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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [MOROGORO SUB-REGISTRY] AT MOROGORO LAND APPEAL NO.690 OF 2024 (Arising from Land Application No. 30 of 2022, of the District Land and Housing Tribunal of Ulanga at Mahenge) SEBASTIAN LUKASI CHINDANDI APPELLANT VERSUS ELKUSI GABULYELI NGAPULILA RESPONDENT JUDGEMENT 13/03/2024 & 25/04/2024 KINYAKA, J.: Sebastian Lukasi Chindandi, the appellant herein, lodged before the District Land and Housing Tribunal of Ulanga at Mahenge, hereinafter "the Tribunal", Land Application No. 30 of 2022 against the respondent, Elkusi Gabulyeli Ngapulila for trespass of part of his three acres of land measuring 1730 square metres situated at Nandanga-Alabama, Alabama village, Malinyi District in Morogoro Region, hereinafter "the disputed land". At the Tribunal, the appellant alleged that he permitted the respondent to cultivate on the 423- * dispute piece of land but when he asked him to return his land in the year 2020, the respondent refused to do so claiming that the land is his. In the said application, the Appellant claimed for declaration that the disputed land is his, an order of permanent injunction against the respondent to deal with the disputed land, an order for the respondent to vacate the disputed land, and costs of the suit. Upon hearing the prosecution's three witnesses and the defence's four witnesses, the Tribunal dismissed the suit with costs for the appellant's failure to prove his claims on balance of probability. Dissatisfied with the decision, the appellant preferred an appeal before this Court based on the following five grounds of appeal 1. That the Honourable trial Tribunal grossly erred in law and fact for failure to evaluate and analyze evidence given by the appellant thus reaching at wrong decision; 2. That Honourable trial Tribunal grossly erred In law and fact for failure to visit locus in quo which vitiates the trial and which occasioned miscarriage of justice; 3. That the trial Tribunal erred in law and fact that the judgement is bad for lack of legal reasoning; 4. That Honourable trial Tribunal grossly erred in law and fact for awarding reliefs which were not pleaded or prayed; and 5. That the trial Chairman erred in giving a non-executable judgement and decree. In the course of the proceedings In the present appeal, the appellant enjoyed the services of Mr. Godfrey Luyanji and Rajabu Ismail, learned advocates while the respondent appeared unrepresented. On 13^^ March 2024 when the matter was called on for necessary orders, the respondent, being unrepresented prayed for disposition of the appeal by written submissions, the prayer which was duly granted by the Court. However, while the appellant lodged his submissions by paying prescribed fees on the same on 27^'' March 2024, the respondent though he uploaded his reply submissions on the system on 12^^ April 2024 but paid the requisite fees on April 2024, three days after the deadline for filing the submissions. For that matter, irrespective of the provisions of Rule 21(1) of the Judicature and Application of Laws(Electronic Filing) Rules G.N. No. 148 of 2018, hereinafter "the Electronic Filing Rules" which consider a document to be filed when it is submitted through the electronic filing system, I am of the considered position as held in various courts' decisions that a document is considered to have been properly filed when prescribed fees for filing the same is duly paid.[See the decisions in the cases of John Chuwa v. Antony Ciza[1992]TLR 233; Adamson Makondaya and Another v. Angelika Kokutona Wagwa (the Administratix of the estate of the late Stephen Angelo Rumanyika, Misc. Land Appeal No. 521 of 201; and Unta Export v. Customs(1970) E.A. 648]. I will therefore not consider the respondent's reply submissions whose prescribed fees were paid out of time after the lapse of 3 days from the 12^^ April 2024 when he was ordered to file the same. The appellant submitted in support of the first ground of appeal that the Tribunal did not properly evaluate and analyze the appellant's evidence for its failure to consider, and give weight the sale agreement admitted in evidence as Exhibit PI. He contended that the appellant's failure to name the water drain being the current boundaries was not a material contradiction as at the time the appellant purchased the land in 2016, the irrigation system was yet to be constructed. He argued that the Tribunal ought to have visited the locus in quo\.o collect evidence that would assist it to reach into a fair and reasonable decision. He further faulted the Tribunal's failure to properly evaluate the evidence of 5M2,Sixberty Gwlla by believing that SM2 was the supervisor of the irrigation scheme of Itete villages. He contended that the improper analysis led to a conclusion that at the time the appellant purchased the land, the irrigation scheme already took place, which amounted to mere speculations and beliefs on part of the Tribunal. He referred to the decision in the case of Leonard Mwanashoka v. R., Criminal Appeal No. 226 of 2014 which held that failure to evaluate or an improper evaluation of evidence inevitably leads to wrong and/or biased conclusion or inference resulting in miscarriage of justice. On the second ground of appeal, the appellant viewed that it was necessary for the Tribunal to visit the locus in quo \x\ order to ascertain boundaries and size of the disputed land, the measurements between the appellant's 3 cares and the respondent's 6 ¥4 acres, the irrigation scheme, and water ditch to get clarification on the contradictions regarding the boundaries. He contended that the application for visitation of the locus in quo was made by the appellant's advocate orally during the hearing of the application without success. He referred to the decision of the Court of Appeal in the case of M/s Georges Centre Limited v. The Honourable Attorney General and M/s Tanzania National Road Agency, Civil Appeal No. 29 of 2016 which held that in order to ensure justice is done, the court may accede to the request to visit the locus in quo. He argued that though visitation to the locus in quo is not mandatory but depends on circumstances of each case, the evidence on record in the dispute were confusing which justified the visitation to the locus in quo considering the different measurements. He cited the case of Mariam Kalengela v. Victoria Swai, Land Appeal No. 290 of 2021 where the High Court cited with approval the case of Yeseri Waibi v. Edisa Byandaia (1982) HCD 28 which held that the practice of visiting the locus in quo is to check on evidence given by witnesses and not to fill the gap for them. In respect of the third ground, the appellant submitted that a judgement of the Tribunal should consist of brief statement of facts, findings on issues, decision and reasons for the decision as required by Regulation 20(1)(a) to (d) of the Land Disputes Courts (District land and Housing Tribunal) Regulations, 2003, hereinafter "the Regulations". He faulted the Tribunal for its failure give legal reasons for the decision and to cite the provisions of the law or decided cases. He cited the case of Tanga Cement Company Limited v. Christopher Company Limited, Civil Appeal No. 77 of 2002 where the Court of Appeal held that a judgement shall contain a concise statement of the case, points for determination, decision therein, and reasons for the decision. The appellant further attacked the Tribunal for raising a new issue on page 4 of the judgement which was not pleaded or testified on by the parties and not determined by the Tribunal. The new Issue Is in respect of the evidence of SM2 that the purchase price was sent by the appellant to him which the Tribunal found to have lacked evidence and the basis for payment of the same to SMI Instead of the seller. He said the appellant argued the issue In dispute over ownership of the property and not the manner of the sale transaction. He relied on Article 13(6)(a) of the Constitution of the United Republic of Tanzania of 1977 as amended from time to time, herein after "the Cdnstltutlon" to argue that the appellant was denied a fair hearing. He cited the case of Benjamin Mungo v. Sisi Auction Mart & General Brokers & 3 Others, Land Appeal No. 1 of 2022 [2022 TZHC 10490 )8 July 2022) TANZLII] which cited with approval the decision of the Court of Appeal In the case of Kumbwandumi Ndemfoo Ndossi v. Mtel Bus Service Limited, Civil Appeal No. 257 of 2018 which held that cases must be decided on issues or grounds on record and If there are new Issues, the same should be placed on record and parties be given an opportunity to be heard. In the fourth ground, the appellant attacked the decision of the Tribunal for awarding reliefs which were neither pleaded nor prayed for. He submitted that the respondent prayed for the suit to be struck out with costs in the Swahili words 'naomba Baraza tukufu kuyatupilia mbali madai na nafuu alizoomba mieta madai kwa gharama' but the Tribunal without legal reasoning dismissed the application with costs and without declaring who was the owner of the disputed land. He relied on the cases of Melchiades John Mwenda v, Gizelle Mbaga (Administratix of the Estate of John Japhet Mbaga - Deceased) & 2 Others, Civil Appeal No. 57 of 2018 which held that the court will grant only relief which has been prayed for. He further cited the case of Anania Kamala v. Tryphone Kijunga, Msc. Land Appeal No. 61 of 2021 which cited with approval the decision in East African Cables Limited v. Spencon Services Limited, Commercial Case No.42 of 2016 which held that the object of the court is to decide rights of parties not to punish them on mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. Regarding the fifth ground, the appellant faulted the Tribunal to issue a non executable judgement and decree by Its failure to state exactly the owner of the disputed land regardless of the dismissal of the appellant's suit. He submitted that there is no document in record to prove the respondent's ownership of the disputed land, and the Tribunal did not specifically declare him the owner of the disputed land. He reiterated the holding in the case of East African Cables Limited (supra) to bolster his argument. Based on his submissions, the appellant prayed the Court to allow the appeal by quashing and setting aside the judgement, decree and proceedings with costs. He also invited the Court to invoke revisional powers under section 43(1) of the Land Dispute Courts Act, Cap. 215 R.E. 2019, hereinafter "the LDCA". Upon my reading of the records of the Tribunal, the judgement, the appellant's grounds of appeal and the submissions in support of the same, I am now obliged to find whether the present appeal has merit. I will determine each ground of appeal separately. The appellant's complaint in the first ground is predicated on the Tribunal's failure to evaluate and analyze evidence given by the appellant thus, reaching at a wrong decision. I agree with the appellant that the Tribunal j .( erred in disbelieving the sale agreement admitted in evidence as Exhibit PI. I find Exhibit PI to have been very expressive and informative that the purchase was done in the absence of the appellant though it was expressly stated that it was the appellant who purchased the 3 acres of land. Furthermore, Exhibit PI was attached with 'Hati ya Malipo' dated 9^^ March 2016 which proved that the appellant paid TZS 200,000 out of the remaining TZS 500,000 at the office of, and in the presence of the Village Executive Officer of Mwazini Village at Itete. I hold that the Tribunal erred to accord lesser weight to Exhibit PI based on the lack of the appellant's signature in Exhibit PI. However, it should be noted that the issue in dispute was not on the ownership of the entire 3 acres of land owned by appellant or 6 ¥4 acres alleged to be owned by the respondent, but only part of appellant's alleged 3 acres measuring 1730 square metres. This is evidenced by paragraph 6 (iv), (v) (vii), (viii) of the appellant's Land Application No. 30 of 2022 and SMl's testimony before the Tribunal. I agree with the Tribunal that the contradiction as to the boundaries of the disputed land between Exhibit PI and the testimony of the appellant's witnesses, SMI and SM2, as material and diminished the weight and quality 10 of evidence of SMI and SM2. The evidence of SUl and SU4 before the Tribunal proved that the irrigation scheme began since 2013 before the appellant's purchased the 3 acres of land in 2016. It was expected of Exhibit PI to include the exact boundaries of the 3 acres of land that the appellant purchased in 2016 including the canal. The respondent, SUl and SU4 testified that the respondent bought the land from Matias Mfundili Bactis in 1996 prior to the appellant's acquisition of the 3 acres of land. SUl testified that Mr. Mponguliana who sold the land to the appellant was his neighbour bordering his 6 V4 acres of land until when he sold his land to the appellant. When cross examined, the appellant (SMI) confirmed that he knew the respondent, he had no evidence that he gave his 1730 square metres to the respondent land for clearing and cultivation, and that he had never heard any dispute over the land between Mr. Monguliana who sold the land to him and the respondent. The appellant's argument that the Tribunal believed and assumed evidence of SM2 is baseless. SM2 testified that he was the leader supervising the irrigation scheme of Itete when the appellant requested him to find a farm for him at the time when the project was constructed. This piece of evidence was not assumed bythe Tribunal but was actually testified by SM2. 4cr 11 With the above evidence and the observations by the Tribunal, I don't see the reason to fault the Tribunal in its analysis and evaluation of evidence. It is clear that the appellant failed to discharge the onus of proving his ownership of the disputed land measuring 1730 square metres on balance of probability as required by section 110 and 111 of the Evidence Act, Cap. 6 R.E. 2022. The first ground of appeal is dismissed for lack of merit. The appellant's second ground of appeal faults the Tribunal for its failure to visit the locus in quo. According to the appellant, the omission occasioned miscarriage of'justice and vitiates the trial. I have read the hand written proceedings of the Tilbunal. I have not found anywhere in th^ proceedings the oral application by the appellant's counsel for visitation of the Tribunal to the focus in quo. It follows that the argument by the appellant that the Tribunal erred by its failure to visit the focus in quo6es^\X.e the appellant's oral application is unfounded. I join hands with the appellant that the visitation to the iocus in quo is not hiandatory. But I disagree with him that the visitation is conducted to ascertain anomalies and claims and for collection of further evidence to assist the Tribunal to reach a fair decision. My considered position is that visitation to the focus in quo \s normally conducted where it is necessary and with the 12 aim of verifying the evidence already adduced by the parties at the trial. This was the position of the Court of Appeal in the case of Sikudhani Said Magambo & Another v. Mohamed Roble, Civil Appeal No 197 of 2018(unreported) on page that:- '145 for the first issue, we need to start by stating that, we are mindful of the fact that there is no law which forcefully and mandatory requires the court or tribunal to conducta visit at the iocus in quo, as the same is done at the discretion of the court or the tribunalparticularly when itis necessary to verify evidence adduced by the parties during trial." Equally in the case of Avit Thadeus Massawe v. Isdory Assega, Civil Appeal No.6 of 2017 on page 12 to 14 while highlighting as to the purpose of the iocus visit, the Court borrowed a leaf of wisdom from the famous Nigerian Case of Evelyn Even Gardens NIC LTD and the Hon. Minister, Federal Capital Territory & Two Others, Suit No. FCT/HC/CV/1036/2014; Motion No. FCT/HC/CV/M/5468/2017 and stated "The essence ofa visit to a iocus in quo has been well elaborated in the decision by the Nigerian High Court ofthe Federal Capital Territory in the Abuja Judicial Division in the case ofEvelyn Even Gardens NICL TO and the Hon. Minister, Federal Capital Territory 13 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 dear the doubts as to the accuracy of a piece of evidence when such evidence is in conflict with another evidence (see Othiniei Sheke V Victor Plankshak(2008) NSCQR Vol. 35, p. 56. 2. The essence ofa visit to locus in quo in land matters includes location of the disputed land, the extent, boundaries and boundary neighbor, and physicalfeatures on the land(see Akosiie Vs. Adeyeye(2011)17NWLR (Ft. 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 ofthe landin dispute^ the only way to resolve the conflict is for the court to visit the iocus in quo (see Ezemonye Okwara Vs. dominie Okwara (1997)11 NWLR (Ft. 527)p. 1601). 4. The purpose ofa visit to iocus 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 14 opportunity to make a different case from the one he ied in support ofhis claims.''[Emphasis Added] In the matter under consideration, the evidence of the witnesses in respect of the ownership of the disputed 1730 square metres was not confusing as argued by the appellant To the contrary, it is the evidence of the appellant which contained contradictions as to the boundaries of the piece of land. There was no dispute as to the ownership of the appellant's 3 acres of land which he purchased in 2016 or the respondent's ownership of the alleged 6 3/4 acres which he bought in 1996. What was in dispute was the ownership of 1730 square metres within the appellant's 3 acres of land which he alleged to have hired the same to the respondent in 2017 to cultivate at a consideration of TZS 200,000, and which the respondent claimed to be within his 6 3/4 acres. The evidence adduced at the trial including that of SMI is that the disputed land was, at the time of the dispute, cultivated and in possession of the respondent. This means that the disputed land was known In terms of size, boundaries, and exact location. In view of the above, I do not find any confusion or matters that needed clarifications that would have prompted the Tribunal to visit the iocus in quo. It is my considered finding that under the circumstance of the dispute and 15 the evidence adduced by both parties at the Tribunal, there was no reason that would justify visitation to the locus in quo by the Tribunal. The second ground of appeal fails. The appellant complained in the third ground of appeal that the judgement of the Tribunal is bad for lack of legal reasoning. I should point out that there is no any law, be it statute or case law, that require the decision of any court or Tribunal to contain legal reasoning or case laws, unless it is a dispute concerning the interpretation of the law. What the law require is for the decision to contain reason(s) for such decision. The appellant's arguments are contrary to Regulation 20(1)(a) to (d) of the Regulations and the case Of Tanga Cement Company Limited (supra) that he cited. Regulation 20(1)(a) to (d) of the Regulations provides:- Thejudgement ofthe Tribunal shall always be short, written in simple language and shall consist of: (a) a briefstatement offacts; (b) findings on the issues; (c) a decision; and (d) reasons for the decision. In light of the above provision, I find and hold that the decision of the Tribunal conformed to the requirement of the law. It is clear from the judgement that in the 1^ page of the judgement, the brief statement of facts 16 was stated; finding on issues are in the 2"*^ to the 6^^ page; and the reasons for the decision is found on page 7 of the decision. In his submissions In support of the third ground, the appellant contended that the Tribunal improperly raised a new issue as to the manner the purchase price was paid by the appellant to SM2 instead of the seller, and •< lack of evidence of the transaction. Having scanned' his memorandum of appeal, it is undisputed that this argument Is new and was raised by the appellant without obtaining leave of the Court. In that case, l am not bound to determine the same [See thb Case of Joseph Kahungwa v. Agricultural Inputs Trust Fund and 2 Others, Civil Appeal No. 373 of 2019 (unreported) on page 8]. However, even if I was to determine the same, I Would dismiss it for lack of both legal and factual basis. The Tribunal did not raise any new issue. The Tribunal deliberated on the rtiatter in the course of its analysis"and evaluation of evidence in determining whether the appellant managed to prove his ownership of disputed land. Whether erroneous or not, the appellant should have raised or argued the same as part of the first ground of appeal which faulted the Tribunal for its failure to properly evaluate and analyze evidence. As the new ground faults the evaluation and analysis of evidence by the Tribunal, which T have found to ■ ^ 17 j'a ;.:r •• ■T . * - - "j be unmerited in my determination of the first ground of appeal, the new ground is also baseless. It follows that the third ground of appeal is dismissed for lack of merit. The appellant's complaint in the fourth ground that the Tribunal grossly erred in awarding reliefs which were not pleaded or prayed, should not detain me much. First of all, the appellant's translation of Swahili words'naomba Baraza tukufu kuyatupilia mbali madai na nafuu alizoomba mieta madai kwa gharama' to a prayer for the suit to be struck out with costs, is erroneous. In my understanding of the Swahili, 'kuyatupilia mbali' would equally mean to dismiss. Be it as it may, it Is the appellant who lodged a suit and prayed for the reliefs. The respondent was obliged to defend the suit. In the circumstance, even if the respondent would not file defence or appear to defend the suit, the Tribunal would proceed to hear the application exparte, and would still dismiss the suit upon making a finding that the suit is unmerited. The final order of the Tribunal upon its finding that the appellant failed to prove his claims on balance of probability, did not depend on prayers by the respondent but the aftermath of the findings of the Tribunal. From the foregoing, I hold that the Tribunal acted within its mandate to dismiss the appellant's application upon its finding that the suit was unmeritorious. ^cr 18 In the sixth ground, the appellant faulted the Tribunal for Issuing a non executable judgement and decree for its failure to pronounce the owner of the disputed land. Again,from the records it was the appellant who instituted the suit claiming to be the owner of 1730 square metres which were in possession of the respondent and therefore prayed for the Tribunal to declare him the owner of the disputed 1730 square metres. The respondent did not file a counter suit to be declared the owner of the disputed land, but only adduced evidence that the land is not the appellant's but his. For that matter, the Tribunal was to make a finding on whether or not, the appellant's claims and prayers are founded. Upon hearing the parties, the Tribunal correctly dismissed the appellant's suit on the reason that the appellant failed to prove his claims on balance of probability and dismissed the suit with costs. It means that the appellant was not the owner of the 1730 square metres as alleged. It is surprising how the appellant would want to execute the decree of the Court upon losing the suit. Except with an order for costs, the respondent would not need to execute the decree of the Tribunal as he was in occupation, possession and use of the disputed land before and during the dispute [see the case of Shell and BP Tanzania Ltd. v. University of Dar 19 es Salaam, Civil Application 68 of 1999 (unreported)]. Even if the judgement of the Tribunal was inexecutable, it was expected of the respondent to raise such a concern and not the appellant who lost the suit. My above findings lead to a conclusion that the present appeal is unmerited. As a result, I uphold the decision of the Tribunal in Land Application No. 30 of 2022 and accordingly dismiss the present appeal. As the respondent failed to lodge his reply submissions on time which is tantamount to failure to defend the suit, I make no order as to costs. It is so ordered. DATED at MOROGORO this 25^^ day of April 2024. H. A. KINYAK^ JUDGE Hi Vs A 25/04/2024 Pgoro 20 Court judgment delivered in the presence of Mr. Geofrey Luyanji, Advocate for the Appellant and Mr. Yona Assay Court Clerk but in the absence of the advocate of the Respondent and his client. S.P. Kinawa DEPUTY REGISTRAR 25/04/2024 Court Right of Appeal fully explained ✓ m w- S.P. Kirrawa DEPUTY REGISTRAR 25/04/2024 i.-" ? 21