final Judgment SANTE GEORGE MSAKI tanzliiiii

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

AT MOSHI LAND APPEAL NO. 62 OF 2023 (Arising from the decision of the District Land and Housing Tribunal for Moshi at Moshi dated 15th August, 2024 in Land Application No. 62 of 2018) SANTE GEORGE MSAKI……………………………………………..1ST APPELLANT ELIMBIZI PHILLIPO MSAKI……….………………………..….…2ND APPELLANT GADSON GEORGE MSAKI……………………………………….….3RD APPELLANT RICHARD PHANUEL MSAKI…………………………………….....4TH APPELLANT MENYASUMBA MSAKI …………………………………………......5TH APPELLANT

VERSUS VICKY WILFRED MSAKI………………...…………...…………..1ST RESPONDENT AARON@ MANDELA WILFRED MSAKI………………………..2ND RESPONDENT

JUDGMENT 11st Sep. & 7th Oct.

2024. A.P. KILIMI, J.: The appellants hereinabove are in this court after being dissatisfied with the decision of the District Land and Housing Tribunal for Moshi (DLHT) “the trial tribunal” in Application No. 62 of 2018 wherein the trial tribunal declared the respondents herein the lawful owners of the disputed land and that the appellants herein were the trespassers and further ordered the costs be borne with the appellants. 1 The factual background of this matter as discerned from the trial tribunal records may be recapitulated as follows; at the DLHT of Moshi at Moshi vide Land application No. 62 of 2018, the respondents herein sued the appellants mentioned herein for trespass over the disputed lands located at (a) Maringeni Hamlet, Mande village, Old Moshi Magharibi ward, Moshi District Kilimanjaro region measuring 147 by 56 paces with the following boundaries North Eliakim Olutu, South Sisiliko Msaki and Ndekarisho Msaki, West Sante George Msaki East Road/path and (b) Msandaka Hamlet, Mandaka Mono village, Old Moshi Magaharibi Ward, Moshi District measuring ½ acre, 35 by 70 paces, with the following boundaries North, Marko Mhalu, South Sante Msaki West Samson Ngowi @Mfura East. They also prayed to be declared the lawful owners of the said disputed lands. As per their application filed at the DLHT, the respondent adduced that in 1991 the respondent’s deceased father one

Wilfred s/o George Msaki was allocated the suit lands with his siblings Siseliko Msaki Ndekarisho Msaki and Sante Msaki (1st appellant herein). They were given different parcel of land by the respondent’s paternal grandfather one George @ Mashauri Msaki. That the applicant’s deceased father took 2 effective possession and ownership of the suit lands and used the same for residence and cultivation of seasonal until his death in 1999. That since the applicants were still young and after the death of their father, the Suitland was managed by their paternal grandfather George Msaki. The respondent stated that it was in 2007 when Msaki clan members sat and oversaw the respondent’s grandfather handing over the Suitland to the 1st respondent at her engagement marriage ceremony. In 2009, the Msaki clan members as per their customary rites sat together with George Msaki (the applicants’ grandfather) were suggestion was that the 2nd applicant was also to be allocated land. Their grandfather (George Msaki) then re-distributed the suitland to the 1st and 2nd applicants who are the respondents herein as per their inheritance customary rites. Thereafter, 1st Respondent started to build the residential house and continued with cultivation of seasonal crops in the suit land. It was in 2018 where the appellants herein jointly stated that they had been directed by the applicants’ paternal

grandfather(George Msaki) and forcefully invaded the suit land and divided into two huge portions of land by handing over one portion to the 1st respondent and the other portion was allocated to children born out of wedlock (children of Wilfred George 3 Msaki), and that the 1st appellant who was already been allocated his own parcel of land at a different place, broadening with the Suitland and since 1991 he was forcefully cutting down various vegetation on suit land without permission from the respondents. As per their defence at the trial tribunal, the appellants herein denied the suit land to be distributed to them and to the respondent’s father by their late father (respondent’s grandfather) in the year 1991. They further said that, the suit property originally belonged to George Msaki, and it was in 2018 while is at Kibaha, George Msaki gave instructions to one Richard Msaki, Elisaria Msaki, Menyudumba Msaki and Gadson Msaki to handle the disputed property to the 1st appellant. It was also stated by this part that after the respondent’s father’s death in the year 1999, it was the 1st appellant who were instructed to take care all of his relatives including the respondents’ father family. They further maintained that the respondent’s father was a last born and as per Chagga customary rites he was not to inherit any land since his father and mother were still alive at the

alleged time. Further it was contended that the title could not pass to the applicant’s father until death of his parents, but unfortunately, he passed earlier than his father. They also averred that 4 the suit land was still owned by the George Msaki before and after the passing of his son Wilfred Msaki. At paragraph 10 of appellants WSD filed at the tribunal, they further stated that the 1st respondent built the house for his young brother on the land of his late father which he was entitled upon demise of his parents as per Chagga customary rites. After hearing both sides, the trial tribunal decided in favour of the respondents as said above, the tribunal reasoned that the applicant evidence was heavier than that of the respondents as there were enough evidence that in the year 2007 during engagement ceremony of the 1st respondent, George Philip Msaki handed over the suit land to the 1st respondent and that there was evidence showing that in 2009 the same land was re-distributed to 1st and 2nd respondents by said respondents’ grandfather. The trial tribunal decision angered the appellants herein who marched to this court for orders that the trial tribunal decision be quashed and set aside with costs with the following grounds of appeal.

1. That the trial Chairman erred both in law and fact by entertaining a dispute which the applicants had no locus stand to institute in the absence of the letters of 5 administration appointing them as administrators of the estate of their deceased father 2. That the trial Chairman erred both in law and fact by failing to make a proper analysis and evaluation of the evidence on record.

3. That the Chairman erred both in law and fact by partly relying in his decision the evidence purported to have been collected during locus in quo visit while the same was taken contrary to the law and procedure. At the hearing of this appeal, parties agreed to dispose this appeal by way of written submissions where Mr. Issa Mrindoko learned Advocate represented the appellants while Mr. Chiduo Zayumba learned counsel represented the respondents. Mr. Mrindoko prayed to abandon ground number two and proceeded to submit on the remaining two grounds, ground number one and three. I have considered both counsels submission and the record of the trial tribunal which shows the evidence adduced, I find apposite to start with the third ground of appeal. I applaud counsels for their research and I will refer their submissions in due course of my determination when the need arises. 6 In this ground the appellant’s counsel is faulting the trial tribunal on relying the evidence collected during the visit at locus in quo which was contrary to the law and procedure. Mr. Mrindoko in supporting this submitted that as per page 95 through 97 of the trial proceedings, reflects that a visit in quo did not state what and who were in attendance and whether parties in attendance took oaths as per the law. To support his assertion, he referred to the decision of Kimonidimitri Mantheakis vs Ally Azim

Dewji Others 2021 TZCA 663 (TANZLII) and prayed for the appeal to be allowed with costs. Rebutting on this ground, Mr. Zayumba submitted that the visit in locus in quo did not affect the decision of the tribunal. He submitted that the tribunal did not rely on the evidence collected during the visit of the locus in quo instead it relied on the weight of evidence adduced by the respondent. The counsel referred that the impugned judgment speaks itself at pages 8 and 9. He referred to the decision of Danland Temu vs. Thomas Temu 2022 TZCA 751 on set of parameters to guide decision making which depends on different circumstances of the case. He added that at page 96 of the trial proceedings the tribunal assembled and read the notes where both sides admitted to what transpired at the locus in quo. 7 He submitted that even if there were none observance of that guidelines it did not justify nullification of the proceedings, to support his assertion he invited the court to refer the decision of Joseph Lomayani and Others vs. Melkizedeck Michael [1997] TLR 192 HC. In a brief rejoinder, Mr. Mrindoko reiterated his submission in chief and maintained that the said visit in locus was married with irregularity as the chairman used part of the findings of the visit in his decision which the same occasioned miscarriage of justice. It is trite law that there is no law which forcefully and

mandatorily requires the court or tribunal to conduct a visit at the Locus in Quo, as the same is done at the discretion of the court or the Tribunal particularly when it is necessary to verify evidence adduced by the parties during trial. However, when the court or the tribunal decides to conduct such a visit, there are certain guidelines, and procedures which should be observed to ensure fair trial. (See Sikuzan Saidi Magambo & Another Vs Mohamed Roble [2019] TZCA 322). Therefore, visiting locus in quo is discretion of court after considering the circumstances of the case, thus if the court/ tribunal decide to visit , then the court must comply with the guidelines developed in our 8 jurisprudence. For instance, One; ensure that all the parties, their witnesses and Advocate (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; and 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 Advocate if any. And finally, re-assemble at the court/ tribunal and read what transpired at the visit so that parties can agree or alter the same as may be correct. In Kimonidimitri Mantheakis vs Ally Azim Dewji Others

(supra) at page 9 the court held in verbatim as follows; “In the matter under scrutiny, in the event neither the Court nor the parties could land its eyes on the proceedings during the visit in the locus in quo, it can safely be concluded that nothing was recorded during the said visit. Therefore, in the absence of the recorded proceedings we cannot discern as to who was in attendance; if the witnesses were asked to clarify what they stated at the trial under oath; if opportunity was given to the respective parties to make cross-examinations and any 9 observation by the trial judge must form part of the proceedings.” In the appeal at hand, what was pleaded by the 1st and 2nd respondents at the trial tribunal is reflected at paragraph 6(a) of their application which shows thus; “6(a)Cause of action/brief statement of facts constituting the claim (i) That in 1991 the applicant’s deceased father one Wilfred s/o George Msaki was allocated the suitlands and his siblings Siseliko Msaki, Ndekarisho Msaki and Sante George Msaki (1st Respondent) were given different parcel of lands by the Applicants paternal grandfather one George @Mashauri Msaki. (ii) That the Applicant deceased father took effective possession and ownership of the suitland and used the same for residence and cultivation of seasonal until his death in 1999” (iii) That at the time of the Applicants' father they

were still young/minors and the suitlands continued to be in the care of their paternal grandfather George Msaki. (iv) That in 2007 the Msaki Clan Members sat and oversaw the Applicants' paternal grandfather handing over the suitlands to the 1st Applicant after her engagement marriage ceremony. 10 (v) That in 2009 Clan members demanded that the 2nd Applicant be included in the ownership of the suitlands and they sat in a Clan meeting which also witnessed the Applicants' paternal grandfather re- distributing the deceased lands and allocated the same to both the Applicants' as being their inheritance according to customary rites. At paragraph 10 of the Written statement filed by the appellants avers that; “That the contents of paragraph (6) (a) (v) of the Application are partly noted only to the extent that the 1 st Applicant built a residential house for his young brother on the land his late father is entitled upon dem ise of his parents as per Chagga custom ary rites. The rest of the contents and in particular that she built the said residential house and cultivated seasonal crops at both suit lands after being handed over equally highly denied and she is thus put under strict proof.” [ Emphasis added] Having scanned the evidence and what was pleaded by the parties as above, its apparently the said part of the suit land were developed and part 11 used for cultivation, but what

is important, each part of the case has brought witnesses to show how it was distributed, first to the respondents and secondly to the first appellant and his siblings. From those endeavors, I find in this matter it was very important to visit the said suit land with parties and their witnesses who participated or knew two incidents above, thus, I am settled according to the circumstances of this matter, fair decision cannot be reached without visiting the said suit land in order to measure the reflections of their testimonies in relation to the said land. Now from the above perspectives, let us now check what transpired during the said visit and its consequences. I have carefully examined the handwritten and typed proceeding of the Tribunal and find that on 12/06/2023 after close of the respondents’ case. Mr. Zayumba prayed the tribunal to visit a Locus in quo. The proceedings of that day of visiting shows; “Date: 12/07/2023 Coram: Hon. R. Mtei – Chairman Assessors: (i) Sarah Mchau (ii) Sarah Lukindo 1st Applicant: Yupo 2nd Applicant: Hayupo 12 For Applicant: Bw. Chiduo Zayumba, Advocate 1st Respondent: Hayupo 2nd Respondent: Yupo 3rd Respondent: hayupo 4th Respondent: hayupo 5th Respondent: Yupo 6th Respondent: Hayupo For Respondent: Bw. Issa Mrindoko, Advocate T/C: Yustina Mganga W akili, Chiduo Zayum ba:- Ninawawakilisha waombaji na Wakili, Issa Mrindoko kwa ajili ya wajibu maombi. Shauri linakuja kwa ajili ya kwenda kutembelea eneo la mgogoro, tupo tayari. W akili, I ssa M rindoko:- Tupo tayari.

K W ENYE ENEO LA M GOGOR O Baraza:- Wadaawa walionesha eneo la mgogoro. Sgd: R . M TEI

M W ENYEK I TI 12/ 07/ 2023 Am ri:- Tarehe 14/7/2023 kusomewa yaliyojitokeza kwenye eneo la mgogoro. Sgd: R . M TEI

M W ENYEK I TI 12/ 07/ 2023 13 On the day when the trial tribunal re-assembled shows; Date: 14/07/2023 Coram: Hon. R. Mtei – Chairman Assessors: (i) Sarah Mchau 1st Applicant: Hayupo 2nd Applicant: Hayupo For Applicant: Bw. Chiduo Zayumba, Advocate 1st Respondent: yupo 2nd Respondent: yupo 3rd Respondent: Hayupo 4th Respondent: Hayupo 5th Respondent: Yupo 6th Respondent: Hayupo For Respondent: Bw. Issa Mrindoko, Advocate T/C: Yustina Mganga W akili, Chiduo Zayum ba:- Ninawawakilisha waombaji shauri linakuja kwa ajili ya kusomewa ripoti ya ukaguzi wa eneo la mgogoro. Tupo tayari. W ajibu M aom bi 1, 2 na 5:- Tupo tayari pia. Sgd: R . M TEI

M W ENYEK I TI 14/ 07/ 2023 YALI YOJI TOK EZA K W ENYE ENEO LA M GOGOR O:- Wadaawa walionesha eneo la mgogoro ambalo lina ukubwa wa hatua 44 urefu na hatua 20 upana. Eneo la mgogoro 14 limepakana na Ndekarisho kwa upande wa Magharibi na lina alama ya miti ya trangela na mturundwa kama mpaka kwa upande huo wa mgharibi. Mashariki kuna barabara, kusini nyumbani kwa siliwi na kaskazini nyumbani kwa mwombaji wa kwanza. Pia kwenye eneo la mgogoro palikuwa na nyumba ya udongo ya baba yao na waombaji. Hata hivyo wajibu maombi wa 2 na 5 walipinga lakini baadae mjibu maombi wa 2 alikiri kuwepo kwa nyumba hiyo ambayo kwa sasa haipo. Hakuna alama yoyote ya mpaka inayotenganisha eneo la mgogoro na eneo la waombaji. Pia ilionekana njia inayotoka barabarani upande wa mashariki kuelekea kwenye makazi ya waombaji, makazi ya Mdekarisho na kasha kuishia bondeni kwenye makazi ya Sante. Je hayo ndiyo yaliyojitokeza kwenye eneo la mgogoro? W akili, Chiduo Zayum ba:- Ninakubaliana na yote hayo uliyoyasoma. M jibu M aom bi 2:- Hayo ndiyo yaliyojitokeza kwenye eneo la mgogoro. M jiui M aom bi 5:- Ninakubaliana na hayo yaliyosemwa. Sgd: R . M TEI

M W ENYEK I TI 14/ 07/ 2023 W akili, Chiduo Zayum ba:- Tunaomba tarehe ya maoni ya wajumbe. M jibu M aom bi Na. 1, 2 na 5:- Ni sawa. Am ri:- Maombi 31/7/2023.” 15 I have scanned the above proceeding, in my considered view the requirement of the guidelines according to the authority above was not complied with. I reserve my reasons which now I give, this is because according to the above, the proceeding at the locus in quo was not recorded, thus I cannot discern anything from the general remark of the tribunal that parties have shown suit land “Wadaawa walionesha eneo la mgogoro” these are only words recorded at the said visit. Thus, for instant it cannot be known between parties, who said what, whether is the respondent or applicant, whether is the witness or assessor, how she/he showed the demarcation of the land, whether he/she was cross examined by the other part, assessor or otherwise, and lastly no any record on observation of the tribunal after seeing the land in dispute in relation to arguments of the parties at the locus in quo. Nevertheless, the same goes to what happen when the tribunal re- assembled for purpose of reading to the parties what transpired at the said visit, what was read by the tribunal above seems to be general summary which does not specify who said what. As alluded above, I have asked myself where that summary comes from, if what stated at the said

visit was not recorded anywhere to enable this court to check whether the said 16 summary is correct or not. However, the way the same is couched is as if the rival parties had a common approach on the said disputed land, since there no divergence. I think the said visit could have reveal evidence adduced and what the pleading stated; for instance, at the trial tribunal the respondent sued against the respondents on two pieces of land. Second the evidence which is depicted in the pleading above reveal that the first respondent built a house at one of the pieces of land while the other used to cultivate, though the appellants rejected that she built for his young brother, the same was not reflected on the said visit even in re-assembled meeting at the tribunal Moreover, from the said visit one could have expected as stated by first respondent at page 13 of the typed proceeding for her to show the two shambas in dispute which she said it is owned by her and his young brother. Also, at page 14 first respondent testified that her sister was buried at the first shamba located at Old Moshi Ward and his father who died in 1999 was buried at the first shamba. Also, her mother who died in 1996 were also buried at the same shamba, but no graves were shown or otherwise its disappearance of the same was not stated. Further their witness Olgenes Benjamin Masamu (AW2) in his evidence

testified to 17 witness the demarcation of the suitland. Nonetheless, Sante George Msaki (DW1) at page 53 said how he cultivated the suit land with the first respondent at Msandato, and lastly in his testimony one Fredrick Phillipo Msacky (DW2) said in that suit land there is a house built by his brother Fanuel Msaki who sent money for construction of the said house through Vicky (the first respondent). In view thereof, I am not saying the above must be existing by now, but in my opinion had the above revealed at the said visit at the locus in quo, thus, whether the above mentioned existed or not could have the meaningful in the determination of this matter at the tribunal or at the appellate level when this court exercising its duty as the first appellate court. In respect of Danland Temu vs Thomas Temu [2024] TZCA 751 (TANZLII) referred by the respondent’s counsel, I admit this case is the most recent case as depicted by the counsel, but the same did neither say its previous decisions were decided in per incurium nor distinguished them, instead in the outset as per page 9 acknowledged with approval the guidelines as enshrined in the case of Nizar M.H. V. GulaMali Janmohamed [1980] TLR 29. 18 Be that as it may, in my view the circumstances of this case cited are distinguishable from this matter at hand. In the cited case the counsel for appellant faulted Chairman for turning

himself into a witness and not to abide the procedure of visiting a locus in quo. The court after observing the record was of the view as per pages 85 and 86 of the appeal record that the Tribunal Chairman did not assume the role of a witness, also the Chairman allowed the appellant and respondent to cross examine witness who showed the boundaries, He further allowed both the appellant and the respondent to articulate their competing ownership claims, also gave both parties equal opportunities to identify and describe the disputed land. The Chairman then allowed a neutral witness (one Alen James Maruma) to provide a background history of the disputed land. The assessors had the opportunity to ask questions and seek clarifications. Finally, the Chairman compiled a report of the visit. In view of above, the court in Danland Temu vs Thomas Temu (supra) observed all the above procedure from the record of the court, that is why it concluded that all procedure were followed. Unlike in this case as observed above no any testimonies or arguments were recorded thereat to enable this court grasp albert brief what were the arguments procured at 19 the said visit in order to ascertain presence of fair trial or otherwise at the scene of visit. Therefore, I am guided with the observation of the court in Danland Temu vs Thomas Temu (supra) when maintained that complying with these guidelines

is necessary depending on the circumstances of the case in aiming to facilitate justice. At page 10 the said decision the court had this to say; “In dismissing the appellant's second ground of appeal, we must point out that the guidelines set in NI ZAR M .H. V. GULAM ALI (supra) are just that; they provide a set of parameters to guide decision-making depending on different circumstances. Ultimately, the overriding objective of these guidelines is to facilitate the just, expeditious, proportionate, and affordable resolution of disputes when courts visit locus in quo.” Having considered the above endeavors, in my view the circumstances of this matter as alluded above needed the entire tribunal evidence on what had transpired at the visit in the locus in quo in order determine this matter. Thus, since nothing can be grasped from the record, 20 I agree with learned counsel of the appellants, the trial was vitiated as it cannot show that there was fair trial at the said visit of locus in quo. Being so, this court cannot step into shoes of the tribunal to exercise its duty of re-evaluating the evidence which is none in this part, which in my view was important as said above. It is therefore my considered view that, this was a procedural irregularity on the face of record which had vitiated the trial and occasioned a miscarriage of justice to all parties to this case,

consequently renders the said visit a nullity. In the premises, I find this ground of appeal to have merit. Furthermore, I find that the determination of this ground of appeal its effect goes to the root of the case thus cannot led this matter to stand, thus I find it is sufficient to dispose of this appeal and I find no need to consider and determine the remaining grounds of appeal. In the upshot, I invoke revisionary powers of this court under section 43 (1) (b) of the Land Disputes Courts Act, Cap 216 R: E 2019 to nullify the proceedings of the tribunal only on incidents of visiting locus in quo and re assembling after the said visit, other proceedings remain intact undisturbed. Consequently, the judgment and decree of the tribunal is hereby quashed and set aside forthwith. 21 Subsequently, I order this case file be remitted at the District Land and Housing Tribunal for an expedited retrial only on visiting locus in quo as instructed above. Then after the said visit, the tribunal should compose a new judgment subject to the laws of the land. Since the anomalies were not caused by the parties, each party shall bear its own costs. It is so ordered. DATED at MOSHI this 7th day of October, 2024.

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JUDGE Signed by: A. P. KILIMI Court: Judgment delivered today on 7th day of October, 2024 in the presence of Ms. Juliana Mushi learned counsel holding brief of Mr. Issa Mrindoko for the appellant, and Mr. Chiduo Zayumba learned counsel for all respondents present. Sgd; A. P. KILIMI

JUDGE 7/10/2024 22 Court: Right of Appeal explained. Sgd; A. P. KILIMI

JUDGE 7/10/2024 23