victor raphael luvena vs magreth ephraim kawa others 2023 tzca 17526 23 august 2023

IN THE COURT OF APPEAL OF TANZANIA AT DAR-ES-SALAAM ( CORAM: MUGASHA.

3. A.. KITUSI, 3.A. And MDEMll. 3.A.:1 CIVIL APPEAL NO. 25A OF 2021 VICTOR RAPHAEL LUVENA......................................................... APPELLANT

VERSUS MAGRETH EPHRAIM KAWA................................................... 1st RESPONDENT 30HN 3.H. NTAGWABIRA....................................................... 2 nd RESPONDENT 30SHUA S. KAZI..................................................................... 3rd RESPONDENT (Appeal from the Decision of the High Court of Tanzania (Commercial Division) at Dar-es-salaam) (Rumanvika, 3/1 dated the 11th day of December, 2020 in Land Case No. 16 of 2017

JUDGMENT OF THE COURT 18th & 23rd August, 2023 MUGASHA. J.A.: This is a first appeal originating from the judgment and decree of the High Court of Tanzania (Land Division) at Dar es Salaam in Land Case No. 98 of 2017. In that case, Magreth Ephraim Kawa, John J.H Ntagwaba and Joshua Kazi, the 1st to 3rd respondents herein sued Victor Raphael Luvena, the appellant herein. The respondents claimed to be the lawful owners of pieces of farmlands located at Kimele hamlet, Mapinga village, Bagamoyo in Coast Region having acquired the same from the original owners who were the holders of the said land under customary right of occupancy. It was alleged by the respondents that, on 15/2/2003, the 1st respondent had purchased unsurveyed land measuring approximately 2.5 acres from one Sultan Pazi; the 2nd respondent on 10/10/2007 purchased land measuring approximately 2 acres from one Ringo Mohamed whereas on 12/ 2/2010 the 3rd respondent purchased unsurveyed farm measuring approximately 1 acre from one Mwanaidi Ally Mussa. It was further alleged that, on diverse dates and times in 2016, without any colour of right, or any legal justification, the appellant trespassed into the respondents' farms, removed border marks, cut down a number of natural trees preserved by the respondents and constructed a house on the 2nd respondent's farm. The respondents prayed for the following reliefs: One; a

declaration that the respondents are the lawful owners of the farmlands in question; two; an order compelling the appellant to remove his building on the 2nd respondent's area, three; an order restraining the appellant from future interference of their land and, four; Costs of the suit. On the other hand, the appellant filed a written statement of defence and besides disputing the respondents' allegations, raised a preliminary point of objection that the suit was res judicata . In refuting the respondents7 claims, it was the appellant's averments that he had purchased the suit property in the year 1996 from one Sultan Omari Pazi and complied with the required procedures in acquiring and surveying the said farm. However, he alleged that, sometimes in 2003, 2007 and 2010 while outside the country for further studies, the respondents trespassed into his farmland. Upon his return in 2013, he successfully sued the respondents before the Ward Tribunal for Kerege in Land Case no. 42 of 2013 and subsequently, the respondents lost before the District Land and Housing Tribunal for Kibaha at Kibaha in an appeal vide Land Appeal No. 28 of 2017. No appeal was preferred at the High Court. Having heard the evidence from both sides, the High Court was satisfied that the respondents had proved their case on the balance of probabilities and thus entered judgment in their favour. Aggrieved with the decision of the trial Court, the appellant filed the present appeal advancing the following grounds: 3 1. That, the High Court erred in law and fact when it ordered the parties and their witnesses to visit the locus in quo to ascertain the boundaries o f the su it land before hearing is began and in the absence o f the Court.

2. That, having found that there was possibility o f pieces o f land o f the parties are located differently the High Court erred in law and fact when it held that the appellant encroached the respondent's pieces o f land.

3. That, the High Court erred in law and fact when it failed to visit the locus in quo to identify the su it land.

4. That, the High Court erred in law and fact when it adm itted and acted upon the respondents'sate agreements o f the alleged suit plots without paym ent o f stamp duty as required by the law.

5. That, the High Court erred in law and fact when it held that the respondents had proved their case on the balance o f probabilities without giving specific orders or reliefs. At the hearing of the appeal, in appearance were Messrs. Daimu Halfan and Hamza Matongo, learned counsel for the appellant and Messrs. Charles Tumaini and Simon Patrick, learned counsel for the respondents. They both adopted the written submissions filed earlier on for and against the appeal to constitute an integral part at the hearing of the appeal. In the first and third grounds of appeal, the trial court is faulted for failure to visit the locus in quo and instead having ordered the respective visit to be conducted by parties and their witnesses accompanied by the officials from the Ministry of Land. It was contended that, the visit which was wrongly presided over by the officials from the Ministry of Land was conducted for the purposes of resolving a preliminary objection raised by the appellant on the suit being res judicata. On this, it was the appellant's counsel argument that, the preliminary point of objection was wrongly entertained and the trial court ought to have dismissed it for offending the validity as to the rule of preliminary objection. To bolster the argument, cited were the cases Of MUKISA BISCUITS MANUFACTURING COMPANY LTD VS WEST END DISTRIBUTORS LTD (1969) EA 696 and MS.

SAFIA AHMED OKASH VERSUS MS. SIKUDHANI AMIRI & 8 OTHERS, Civil Appeal No. 138 of 2016. (unreported). Moreover, it was further submitted that, the report authored by one Ndimila Cornel, a surveyor pursuant to the irregular visit of the locus in quo was wrongly admitted 5 in the evidence and acted upon by the trial Judge to reach the verdict of the case. On the other hand, it was the respondents' counsel submission that, there is no law which specifically obliges the Court to visit the locus in quo. However, it was argued that in the present matter, the visit at the locus in quo was justified to ascertain the boundaries of the suit land in order to resolve the preliminary point of objection on the suit being res judicata or not. In this regard, it was viewed by the respondents' counsel that, if the appellant believed that it was necessary for the court to visit the locus in quo, he was at liberty to ask the court for necessary procedure to be observed which was not the case and as such, the complaint raised at this stage is an afterthought. In respect of ground 5, it is the appellant's complaint that the High Court erred in law and fact when it held that the respondents had proved their case on the balance of probabilities without making specific orders or reliefs on the issues framed. The appellant's submission was to the effect that, it was not enough to conclude that the suit

succeeds with costs and instead, it was incumbent on the trial judge to state a specific finding or decision on each or any of the issues framed and reliefs sought as required by the law. This was not the case which 6 renders the decree not capable of being enforced. The appellant argues this to have occasioned a failure of justice. On the other hand, the respondents' counsel was of the view that since judgment writing is a matter of style, the trial Judge was justified to make a generalised judgment which suffices in the circumstances of the dispute involved having considered that the respondents had proved their case on the balance of probabilities. That apart, the respondents' counsel had a strong view that, the question on the boundaries of the suit land was already determined when the trial court resolved the preliminary objection on the suit being res judicata and thus, the issue should be treated as determined. Having carefully considered the three grounds of complaint, the written submissions from the parties and the record before us, this appeal raises pertinent questions revolving on the propriety or otherwise of determining the preliminary point of objection on the suit being res judicata pursuant to the visit at the locus in quo and whether the resulting impugned judgment resolved the dispute between the parties. We begin with the visit at the iocus in quo. Although

the objective of visiting the iocus in quo is not in dispute, the contention is the respective visit in the absence of the court and how the ascertainment 7 of boundaries at that stage was utilised to determine the preliminary point of objection on the suit being res judicata as raised by the appellant. The trial court has discretion to visit the locus in quo as stated under Order XVIII, Rule 13 of the Civil Procedure Code, Cap. 33 R.E. 2019 (the CPC) which stipulates as follows: "the Court may a t any stage o f the su it inspect any property or things concerning which any question may arise." From the wording of the cited provision, although the court is not obliged to visit the focus in quo, where exceptional circumstances arise, it is prudent for the Court to visit at the locus in quo for instance, to verify the accuracy of the evidence adduced by the parties at the trial in respect of the matter in dispute. In this regard, the visit must be conducted by the court itself in the presence of the parties and advocates, if any. Therefore, we agree with the appellant that the stance taken by the trial Court to order the visit of the locus in quo by the parties and the officials from the Ministry of Lands in the absence of the trial court was with respect, absolutely wrong. Thus, it cannot be safely vouched that there was a visit of the locus in quo as envisaged under the law. The

purported visit amounted to the court delegating its adjudicative role to those not mandated to do so. Besides, and without prejudice, the visit at the locus in quo was not a proper avenue to ascertain the boundaries of the suit land in order to resolve the preliminary point of objection on res judicata which required proof by way of evidence at the trial. We say so because, it is settled position of the law that, a preliminary objection may only be raised on a pure question of law, which means that, the Court must be satisfied that there is no proper contest as to the facts of the point. The facts pleaded by the party against whom an objection has been raised must be assumed to be correct and agreed as they are prima facie presented in the proceedings in Court. See: MS. SAFIA AHMED OKASH VS MS. SIKUDHANI & 82 OTHERS (supra). In a nutshell, given the contention between the parties as to the boundaries of the suit land, it was incumbent on the trial court to dismiss the preliminary objection and await evidence to be paraded at the trial for final and conclusive determination of the suit. Thus, the 1st and 3rd grounds of appeal are merited. Next point for determination is whether, the issues framed were determined in the impugned judgment. Whereas the appellant's counsel 9 argued that none of the issues was specifically decided, the respondents' counsel held the view that the

generalised impugned judgment suffices. The framing of issues in a civil trial is regulated by Order XIV Rule 1 of the CPC, which categorically stipulate as follows: ”(1) Issues arise when a m aterial proposition o f fact or law is affirm ed by one party and denied by the other. (2) M aterial propositions are those propositions o f law or fact which p la in tiff m ust allege in order to show a right to sue or a defendant m ust allege in order to constitute his defence. (3) Each m aterial proposition affirm ed by one party and denied by the other sh all form the subject o f a distinct issue. (4) Issues are o f two kinds- (a) issues o f fact; and (b) issues o f law. (5) A t the firs t hearing o f the su it the court shall, after reading the plaint and the written statem ents, if any and after such examination o f the parties as may appear 10 necessary, ascertain upon what m aterial proposition o f fact or o f law the parties are at variance, and sh all thereupon proceed to frame and record the issues on which the right decision o f the case appears to depend. (6) Nothing in this rule requires the court to frame and record issues where the defendant at the firs t hearing o f the su it makes no defence.

2. Issues o f law and o f fact Where issues both o f law and o f fact arise in the same suit, and the court is o f opinion that the case or any part thereof may be disposed o f on the issues o f law only, it sh all try those issues first, and for that purpose may, if it thinks fit, postpone the settlem ent o f the issues o f fact until after the issues o f law have been determined.

3. M aterials from which issues may be fram ed The court may frame the issues from a ll or any o f the follow ing m aterials- (a) allegations made on oath by the parties, or by any person present on ii their behalf, or made by the advocates o f such parties; (b) allegations made in the pleadings or in answers to interrogatories delivered in the suit; (c) the contents o f documents produced by either p a rty" From the wording of Order XIV of the CPC, issues for determination in a suit generally flow from the pleadings and unless the pleadings are amended, the trial court may only pronounce judgment on the issues arising from the pleadings. See: GANDY VS CASPAIR [1956] EACA and FERNANDO VS PEOPLE NEWSPAPER LTD [1972] EA 63 Pertaining to the complaint that, the framed issues were not determined, this takes Order XX Rules 4 and 5 of the CPC, which state as follows: "4. A judgm ent shall contain a concise statem ent o f the case, the points for determination, the decision thereon and the reasons for such decision, 5. In suits in which issues have been framed, the court sh all state its finding or 12 decision , with the reason therefor, upon each separate issue unless the finding upon any one or more o f the issues is sufficient for the decision o f the su it" The cited provisions impose a mandatory requirement that a finding or decision on the issue or issues framed must be stated

in the judgment. In the present case, the issues framed were: One, who is the lawful owner of the Suitland; two, whether the respondents trespassed into the plaintiffs' land; and three, to what reliefs are parties entitled to. However, although it was held that the respondents proved their case on the balance of probabilities, we could not discern at what point specific finding or decision was stated on each framed issue which militates against the mandatory dictates of Order XX, Rules 4 and 5 of the CPC. The Court had the occasion to discuss the cited rules relating to the essence of the trial court making a finding on each issue framed in the case of SHEIKH AHMED SAID VS THE REGISTERED TRUSTEES OF MANYEMA MASJID [2005] TLR 61, at page 67 it was stated: "'It is necessary for a tria l court to make a specific finding on each and every issue fram ed in a case, even where some o f the issues cover the same aspect...It is an elem entary principle o f 13 pleading that each issue fram ed should be definitely resolved." Yet, the Court was confronted with a similar situation in the case of JOSEPH NDYAMUKAMA (Administrator of estate of the late

GRATIAN NDYAMUKAMA VS NIC BANK TANZANIA LIMITED AND TWO OTHERS, Civil Appeal No. 239 of 2017 (unreported). The Court stated: "... We are in agreem ent with Mr. Chamani that it is an elem entary principle o f pleadings that each issue framed should be resolved. Therefore, a tria l court is required and expected to decide on each and every issue fram ed before it, hence failure to do so renders the judgm ent defective. We are supported in that position by the cases o f Alnoor S hariff Jam al vs Bahadour Ebrahim Shamji, C ivil Appeal No. 25 o f 2006, Sosthenes Bruno and Another Vs Flora Shauri, C ivil Appeal No. 81 o f 2016, Kukal Properties Development Lim ited vs Maloo and Others [1990 up to 1994] EA 281." Ultimately, the Court being satisfied that the omission by the High Court is fatally defective, quashed the judgment of the High Court, set aside subsequent orders and remitted the case file to the High Court for it to render a decision having considered and determined framed issues. 14 Thus, in this matter given the omission to determine the framed issues, this occasioned a miscarriage of justice because the rights of the parties were not determined and the dispute remained unresolved and as such, the impugned judgment cannot be spared. We have also gathered that; a crucial issue was not framed given the contention prevalent on the pleadings. On this, whereas the respondents

in the plaint alleged that the appellant had trespassed into their farms claiming that it falls within his farm measuring 11.43 acres, this was contested by the appellant who averred that the respondents' farms are part of his farm. From what is discerned in this record, parties were made to believe that the issue relating to the ascertainment of the boundaries was resolved in disposing the preliminary objection on res judicata which as earlier stated, was not proper. Given the contention as discerned from the pleadings it was imperative on the trial court to frame an issue for determination so as to conclusively determine the rights of the parties in the case. The omission occasioned a failure of justice. What are the consequences? On this, MULLA the Code of Civil Procedure by Sir Dinshaw Fardunji Mulla, 19th Edition Volume 2 at pages 2192 and 2193 makes the following observation: 15 11Omission to frame an im portant issue may sometimes cause prejudice to the parties resulting in failure to lead evidence on the p o in t..If the point denied in the written statem ent is not tried a t a ll o r if tried, is tried im perfectly so as to cause failure o f justice, the case will, in appeal, be remanded fo r a retrial after fram ing the necessary issue. In other words, om ission to frame an issue is an irregularity which may or may not affect the disposal o f a su it on m erit...If it

does the appellate court should remand a case fo r a new tria l to the low er court after fram ing the necessary issue." In the premises, on account of the omission to frame and try a crucial issue which could have probably resolved the dispute between the parties, the trial and the resulting judgment were indeed flawed and there was a failure of justice. As such, the trial proceedingsand the resultingimpugned judgment cannot be spared. Consequently, all the proceedings subsequent to the pleadings are nullified and the resulting ruling, orders and judgment are hereby quashed and set aside. We return the case file to the High Court (Land Division) for an expedited retrial of the matter before another Judge with competent jurisdiction. Since the determination on grounds 1, 3 and 5 suffice to dispose of the 16 appeal, we shall not determine the remaining grounds of appeal. The appeal is thus allowed without costs given the circumstances of the matter. DATED at DAR ES SALAAM this 23rd day of August, 2023. S.E.A. MUGASHA

JUSTICE OF APPEAL I.P. KITUSI

JUSTICE OF APPEAL G. J. MDEMU

JUSTICE OF APPEAL The Judgment delivered this 23rd day of August, 2023 in the presence of Mr. Daimu Halfani, learned Counsel for the Appellant and also holding brief for Mr. Simon Patrick, learned Counsel for the Respondents, is hereby certified as a true copy of the original. R. W. CHAUNGU

DEPUTY REGISTRAR

COURT OF APPEAL 17