Zamaradi Ahmad Simba vs Hellena Magohe and Others (Land Appeal No. 6864 of 2025) [2025] TZHC 8503 (19 December 2025)

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF MWANZA AT MWANZA LAND APPEAL NO. 6864 OF 2025 (Arising from the DLHT for Mwanza in Land Application No. 314/2024 ZAMARADI AHMAD SIMBA ………………………………………………. APPELLANT VERSUS HELLENA MAGOHE ……………………………………………………. 1 ST RESPONDENT CHACHA RUSAKA …………………………………………… .. ……… 2 ND RESPONDENT ROBERTY GUDEBA ……………………………………… .…. ………. 3 RD RESPONDENT GOODLUCK SAFIERI MSAMI …………………………… . ……….. 4 TH RESPONDENT EDGAR NDABOINE …………………………………………………… 5 TH RESPONDENT JESCA MSIGWA ……………………………………………………… 6 TH RESPONDENT ABDALLAH MAHMOUD ……………………………… . ……………. 7 TH RESPONDENT JUDGMENT 5/12/2025 & 12/12/2025 ROBERT, J: - This is an appeal against the decision of the District Land and Housing Tribunal for Mwanza delivered on 12th March, 2025 in Land Application No. 314 of 2024, whereby the Tribunal dismissed the Appellant’s claim for ownership of the disputed land and relat ed reliefs. Being dissatisfied with that decision, the Appellant lodged the pr esent appeal before this Court.

2 Before the Tribunal, the Appellant instituted Land Application No. 314 of 2024 claiming ownership of a piece of land situate at Nyabusalu, Kiseke Ward, Mwanza. The Appellant sought, inter alia, a declaration of ownership, eviction of the Respondents as tre spassers, specific damages for destruction of trees in the sum of TZS 10,250,889/=, compensation for land degradation assessed at TZS 80,000,000/=, interest, demolition of houses erected on the land, a p ermanent injunction, and costs. The Appellant’s case was founded on an alleged sale transaction dated 29th January, 2019, whereby he purchased the disputed land from one Charles Malebo (now deceased) at a consideration of TZS 4,000,000/=. The Appellant relied on a written sale agreement (Exhibit SMA - 1) witnessed by local government leaders and supported by spousal consent (Exhibit SMA - 2). He further alleged that the 1st, 2nd and 3rd Respondents unlawfully entered the land and cut down trees, prompting an assessment by forestry offi cers (Exhibit SMA - 3), and that the 4th to 7th Respondents later const ructed houses on the same land. The 1st, 2nd and 3rd Respondents opposed the claim, contending that the land in dispute belonged to the 1st Respondent, Hellena Magohe, and not to the late Charles Malebo. The 4th to 7th Respondents neither entered

3 appearance nor filed a defence, and the case p roceeded ex parte against them. After hearing the parties and visiting the locus in quo, the Tribunal dismissed the Appellant’s application on the basis that the Appellant failed to prove that the land purchased under Exhibit SMA - 1 was the same land alleged to have b een invaded by the Respondents. Aggrieved by that decision, the A ppellant preferred this appeal. The Appellant raised three grounds of appeal, namely:

1. That the Tribunal erred in law and fact by dismissing the case without properly analysing and weighing the Appellant’s evidence vis - à - vis that of the Respondents.
2. That the Tribunal erred in law and fact by dismissing the case solely on the basis of alleged measurement contradictions of the disputed land, in disregard of other material evidence.
3. That the Tribunal erred in law and fact in holding that Exhibit SMA - 1 did not contain sufficient particulars to identify the disputed land sold to the Appellant.

4 The appeal was disposed of by way of written submissions. Learned counsel for the Appellant , Silas John, submitted that the judgment of the District Land and Housing Tribunal (DLHT) was vitiated by both procedural impropriety and misdirection in evaluation of evidence. Counsel argued that the dispute fundamentally concerned identification of the disputed land , and that the Tribunal failed to resolve this central issue in accordance with the law. It was submitted that although the Tribunal visited the locus in quo, the manner in which the visit was conducted rendered the exercise evidentially worthless. Counsel contended that no witnesses were recalled at the locus to explain the physical features of the land, no cross - examination was conducted, and no proper record was made of how the observations at the locus related to the evidence already on record. Reliance was placed on the decisions in Nizar M.H. Ladak v. Gulamali M. Ladak [1980] TLR 2 6 and Sikuzani Said Magambo v. Mohamed Roble , Civil Appeal No. 197 of 2018 (CAT) [2019] TZCA 322, for the proposition that evidence obtained at the locus in quo must be tested openly and integrated into the proceedings, failing which it cannot fo rm a proper basis for decision.

5 On the evaluation of evidence, counsel submitted that the Tribunal erred in law and fact by failing to weigh the Appellant’s evidence against that of the Respondents. It was argued that the Appellant produced a written sale agreement (Exhibit SMA - 1), duly signed by the seller and witnessed by local government leaders, together with spousal consent (Exhibit SMA - 2), and that this documentary evidence was corroborated by consistent testimonies of the Appellant (SM1), the seller’s widow (SM2), and the se ller’s daughter (SM3). Counsel submitted that this body of evidence established ownership on a balance of probabilities. Counsel further contended that the Respondents’ evidence was riddled with contradictions regarding the size, location, and ownership history of the land. It was argued that the Tribunal misdirected itself by overlooking these inconsistencies and instead di smissing the Appellant’s claim on narrow technical grounds, contrary to the principle laid down in Hemedi Saidi v. Mohamed Mbilu [1984] TLR 113, that a court should decide in favour of the party w hose evidence is more probable. With respect to Exhibit SMA - 1, counsel argued that the Tribunal wrongly rejected the agreement on the basis of discrepancies relating to measurements and boundary descriptions. It was submitted that section

6 100(1) of the Evidence Act, Cap. 6 R.E. 2022, does not prohibit oral evidence that explains or clarifies a written document, but only bars oral evidence that contradicts its terms. Counsel relied on Agatha Mshote v. Edson Emmanuel & 10 Others, Civil Appeal No. 121 of 2019 (CAT), where the Court of Appeal held that oral evidence may be admitted to explain latent ambiguities under section 111 of the Evidence Act. According to counsel, the alleged discrepancy between feet and meters was a curable ambiguity and not fatal to the Appellant’s claim. Counsel concluded by submitting that the Tribunal elevated technicalities over substantive justice, and urged this Court to allow the appeal, set aside the impugned decision, and grant the reliefs soug ht in the original application. Learned counsel for the 1st, 2nd and 3rd Respondents opposed the appeal and supported the judgment of the Tribunal. Counsel submitted that the Tribunal properly directed itself on both the law and the facts, and that the Appellant failed to discharge the b urden of proof as required under section 110(1) of the Evidence Act, Cap. 6 R.E. 2019.

7 On the issue of locus in quo, counsel submitted that the Tribunal complied with all procedural requirements governing a visit to the locus. Reliance was placed on Sarah Diotrephes Mmari v. M/s ASM (T) Limited , Civil Appeal No. 224 of 2022 (CAT), and Registered Trustees of Telesina Sisters & 10 Others v. Nassoro Thabit Lipangile (Administrator of the Estate of Rukia Lipangile) , Civil Appeal No. 382 of 2021 (CAT), for the established steps to be followed during a locus visit. Counsel argued that all pa rties and their advocates were present, witnesses were heard, observations were recorded, and no objection was raised by the Appellant at the time, th us no prejudice was occasioned. Counsel further submitted that the Tribunal properly evaluated the evidence and correctly found that the Appellant’s case was weak and contradictory. It was argued that none of the key witnesses named in Exhibit SMA - 1, namely James C. Malebo, Colodatus R. Alex, and Cleophas Lukindo, were called to testify, thereby diminishing the probative value of the agreement. Counsel emphasiz ed that the local government leaders who signed the agreement, including the 2nd and 3rd Respondents, testified that the la nd sold under Exhibit SMA - 1 was diff erent from the land in dispute.

8 On the interpretation of Exhibit SMA - 1, counsel submitted that once a transaction is reduced into writing, the document must speak for itself, as provided under section 100(1) of the Evidence Act. Counsel relied on Martin Frederick Rajab v. Ilemela Municipal Council & Another , Civil Appeal No. 19 of 2019 (CAT), and Emmanuel John Mrema v. Oscar H. Katunzi & Another, Civil Appeal No. 139 of 2022 (CAT), to argue that failure to clearly identify and describe the property sold is fatal to a claim of owner ship. It was therefore submitted that the Tribunal correctly dismissed the Appellant’s claim for failure to prove identity of the land. Counsel concluded by urging this Court to dismiss the appeal with costs and affir m the decision of the Tribunal. In rejoinder, learned counsel for the Appellant maintained that the Respondents’ submissions failed to address the core deficiencies in the Tribunal’s handling of the case. Counsel reiterated that mere physical presence at the locus in quo does not satisfy the legal requirements for gathering locus evidence, and that procedural legality cannot be cured by absence of objection from counsel. Reliance was again placed on Sikuzani Said Magambo v. Mohamed Roble (supra), for the principle that the duty to conduct a lawful locus visit re sts with the adjudicating body.

9 Counsel further submitted that the Respondents’ insistence on the absence of certain witnesses misconceived the law, as credibility and consistency of evidence, rather than the number of witnesses, is determinative in civil cases. Counsel argued that the R espondents themselves failed to produce any documentary evidence establishing lawful ownership of the disputed land, such as a sale deed, allocation letter, or letters of administration in re spect of alleged inheritance. On Exhibit SMA - 1, counsel reiterated that section 100 of the Evidence Act does not bar explanatory oral evidence and that the Tribunal erred in treating a curable ambi guity as fatal. Counsel emphasiz ed that ownership in equity follows payment and possession, both of which were established by the Appellant’s evidence. It was submitted that the Tribunal’s approach defeated substantive justice and that the appeal ought to be allowed. . Having carefully considered the record of appeal, the grounds of appeal, and the submissions of the parties, this Court is of the view that the appeal turns on the following issues:

1. Whether the Tribunal properly conducted and relied upon the visit to the locus in quo.

10 2. Whether the Tribunal properly evaluated the evidence on record in determining ownership of the disputed land. 3. Whether the Tribunal erred in its interpretation and treatment of Exhibit SMA - 1. On the visit to the locus in q uo an d the proper handling of locus e vidence , t he central question in this appeal turns on the identification of the disputed land, namely whether the land allegedly invaded by the Respondents is the same land sold to the Appellant under Exhibit SMA - 1. In land disputes of this nature, a visit to the lo cus in quo is often a critical evidentiary tool, intended to assist the adjudicating body in clarifying physical features, boundaries, size, occupation, and other matters t hat cannot be fully appreciated from oral testimony alone. It is settled law that a visit to the locus in quo is not a casual or informal inspection, but an integral part of the trial. The locus visit must follow a structured judicial process. First, the court or tribunal must clearly state the purpose of the visi t. Secondly, witnesses must be recalled at the locus to identify the land, explain boundaries, size, developments, and other physical features. Thirdly, the opposing party must be afforded an opportunity to challenge such explanations through cross - examina tion. Fourthly, all

11 observations made at the locus must be properly recorded as part of the proceedings. Finally, upon reassembly in the hearing room, the court must evaluate the locus evidence together with the rest of the evidence on record bef ore reaching its determination. This position has been consistently articulated in binding authorities, including Nizar M.H. Ladak v. Gulamali M. Ladak [1980] TLR 26 and Sikuzani Said Magambo v. Mohamed Roble , Civil Appeal No. 197 of 2018 (CAT), wh ere the Court of Appeal emphasiz ed that evidence obtained at the locus must be tested openly and integrated into the evidentiary matrix through a transparent judicial process. In the present case, although the Tribunal visited the locus, the record does not disclose a clear and structured process by which evidence from the locus was gathered and tested. There is no recorded finding as to the precise size of the land observed, it s boundaries, its correspondence (or otherwise) with the dimensions stated in Exhibit SMA - 1, or how the Tribunal reconciled competing claims on the ground. It is equally unclear which witnesses explained the physical features of the land, whether su ch explanations were subjected to cross - examination, and how those observations were weighed against the documentary and oral evidence already on record.

12 The absence of a clear methodological approach to the locus visit is particularly significant because identification of the land is the fulcrum upon which the entire dispute rests. Without properly gathered and tested locus evidence, the Tribunal lacked a reliable factual foundation upon which to conclusively determine whether the land sold to the Appellant is the same land claimed by the Respondents. In these circumstances, the locus visit, instead of clarifying the dispute, remained evidentially ne utral and incapable of resolving the core issue before the Tribunal. The cornerstone of the dispute is whether the Appellant proved, on a balance of probabilities, that the land purchased from the late Charles Malebo is the same land claimed to have b een invaded by the Respondents. The Appellant relied on Exhibit SMA - 1, supported by spousal consent (SMA - 2) and corroborative testimonies of SM1, SM2 (the seller’s widow), and SM3 (the seller’s daughter). On the other hand, the Respondents relied largely on oral testimonies asserting tha t the disputed land belonged to the 1st Respondent and that the land of Charles Malebo was different and located elsewhere.

13 The Tribunal correctly stated the principle that he who alleges must prove. However, the application of that principle must be contextual and holistic. The Appellant demonstrated a purchase transaction, payment of consideration, and acknowledgement by loca l leaders who endorsed the agreement. Notably, the 2nd and 3rd Respondents, who later denied the identity of the land, were themselves signatories to the agreement as local leaders. Their subsequent denial, without cogent documentary evidence establ ishing the precise alternative location of Charles Malebo’s lan d, called for careful scrutiny. The Tribunal appears to have placed disproportionate weight on alleged inconsistencies while discounting the overall coherence of the Appellant’s case. In civil matters, the standard is not absolute certainty but balance of probabilities. In this regard, t he Appellant’s evidence, taken cumulatively, was not inherently weak or implausible as to warrant outright dismissal. The Tribunal rejected the Appellant’s claim primarily on the ground that Exhibit SMA - 1 did not sufficiently describe the land, citing discrepancies in measurement units (meters versus feet) and lack of boundary descriptions.

14 Section 100 of the Evidence Act indeed provides that where the terms of a contract are reduced into writing, the document itself is the primary evidence of its contents. However, that provision does not prohibit oral evidence aimed at explaining latent amb iguities. Section 111 of the Evidence Act allows oral evidence to clarify ambiguities that are not appare nt on the face of the document. The discrepancy between “47 by 52” as meters or feet is a classic example of latent ambiguity capable of explanation by oral testimony. The Tribunal erred in treating this ambiguity as fatal without considering whether it could be cured through the consist ent testimonies of the parties involved in the transaction. Furthermore, the absence of boundary descriptions, while a weakness, is not uncommon in informal land transactions and does not automatically negate ownership where other credible evidence exists. By adopting a rigid and technical approach, the Tribunal failed to give effect to the principle of substantive justice, particularly in land matters where formal do cumentation is often imperfect. Upon a careful re - evaluation of the entire record, this Court finds that the Tribunal misdirected itself in the evaluation of evidence and in its

15 treatment of Exhibit SMA - 1. The Appellant discharged the burden of proof on a balance of probabilities, and the dismissal of the claim was not supported by a proper appreciation of the total ity of the evidence. Acc ordingly, the appeal has merit. In the result, this Court finds that the Tribunal’s determination was vitiated by inadequate handling and integration of locus in quo evidence on the crucial issue of identification of the disputed land. The interests of justice therefore require that the matter be remitted for a fresh determination, guided by clear procedural directions. Accordingly, i t is hereby ordered as follows:

1. The appeal is allowed.
2. The judgment , proceedings and decree of the District Land and Housing Tribunal for Mwanza dated 12th March, 2025 in Land Application No. 314 of 2024 are quashed and set aside in their entirety.
3. The matter is remitted to the District Land and Housing Tribunal for Mwanza for retrial before a differently constituted panel.

16 4. The Tribunal shall conduct a fresh hearing in which all parties shall be afforded a full opportunity to present their cases, including calling witnesses and adducing evidence. 5. In the course of the retrial, the Tribunal shall specifically and expressly address the issue of identification of the disputed land by: (a) Conducting a properly structured visit to the locus in quo for the specific purpose of identifying the land alleged to have been sold to the Appellant; (b) Recalling relevant witnesses of both parties at the locus to identify the land, explain its size, boundaries, location, and physical features, and relate it to the relevant documentary evidence; (c) Allowing full opportunity for cross - examinatio n of such witnesses ; (d) Making a full, accurate, and comprehensive record of all proceedings, testimonies, and observ ations at the locus in quo; (e) Upon reassembly, expressly analysing and integrating the locus evidence with the oral and documentary evidence on record, and making clear and reasoned findings on whether the land

17 observed at the locus is the same land sold to the Appellant, before proceeding to determine issues of ownership, trespass, and reliefs. 6. Costs of this appeal shall abide the outcome of the retrial . It is so ordered. K.N. ROBERT JUDGE 19/12/2025