wambura marwa vs musoma municipal council 2020 tzhc 4424 15 december 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT OF MUSOMA AT MUSOMA LAND APPEAL NO. 59 OF 2020 (Arising from the decision of the District Land and Housing Tribunal of Mara at Musoma in Land Application No. 139 of 2017} WAMBURA MARWA....................................................................... APPELANT VERSUS MUSOMA MUNICIPAL COUNCIL.......................................... RESPONDENT JUDGMENT 13* October and 13* December, 2020 KISANYA, J.: This appeal arises from Land Application No. 137 of 2017 filed by the appellant, Wambura Marwa against the respondent, Musoma Municipal Council before the District Land and Housing Tribunal for Mara at Musoma. The appellant claimed the respondent to have trespassed into his land. It is in evidence that that Kambarage Primary School was built by the respondent in the land owned by the appellant's parents. Upon consulting the respondent, the appellant was granted leave to remove the said graves from the school premises. He exhumed and transferred or moved the tombs 100 paces from their original area. The appellant contended that the new graves were in the land which he inherited from his parents. On the other hand, the respondent contended the new graves were within Kambarage Primary School premises. That is when the appellant decided to institute the suit on the above stated claim. The trial tribunal 1 held that the appellant had not proved his case on the balance of probabilities. Consequently, the appellant's case was dismissed with costs. Aggrieved, the appellant has preferred this appeal. The grounds advanced in the petition of appeal can be summarized as follows: One, the trial tribunal failed to determine the extent to which the respondent had encroached into his land basing on the compensation documents; two, the procedure for recording the evidence at the locus in quo were not complied with; three, the assessors opinion was not given in accordance with the law; four, the appellant's evidence was heavier than the respondent's evidence; and five, the trial tribunal failed to determine that, the appellant did not burry the tombs of his relatives into the respondent's land. When this appeal was placed before me for hearing, the appellant enjoyed the services of Mr. Emanuel Gervas, learned advocate while the respondent was duly represented by Mr. John Manyama, learned advocate. Submitting in support of the appeal, Mr. Gervas argued the first and fifth grounds jointly. He contended that the appellant and respondent had resolved issues related to the boundaries between them. Therefore, the suit was instituted in the trial tribunal when the respondent crossed the earmarked boundaries thereby trespassing into appellant's land. The learned counsel went on to submit that, the tribunal failed to assign the reasons for not considering the appellant's evidence. On the second ground, Mr. Gervas submitted that the procedures for taking evidence during the visit to the locus in quowexe. not complied with. He contended that, the Chairperson did not prepare the record/report, give the appellant right to comment on the findings obtained at the visit to locus in quo but went on to consider the evidence obtained thereto. The learned counsel argued that the procedure employed by the trial tribunal contravened the settled law stated by the 2 Court of Appeal in Sikuzani Said Magambo and Another vs Mohamed Roble, Civil Appeal No. 295 of 2018, CAT at Dodoma (unreported). Mr. Gervas went on to submit that the opinion of assessors who set with the trial chairman was not read in accordance with the law. Citing the case of Y.S Chawalla and Co. Ltd vs Dr. Abbas Teherali, Civil Appeal No. 78 of 2017 (unreported), the learned argued that the omission vitiated the proceedings before the trial tribunal. Submitting on the fourth ground of appeal, Mr. Gervas contended that, the trial tribunal did not evaluate evidence adduced before it as required by the law. He fortified his argument by citing the case of Linus Chengula vs Frank Nyika (Administrator of the Estate of the Late Aheri Nyika) where the Court of Appeal restated the need of evaluating evidence of both parties. For the foresaid reasons, Mr. Gervas urged the Court to allow the appeal and order for retrial. In response, Mr. Manyama conceded that, the disputed land was acquired from the appellant. However, he contended that the appellant was duly compensated and that the respondent did not cross the boundaries between her and the appellant. The learned counsel went on to submit that, upon receiving compensation, the appellant removed and reburied the tombs at another area but within the respondent's land. As regards the second ground, Mr. Manyama argued that, the procedure for taking the evidence during the visit to the locus in quotas complied with. He submitted that the appellant was given the right to cross examine the witnesses called by the respondent during the visit to the locus in quo. In relation to opinion of assessors, the learned counsel replied that, the said opinion was read in the presence of assessors. Responding to the fourth ground of appeal, Mr. Manyama submitted that, the trial tribunal analyzed evidence 3 adduced by both parties. Therefore, the learned counsel moved the court to dismiss the appeal for want of merit. Upon examined the grounds of appeal as well as the oral submissions by the parties and the evidence on record, I am of the considered view that, this appeal can be disposed of by considering the second and third grounds which relate to irregularities before the trial tribunal. I prefer to start with the third ground which is premised on the issue whether the opinion of assessors was not read. In terms of section 23 (1) and (2) of the Land Disputes Courts Act, Cap. 206, R.E. 2019 (the LDCA) and Regulation 19 (1) and (2) of the Land Disputes ( the District Land and Housing Tribunal) Regulations, 2003, the chairperson is required to ask every assessor present at the conclusion of the trial of the suit to give his or her opinion in writing before making his final judgment on the matter. It is on record that the Chairman sat with two assessors namely, Mr. J. Babere and Mr. A. Sagwarya. Upon conclusion of the defence case on 18/5/2020, the assessors were addressed to give their opinion on 25/06/2020. The records show further that the opinion of assessors was read over on 26/06/2020 in the presence of the appellant in person and Mr. Mahemba, learned advocate for the respondent. Therefore, I find that the opinion of assessors was given in accordance with the law and the first ground appeal is hereby dismissed for want of merit. Reverting to the second ground, it is common ground that the trial tribunal visited the locus in quo. This fact is reflected in the judgment where the trial tribunal held as follows: "Further, when the tribunal heard the respondent at the locus in quo, it was shown demarcations of the school area which is demarcated with sisals whereby the disputed land is within the school premises." 4 Generally, the trial court or tribunal is not obliged to conduct the visit to the locus in quo. The issue whether or not to conduct the visit to the locus in quo is within the discretion of the trial court or tribunal and conducted basing on the nature of each case. In the event the trial court or tribunal finds it pertinent to conducting the visit to locus in quo, it is duty bound to adhere by established procedures that aim at ensuring a fair trial. This position was well stated by the Court of Appeal in the case of Sikuzani Said Magambo and Another vs Mohamed Roble (supra). The Court of Appeal held: ”... we are mindful of the fact that there is no law which forcefully and mandatory requires the court or tribunal to conduct a visit at the locus in quo, as the same is done at the discretion of the court or the tribunal particularly when it is necessary to verify evidence adduced by the parties during trial. However, when the court or the tribunal decides to conduct such a visit, there are certain guidelines and procedures which should be observed to ensure fair trial. Some of the said guidelines and procedures were clearly articulated by this Court in the case of Nizar M.H. v. Guiamaii Fazai Janmohamed [1980] TLR 29, where the Court, inter alia stated that:- "When a visit to a locus in quo is necessary or appropriate, and as we have said, this should only be necessary in exceptional cases, the court should attend with the parties and their advocates, if any, and with much each witnesses as may have to testify in that particular matter... When the court re-assembies in the court room, all such notes should be read out to the parties and their advocates, and comments, amendments, or objections called for and if necessary incorporated Witnesses then have to give evidence of all those facts, if they are relevant, and the court only refers to the notes in order to understand, or relate to the evidence in 5 court given by witnesses. We trust that this procedure will be adopted by the courts in future [Emphasis added]." Applying the above position of law in the instant case, the record shows that when Grace Murondolo (DW4) completed to adduce her evidence, the respondent moved the trial tribunal to visit the locus in quo and continue with hearing. On 24/04/2020, the tribunal ordered that the hearing and the visit would be conducted on 18/05/2020. However, the record does not show whether the visit to the locus in quotas conducted on 18/05/2020 as scheduled. This is extracted from the proceedings of 18/05/2020 "Coram: Kaare J. T. T/ASS: Mr. Sagwarya/Mr. Babere Applicant: Present Respondent: Mr. Manyama for T/C: Wini Mr. Manyama: The matter is for defence and I have two witnesses today. DW4 Mr. Partice, Mairo Otaigo, 77 years Xtian swears and states as follows..." In view of the above, it is not clear whether the visit to the locus in quo was conducted as stated in the judgment. If the same was conducted, this Court is not aware as to who participated; whether the witnesses were called or recalled to adduce their evidence; what findings gathered from the said visit; and whether upon reassembling in the trial tribunal room, parties were heard on the said findings. These are pertinent questions to be addressed in order to determine whether the visit to the locus in quoax\ti hearing thereto was fair. This is so when it is considered that, the findings obtained from the visit to locus in quo were considered by the trial tribunal. In that regard, I am of the firm view that, the identified procedural irregularity vitiated the proceedings before the trial tribunal 6 and caused miscarriage of justice to the appellant. This ground is sufficient to dispose of the matter. For the reasons I have endeavored to discuss, I am inclined to revise the proceedings of trial tribunal under section 43(1) (b) and (2) of the LDCA. In the result, the proceedings of the District Land and Housing Tribunal for Mara at Musoma in Land Application No. 139 of 2017 are hereby nullified and the judgment and decree arising thereto quashed and set aside. The case file is remitted to the trial tribunal for rehearing before another chairperson and new set of assessors. Having considered the circumstances of this case, I make no order as to costs. It is so ordered. Dated at MUSOMA this 15th day of December, 2020. E. S. Kisanya JUDGE Court: Judgment delivered in Chamber this 15th day of December, 2020 in the presence of the appellant in person and in the absence of the respondent. B/C Mariam present. E. S. Kisanya JUDGE 15/12/2020 7