STELLA MAJIGE Vs

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY) AT DODOMA LAND APPEAL NO. 101 OF 2023 (Originating from the decision of District Land and Housing Tribunal for Dodoma at Dodoma in Application No. 423 of 2017 dated 31/08/2023) STELLA MAJIGE……………...……….………………………………..…………APPELLANT Versus LEAH LAZARO……………………..………..….……….…………………1ST RESPONDENT ZEFANIA MALLYA………..……..……………….……….………………2ND RESPONDENT SILVESTER MSIGALA………….……………….……….………………3RD RESPONDENT BENEDICT MASINJISA…………...…………….……….………………4TH RESPONDENT LAURENT MWARUKO……………………….……..….…………………5TH RESPONDENT ELIZABETH MSOKO……….………………….……….…………………6TH RESPONDENT JUDGEMENT Date of last order: 16th July, 2024. Date of Judgment: 13th September, 2024. E.E. KAKOLAKI, J. Before the District Land and Housing Tribunal for Dodoma in Land Application No. 12 of 2017, the appellant herein sued the respondents for trespassing in part of her land comprising 6 ½ acres while inviting it to declare her a legal owner of the suit land, issue eviction order against the respondents and restrain them or their agents from interfering the suit land and award her general damages and costs of the application. Having heard both parties’ evidence and visited the locus in quo on 04/08/2023, the Tribunal was satisfied that, the claimed 6½ acres belonged to the appellant (applicant) after appreciating the evidence on record that she purchased it from the 5th 1 and 6th respondents. It however declared her the legal owner of four (4) acres only while declaring the rest of the land of 2½ acres to be legally owned by the respondents on the ground that when visited the locus in quo the appellant failed to specify demarcations of her area claiming that the boundaries were destructed hence could not identify them. It is the said decision handed down on 31/08/2023 that displeased the appellant hence the present appeal in which her grievances are communicated in three grounds of appeal going thus: 1. That, the trial Tribunal having found through the evidence adduced and findings of the locus in quo that Laurent Mwaluko and Elizabeth Msoko acknowledged before it to have sold land to the appellant, ought to have declared the appellant the lawful owner of the land in dispute. 2. That, the trial Tribunal erred in law and fact in allowing the 1st – 4th Respondents to remain in occupation of the pieces of land which were illegally re-sold to them by the 5th and 6th Respondents who no had on title to sell the same. 3. That, the trial Tribunal erred in law and fact in not awarding costs to the Appellant who had proved her claim on the required standard of proof per the law thus occasioned failure of justice on her part. At the hearing of this appeal the appellant appeared represented by Mr. Cheapson Chidumage while the respondents enjoying the services of Mr. 2 Ezekiel A. Mwakapeje, both learned advocates and were all heard in written form. In this judgment I am prepared to determine each ground of appeal in seriatim as argued if need be. To start with the first ground in which the issue is whether the Tribunal having found through the evidence of Laurent Mwaruko and Elizabeth Msoko and its findings when visited the locus in quo ought to have declared the appellant a lawful owner of the suit land. It was Mr. Chidumage’s submission that, the trite law is that sale is one of the ways in which land can be acquired, more so when a sale agreement is executed between the vendor and purchaser for valuable consideration. According to him, the Tribunal having rightly found the sale was concluded between the appellant and the 5th and 6th respondents in which the value for money was sufficient and therefore the vendors had no title to pass after ownership of the suit land had passed to the appellant, went astray when turned around and awarded ownership of part of the suit land to the respondents who were trespassers despite of not raising counter claim in their written statement of defence claiming for the said piece of land awarded to them. To fortify his legal stance the Court was referred to the case of Melchiades John Mwenda Vs. Gizelle Mbaga (Administrator of the Estate of the late John Japhet Mbaga, Deceased) and 2 Others, Civil Appeal No. 57 of 2018 (CATunreported), that held the re-sale of the suit land by the vendors who had no title to pass was ineffectual in law. In the present matter he 3 emphatically argued, since no title had passed to the 1st - 4th respondents from the 5th and 6th respondents then they remained trespassers in which the Tribunal was wrong to allow them continue benefiting from illegal occupation and use of disputed land as they ought to have been evicted from the land and their developments therein demolished. He thus prayed the Court to find the ground merited and allow the appeal. In response Mr. Mwakapeje argued, the basis of appellant’s established ownership over the disputed land as found by the Tribunal was the sale agreement exhibit MK1. However, upon critical evaluation of evidence by the Tribunal the same was found to have unclear boundaries description necessary to establish ownership unequivocally hence it was impossible for the appellant to establish the size of his disputed land. With that deficiency he submitted, the Tribunal was justified to deny appellant’s claim of ownership over the whole disputed land. As to the Locus in quo visit he elucidated, the appellant failed to demarcate the boundaries of the dispute land clearly something that weakened her claims of ownership over the whole land. To fortify his submission he relied on the case of Romuald Andrea Vs. Mbeya City Council and Others, Land Case No. 13 of 2019 [2020] TZHC 2286 (12 August 2020) where this Court held that, where the description of the land in dispute is uncertain, it will not be possible for the court to make any definite order and execute it. Since the precise identification of boundaries during the 4 locus in quo visit is paramount and given the fact that the appellant failed to lead evidence to that effect, such failure leaves her claims ambiguous and unsubstantiated, hence the Tribunal was justified to confine itself to the established legal principles when denied appellant of her claims over the whole disputed land of 6 ½ acres. He thus moved the Court to find the appeal is wanting in merit hence dismiss it. In rejoinder submission while reiterating his submission in chief Mr. Chidumage countered respondents submission in that, it was wrong and without justification for them to take refuge on the Tribunal’s findings that the appellant failed to describe demarcations of the suit land, more so after it had found the appellant was a lawful owner of the whole suit land. According to him, had the Tribunal not found the sale agreement exhibit MK1 was a sufficient proof of appellant’s claim of ownership over the suit land through purchase, then it would not have held that she was the owner of the whole suit land after buying it from the 5th and 6th respondents. He added that, the issue of boundaries in the circumstances of this case was immaterial more particularly where none of the respondents testified to have preceded the appellant in acquiring the disputed land and that the appellant came later on as their neighbour. To him, a party cannot own land by way of purchase and adverse possession at the same time because these are two different defences in land disputes as the one advanced by the respondents is ownership through 5 purchase in which the 5th and 6th respondents had no title to pass to them. On the relied case of Romuald Andrea (supra) by the respondents he retorted that, the same is distinguishable as in that case the plaint was struck out for offending the provisions on Order VII Rule 3 of the CPC in which the suit land particulars were insufficiently described in the plaint which is not the case herein. In view of the above submission Mr. Chidumage urged this Court to find merit in this ground and allow the appeal. Having spent considerable time to revisit the evidence in record, the impugned judgment and considered the fighting submission by the parties, the uncontroverted fact is that, the Tribunal’s findings that appellant was a lawful owner of 6 ½ acres of land and the decision that, she was entitled to four acres only out of the said 6 ½ acres were based on the sale agreement exhibit MK1 between herself and the 5th and 6th respondents as well as its findings when visited the locus in quo on the 04/08/2023. However, before venturing on the issue as to whether the Tribunal was justified in arriving at such decision this Court wanted to know from the parties an unaddressed issues as to whether the said exhibit MK-1 relied on by the Tribunal to base its decision properly found itself in the record and secondly, whether the procedures for conducting locus in quo visit were followed by the Tribunal to entitle it rely on the findings thereof in its decision. Parties were therefore summoned to address the Court on the two suo mote raises issues in which they complied 6 with and appeared on 14/08/2024 through their advocates Mr. Godwill Benda for the applicant and Mr. Ezekiel A. Mwakapeje for all respondents. In his address to the Court on the suo motu raised issues by the Court Mr. Benda prefaced his submission with the notification to the Court that both parties to this appeal were unrepresented before the Tribunal hence their much reliance on Tribunal’s guidance on the procedure to be adopted in admission of exhibits and visiting of locus in quo. He then proceeded to submit on the admission of exhibit MK1 by confessing that, truly the same was admitted in violation of the law as the opposite party(ies) were not accorded with the right to either contest or concede to its admission. He said, it is this exhibit which constituted foundation of the whole case before the Tribunal and now in this appeal but to the surprise proceedings are silent on what happened before its admission. On the issue of the procedure adopted by the Tribunal to visit the locus in quo he intimated, the proceedings indicate the Tribunal was at the locus in quo without telling more as to what happened and what was the result or Tribunal’s findings on the said visit. He suggested that, it might be parties were involved and rendered their evidence or opinions while at the said locus in quo but the proceedings do not reflect whether they did so or not. He added that, even assessors’ opinions who appear to be present during that day are not reflected in the proceedings. All these defects or irregularities in his view were not manufactured by the appellant or other 7 parties to the case rather the Tribunal itself hence parties cannot be punished for the wrongs they did not contribute to. In the circumstances he invited the Court to act under section 79(1)(c) of Civil Procedure Code, [Cap. 33 R.E 2019] (the CPC) and revise the proceedings by quashing them and order retrial of the matter so as to render justice to both parties. In response Mr. Mwakapeje for the respondents held similar view to that of Mr. Benda for the appellant save for the remedy prayed to the noted defects. To start with exhibit MK1 he conceded, the same was improperly admitted for going against the three stages or procedures for admission of exhibits in court as enunciated in the case of Robison Mwanjisi and Others Vs. R [2003] TLR 218, as the proceedings are silent on whether it was cleared for admission for not displaying whether opposite parties were given chance to object its admission and whether after its admission the same was read so that parties so that are aware of its contents. According to him all three stages must be fulfilled in wholesome failure of which vitiates its admission and value the result of which is to expunge it from the record the course which is taken in most of Court decisions. As to the procedure adopted by the Tribunal when visited the locus in quo, Mr. Mwakapeje told the court that, it is the Tribunal that initiated the move to visit the locus in quo though in law is not a mandatory legal requirement as it is conducted where the Court or Tribunal deems fit to so do or upon the request from either party in the case. Since in 8 this matter it is the Tribunal that deemed fit to visit the locus he submitted, the same ought to have followed the procedure in five principles as elaborated in the cases of Nizar M.H. Ladak Vs. Gulamal Faxal Jan Mohamed (1980) TLR 29 and Kimonidimitri Mantheakis Vs. Ally Azim Dewji and Others, (Civil Appeal No. 4 of 2018) [2021] TZCA 663 (2 November 2021, Tanzlii. See also the case of Salum Mayombya and Another Vs. Lucas Ndahuzi, Civil Appeal No. 97 of 2021 (CAT) Tanzlii. According to him, in this case all five principles were not adhered to as one, one of the parties was not present and without any noted reason to that effect. Second, no proceedings were recorded reflecting what happened on that day and thirdly, it is no indicate what Tribunal’s findings at the locus in quo was. Failure to adhere to the requirement of the law Mr. argued, renders the said proceedings during locus in quo null and void the remedy of which is to quash them. In view of that procedural irregularities in the proceedings the learn counsel prayed the Court to quash the proceedings related to the visit of locus in quo as it was held in the case of Salum Mayombya (supra) and order for the same to be re-conducted in accordance with the law. As regard to defects in admission of exhibit MK1 it is was prayer his that, the same be expunged from the record and the case be remitted to the Tribunal for determination of parties’ dispute basing on the available evidence. In rejoinder submission Mr. Benda conceded to the submission by Mr. Mwakapeje, save for the prayers on the way forward with regard to 9 irregularities on the admission of exhibit MK1. He said, the procedural irregularities in admission of exhibit and visit of locus in quo were not caused by parties and appellant in particular rather the Tribunal itself. To him expunging from the records exhibit MK1 without ordering retrial of the matter before another competent chairman will render the order for re-conduction of locus in quo visit redundant one, bearing in mind the importance of sale agreement in determination of parties’ dispute. To be fair to both parties he insisted, retrial would be the right cause and proceeded to pray the Court to so order as per the Court of appeal decision in the case of Salum Mayombya (supra). I have dispassionately considered the contending submissions from parties and took time to revisit the record as well the impugned judgment of the DLHT for Dodoma. In principle parties are at one in both issues raised by the court when submitted that, there were procedural irregularities concerning admission of exhibit MK1 and Tribunal’s visit to the locus in quo which both formed the basis of the impugned decision. According to them, the procedure for admission of exhibits in court as spelt in the case of Robison Mwanjisi and Others (surpa) ought to be followed by the Tribunal as well as the five procedures when the Court or Tribunal is visiting the locus in quo either it on its own motion or when moved by either party in the case, failure of which rendered legality of the said exhibit MK1 as well as proceedings and Tribunal’s 10 findings regarding locus in quo visit, a nullity. As the same were null and void the trial Tribunal ought not to have used them to form basis of its decision. What made them part their ways is the remedy to such procedural irregularities in which Mr. Mwakapeje suggested the exhibit be expunged from the record and further quashing of the proceedings related to locus in quo visit while remitting the file to the Tribunal for re-conduction of locus in quo visit in accordance with the law and decide the matter basing on the remained evidence while Mr. Benda, took a divergent view in that, having quashed the entire proceedings the court be pleased to order for re-trial of the matter as the defects and irregularities in admission of exhibit and visit of the locus in quo were not authored by the appellant or other parties rather the Tribunal itself. To start with admission of exhibit MK1 on 29/09/2021, a glance of an eye at the Tribunal proceedings discloses that on that date when the appellant (PW1) was testifying before the Tribunal all respondents were present save for assessors in which the record is silent whether they were present or not. And this is what happened before admission of the said exhibit as I quote part of PW1’s evidence from page 31 of the typed proceedings: Hukumu ya baraza la kata hawakunitendea haki, niliambiwa sina haki. Nilikate rufaa hapa ili kurudiwa ndio kesi hii. Baraza 11 Kielelezo cha Mnunizi kati ya mwombaji na mjibu maombi No. 5 kimesomwa na kupokelewa kama kielelezo KM-1. Hivyo basi: Naomba baraza lirudishe jhaki yangu. Wajibu maombi waondoe nyumba zao. Gharama za kesi pia nilipwe. From parties submission it is true as submitted by Mr. Mwakapeje that, as the law stands it is imperative before admission of any document for the same be cleared for admission then admitted and assigned exhibit number. It was held in the case of Robison Mwanjisi and Others (supra) that, whenever it is intended to introduce any document in evidence, it should first be cleared for admission and be actually admitted, before it can be read out. The rationale behind the requirement of having it cleared for admission before it is admitted in my humble view is to accord the opposite party with an opportunity to challenge its admission before actually it is admitted, the opportunity which no doubt guarantees the right to fair hearing on the opposite party. The right to be heard before adverse action or decision is taken against such a party is so fundamental so that a decision which is arrived at in it violation will be nullified even if the same would have been reached had the party been heard, because the violation is considered to be a breach of the principles of natural justice. See the cases of Abbas Sherally and Another Vs. Abdul Sultan Haji Mohamed Fazalboy, Civil Application No. 133 of 2002, I.P.T.L Vs. 12 Standard Chartered Bank, Civil Revision No.1 of 2009 and Hussein Khanbhai Vs. Kodi Ralph Siara, Civil Revision No.25 of 2014 (all CATunreported). On the Court’s act of rendering decision on certain fact without according one party or parties with the right to be heard the Court of Appeal in the case of Standard Chartered Bank (supra) observed that: “No decision must be made by any court of justice /body or authority entrusted with the power to determine rights and duties so as to adversely affect the interests of any person without first giving him a hearing according to the principles of natural justice.” In this matter referring to the above excerpt from the Tribunal proceedings it is the findings of this Court that, despite of the respondents being present on that date were denied of their right to object or concede to the admission of the said exhibit KM-1, hence violation of their right to be heard as the decision on the admission of the said exhibit was entered without according them such right. Further to that, the said admission was in violation of the stages for admission of exhibit as stated in Robison Mwanjisi and Others (supra). I therefore agree with both counsel submission that the exhibit found its way in the proceedings illegally. Next for consideration is the procedure adopted by the Tribunal when visited the locus in quo on 04/08/2023 after moving itself. As held in the case of Salum Mayombya (supra) the law is settled that, visit of the locus in quo is not mandatory as it is done on exceptional circumstances. However, where 13 the trial court or tribunal deems it necessary to visit the locus in quo, the settled law is that, it is bound to carry it out properly. In the present case this is what happened on 04/08/2023 as copied from the Tribunal’s typed proceedings at page 55: Tarehe 04/08/2023. Mwenyekiti: O. Mbega. Wajumbe: Kitundu. Mwombaji –Yupo. Wajibu maombi: 1. Yupo. 2. Yupo. 3. Yupo. 4. Yupo. 5. Yupo. 6. Hayupo Baraza: Shauri kwa ajili ya ukaguzi wa eneo la mgogoro. Baraza lipo katika eneo la mgogoro. From the above excerpt in the Tribunal’s proceedings the issue is whether the Tribunal conducted itself in accordance with the law when visited the locus in quo. As rightly submitted by Mr. Mwakapeje the submission which I endorse, the law as stated in numerous decision of the Court is very clear as what is the composition and how should the Court or Tribunal conduct its proceedings 14 when visiting the locus in quo. See the cases of Nizar M.H. Ladak (supra), Kimonidimitri Mantheakis (supra) and Salum Mayombya and Another (supra). It is settled law that, when visiting the locus in quo court or tribunal should attend with parties and their advocates if any and such number of witnesses from each party who may testify in that particular matter. It has to record the proceedings while there by receiving evidence from parties and allow cross examination if any, after which when resuming in the Court room has to read out the notes taken to parties and allow them including advocates to comment on the same before incorporating them in the record as well spelt in the case of Nizar M.H. Ladak (supra). The case of Kimonidimitri Mantheakis (supra) further expounded the necessary procedures to be adopted by the Court or Tribunal to be five when observed that: "...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."[Emphasis added] From the above quoted excerpt from the Tribunal proceedings at page 55 on the date when the Tribunal visited the locus in quo it is noted, the same 15 complied with the first condition only as the record is silent on what happened after parties’ attendance at the locus in quo. This glaring omission as correctly submitted by both counsel was in total violation of the procedure as provided by the law since the Tribunal having formed an opinion to visit the locus in quo for the purposes of resolving parties’ controversy ought to have complied with the entire procedure. Since the procedure was not followed I agree with both parties and therefore make a finding that, the entire proceedings on Tribunal’s visit of the locus in quo are vitiated, the result of which the decision based on it is affected too. Having so found the last question is what course should be taken by the Court under the circumstances. I reject Mr. Mwakapeje’s invitation to expunge exhibit KM-1 without quashing the proceedings in which it is emanating from. The reason I am so doing is not far-fetched as its admission not only violated the principles for admission of exhibits in Court as explained in Robison Mwanjisi and Others (supra) but also respondents’ rights to be heard before its admission which goes to the root of the matter and vitiates the proceedings. In view of the above, couple with the fact that, Tribunal’s proceedings during locus in quo visit are also vitiated, this Court invokes revisional powers bestowed to it under section 43(1)(b) of the Land Disputes Courts Act, [Cap. 216 R.E 2019] and proceed to quash the proceedings of the Tribunal in Land Application No. 423 of 2017 and set aside its judgment dated 31/08/2023. It 16 is hereby ordered that, the case be tried de novo before another competent chairman. The appeal is allowed to that extent. Since the issue disposing of the appeal originates from the Court, I order each party to bear own costs. Order accordingly. Dated at Dodoma this 13th of September, 2024. E. E. KAKOLAKI JUGDE 13/09/2024. Court: The Judgment has been delivered at Dodoma today on 13th day of September, 2024, in the presence of Mr. Chipson Chidumage and Mr. Godwill Benda, advocates for the Appellant and the 1st Respondent and Ms. Veradina Matikila, Court clerk and in the absence of the 2nd to 6th respondents. Right of appeal explained. E. E. KAKOLAKI JUGDE 13/09/2024. 17