Benedicta Vicent vs Kambi Ya Simba Village Council (Civil Appeal No. 50 of 2023) [2025] TZCA 815 (6 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: MKUYE. J.A.. KAIRO. 3.A. And MDEMll. J. A .^ CIVIL APPEAL NO. 50 OF 2023 BENEDICTA VICENT .............................................................. APPELLANT VERSUS KAMBI YA SIMBA VILLAGE COUNCIL ................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania, at Arusha) (Moshi, J.^ Dated the 20th day of May, 2016 in Land Case No. 33 of 2008 JUDGMENT OF THE COURT 30th July & 6th August, 2025 MDEMU. 3.A.: The appeal before the Court is challenging the decision of the High Court of Tanzania in Land Case No. 33 of 2008 which declared the respondent the lawful owner of the suit land. In the pleadings, the appellant accuses the respondent for trespass in her 3.3 acres of land and also for destruction of her crops. She thus prayed to be declared the lawful owner, an order for restraining the respondent from further encroachment, payment of special damages, interests and costs of the i

suit. The respondent denied all the allegations alleging that, the claimed land is part of the dam project established way back in 1952. The suit went on trial in which the appellant's case involved the testimony of Dickson Gadiye, Tluway Massay Goti, Webilo Mbogo, Patrick Qwaray, Pamphil Vicent and Benedicta Vicent; PW1, PW2, PW3, PW4, PW5 and PW 6 respectively and also exhibits tendered. The respondent's case, on the other hand, banked on the evidence of Pascal Simin Baha, Sylivester Shang'we, Augustino Watli and Laurent Cresent Dafi; DW1, DW2, DW3 and DW4 respectively. Basing on their evidence and that from the locus in quo recorded on 22n d April, 2016, the trial court found the appellant's case unproven and accordingly, dismissed it. Unhappy with the dismissal of her suit, the appellant lodged the following grounds of appeal to the Court:

1. That, the honourable High Court Judge grossly erred in law and in fact for failure to follow proper procedure in respect o f visit o f the locus in quo.
2. That, the honourable High Court Judge grossly erred in law and in fact for failure to make specific findings on the framed issues number 4 and 5.
3. That, the honourable High Court Judge grossly erred in law and in fact by relying on the appellant's failure to remember

the year she was married, which was not a matter in dispute between the parties according to the framed issues. 4. That, the honourable High Court Judge grossly erred in law and in fact for not affording parties right to be heard before basing her decision on a new issue o f the year the appellant got married to her late husband. 5. That, the honourable High Court Judge grossly erred in law and in fact for failure to properly analyze evidence and as a result, arrived at unfair and unjust decision. At the hearing of the appeal, Mr. Emmanuel Safari, learned advocate appeared to represent the appellant whereas on the part of the respondent, Mr. Masunga Kamihanda, learned Senior State Attorney, assisted by Messrs. Frida Mollel and Hance Mmbando, both learned State Attorneys, teamed up to represent it. The learned counsel submitted on all the grounds of appeal. The appellant had also filed written submissions in support of the appeal which the learned counsel for the appellant elected to stand by it, besides the oral submission he submitted thereafter. For reasons to follow soon, we will only consider oral and written submissions in respect of the first ground of appeal. 3

Mr. Safari thus submitted on the first ground of appeal that, the learned trial Judge failed to follow procedure in the conduct of proceedings at the locus in quo. He mentioned them as; first, the visit was conducted in the absence of the plaintiff (PW 6 ), second, the witnesses' evidence was not taken on oath/affirmation and third, the learned trial Judge concluded the proceedings at the locus in quo contrary to the dictates of the procedure which requires re-assembling of the locus in quo evidence in the trial court. He added that, despite the occasioned irregularities, yet the learned trial Judge proceeded to deploy the said evidence in determining the rights of the parties. He thus urged us to nullify the locus in quo proceedings, the resultant judgment and make an order for a retrial from that stage of the proceedings. He referred the Court to the case of Prof. T. L. Maliyamkono v. Wilhelm Sirivester Erio (Civil Appeal No. 93 of 2021) [2022] TZCA 39 (18 February 2022; TanzLII) in support of his argument. Mr. Kamihanda came in reply by conceding to the flaws committed by the trial court in conducting proceedings at the locus in quo, though, to him, the anomaly was not fatal because what essentially was at stake was a confirmation of witnesses' testimonies made in court. He added

that, much as the law does not compel trial courts to visit locus in quo, but the moment they opt so, they are mandated and indeed compelled to follow the requisite procedures. He however went an extra mile to state that, in determining the rights of the parties, the trial court did not base its decision on the evidence collected at the locus in quo. Alternatively, Mr. Kamihanda submitted that, in the event this Court makes a finding that the decision of the trial court has based on the evidence received at the locus in quo, then the proper remedy would be the nullification of the locus in quo proceedings, the resultant judgment and further make an order for another Judge to visit the locus in quo and comply with the requisite procedure. In rejoinder, unlike the conclusion reached by the learned Senior State Attorney, Mr. Safari was brief that rights of the parties in the instant appeal, among others, based on the evidence recorded at the locus in quo. He, in the end, reiterated what he submitted in chief while urging to have the case file remitted back to the trial court in order to comply with the requisite procedure for visiting the locus in quo. We have examined the record of appeal and have duly taken into account the submission of the parties in the course of determining ground 5

one of the appeal. We think we should not be detained in this ground much longer. We are of that view because, according to the record of appeal, the learned trial Judge committed the following flaws in conducting proceedings at the locus in quo\ One, as urged by counsel, witnesses' evidence was recorded without oath or affirmation. Two, the appellant's evidence (the plaintiff) was not recorded for no apparent reason. Three, the proceedings were not reconvened in court. Four, the trial was concluded at the locus in quo. As submitted by both counsel, the route taken by the trial court indeed contravened the procedures of conducting proceedings at the locus in quo stated in Prof. T. L. Maliyamkono v. Wilhelm Sirivester Erio (supra) as follows: "It is therefore dear that the trial court did not adhere to the procedure laid down in the above quoted authorities when it visited the locus in quo. In the absence o f the record, this Court cannot predict what transpired in relation to the visit and make meaningful evaluation o f the evidence on record as a whole to decide this appeal. We are thus o f the decided view that the omission by the trial court occasioned injustice and thus vitiated its decision." Given the infraction aforesaid, and as per the foregoing position of the Court, it is an uphill task to decide if the evidence obtained at the 6

locus in quo was not deployed by the trial court in determining the rights of the parties as argued by the learned Senior State Attorney. We are therefore unable to take side with him that the evidence taken from the locus in quo proceedings was not used to determine rights of the parties to this appeal. The trial court, as the record speak louder, took into account the entire evidence in its findings. As argued by the learned counsel, we proceed to nullify all the proceedings of the locus in < 7^/0 right from the order of the court dated 18th March, 2016 and the resultant judgment and other orders made subsequent thereto. Both counsel opined that, post to nullification of the proceedings and the resultant judgment, the usual order that should follow should be the remittance of the case file to the trial court so that the latter, visits the locus in quo in accordance with the requisite procedure and thereafter, a fresh judgment be composed. This, in our view, is the proper course to take. Consequently, we remit the case file to the High Court in which, another Judge should take charge of the case, visit the locus in quo and compose a fresh judgment. The process should be expedited, taking into account that the dispute nocked at the court doors for the first time in the year 2008. This being the decisive ground and through it, the appeal has

been disposed of, then a compelling need to determine other grounds of appeal would not arise. The appeal is thus allowed to the extent stated above. Each party to the appeal to bear own costs. DATED at ARUSHA this 5th day of August, 2025. R. K. MKUYE JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgment delivered this 6thday of August, 2025 in the presence of Mr. Geofrey Mollel, learned Counsel for the appellant and Mr. Masunga Kamihanda, learned Senior State Attorney for the Respondent, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL