closed his case. Mr. Masami concluded that the first ground of appeal is misconceived as the fault, if any, was Page 4 of 11 caused by the attorney who omitted to call the appellant or testify on his behalf. On the third ground of appeal, it was submitted briefly that as correctly submitted by the appellant, visitation to the locus In quo is not mandatory. It is done in exceptional cases. Therefore, for this ground to succeed, the appellant had to demonstrate that there were exceptional circumstances necessitating the visit but he miserably failed to demonstrate such circumstances. The second ground of appeal is therefore without merit and should be dismissed. On the 3rd and 4th grounds of appeal, it was submitted that these too are without merit as the appellant has failed to substantiate his claim that the trial tribunal's judgment was based on the chairman's belief and not the evidence on record. On the contrary, it is vividly clear that the decision was based on the evidence and as per the law, the trial tribunal extensively summarized and analyzed the evidence on record and before entering his judgment, he admitted the opinion of assessors and considered them. It was submitted further that, the law in our country casts the burden of proof on the person who alleges existence of a certain fact. In the present case, the duty rested on the appellant who was the claimant before the trial tribunal. He was obligated to prove on the balance of probabilities that he owned the suit land and that the respondent was a mere trespasser but he failed. He cannot, therefore, blame the tribunal for holding in the respondent's favor as his evidence was weaker compared to the respondent's. Summing up, he Page 5 of 11 submitted that these two grounds of appeal fail in entirety as they are devoid of merit. Thus, they should be dismissed with costs. The appellant filed a rejoinder submission. He argued that, the respondent's submission that the appellant's attorney forfeited the right to summon the appellant as a witness is without merit as it does not reflect what transpired in the tribunal on the material date. On the second ground of appeal, he reiterated that, in the circumstances of the present case, a visit to the locus Is quo was mandatory to ascertain the actual boundaries. On the third and fourth grounds of appeal, it was rejoined that the trial tribunal's decision is bad in law because it was based on the chairman's belief as opposed to the evidence on record. The appellant closed his rejoinder by reiterating his call for a re-evaluation of the evidence on record to remedy the injustice he has suffered. This marked the end of the submissions. On my part, I have carefully considered the submissions by the parties and I am ready to determine the appeal. As correctly submitted by the appellant, a first appeal is akin to a rehearing. In a first appeal such as the one at hand, the court is enjoined to reevaluate the evidence on record and come up with a finding. Restating this principle, the Court of Appeal of Tanzania in Yasin Ramadhani Chang'a v. Republic [1999] T.L.R. 489 (supra) had this to say: "Before we come to the end, we have to say that what was before the High Court was a first appeal, so it was by way of a rehearing and the learned judge was entitled to re- Page 6 of 11 appraise the evidence and draw inferences of facts. It is true, as Mr Jadeja pointed out, that the appellate court should tread with a lot of care since it is dealing with scripts while the trial court dealt with live persons revealing their demeanors. Despite of that, the appellate court can differ from the trial court if its opinion is not supported by the evidence and the right inferences." Since this is the first appeal, I shall stand guided by this rule. I will determine the grounds of appeal seriatim starting with the first ground of appeal. The appellant's major complaint in this ground is that the tribunal proceedings offended the right to be heard because it did not allow the appellant to testify in support of his case. The respondent on his party has maintained that there was no such violation as both parties were accorded the right to parade witnesses. While reading the record I observed that, as correctly submitted by the respondent, the appellant did not personally prosecute his case. He had it prosecuted by his attorney one Ramadhani Salumu Baya. It was further observed that the hearing of the application was scheduled for 25/3/2024. When invited to prosecute it, the appellant's attorney told the tribunal that he was ready to proceed with the hearing. His two witnesses who were also present on that date testified as PW1: Iddi Mohamedi Nori and PW2: Hasani Salumu Busi. After PW2 had testified, the appellant's attorney informed the tribunal that the applicant's side had no more witnesses and he prayed to close the applicant's case. The prayer was Page 7 of 11 granted. The applicant's case was closed and the defence opened afterwards. In light of this unchallenged record, I agree with Mr. Masami that, the appellant's complaint against the trial tribunal is lucidly misplaced because, in the adversarial system prevailing in our jurisdiction, the duty to parade witnesses and other forms of evidence rests solely on the parties, not the arbiter. The arbiter's duty is to ensure a fair trial by, among other things, affording equal opportunity to the parties to call witnesses and present other forms of evidence if any. The parties are at liberty to exercise such right or to forfeit it. If a party forfeits it and loses the case, he cannot anyhow blame the arbiter for his deficiency or laxity. Since the appellant herein was afforded such right and exercised it through his attorney who paraded two witnesses, he cannot blame the tribunal. He lucidly misdirected himself in relying on Article 13(6)(a) of the Constitution and the string of cases which are all distinguishable and inapplicable to this case as he was not only afforded the right to be heard but he exercised it by parading the witnesses for his case. The first ground of appeal, therefore, fails. On the second ground of appeal, I agree with the submission by both parties that much as the visitation of the locus in quo is crucial in certain cases, it is not mandatory. It is sparingly done at the discretion of the tribunal and in exceptional cases as held in the case of Nizar M.H. v. Gulamali Fazal Janmohamed [1980] TLR 29 and Sikuzani Saidi Magambo & Another vs Mohamed Robie, Civil Appeal No. 19 7 of 2018 [2019] TZCA 322 Page 8 of 11 TanzLII). The appellant has passionately submitted that the visitation was mandatory to ascertain the boundaries as the parties were in disagreement regarding the boundaries. I hastily disagree because this argument is inconsistent with the principle above. Not only that, nothing on record shows that the appellant prayed for such a visit or that he was refused. His complaint is therefore an afterthought and devoid of any merit. Turning to the third and fourth grounds which were consolidated as one, the appellant's complaint is twofold. First, the chairman decided the matter based not on the evidence on the record but on his belief. This is because on page 5 of his judgment, he stated that he believed that the respondent acquired the suit land in 1985 and that the suit land was part of the land owned by the appellant before he was relocated to ujamaa village. The respondent's counsel has submitted and I entirely agree with him that, the appellant's gravamen is baseless because the phrase "it is my belief" is commonly used in judgment in expression of the conclusion that the judge or magistrate has drawn after analyzing the evidence and this what happened in the impugned judgment. Reading it holistically, it shows that, the phrase 'it is my belief appearing on page 5 of the trial tribunal was a conclusion drawn from the parties' evidence as analyzed in the presiding paragraphs. The second part of his complaint is that the evidence was not analyzed. While reading the record, I observed that the first page of the trial tribunal's judgment is a brief summary of the background of the case followed by a Page 9 of 11 summary of the evidence on pages 2 and 3. On pages 4, 5 and 6 is the analysis of the evidence, the opinion of the assessors and the trial tribunal's finding. The complaint that, the evidence was never analyzed, appears to be far-fetched and materially lacking in merit. Perhaps what should be answered is whether the evidence on record supported the trial court's finding that the land belonged to the respondent. Since, as stated above, the appellant was the applicant in the trial court and hence a bearer of the burden of proof, he was obligated to prove that the suit land was his and the respondent was a mere trespasser. In my firm view, this duty was never discharged. The two witnesses paraded by the appellant testified that the appellant acquired the suit land in 1970's but was later on relocated to Makamaka village during the villgelisation operation in 1974. Both did not recall what happened to the suit land after the appellant relocated to the new village. They had no clue of its current ownership and did not describe its size and boundaries. The respondent's evidence was, on the other hand, well-articulated on how he acquired the suit land in 1985 and built houses thereon. It also described the size of the suit land and its boundaries. Under the circumstances, there was no sufficient evidence for the trial court to pronounce the appellant as the lawful owner of the suit land. It was therefore justified to dismiss the application with cost and declare the respondent as the lawful owner. I therefore find no merit in the third and fourth grounds of appeal. Page 10 of 11 In the foregoing, the appeal fails in its entirety and it is dismissed with costs. The judgment and decree of the trial tribunal are upheld. DATED and DELIVERED at DODOMA this 14th day of February 2025. J. L. MASABO JUDGE Page 11 of 11