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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO 26455 OF 2024 (An appeal against the Decision of the District Land and Housing Tribunal for Ubungo at Luguruni in Land Application No. 562 of2020 before Hon. J. M. Bigambo, Chairperson, dated 12th September 2024) THOBIAS AWINO DAFFA.................................... 1ST APPELLANT LETISIA AWINO DAFFA.................................... 2ND APPELLANT VERSUS PEREZIA JOHN NYAMANGA RESPONDENT JUDGMENT Date of last Order: 10/2/2025 Date of Judgment: 24/2/2025 LALTAIKA, J, The Appellants THOBIAS AWINO DAFFA and LETISIA AWINO DAFFA ("the first and second Appellants" or simply the Appellants) are dissatisfied with the decision of the District Land and Housing Tribunal for Ubungo at Luguruni (the DLHT) in Land Application No. 562 of 2020. They have appealed to this Court by way of a Petition of Appeal containing six grounds. I choose to reproduce them irrespective of their unnecessary length and repetition. Page 1 of 18 1. The Trial Tribunal grossly erred in law by concluding that a site visit was necessary to ascertain the actual size of the plot subject to the alleged sale, and the site visit which was conducted on 11/06/2024 was fraught with procedural irregularities, including conducting the visit during night hours, failure to record findings, read them to the parties, resume in court, and consider these findings in its judgment. 2. The trial Tribunal erroneously decided that the 1st Appellant was the lawful owner of the disputed property as per Exhibit Pl, yet held that the evidence of DW1-DW4 substantiated the Respondent's possession through an alleged purchase from the 2nd Appellant, who lacked the legal authority to sell the property and testified that she never sold it. 3. That the trial Tribunal improperly decided that the Respondent's purported purchase in 2009, combined with alleged possession from 2009 to 2020, entitled her to ownership in the absence of a valid sale, with the judgment being replete with opinions rather than findings, concluding that "baraza Una maoni hayo", the conclusion reached based on observations made during the disputed property visit, which noted that the Appellants' house borders the Respondent's house, constructed during the ongoing dispute, serving as the basis for the 1st Appellant's filing of the case in question. 4. The trial Tribunal grossly erred in fact and law by ruling that the 2nd Appellant sold the disputed plot to the Respondent without establishing whether the 2nd Appellant held any valid title, and even if she did, whether the mandatory spousal consent was obtained prior to the alleged sale. 5. That, the Trial tribunal incorrectly relied on DW2's testimony, asserting that the 1st Appellant authorized the sale through a phone call, while disregarding the dear and uncontested evidence from PW1 and PW2 that no such call or authorization existed. 6. That, the Trial Tribunal grossly erred in law and in fact by holding that the Appellants had failed to prove their case to the required threshold of a balance of probabilities. Page 2 of 18 When the appeal was called for hearing, representation by Counsel was as follows: For the Appellants: Ms. Mary Thomas, learned Advocate holding brief for Mr. Paschal Mshanga, Advocate. For the Respondent: Mr. Benedict Magoto Mayani, learned Advocate. Parties chose written submissions as a form of hearing. With a nod of approval from this Court, the following schedule was agreed upon: (i) Appellant's written submission in chief: 29th November 2024 (ii) Respondent's Reply 13/12/2024 (Hi) Appellant's Rejoinder (if any): 20/12/2024 (iv) Mention 5/2/2024 at 10:00 I take this earliest opportunity to register my appreciation to Counsel for their spot on compliance with the scheduled order, This time management trait is essential to enable this Court to fulfil its constitutional mandate of timely dispensation of justice. The next part of this judgment is, in that order, a summary of submissions by both parties, my reasoning/analysis of the law and the verdict. Mr. Mshanga, Counsel for the Appellants, stated that the appeal contained six grounds, but he sought not to reproduce them, explaining that some grounds would be consolidated while others would be argued individually. He further pointed out that the Respondent had not filed a reply to the grounds of appeal, which would have indicated Page 3 of 18 their intention to challenge the grounds raised. Nevertheless, he proceeded with his submissions. Regarding the first ground of appeal, which concerned the failure to consider findings of the site visit and irregularities in the visit itself, Mr. Mshanga contended that the record showed that on 11th June 2024, the parties visited the disputed area. He asserted that it was undisputed that no proper notes were recorded following the site visit, and even if any were taken, they were not read to the parties as required by law. He further argued that the parties were not given an opportunity to comment on issues arising from the visit, nor did they and the Tribunal reconvene in the courtroom as mandated by law. Additionally, he emphasized that the site visit was conducted at night, which rendered it impossible for the parties to properly identify the disputed area. Despite these irregularities, the Tribunal proceeded to compose its judgment, without considering the findings of the site visit. Given these shortcomings, he submitted that the entire process was vitiated. Citing several case laws of the apex Court, he contended that once a Tribunal or Court orders a site visit, commonly known as a visit of locus in quo, it is required to consider the findings in its judgment. Page 4 of 18 Failure to do so, he argued, was equivalent to disregarding crucial evidence tendered by the parties. He underscored that site visit evidence is particularly significant because it provides direct insight into the disputed land and its description by the parties. He further noted that site visits are not routine but rather ordered in exceptional circumstances when the Tribunal deems it necessary for a proper adjudication of the dispute. In support of this argument, he referred to the decision of the Court of Appeal in AVIT THADEUS MASSAWE V. ISIDORY ASSEN GA, CIVIL APPEAL NO. 6 OF 2017 (CAT ARUSHA) (unreported) at pages 15 and 16, where the Court, citing with approval the case of NIZAR M.H. LADAK V. GULAMALI FAZAL JANMOHAMED [1980] TLR 29, held that site visits should be conducted only in exceptional cases, as there is a risk that the court may assume the role of a witness rather than an adjudicator. Mr. Mshanga further relied on the decision in JOSEPH KERETO V. NJACHAI MARIPET & OTHERS, MISC. LAND APPEAL NO. 23 OF 2020, where the court emphasized that although there is no law requiring a Tribunal to conduct a site visit, when issues such as the size, boundary, or uncertainty of the disputed land arise, a site visit is advisable. He Page 5 of 18 pointed out that the judgment in that case reiterated the necessity of making a brief note of the site visit, reading it to the parties, and, if required, including a rough sketch map as part of the Tribunal's proceedings. He stressed that in the instant case, none of these procedural safeguards were observed, rendering the entire site visit irregular. Turning to the second ground, which consolidated grounds 2 and 4, Mr. Mshanga contended that the Trial Tribunal failed to consider that the 2nd Appellant had no good title to sell the disputed property. He began by invoking the well-established legal maxim "Nemo dat quod non habet", which translates to "No one can give what they do not have." He emphasized that a person cannot transfer a title they do not own. Counsel argued that the evidence on record clearly established that the disputed property belonged to the 1st Appellant, who had purchased it from Ms. Roza Peter on 1st September 2000. He noted that this evidence remained unchallenged. He questioned whether the 2nd Appellant could have lawfully transferred the property when she did not have ownership in the first place, asserting that such a transaction Page 6 of 18 was legally untenable. He submitted that the Trial Tribunal erred in holding that a lawful sale had occurred. In support of this argument, he referred to the Court of Appeal decision in GLORIA I RI RA V. SUDI MRISHO NGWAMBI, MUJITABA KURBAN SELEMWALLA AND ASHOKI BHAILAL SHANGHAVI, CIVIL APPEAL NO. 27 OF 2021, where the Court, citing FURAHA MOHAMED V. FATUMA ABDALLAH [1992] TLR 205, held that a person who does not have a legal title to land cannot pass a good title to another. Based on these precedents, he submitted that the Trial Tribunal's decision should be overturned. Addressing the fifth ground of appeal, which concerned the Tribunal's error in holding that authorization for the sale could be made via a phone call, Mr. Mshanga argued that the Trial Tribunal erred in law and fact by disregarding the evidence of the 1st Appellant (PW1) and the 2nd Appellant (PW2), both of whom consistently testified that no authorization had been given for the sale. He contended that the testimony of DW2, who claimed that the 1st Appellant had consented to the sale through a phone call, was vague and unsupported, as DW2 failed to provide specifics such as the date, phone number, or size of the land allegedly sold. Page 7 of 18 Mr. Mshanga emphasized that under the law, consent to dispose of property, particularly matrimonial property, cannot be given casually through a third party or orally. Instead, it must be direct, explicit, and documented to ensure legal certainty. He cited section 114 of the Land Act, Cap. 113, which governs property dispositions, and section 59 of the Law of Marriage Act, Cap. 29, which underscores the necessity of spousal consent in matrimonial property transactions. In conclusion, Mr. Mshanga submitted that the Trial Tribunal's failure to properly evaluate the evidence and its misapprehension of the legal principles governing property disposition rendered its decision fundamentally flawed. He urged the Court to uphold the appeal and overturn the decision of the Trial Tribunal. Mr. Mayani, Counsel for the Respondent, responded to the submission made by Mr. Mshanga, asserting that the Respondent had successfully presented a case that met the legal standard of balance of probability. He contended that the testimony of the witnesses, namely DW1, DW2, DW3, and DW4, all of whom were present at the time of the sale, strongly supported the Respondent's claim. According to him, these witnesses had testified that on 9th July 2009, the 2nd Appellant sold a Page 8 of 18 one-acre piece of land located at Kulangwa Street, Goba Tegeta, to the Respondent for a total consideration of Tsh. 1,800,000/-, which was paid in two instalments. He elaborated that the first instalment of Tsh. 1,000,000/- was paid on 9th July 2009, while the second instalment of Tsh. 800,000/- was paid on 29th September 2009, both of which were received by the 2nd Appellant. Counsel further emphasized that DW4, who had testified as the son of the Appellants, confirmed his familiarity with the disputed land, having previously lived there. He noted that DW4 had even measured the one- acre plot using his footsteps, which corroborated the Respondent's claim regarding the sale. Mr. Mayani argued that the court needed to address a crucial question: if, as the Appellants claimed, the sale agreement contained an incorrect measurement—stating one acre instead of 34/25 acres—then the whereabouts of the said agreement should be explained, He questioned why it had not been presented before the Tribunal for scrutiny, who had witnessed its signing, and why those witnesses were not called to testify. Counsel pointed out that the 2nd Appellant had admitted that DW4 was a witness to the sale, yet failed to call him to testify regarding the alleged discrepancies in the agreement. According to him, such failure to present a key witness was telling and gave rise to an adverse inference Page 9 of 18 against the Appellants. He maintained that it was well established in law that a party's failure to call a material witness could result in the court drawing an adverse inference. To support this position, he referred to Hemedi Saidi v. Mohamedi Mbilu [1984] TLR 113. Mr. Mayani asserted that the Appellants' failure to call DW4, who was a material witness, and the failure to cross-examine him on the measurement of the land, compelled the conclusion that the facts as stated by DW4 were accepted. He noted that the Appellants had not provided any plausible explanation for this omission, and as such, the court should draw the appropriate inference that, if contested, DW4's testimony would have corroborated the Respondent's version of events. Mr. Mayani emphasized that the trial tribunal had correctly relied on the oral evidence provided by the witnesses who were directly involved in the sale of the land. He stressed that oral evidence was of great value, particularly when it came from individuals who directly observed the events in question. While acknowledging that the written sale agreement had not been tendered, he maintained that the substance of the sale had been clearly outlined through the testimony of the witnesses who were present during the transaction. In his view, the absence of a written agreement did not Page 10 of 18 invalidate the sale, especially given the compelling oral evidence supporting the Respondents claim. Furthermore, Counsel argued that the Respondent had undertaken due diligence before proceeding with the purchase. He explained that the Respondent had consulted the Ten Cell Leader, who, after confirming the sale with the 1st Appellant, had assured the Respondent that the sale could proceed. According to him, the fact that the Respondent sought and obtained confirmation from the 1st Appellant further substantiated the legitimacy of the transaction. Counsel maintained that the failure to formalize the sale agreement in writing should not be used to deprive the Respondent of their rightful ownership, particularly when the key facts of the transaction had been clearly established through the testimony of the witnesses present at the time of the sale. He added that the Appellants' failure to address or challenge the critical facts presented by these witnesses could not be allowed to undermine the Respondent's rights. Mr. Mayani further submitted that the Appellants ought to know that this was not a transfer of the right of occupancy, which would have required the sale agreement to be in writing. He emphasized that the evidence provided, both oral and circumstantial, established beyond a reasonable doubt that the sale of the land was legitimate, properly Page 11 of 18 authorized, and conducted in good faith. He maintained that the Appellants' failure to properly challenge this evidence—particularly the absence of critical witnesses and the lack of cross-examination—should result in the court accepting the Respondent's assertions and dismissing the Appellants' claims. Counsel further argued that the Appellants' failure to prove their case to the required legal standards had directly led to their loss. He reminded the Appellants of the established principle enshrined in Section 110 of The Evidence Act, Cap 6 [R.E. 2019]. In civil matters, he asserted, the standard of proof was governed by the balance of probabilities. According to him, it was sufficient to meet this standard if it was more likely than not that the proposition being asserted was true. He maintained that the evidence presented by the Respondent demonstrated that the Appellants had failed to meet this standard, as their assertions lacked the necessary factual foundation to establish their case. Additionally, Mr. Mayani referred to Section 100(1) of The Law of Evidence Act, Cap 6 R.E. 2019, which provides that when the terms of a contract, grant, or any other disposition of property have been reduced to the form of a document, no evidence shall be given in proof of its terms except the document itself or admissible secondary evidence. He submitted that although the Respondent had attempted to tender the Page 12 of 18 sale agreement before the Tribunal, her efforts had been unsuccessful. However, he contended that the Tribunal had correctly recognized that, as per the law, the content of the sale agreement could not be introduced unless in writing or through admissible secondary evidence. He further submitted that while written agreements were preferred in land transactions for clarity, the absence of a written document did not invalidate an agreement, provided that the terms of the oral agreement were clearly established through reliable testimony, as had occurred in the present proceedings. In conclusion, Mr. Mayani asserted that the Respondent had established, through credible and unchallenged testimony, that the sale of the land was legitimate, properly authorized, and conducted in good faith. He maintained that the Appellants had failed to meet their burden of proof and that their claims must be rejected. Having dispassionately considered the rival submissions, the following issues arise for determination: 1. Whether the site visit conducted by the Tribunal was irregular and if so, whether it vitiated the entire proceedings. 2. Whether the 2nd Appellant had a valid title to transfer the disputed land to the Respondent. Page 13 of 18 3. Whether the Tribunal erred in accepting the alleged authorization of the sale through a phone call. 4- Whether the Tribunal properly evaluated the evidence before arriving at its decision. On the first issue, it is undisputed that the Tribunal conducted a site visit; however, the Appellants have challenged its legality, arguing that no proper notes were recorded, the findings were not read to the parties, and the Tribunal did not reconvene for parties' comments. Further, they contend that the visit took place at night, raising doubts about the proper identification of the disputed land. It is a well-established principle that site visits should only be conducted in exceptional cases where clarification is necessary. Moreover, the findings must be formally recorded and incorporated into the proceedings for transparency. In the case of Nizar M.H. Ladak v. Gulamali Fazal Janmohamed (Supra) the Court held that a failure to record and disclose site visit findings constitutes a fatal irregularity. In the present case, since the site visit findings were neither documented nor subjected to scrutiny by the parties, the Tribunal's reliance on such findings was erroneous, thereby affecting the fairness of the trial. Page 14 of 18 Coming to the second issue above, the Appellants argue that the 2nd Respondent had no legal title to transfer the disputed land, invoking the principle of nemo dat quod non habet—one cannot transfer what they do not own. They claim that the 1st Appellant had purchased the land in 2000, thereby establishing a superior interest over the Respondent's alleged purchase. It is trite law that ownership of land must be established through credible evidence. While the Respondent relied on the testimonies of DW1, DW2, DW3, and DW4, the Appellants contended that no valid title existed in the 2nd Respondent to effect a legal transfer. The case of Farah Mohamed v. Fatuma Abdallah [1992] TLR 205 underscores the importance of proving good title in land transactions. In this case, the Tribunal failed to adequately analyze whether the 2nd Appellant had good title, thereby rendering its findings unreliable. I find the 3rd issue rather intriguing. The Tribunal accepted the claim that authorization for the sale was given via a phone call. However, the Appellants challenge this, arguing that property transactions, particularly those involving matrimonial property, require formal, written consent. Under Section 59 of the Law of Marriage Act, Cap 29 [R.E. 2019], spousal consent is mandatory in the disposition of matrimonial property. Furthermore, land transactions should adhere to the requirements of the Page 15 of 18 Land Act, Cap 113 [R.E. 2019], which necessitate written documentation for valid transfers. The Tribunal's reliance on an alleged phone call, without corroborative evidence, was therefore legally flawed. On the fourth issue, Mr. Mayani contended that the Respondent proved ownership on a balance of probabilities, relying on witness testimonies and due diligence efforts. However, the Appellants have criticized the Tribunal's evaluation of evidence, particularly the absence of a written sale agreement and inconsistencies regarding land measurements. While oral evidence can be relied upon in certain circumstances, written documentation provides stronger proof, especially in land disputes. In Hemedi Saidi v. Mohamedi Mbilu [1984] TLR 113, the Court held that an adverse inference may be drawn against a party that fails to call material witnesses. In the present case, the absence of a clear documentary trail weakens the Respondent's claim, and the Tribunal's failure to scrutinize this aspect undermines the soundness of its decision. Having carefully considered the grounds of appeal and submissions from both parties, this Court finds that the Tribunal's decision suffered from procedural irregularities and substantive misapprehensions of legal principles. The failure to properly document the site visit, the reliance on an unverified claim of authorization via phone, and the failure to establish Page 16 of 18 a valid transfer of title all render the Tribunal's decision fundamentally flawed. Bearing in mind that this is a first appeal, I have taken liberty to treat the appeal as a form of rehearing. I have reevaluated the entire evidence and I must admit that there was almost no base for the tribunal to take the decide the way it did. Ordinarily, due to the invocation of irregularity in conducting the locus in quo\ would have ordered the matter to be remitted for retrial before a different Chairperson, with due observance of procedural and evidentiary requirements. However, truth be told, there is no evidence in the first place. That is probably the reason Mr. Mbayani chose to invoke sympathy in his submission instead of analysing the law. Let me reproduce a part of his submission: At the heart of this case is the remarkable courage and determination displayed by the Respondent. She testified before the tribunal under extraordinary circumstances, pregnant and on the brink of delivery. Despite her condition, she stood firm, demonstrating a bravery akin to that of a lioness. Her resolve was further supported by four witnesses, some of whom were themselves ill, yet they still made their way to the tribunal to testify in support of her claim. Let me say albeit in passing that I admire Mr. Mayani's empathy. However, this is not how Counsel should argue their cases in Court. Counsel must strive to approach matters before them objectively and assist the court in ensuring that justice is not replaced by sympathy. As Page 17 of 18 much as we are all human and may at time be moved by our emotion, we must remember that justice is blind. To put it bluntly in Kiswahili "Sheria ni Msumeno" In the upshot, the appeal is hereby allowed. The decision of the District Land and Housing Tribunal for Ubungo in Application No. 562 of 2020 is set aside. Costs of this appeal are awarded to the Appellants. Further, the reliefs sought by the Appellants in the Trial Tribunal are hereby granted. It is so ordered E.I. LALTAIKA JUDGE 24/02/2025 Court: Judgment delivered in Court Chambers this 24th day of February2025at 14:45 PM in the presence of Ms, Mary Thomas, learned Advocate, holding brief for Mr. Paschal Mshanga, learned Advocate, Counsel for the Appellants and Mr. Benedict Magoto Mayani, learned Advocate, Counsel for the Respondent. Page 18 of 18