Loriku Lendoya vs Godson Mbaayo & Others (Civil Appeal No. 266 of 2023) [2025] TZCA 1129 (16 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: SEHEL. J.A.. MAKUNGU, J.A. And FELESHI, J J U CIVIL APPEAL NO. 266 OF 2023 LORIKU LENDOYA (Suing as Legal Representative of Lendoya Leyato) .................................................................. APPELLANT VERSUS GODSON MBAAYO........................................................ 1 st RESPONDENT JAMHURI MBAAYO....................................................... 2 nd RESPONDENT MBATITI MBAAYO.........................................................3 rd RESPONDENT GABRIEL MBAAYO........................................................ 4™ RESPONDENT LONING'O MBAAYO ................... ..................................5™ RESPONDENT JOSEPH LIKINJE (Suing as Legal Representative of Lendoya Letayo) .......................................................... 6™ RESPONDENT (Appeal from the Proceedings, Judgment, and Decree of the High Court of Tanzania at Arusha) ( Mwaseba. J.^ dated the 31s t day of October, 2022 in Land Case No. 36 of 2019 JUDGMENT OF THE COURT 9th & 16th October, 2025 FELESHI, 3.A.: In this appeal, the subject at issue is a land situated at Kiranyi Ward, Siwandeti Village, Enaboishu Division, within the Arusha District Council in Arusha Region. The land is approximately measured 390 paces in length and 32 paces in width and is bounded on the north by Saloni Letayo's land, on the south and west by a village road and on the east by Korongo la Miongovero (the disputed land). i On 16.12.2019, the appellant, Loriku Lendoya, as the legal representative of the late Lendoya Letayo, instituted Land Case No. 36 of 2019 in the High Court of Tanzania at Arusha (the High Court) against the respondents, seeking for a declaration that the disputed land formed part of the deceased's estate, eviction of the respondents, a permanent injunction, general damages for trespass, interest and costs. He pleaded thatthe disputed land was inherited by his late father, Lendoya Letayo from his grandfather, Letayo Parirong', in the 1920s. That, in the 1950s, his father entered into a sharecropping arrangement with one Mbaayo Minjili, whereby the latter was allowed to cultivate the land oncondition of equal sharing of the produce, not planting permanent crops and not cutting trees without prior consent. The appellant went further, asserting that the arrangement persisted peacefully for decades until 1993 when Mbaayo Minjili was condemned for cutting a Mringaringa tree, causing Lendoya Letayo to temporarily lease the land to one Tumbaa Meriembere and later to Israel Mbaayo (the son of Mbaayo Minjili) under a written agreement dated 17.06.1993. Following Lendoya Letayo's death, the appellant continued to receive the agreed share of the proceeds from the farm. In 2007, with family consent, the appellant's son, one Jackson Loriku, built a house on the land and has since lived there. In June 2019, Israel Mbaayo returned the land to the Letayo family by a written handover. However, soon thereafter, the respondents who were relatives of Israel Mbaayo, refused to vacate the premises. They allegedly entered the land, cut trees, planted new crops, and deposited building materials without the appellant's consent. This prompted the filing of the case after efforts for amicable settlement proved futile. In their joint written statement of defence, the respondents denied the appellant's ownership and asserted long-standing possession derived from their late father, Mbaayo Minjili, who allegedly gifted them portions of the land over thirty years ago. They further claimed that Jackson Loriku, the appellant's son, resided on the land through his maternal lineage, being a grandson of Mbaayo Minjili, and that the portion he occupied was given to him as a gift by his grandfather. Having heard the parties' case, the High Court dismissed the appellant's claim for lack of merit, hence, this appeal. The appellant's memorandum of appeal contained seven grounds of appeal. However, for reasons to be apparent shortly, the Court will focus on the first and second grounds, which state that: one, the learned trial Judge erred in law and fact by conducting the locus in quo contrary to established legal procedure; and two, the learned trial Judge erred in law and fact by failing to adhere to proper procedure during the locus in quo . When the appeal was called on for hearing, the appellant was represented by Mr. Gwakisa Kakusulo Sambo, learned advocate, whereas the respondents appeared in person and unrepresented. The appellant had earlier on filed a written submission in support of the appeal under rule 106 of the Tanzania Court of Appeal Rules, 2009 (the Rules). In support of these grounds, Mr. Sambo submitted that, although visiting a locus in quo is discretionary, once the trial court deems it necessary, strict compliance with laid-down procedures is mandatory. He relied on the decisions of this Court in Sikuzan Saidi Magambo & Another v. Mohamed Roble (Civil Appeal No. 197 of 2018) [2019] TZCA 322 and Kimonidimitri Mantheakis v. Ally Azim Dewji & Others (Civil Appeal No. 4 of 2018) [2021] TZCA 663. Referring us to pages 197 to 202 of the record of appeal, M r. Sambo argued that it clearly reveals serious procedural anomalies, such 4 as no oath was administered to witnesses, no cross-examination was allowed, and there was no record of what transpired at the site. Nor does the record show that the proceedings or observations made during the visit were read over to the parties for comments. Mr. Sambo also faulted the High Court proceedings at the locus in quo for not specifying the names of the witnesses who gave evidence. He summed up that in terms of Nizar M.H. v. Gulamali Fazal Janmohamed [1980] T.L.R. 29, the trial was vitiated and prejudiced the appellant's right to a fair hearing. He thus prayed that the proceedings and judgment of the High Court be nullified, quashed and the resultant order be set aside. On their part, the respondents' submissions, through Loning'o Mbaayo (5th respondent), were brief that the decision of the High Court be upheld, contending that, justice was properly served and that no miscarriage of justice occassioned. We have carefully considered the submissions by both sides and examined the record. The issue before us is whether the High Court conducted the visit to the locus in quo in accordance with the established legal procedure. 5 It is a long-standing principle of this Court that while visiting a locus in quo is not mandatory, once the trial court elects to conduct one, it must strictly adhere to the procedural guidelines laid down. See- Nizar M.H. v. Gulamali Fazal Janmohamed (supra), which we had consistently reaffirmed in our deliberations, including Kimonidimitri Mantheakis v. Ally Azim Dewji & Others (supra), Avit Thadeus Massawe v. Isdory Assega (Civil Appeal No. 6 of 2017) [2018] TZCA 357 and Sikuzan Saidi Magambo & Another v. Mohamed Roble (supra). In Kimonidimitri Mantheakis, we said: "Whereas the visit o f the locus in quo is not mandatory, it is trite law that, it is done only in exceptional circumstances as by doing so a court may unconsciously take a role o f witness rather than adjudicator. In this regard, where the court deems it warranted, then it is bound to carry it out properly... /'[Emphasis added]. We continued: "In the light o f the cited decisions, for the visit o f 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; and five record any observation, view, opinion or conclusion o f the court including drawing a sketch plan if necessary which must be made known to the parties and advocates, if any." From the above law, the procedures which we had found very relevant at the locus in quo includes presence of all parties, their witnesses, and advocates (if any), witnesses to give evidence on oath and to be cross-examined by either side, the trial court to record all proceedings and prepare sketch plan when found to be necessary and to communicate any observation made by the court. Thereafter, when the trial resumes, those proceedings are briefed to the parties to see if they have any comments or additional information. In the matter at hand, the record of appeal, as Mr. Sambo correctly referred us from pages 198 to 202 there are proceedings which show Plaintiff gave some explanations, followed by DW- Godson Mbaayo, then returned to Plaintiff, followed by Gabriel Mbaayo, Loning'o Mbaayo, then back to Plaintiff, and then DW1 (without stating his 7 name), and again Defence (without stating the name). Thereafter, again, to Plaintiff and Defendant, without indicating who, repeating three times only citing "Plaintiff, Defendant" We need no long process to see and agree with Mr. Sambo that, indeed, the procedure was irregularly conducted. For example, those who gave explanations at the locus in quo were not recorded as witnesses, save for DWl-Godson Mbaayo, whose evidence, nonetheless, was not recorded on oath and no cross-examination was conducted. Furthermore, rightly complained by Mr. Sambo, the defendants were six in number; however, it was recorded "defendant" followed by statements (evidence) without specifying who was that respective defendant out of the six. Under the circumstances, we are inclined to hold that, indeed, there were no meaningful proceedings during the visit to the locus in quo\w this case which we find it occasioned a miscarriage of justice to the parties. We are therefore satisfied that the High Court failed to adhere to the required procedural safeguards in conducting the locus in quo. The irregularity is fundamental and goes to the root of the trial. Consequently, the entire proceedings were vitiated. To that end, we allow the appeal based on grounds one and two only. Consequently, we nullify the High Court proceedings, quash the judgment, and set aside the order resulting therein. We further order the record be remitted to the High Court Arusha Zone for the dispute to be heard afresh before another judge. Considering the circumstances of this case, we make no order as to costs. DATED at ARUSHA this 16th this day of October, 2025. B. M. A. SEHEL JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered this 16th day of October, 2025 in the the Appellant and Respondents in person and Mr. Fidelis ,k ; is hereby certified as a true copy of the original. D. P . KINYWAFU DEPUTY REGISTRAR COURT OF APPEAL