Elia Giding'ae vs Neema Kivugo Urasa (Land Appeal No. 000013088 of 2025) [2025] TZHC 8711 (19 December 2025)

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT MANYARA LAND APPEAL NO. 000013088 OF 2025 ELIA GIDING'AE ............................... COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS NEEMA KIVUGO URASA ............................. RESPONDENT / DEFENDANT JUDGMENT KAMUZORA, J 22nd October & 19th December 2025 The respondent sued the appellant for trespassing on her piece of land measuring 12 acres which are part of her land measuring 46.8 acres situated at Napiiukunya hamlet, Kimana village within Kiteto district (henceforth the suit land). The respondent claimed that, she purchased 50 acres but upon being surveyed the land was found to be 46.8 acres and later on, she was issued with customary right of occupancy with No. KTT/KMN/63. The respondent further contended that she had been in peaceful use and occupation of the suit land until September 2022, when the appellant trespassed upon twelve (12) acres thereof, claiming the same to be his property. The dispute was referred to the Partimbo Ward Tribunal for mediation, but no amicable settlement was reached. Consequently, the respondent filed the matter before the District Land and Housing Tribunal for Kiteto (hereinafter referred to as the trial tribunal ), seeking a declaration that she is the lawful owner of the suit land and an order for the eviction of the appellant therefrom. In his written statement of defence, the appellant disputed the respondent’s claims maintaining that, the suit land is his property having purchased it from Ramaha Arabayo in 2010. At the hearing of the matter before the trial tribunal, two issues were framed for determination; who is the lawful owner of the suit land and to what reliefs parties were entitled. After hearing the matter, the trial tribunal declared the respondent as the lawful owner of the suit land. The appellant was adjudged as trespasser hence ordered to vacate. Aggrieved by the decision of the trial tribunal, the appellant lodged the present appeal, raising four (4) original grounds of appeal and two (2) additional grounds. In his submissions, the appellant argued the four original grounds jointly, while the two additional grounds were argued separately. Page. 2 Accordingly, the grounds of appeal may conveniently be summarised and condensed into the following three grounds: 1. That the trial tribunal erred in law by failing to properly evaluate the evidence on record. 2. That the trial tribunal erred in law by failing to visit the locus in quo . 3. That the seller of the suit land was not joined as a necessary party to the proceedings. Hearing of the appeal proceeded by way of written submissions. The appellant was represented by Mr. Lauliano Kalistusi Mwalongo, learned advocate while the respondent was represented by Mr. Pastory Kong’oke, learned advocate. In his submissions on the first ground of appeal, Mr. Mwalongo faulted the trial tribunal for basing its decision on what he termed contradictory evidence adduced by the respondent He submitted that, during the hearing, the respondent alleged that she purchased the suit land from Mama Nakaya and her daughter, Paulina. He contended that this assertion was disputed by the said Mama Nakaya, who denied having sold the suit land to the respondent. He further submitted that the respondent failed to tender any sale agreement in proof of the alleged purchase. He added that the respondent’s Page. 3 evidence was inconsistent, in that she initially claimed to have purchased the suit land but subsequently altered her account and asserted that the land had been allocated to her by the hamlet office. He maintained that no documentary evidence was tendered in support of such allocation. Counsel further submitted that PW2 testified that he owned land within the respondent’s land and that he recognised the appellant as owner of the suit land located in the same area. However, the respondent did not recognise the appellant as her neighbour as he mentioned other neighbours. He therefore maintained that the testimonies of PW1 and PW2 were contradictory and unreliable. Mr. Mwalongo submitted further that the appellant adduced sufficient evidence to prove that he purchased a piece of land measuring fifty (50) acres in 2010 from one Lamaha Lambai, and that the sale agreement was duly tendered and admitted in evidence as Exhibit D1. He relied on the authority of Stanslaus Rugaba Kasusura & Another v Phares Kabuye [1982] TLR 338 for the proposition that a court has a duty to properly evaluate and weigh the evidence before it. He further faulted the trial tribunal for admitting and relying on exhibit P2 which was secondary evidence. To him, its admission was contrary to section 72 of the Evidence Act [Cap 6 R.E 2023] which requires document to be proved by primary evidence. Page. 4 In his submission on the second ground of appeal, Mr. Mwalongo submitted that, in the course of hearing, the trial tribunal was required to visit the locus in quo in order to ascertain the boundaries of the dispute land. He submitted that, there was contradiction as to the boundaries of the suit land since PW1 testified on northern side the suit land boarders with Milima Mitatu but DW1 testified that, the suit land boarders with Kipara. He added while DW1 testified that, on west side the suit land boarders with cattle path, PW1 testified that, the suit land boarders with Iddi Kilongwa. He contended that, in light of these contradictions, it was incumbent upon the trial tribunal to visit the locus in quo in order to resolve the boundary dispute. In support of his submission, he relied on the authority of John Nyoni & another vs Alfreda Nchimbi. In his submission to the third ground of appeal Mr. Mwalongo submitted that, the seller of the suit land one Nakaya Tureto was not joined as necessary party to the proceedings and the trial tribunal erred in determining the dispute without joining the seller of the suit land. He referred Order 1 Rule 3 of the Civil Procedure Code [Cap 33 R.E 2023] which requires joinder of necessary parties, failure of which occasion a miscarriage of justice. He referred the case of Abdallah Mohamed vs Said Mohamed [1989] TLR 195 in which it was observed that, failure to join a necessary party is fatal where the presence of such party is essential to the determination of the real issue in dispute. Counsel submitted that the record demonstrates that Nakaya Tureto was the original seller of the disputed land to the respondent, and that her evidence was therefore crucial in establishing ownership of the suit land. Accordingly, he urged this Court to allow the appeal by quashing and setting aside the judgment and decree of the trial tribunal, and to declare the appellant as the lawful owner of the suit land. In reply to the first ground of appeal, Mr. Kong’oke submitted that there were no contradictions whatsoever in the evidence of the respondent or that of her witnesses. He argued that the aileged contradictions between PW1 and DW2 were to be expected, given that they testified on behalf of opposing parties. He further submitted that the appellant claimed to have purchased the land from Lamaha Alambayo, and not from DW2. With regard to the contention that DW2 did not sell the suit land to the respondent, Mr. Kong’oke submitted that DW2 ought to have instituted proceedings against the Village Council, which allocated the land to the respondent, if indeed she disputed the allocation. As to the complaint concerning the admission of Exhibit P2, Mr. Kong’oke submitted that the document was a certificate evidencing the failure of mediation before the Partimbo Ward Tribunal, a fact which was not disputed by the appellant. He contended that the trial tribunal duly evaluated the evidence and was satisfied that the respondent held a Customary Right of Occupancy issued by the Kimana Village Council. He added that the said certificate constituted proof of ownership of the suit land. He referred the case Page. 6 of KCB Bank Tanzania Limited vs Rosemary Homanje and Others (Civil Appeal No. 20 of 2023) [2025] TZCA 859 (14 August 2025). In reply to the second ground of appeal, Mr Kong’oke maintained that the issue of the locus in quo was a new matter which had not been raised before the trial tribunal and, consequently, could not be introduced for the first time at the appellate stage. He referred the case of Leopold Mutembei vs Principle Assistant Registrar of Titles,ministry of Lands Housing and Urban Development & Another (Civil Appeal No. 57 of 2017) [2018] TZCA 213 (11 October 2018). He added that both the appellant and his advocate were present throughout the trial and that neither of them applied for the trial chairperson to visit the suit land. He further submitted that the respondent’s land had been surveyed, and that PW3 testified that he used a GPS device to conduct the survey; accordingly, the location and boundaries of the land were well known. In reply to the third ground of appeal, Mr. Kong’oke submitted that, DW2 was not necessary part due to the fact that, DW2 never sold the land to both the appellant and the respondent. He submitted that, the appellant should have applied before the trial tribunal to join the person who sold the land to him. Mr. Kong’oke submitted further that, such claim is an afterthought since it was supposed to be raised at the earliest stage possible. He submitted that, the necessary party is DW2 and the appellant called her as a witness and after Page. 7 seeing he did not support the case he has raised the claim of necessary party. He referred the case of Tanganyika Land Agency Limited and Others vs Manohar Lai Aggrwal (Civil Application No. 17 of 2008) [2009] TZCA 257 (29 April 2009). He therefore urged this court to dismiss the appeal with costs. On rejoinder, Mr. Mwalongo essentially reiterated his submission in chief. Having considered the rival submissions of the parties and examined the record of the trial tribunal, I shall commence my discussion with the third ground of appeal, followed by the second, and finally the first ground of appeal. On the third ground of appeal, regarding the alleged non-joinder of a necessary party, this Court finds that the complaint is without substance. The reason is that such a complaint ought to have been raised at the earliest possible stage before the trial tribunal; raising it at this stage constitutes an afterthought. Moreover, the alleged seller of the suit land to the respondent was DW2, who testified for the appellant and denied having sold the suit land to the respondent. I therefore fail to see how the appellant was prejudiced by the non-joinder of DW2. The case of Abdallah Mohamed v Said Mohamed (supra), cited by the learned advocate for the appellant, makes it clear that a necessary party is one whose presence is essential to the determination of the real question in issue. In the present matter, I do not find that the non-joinder of the seller of the suit land had any bearing on the determinatioh of the dispute. Page. 8 Accordingly, the third ground of appeal lacks merit and is dismissed. In the second ground of appeal, the learned advocate for the appellant faulted the trial tribunal for not visiting the locus in quo. However, as correctly submitted by the learned advocate for the respondent, no prayer was made before the trial tribunal for it to visit the locus in quo , and the matter is being raised for the first time before this Court. It is settled law that visiting the locus in quo is not mandatory, but may only be undertaken in exceptional circumstances. This was observed in the case of Kimonidimitri Mantheakis vs Ally Azim Dewji & Others (Civil Appeal No. 4 of 2018) [2021] TZCA 663 (3 November 2021) at page 6 the Court of Appeal observed that; “Whereas the visit of 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 of witness rather than adjudicator. ” See also the case of Sarah Diotrephes Mmari vs M/S ASM (T) Limited (Civil Appeal No. 224 of 2022) [2025] TZCA 416 (19 May 2025) at page 9. In this matter, the learned advocate for the appellant did not point out any exceptional circumstance that necessitated the visiting of the locus in quo. The mere variation between PW1 and DW1 regarding the boundaries of the suit land on the northern and western boundaries is not an exceptional circumstance which would requiring visit of the locus in quo rather represent a matter for the evaluation of evidence. I accordingly find no merit in this ground of appeal, which is therefore dismissed. Page. 9 On the first ground of appeal, the appellant faults the trial tribunal for allegedly failing to properly evaluate the evidence on record. The learned advocate for the appellant initially challenged the trial tribunal’s admission of Exhibit P2. It is on the record that PW1 (the respondent) prayed to tender a copy of the certificate of mediation from the Ward Tribunal, explaining that the original remained at the Ward Tribunal. The appellant objected on the basis that it was a copy, but the trial tribunal overruled the objection. However, an explanation was provided for the tendering of the secondary document and the same was accepted by the trial tribunal. Besides that, I find that no injustice was occasioned to the appellant, as Exhibit P2 merely evidenced that the matter had been referred to mediation before the Ward Tribunal. Since the referral to the Ward Tribunal was not disputed, I do not see how the admission of the photocopy prejudiced any party. I therefore find no merit in this complaint. I now turn to assess whether the trial tribunal's decision was otherwise justified. In its judgment, the learned trial chairperson noted contradictions in the appellant’s evidence and consequently accorded it little weight. The tribunal was satisfied with the respondent's evidence on account that it established how she acquired and registered the suit land. The respondent testified that she purchased the suit land from Mama Nakaya (DW2) and her daughter Paulina on 16/11/2010. She cleared the land Page. 10 and applied for a survey in 2019, after which she was granted a Customary Right of Occupancy (Exhibit P1). Her evidence was supported by PW2, who stated that he occupied part of respondent’s land and recognised the respondent's ownership. PW3 participated in the survey process and confirmed that the Customary Right of Occupancy was legally issued to the respondent. It is true that the sale agreement was not tendered to substantiate the respondent’s claim of purchase prior to the survey. Nevertheless, this Court is satisfied by her evidence that she purchased the suit land from Mama Nakaya (DW2). DW2 admitted that she owned the suit land and described its boundaries but denied selling it to the respondent. She however acknowledged giving the suit land to respondent but claimed that the respondent refused to vacate the land. In her further testimony DW2 changed her prior position, claiming that the suit land belonged to the appellant, without explaining how the appellant acquired it. The contradictions in DW2’s testimony suggest that she may have had something to conceal. Although she denied selling the land, she admitted granting it to the respondent and taking no action while the respondent occupied and surveyed it. Her evidence is silent as to whether she ever complained of trespass or contested the survey by the respondent. The respondent’s evidence consistently showed that she purchased, used, and Page. 11 registered the suit land with the knowledge of both DW2 and the appellant. Accordingly, DW2’s denial of the sale does not invalidate the respondent’s ownership. Jt should also be noted that the appellant claimed to have purchased the land from Lamaha Lambai but the said Lamaha Lambai was not called to testify as to how he acquired the land he allegedly sold to the appellant. Consequently, there was no proof that Lamaha Lambai had legal title to transfer. The sale agreement (Exhibit D1) alone does not establish that the appellant obtained a valid title, and none of his witnesses corroborated the agreement. DW3 testified that the appellant was the lawful owner, but could not explain how he acquired it. Exhibit D1 shows the agreement was executed before the Village Executive Officer and witnessed by others, none of whom were called to verify the facts. In addition, while there is evidence that the suit land was originally owned by DW2, there is no evidence as to how such ownership was transferred to Lamaha Lambai, from whom the appellant claimed to have purchased the suit land. Consequently, there was no evidence regarding the source of ownership of the seller, and he could not, therefore, have a better title to pass to the appellant. Based on the foregoing, I find that the trial tribunal properly evaluated the evidence and reached a just conclusion that the suit land is legally owned by the respondent. Accordingly, I uphold the decision of the trial tribunal declaring the respondent as the lawful owner of the suit land The appeal is therefore dismissed with costs. Dated at MANYARA this 19th of December 2025 Page. 13