Nabii Rashid Mugorozi vs Salumu Kassimu Ndyemalila (Land Appeal No. 14507 of 2025) [2025] TZHC 8406 (18 December 2025)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (BUKOBA SUB - REGISTRY) AT BUKOBA LAND APPEAL NO. 14507 OF 2025 (Originating from Application No. 82 of2023 at Bukoba District Land and Housing Tribunal) NABII RASHID MUGOROZI ....................................... APPELLANT VERSUS SALUMU KASSIMU NDYEMALILA ............................ RESPONDENT JUDGMENT 25t hNovember & Iff1 1December, 2025 POMO, 3 The appellant, NABII RASHID MUGOROZI, is not happy with the judgment and decree in Land Application No. 82 of 2023 of the District Land and Housing Tribunal for Kagera at Bukoba (the trial tribunal), the decision which was delivered on 11th day of June, 2025 Hon. 1 K. Banturaki, Chairman. In its findings, the trial tribunal dismissed the Appellant's suit on the grounds that he failed to prove owener ship of the suit land. The land under dispute is a parcel of land located at Kasherero Village, Kateiganiro

Hamlet, Bugandika Ward, Misenyi District, Kagera Region (the Disputed Land). In brief, the background to this matter is as follows. The appellant avers that he acquired the disputed land from his mother, Tausi Rashidi Mugolozi, who is also the administratrix of the estate of the late Haji Rashid Mugolozi. In 2014, he sold a portion of that land to the respondent, and a written agreement of sale was duly executed (Exhibit Dl). In 2020, when the appellant sought to demarcate the boundaries of the remainder of his farm, he discovered that the respondent had removed the existing boundary markers and had encroached upon the land, claiming that it formed part of the area he had purchased. The respondent, in his defense, maintained that the disputed land belongs to him by virtue of the purchase from the appellant and contended that, following the transaction, no portion of the land remained under the appellant's ownership. Following the occurrence of the dispute, the matter was initially referred to Bugandika Ward Tribunal for mediation which bared no fruit hence resorted to the trial tribunal for redress by filing a suit there, now the subject of this appeal. 2

During the hearing, the appellant testified as PW2 and called a single witness, his mother, Tausi Rashid Mugorozi (PW1). The respondent testified as DW1 and likewise called one witness, Steven Ruganuza Sosthenes (DW2). He further produced three documentary exhibits, to wit, the sale agreement relating to the land (Exhibit Dl); a letter regarding the payment of TZS 500,000 (Exhibit D2); and a document evidencing the handing over of his motorcycle registration card to the appellant (Exhibit D3). Upon conclusion of the hearing, the trial tribunal entered judgment in favor of the respondent. Not happy by the said decision, the appellant filed the instant appeal, comprising of the following five grounds: -

1. That, the trial Tribunal erred in law and facts determining the matter to its finality in favour o f the Respondent without visiting the locus in quo considering the fact that the Appellant had prayed the same to the trial Tribunal.

2. That, the trial Tribunal erred in law and fact, determining the matter in favor o f the Respondent without considering the fact that the land that was sold to the Respondent was 30 X 75 and the remaining dimensions to wit 33 X 119 X 16 belongs to the Appellant.

3. That, the trial chairman erred in law and in fact by deferring with the assessors'opinion without reasons. 3

4. That, the trial chairman erred in iaw and in fact dismissing the application with costs without advancing reasons for granting costs.

5. That, the trial court erred in law and in facts determining the matter against the weight o f evidence. When the appeal was called on for hearing, both parties appeared in person and were unrepresented. The appeal was accordingly disposed of by way of oral submissions. In support of the appeal, the appellant sought and was granted leave to abandon the fourth ground of appeal and argue the remaining grounds cumulatively. He submitted that his land measures 119 meters in length, 46 meters in width on the northern side, and 33 meters on the southern side. He contended that the portion sold to the respondent measured 75 meters i by 30 meters, thus leaving him with 16 meters on the northern side and 33 meters on the southern side. He further asserted that, on the eastern boundary, he retained 199 meters, which is the parcel of land he claimed before the trial tribunal. The appellant argued, as evidenced by Exhibit Dl, the respondent expressly acknowledged having purchased only 75 by 30 meters of the disputed land. He added that the assessors at the trial tribunal were of the view that the actual size of the land exceeded that reflected in 4

the sale agreement; however, the Chairman disagreed with their opinion and proceeded to determine the matter without conducting a visit to the locus in quo. He therefore prayed that the appeal be allowed. In his reply, the respondent agreed that, in 2014, the appellant sold him a parcel of land measuring 75 meters by 30 meters, for which a written sale agreement was executed, Exhibit Dl. He stated that from the time of the purchase he took occupation of, and continuously utilized the disputed land until 2016, when the appellant unlawfully entered the land, asserting that he had sold him only a small portion and had retained the remainder. The respondent maintained that the land he occupies corresponds exactly to the measurements stipulated in Exhibit Dl. He therefore prayed that the appeal be dismissed. I have carefully considered the submissions of both parties, the grounds of appeal together with the tribunal case file. The central issue for the court to determine is whether the present appeal has merit or otherwise. Beginning with the first ground of appeal. Under this ground, the appellant's complaint is that the tribunal erred in determining the suit without conducting visit of locus in quo although the appellant prayed for it. On my side, having gone through the tribunal record, such a prayer by the appellant 5 K .

is evident under the last but one paragraph of page 19 of the tribunal proceedings, the appellant is on record testifying as PW2, stating, I quote: - "Naomba baraza Hfike kwenye ardhi husika i/i mdaiwa akabid hiwe eneo lake." Literally translated, I pray the tribunal to visit the locus in quo so as the respondent be handed his land. It is a well-established principle that a court or tribunal may conduct a visit to the locus in quo, either upon the parties' request or on its own motion. Nonetheless, the decision to do so lies squarely within the discretion of the court. Such a visit may be undertaken whenever the court considers it necessary for the proper verification and appreciation of the evidence adduced during the trial [See: Bomu Mohamed vs Hamisi Amiri (Civil Appeal No. 99 of 2018) [2020] TZCA 29 (27 February 2020) TanzLII]. Moreover, with regard to the rationale of making visiting locus in quo, at page 14 in the case of Avit Thadeus Massawe vs Isdory Assega (Civil Appeal No. 6 of 2017) [2018] TZCA 357 (14 December 2018) TanzLII, cited the case of Akosile Vs. Adeye (2011) 17 NWLR (Pt. 1276), the Court of Appeal underscored: - "The essence o f a visit to locus in quo in land matters includes location o f the disputed land, the extent, boundaries and 6

boundary neighbor, and physical features on the land. The purpose is to enable the Court see objects and places referred to in evidence physically and to dear doubts arising from conflicting evidence if any aboutphysical objects on the land and boundaries." [See also: Depson Balyagati vs Veronica J. Kibwana (Civil Appeal No. 21 of 2021) [2023] TZCA 17772 (23 October 2023) TanzLII]. In the present appeal, so was before the tribunal, the appellant does not dispute having sold a portion of land measuring 75 by 30 meters to the respondent the position which is affirmed by the respondent who also tendered the sale agreement (exhibit Dl) in proof before the trial tribunal. The appellant's argument, however, is that the remaining portion, measuring 33 by 119 by 16 meters, belongs to him and does not form part of the land sold to the respondent. This position stands in direct conflict with the respondent's stance. He contends, and has consistently maintained, that following the sale the appellant retained no land in that area whatsoever. Moreover, the appellant identified certain individuals as neighbors to the disputed land. These same individuals are listed in Exhibit Dl and were similarly referenced in his evidence at trial. He explained that those individuals are neighbors not to the land she sold to the respondent but to

the portion she retained. The respondent, however, asserted that the very same neighbors border the land he purchased from the appellant. In these circumstances, and having regard to the evidence and the applicable principles cited above, I with respect depart from the view taken by the learned trial Chairman, who at page 39 of the typed proceedings stated that there was no need to conduct a visit to the locus in quo giving a reason that the adduced evidence by the parties sufficed to determine the dispute. I quote the same: - "Baraza: Ushahidi wa upande wa utetezi unafungwa. Usikilizwaji umefikia tamati. Ipangwe tarehe ya kusoma maoniya wazee/wajumbe wa Baraza. Nimaoni va baraza hiU kwamba hakuna haia va kutembetea ardhi va maoaoro. Ushahidi wa pande zote na vieie/ezo unatosha kuamua shauri hi/i kwa sababu kie/e/ezo cha mauziano hakioinawi na oande zote." As it is, parties are not in dispute that the appellant sold a land to the respondent (exhibit Dl) the size of which being 75 meters by length and 30 meters by width. This fact is pleaded under paragraph 5(ii) of the respondent's written stament of defence (the WSD), who supported the same in his testimonies as seen under page 27 of the tribunal proceedings, testifying thus: -

"Hilo shamba aliloniuzia Una ukubwa wa mita 30 za upana, mita 75 urefu. From the above therefore, what is at dispute is the physical identification of the size of the respondent's land stated in the sale agreement (exhibit Dl). Therefore, without making a visit o f locus in quo, in my considered view, the trial tribunal didn't resolve the dispute because such a visit was not only necessary but would have been beneficial to do away the uncertainty, to assess the physical realities on the ground, and to enable the tribunal to properly evaluate each party's claim and supporting evidence concerning the suit land. Also, had such a visit been undertaken, the tribunal would, inter alia, have been able to ascertain whether, after the sale of a portion to the respondent, the appellant retained any land in the disputed area. In light of the foregoing, I find merit in the first ground of appeal. Having so found, I consider it unnecessary to address the remaining grounds. In the upshot, the appeal is hereby allowed. The tribunal judgment and decree are hereby quashed and set aside. The case file is hereby remitted back to the trial tribunal to proceed from where it ended after the

closure of receiving evidence from both side and do the following; firstly, conduct a visit of the locus in quo with a view of identifying physical parameter of the land which was sold by the appellant to the respondent as evidenced by the sale agreement (exhibit Dl), secondly; the finding as to parameters of the land sold to the respondent (exhibit Dl) be incorporated in the fresh judgment to be composed by the trial tribunal. I make no order as to costs. It is so ordered. Right of Appeal Explained. DATED at BUKOBA on this 18th Day of December, 2025. MUSA. >OMO JUDGE 18/12/2025 Judgment delivered in chamber on this 18th day of December, 2025 in present of both parties unrepresented. Right of Appeal explained MUSA. K. POMO JUDGE 18/12/2025 10