ELINEEMA KITILA MGUTYA VS PETRO MAKALA JUDGMENT

IN THE HIGH COURT OF TANZANIA DODOMA SUB-REGISTRY AT DODOMA LAND APPEAL CASE NO 10427 OF 2024 (Originating from the Judgment of the District Land and Housing Tribunal for Iramba at Kiomboi in Land Application No. 20/2022 dated 27/3/2024) BETWEEN ELINEEMA KITILA MGUTYA ……………………………..………………… APPELLANT VERSUS PETRO MAKALA MSENGI (Administrator of Estate of the late WANKEMBETA KIULA) ……………………….….. RESPONDENT JUDGMENT Date of last Order: 31/10/ 2024 Date of the Judgment: 28/11/ 2024 LONGOPA, J.: The respondent instituted an application against the appellant for trespass to land estimated to be 3 acres in size, located at Kizaga Hamlet, Misigiri Village Ulemo Ward in Iramba District of Singida Region. According to the respondent the land in dispute belonged to the estate of his late mother one Wankembeta Kiula who has been occupying and owning the land since 1969 and the respondent in person assisted to plant trees in the 1|Page suit land during lifetime of his mother. The respondent reiterated that the land was used by her since 2002 for about 21 years. As a result, the respondent called a total of 4 witnesses while the appellant called three (3) witnesses to prove their respective cases. At the conclusion of the case, the District Land and Housing Tribunal for Iramba at Kiomboi entered both judgment and decree in favour of the respondent by declaring that the suit land belonged to estate of late Wankembeta Kiula, the appellant was ordered to give vacant possession and permanently injuncted from entering the suit land and costs of the case. The appellant, being aggrieved and dissatisfied by the whole Judgment and Decree of the District Land and Housing Tribunal for Iramba at Kiomboi in Land Application No. 20/2022, dated 27th March, 2024. On 8th day of May 2024, the appellant filed an appeal to this Honourable court on the following grounds: - 1. That, the Honorable learned trial Chairman erred in Law and fact by relying on the Respondent’s evidence which were weak, cooked, contradictory and inconsistent. 2|Page 2. That, the Honorable learned trial Chairman erred in Law and fact by holding that the Appellant herein had no cogent evidence to prove her ownership to the suit land while she had strong evidence to prove her ownership over the suit land compared to the Respondent herein. 3. Trial chairman erred in fact and law by failure to visit locus in quo despite having conflicting evidence regarding the suit property. 4. Trial chairman erred in fact and law by relying on hearsay evidence which was never collaborated. 5. Trial Chairman the Honorable learned trial Chairman erred in Law and fact by failure to critically evaluate the evidence tendered before it, thus, arriving at a wrong decision of declaring the suit land was the part of the estates of the late Wankembeta Kiula. 6. That, Honorable learned trial Chairman grossly erred in Law and fact by determining the matter without considering the circumstance of the case. 3|Page It was stated that on strengths of these grounds the appellant prays from this Honourable Court to allow this appeal with costs and the Judgment and Decree of the said Tribunal be set-aside and quashed. The hearing of this was appeal was through written submission. The appellant enjoyed the legal services of Mr. Christopher Malinga, learned advocate and the respondent had legal services of Ms. Agnes Mchali Zinga, learned advocate. The appellant argued 1st, 2nd, 4th and 5th grounds jointly and 3rd ground while abandoning the 6th ground of appeal. On the combined grounds of appeal, it was submitted that: One, evidence of respondent was weak, cooked, inconsistent and contradictory. Two, the appellant had strong evidence on ownership than that of the respondent. Three, Chairman relied on hearsay evidence that was uncorroborated. Four, failure to evaluate the evidence tendered thus arriving at wrong decision. The appellant reiterated that at page 6 of the trial Tribunal’s judgment one would note that the said Tribunal held that the suit premise 4|Page to be part of the estates of the late respondent’s mother since the respondent herein gave more cogent evidence than that of the appellant herein. However, the appellant was not agreement with such finding on the following reasons: First, the respondent’s side gave inconsistent evidence on whether the suit land was part of the estates of the late respondent’s mother or it was the property of the respondent herein. The respondent claimed that the suit land was the property of his mother one Wankembeta Kiula who used it since 1969, but the respondent herein further testified that his late mother gave him the suit land in 1973 in his personal capacity. Thus, if that was the case there was no any evidence given to show when the suit land was returned back to the late Wankembeta Kiula. Hence, one would ask himself why the respondent herein sued the appellant herein as an administrator of the late Wankembeta Kiula if at the suit land was given to him by respondent’s later mother. Second, it was alleged that suit land was leased to one Miyagi Kiula from 2003-2015, however, it is not clear who leased it to Miyagi between the late Wankembeta or Petro Makala Msengi considering the said Petro 5|Page alleged that the suit land was given to him by the late Wankembeta. Moreover, they alleged that it was Miyagi Kiula who in turn leased the suit land to other people including the appellant herein, of which other people agreed to leave the land, but the appellant herein refused to leave. Also, it was argued that it was not clearly indicated at as to when some of them agreed to leave and likewise when did the appellant herein refused to leave. Nevertheless, this piece of evidence creates more question how come Miyagi Kiula leased it to some other people while she was not the owner, worse enough it was generalized that she leased it to other people including the appellant herein without specifically mentioning all persons who were leased by the said Miyagi Kiula and what was their terms of such leasing agreement. Further, one would ask himself how PW1 one Petro Makala Msengi and his witnesses came to know about this leasing issue involving Miyagi and those people while during evidence giving never disclosed the source of such information. More so, if the respondent’s side alleges that the appellant herein refused to leave the suit land having been leased the 6|Page same by Miyagi Kiula why would the respondent then alleges that she trespassed into the suit land in 2018. Thus, this was hearsay which was never corroborated and more so it was a cooked piece of evidence. It was stated that statement that suit land was of the late Wankembeta Kiula were mere cooked evidence. It was reiterated that PW4 one Wifred Mkumbo came with a story that the suit land was once used by the respondent’s uncle a thing which was not said by the respondent herein in his evidence. It was argued that respondent’s evidence is clear that the appellant has been using the suit land since 2002. This was supported by DW2 and DW3 namely Magile Nangu and Humphrey Mpopo. Thus, findings made by the trial Tribunal that appellant failed to tender a written undertaking to show how she was given the suit land and that no any other clan member was called to testify do not hold water since the respondent’s side had many shortcomings. Thus, such testimonies from the appellant herein and such two other witnesses plus such shortcomings from the respondent’s evidence was enough to prove here ownership to the suit land. Thus, the 7|Page respondent had no cogent evidence since his evidence were inconsistent and cooked thus the trial Tribunal failed in its evaluation of evidence tendered by both parties. It was argued that least being said it follows the evidence of the appellant herein was very heavier compared to of the respondent herein and the applicant’s side (now the respondent) were just trying to make up some stories so to say so that to disown the appellant herein the suit land and in the case of HEMED SAID VS MOHAMED MBILU (1984) TLR 113 it held that “According to the law both parties to suit cannot tie but the person whose evidence is heavier than of the other is the one must win”. Thus, it was reiterated that the appellant has been using the same for long period since 2002 without disturbances then it follows that this court should not disturb her by taking the same out of her as in the case of SHABANI NASSORO VS RAJABU SIMBA [1967] HCD 233 it was held that “the court has been reluctant to disturb persons who have occupied land and developed it over a long period” thus, the grounds have merits and should be allowed. 8|Page In respect of third ground, it was submission the trial chairman erred in fact and law by failure to visit locus in quo despite having conflicting evidence regarding the suit property. After conclusion of evidence the appellant herein requested for the Tribunal to visit the locus in quo but the same was not granted by the Tribunal. It was argued that appellant’s submission that failure to visit the dispute land to witness development denied the Tribunal an opportunity to be able to appreciate extent to which land was developed. This led to injustices on part of the appellant. The court in the case of Joseph Kereto vs Njachai Maripet & 8 Others (Misc. Land Appeal No. 23 of 2020 [2021 TZHC 5358 (22 July 2021) pointed out circumstances which may warrant the court/tribunal to visit locus in quo as it is seen at page 6 of Judgment, where Honourable Gwae J, had this to say: “Though there is no law requiring a trial court or tribunal to visit the locus in quo however when there is lacuna as to size, uncertainty as to a land in dispute or boundary and related issues, it is advisable to visit the locus in quo and after visiting the locus in quo, there ought to be additional evidence at the locus in quo, 9|Page brief note be made and read to the parties as well as rough sketch map if need arises and other related issues to form part of the trial tribunal proceeding.” Hence, basing on strength of these arguments, provisions of the laws and decided case laws referred and elaborated above this appeal has merits and should be allowed with costs both at this appellate and trial level. It was humbly submitted. On the other hand, the respondent stated that the appellant’s submissions are fully of lies and misinformation that the respondent alleged that the suit property belonged to him in his capacity, a statement which is false! It was stated by the respondent that looking at page two of the judgment, it is clearly stated that the respondent planted trees and a sisal fence on the suit land in 1973, nowhere is it written that he claims the suit land in his own capacity. In respect of four combined grounds, it was argued that respondent’s evidence was not cooked, weak nor was it contradictory or inconsistent 10 | P a g e but, it was strong as he stated that the land belonged to his late mother one Wankembeta Kiula who also got the land from her mother. This testimony was collaborated by PW2 and PW3 who stated that the land belonged to the respondent’s mother. Furthermore, PW2 and PW3 also had land which was bordering the suit land hence they had knowledge of the suit land. PW4 also collaborated the fact that the trees in the suit land were planted by the respondent and that the said land belonged to the respondent’s mother. The appellant was the one with inconsistent, weak, contradictory and cooked evidence. It was stated that the appellant did not have strong evidence. First, the appellant stated that she got the land from the Kinambua clan in 2002. Second, she further stated that the land was owned by Mtakaiko. These two statements are seriously contradictory as the land cannot be owned by the clan and an individual at the same time. If the appellant claims that the land belongs to Mtakaiko she did not state under what circumstance did the land move from him to Kinambua clan and when such transfer 11 | P a g e happened and nor did she state what relation she had with the said clan for her to get the land from them. Also, the appellant stated that she was given the land through a written undertaking from Kinambua clan but she did not produce such writing in court during her testimony nor did she bring any clan member from the Kinambua clan to collaborate her evidence. The appellant witnesses all testified that they did not know how she got land and none of them collaborated her story that she got the land from Kinambua clan. It was reiterated that to make matters worse, both DW2 and DW3 stated that they did not know how she got the land and that they only saw her using the land. DW3 also stated that he did not know the Kinambua clan or Mtakaiko, this clearly shows that the appellant’s testimony was false. To our surprise DW3 collaborated the Respondent’s statement when he stated that he saw one Mlyagi using the land at one point and DW2 did not know who used the land prior. The appellant’s witnesses did nothing but state that they saw the appellant using the land but none of 12 | P a g e them knew how she got the land nor did they collaborate the appellant’s testimony. It was informed that learned counsel for the appellant stated that, the respondent herein did not clarify who leased the land to whom and the people leased to were not mentioned. This also false because at page two of the judgment one Niinzuwa Mkuku was mentioned as one of the people who leased the suit land. Furthermore, it was argued that if the appellant thought these questions were important, they should have asked them during cross examination, and on top of that, the suit was for land ownership of land and not leases, and the respondent was able to show how he came into possession of the suit land and the appellant failed to do so. It was stated that the dispute was not about boundaries, easement or any fixtures on the land that needed the tribunal to visit the suit land suo motto nor was there any contradiction to occasion such a need. 13 | P a g e Furthermore, a visit of the locus in quo is not mandatory in any specified terms and it is usually the duty of the parties to move the court for a locus in quo, the court has discretion whether to visit the locus in quo or not. In the case of Prof T.L Maliyamkono vs Wilhelm Silverster Erio, Civil Appeal No 930 of 2021 (unreported), it was stated at page 12, “A visit of the locus in quo is not mandatory and it is done only in exceptional circumstances”. Further in the case of John Qwary Manni vs Clementina Shauri Bonkhay & 2 others (Land case Appeal No. 211 of 2022) [2023] TZHC 22124 (unreported), it was stated on page 16, “In any case, I join hands with the appellant’s counsel that the crux of the dispute lay on the ownership of the suit land which could have been determined without a visiting locus in quo.” As such, in light of the above cited authorities and submission, the respondent submitted that this appeal has no merit thus prayed for this honourable court to be pleased to dismiss this appeal with costs. 14 | P a g e Having heard the rival submissions by the parties, I have dispassionately perused the available records in light of grounds of appeal to find out the validity of these grounds of appeal. The analysis of the grounds of appeal shall be as follows: There are two main sets of grounds of appeal. The first set relates to the proof of the case and the second set confines itself to the question of visit of locus in quo. In respect of first set of grounds on failure of the respondent to prove his case, the complaints by the appellant are on four aspects, namely: one, the evidence of the respondent was based on weak, cooked, inconsistent and contradictory evidence. two, the appellant’s evidence on ownership was strong than that of respondent. Three, failure to analyse and evaluate evidence. Four, the case of the respondent was based on hearsay evidence. To commence addressing the first set of grounds of appeal, it is imperative to reiterate principles that guide the analysis of this set of grounds. The first and foremost principle is that related to standard and 15 | P a g e burden of proof which generally imposed duty on the party who alleges to prove and the standard of proof is on balance of probabilities. In the case of Registered Trustees of Joy in The Harvest vs Hamza K. Sungura (Civil Appeal 149 of 2017) [2021] TZCA 139 (28 April 2021) (TANZLII), at page 16, the Court stated that: With the above evidence at our disposal, and in order to decide whether the respondent managed to prove the case at the required standard we had to revisit the trite principles in the law of evidence; the general concept of the burden and the standard of proof in civil litigations. The concept is "he who alleges must prove," and it means that the burden of proof lies on the person who positively asserts existence of certain facts. The concept is embodied in the provisions of section 110 (1) and (2) of the Evidence Act [Cap 6 R.E. 2019]. Certainly, the position that he who alleges must prove is part of our jurisprudence as per this Court's decisions in 16 | P a g e The Attorney General v. Eligi Edward Massawe, Civil Appeal No. 86 of 2002 and Ikizu Secondary School v. Sarawe Village Council, Civil Appeal No. 163 of 2016 (both unreported) and the standard of proof, in civil cases is on the balance of probabilities, see the decision in Manager, NBC Tarime v. Enock M. Chacha [1993] TLR 228. In the instant appeal, the main contention between the appellant and respondent was ownership of land located at Kizaga Hamlet, Misigiri Village, Ulemo Ward in Iramba District in Singida Region. The size of the land is 3 acres. It was expected that parties would lead evidence before the trial Tribunal to the effect explaining the mode of acquisition of such land to warrant the Tribunal to declare the appellant or respondent the lawful owner of such piece of land. It is on record that PW 1 stated that his ownership is traced back to 1969 when the land belonged to his mother. The land was inherited from his mother who also inherited from the respondent’s grandmother one 17 | P a g e Mariam Kiula. PW 1 reiterated that in 1973, the respondent planted Eucalyptus trees, Mizambarau, Mango trees and sisal fence on the disputed land. The land was leased to number of persons who returned the same except the appellant herein who refused to give vacant possession. PW 2 informed that Tribunal that the disputed land belonged to one Wankembeta Kiula who is the respondent’s mother and she borders that land on the East. PW 2 stated that started to know that such land belonged to respondent’s mother in 1954. This evidence was also supported by PW 3 who stated that the land belonged to respondent’s mother and he knew about that fact since 1979 when he moved to Kizaga Hamlet where he lives todate. PW 3 stated to have once leased such land from the respondent’s mother. It was PW 3 testimony that respondent’s mother and her husband cleared the virgin forest land. PW 4 stated that he was a Hamlet Chairman at Kizaga from 1999 to 2020 and throughout that time the land has always belonged to respondent’s mother thus the land belongs to the respondent as part of the estate of the late Wankembeta Kiula. In fact, PW 4 reiterated that 18 | P a g e sometimes in 2003, the respondent’s mother litigated on the suit land against her cousins and she won the case. PW 4 stated to have known the respondent’s mother as the owner of that land since 1974. On the other hand, DW 1 stated to have been given the land by clan in 2002 and he has been in use since 2002. DW 1 stated that the handing over of the suit land was documented with minutes of Kinambua clan meeting but the same was not tendered. DW 1 claimed that she had never seen Wankembeta Kiula using the land in question since 2002. DW 2 stated to have seen the appellant using the land in 2002. However, DW 2 stated that he did not know how the appellant got the land. DW 3 stated that appellant used the land in 2002 to present and that the appellant is the owner of the land. DW 3 stated that he is not aware as to how appellant got the land. DW 3 just used to see her in that disputed land. DW 3 does not the Mtakaiko nor Kinambua Clan. This being a summary of material evidence on record, it is lucid that appellant’s witnesses, DW 2 and DW 3 stated categorically that neither is aware as to the mode of acquisition of that land in dispute. Conversely, all 19 | P a g e witnesses of the respondent stated categorically that land belonged to estate of late Wankembeta Kiula who was the respondent’s mother. It is on record that respondent’s mother has been in occupation of the land in question since 1950s. The witnessed articulated mode of acquisition by the late Wankembeta Kiula. It is the finding of this Court that evidence of the respondent was consistent, cogent and reliable to establish the mode of acquisition of the disputed plot of land than that of the appellant. As such the respondent fully discharged the burden of proof on ownership of that land to the required standard. The respondent managed to prove what he alleged in the application before the District Land and Housing Tribunal for Iramba at Kiomboi. It is settled view of this Court that respondent managed to adduce sufficient evidence to be entitled to the judgment and decree of trial Tribunal. The evidence on record for the respondent falls within the two fundamental principles in the case of African Banking Corporation T. Ltd vs T-Better Holdings Co. Ltd (Civil Appeal No. 207 of 2017) [2024] 20 | P a g e TZCA 165 (6 March 2024) (TANZLII), at page 10, where the Court stated that: The law under section 110(1) of the Evidence Act is that he who alleges must prove his allegation to succeed in a suit. It is equally the law that, unlike in criminal trials, the burden of proof in civil cases is not static. It is also trite that, a party who has the burden of proof must discharge his burden on balance of probabilities regardless of the weakness in the case of his opponent. For this proposition, the Court's decision in Paulina Samson Ndawavya v. Theresia Thomas Madaha, Civil Appeal No. 45 of 2017 and Charles Christopher Humphrey Richard Kombe t/a Humphrey Building Materials v. Kinondoni Municipal Council, Civil Appeal No. 125 of 2016 (both unreported) amongst others are instructive on this principle. 21 | P a g e At this juncture, this Court concurs with the analysis and finding that the evidence of the respondent in this appeal was weightier than that of the appellant herein to warrant the court to find in favour of the respondent. The evidence on record reveals that the respondent tendered substantive evidence on the mode of acquisition of land. The appellant herein stated that he acquired land by being given by the Kinambua Clan. It presupposes that transfer of land from the Kinambua Clan to be the appellant was transfer of land as a gift inter vivos. It is settled law that for the grant of land vide a gift inter vivos, there are few mandatory conditions that must be proved, namely: First, intention to give the land. Second, acceptance of the same by the recipient. Third, the effective occupation of the land by the recipient or donee. These aspects fall within the principle in the case of Hamis Sultan Mwinyigoha vs Zainabu Sultan Mwinyigoha (Civil Appeal No. 447 of 2020) [2024] TZCA 150 (29 February 2024) (TANZLII). At pp. 5-6, the Court stated that: 22 | P a g e We have therefore underscored in the context of this case that, validity of a gift essentially lies on the intention to give and acts incidental to that intention which may include the physical handing over of the gift. See Micky Woodley, Osborn's concise Law Dictionary (supra) at Page 200-201. It is also essential and paramount for the gift to be voluntary on the part of the donor and without any element of consideration on the part of the donee. As per the commentaries contained in Justice Y.V. Chandrachud, P Ramanatha Aiya Concise Law Dictionary, 3rd Edition, Lexis Nexis Butterworths Wadhwa, page 493; love, affection, spiritual benefit and many others may enter into the intention of the donor to give or make a gift. In the law of property therefore, three elements must exist for a gift to be legally valid. One is, as alluded to above, intent to give by the donor, two, delivery of the gift to the recipient, the donee and three, is the acceptance of that gift by the donee. These three elements, by 23 | P a g e any standard, are exhibited by way of evidence, no more no less. It is to say, in the instant appeal, there must be evidence proven on balance of probabilities that the late Sultan Mwinyigoha granted the suit property to the appellant by way of a gift. It should be noted that on record of the trial Tribunal there is nothing reflecting that these elements of grant inter vivos were proved. The appellant did not call any witnesses from the Kinambua clan allegedly to have handed the land to her nor any documentary evidence that she stated to have in possession regarding minutes of hand over of the land to the appellant. As a result, the grant of land inter vivos from the Kinambua clan to the appellant lacked cogent evidence. It is in those premises; it is the court’s settled view that submission made by the respondent are valid that the trial Tribunal was correct to hold that the appellant failed to prove the mode of acquisition of the disputed land. The reasons are that: one, no clan member was called to testify on the fact that land was given to the appellant. Two, the document alleged to 24 | P a g e be minutes of the Meeting of Kinambua clan was not tendered nor its whereabouts explained. Three, the witnesses of the appellant categorically stated that they do not know how the appellant got in possession/ ownership of land in question. As such the aspects of the appellant having strong evidence on ownership of disputed land is far -fetched without any iota of truth in it. To the contrary, it is the respondent’s evidence that provides a cogent and tangible explanation on the acquisition of land. The last aspect on this limb relating to proof of the case relates to failure to evaluate the evidence by the trial Tribunal, it is settled views of the court that this ground is also too weak to hold water. It is on record that trial Tribunal summarized all the evidence of the respondent and appellant respectively. Such evidence was subjected to critically analysis in light of the two issues framed in this case. It was upon critical analysis of the evidence from both sides that the trial Tribunal arrived to the conclusion that the respondent was entitled to the judgment and decree of the Tribunal. 25 | P a g e By virtue of being the first appellate court, this Court has critically reviewed the available evidence on record, analysed and weighed it on the issues for determination before trial Tribunal but found there is nothing warranting interfering finding of the Tribunal. In the Attorney General vs Mwahezi Mohamed & Others (Civil Appeal No. 391 of 2019) [2020] TZCA 27 (26 February 2020) (TANZLII), at page 9, the Court held that: In the premises, we wish to note that this being the first court of appeal is entitled to re-evaluate the entire evidence on record by reading it together and subjecting it to a critical scrutiny and if warranted arrive at its own decision. Indeed, the re-evaluation of the evidence on record regarding the evidence of both sides, it is clear that the case tilts in favour of the respondent who adduced tangible and cogent evidence on the mode of acquisition of the disputed land. Meanwhile, the appellant’s evidence fell short to establish the mode of acquisition of the land in dispute. Thus, the respondent being a party with heavier evidence on record was entitled to 26 | P a g e the judgment and decree of the Tribunal. On this ground, it is finding of this court that 1st, 2nd, 4th and 5th grounds of appeal forming a set of proof of the case are all without any merits thus they are hereby dismissed for lack of any cogent merits. With regard to the ground on failure of the District Land and Housing Tribunal to visit the locus in quo, it is on record that on 24th day of January 2024 upon closure of the defendant’s case at the Tribunal, Counsel for the defence prayed for the visit the locus in quo in order to verify boundaries. This prayer was vehemently objected by the counsel for the applicant who reiterated that there was no question or dispute on boundaries of the plot of the land in question thus there was no reason for the Tribunal to visit the locus in quo. The trial Tribunal declined to grant the prayer for visit locus in quo. The Tribunal stated categorically on page 54 of the proceedings that no witness on either side who borders the disputed land was summoned and that visiting locus in quo was exceptional matter, there were no justification advanced warranting the Tribunal’s visit in locus in quo. 27 | P a g e Having evaluated the available evidence on record, it is this court’s view that there was nothing of prejudice to the appellant for failure by the trial Tribunal to visit the locus in quo. The trial Tribunal exercised its discretionary powers well within its mandates as there was nothing exceptional to warrant the Tribunal visiting the locus in quo. The guidance on criteria for visiting locus in quo has been articulated. In Avit Thadeus Massawe vs Isdory Assega (Civil Appeal No. 6 of 2017) [2018] TZCA 357 (14 December 2018) (TANZLII), at pages 14-15, the Court of Appeal stated that: In the circumstances of this case, we are highly persuaded by the principles in the above cited Nigerian case that, a visit to locus in quo will definitely help the Court determine the appeal with clarity and certainty. We, however, wish to note that the practice of visiting a locus in quo is not novel in our jurisdiction. The Court, in the case of Nizar M. H. Vs. Gulamali Fazal Janmohamed [1980] TLR 29, faced a scenario whereby the trial magistrate visited the locus in 28 | P a g e quo and the judge sitting on appeal also did so. The Court was of the view that such visit should be done only in exceptional circumstances by the trial court to ascertain the state, size, location and so on of the premises in question. Clarifying on the point, the Court stated: “It is only in exceptional circumstances that a court inspects a locus in quo, as by doing so a court may unconsciously take on the role of a witness rather than an adjudicator. At the trial, we ourselves can see no reason why the magistrate thought it was necessary to make such a visit. Witnesses could have given evidence easily as to the state, size, location and so on of the premises in question. Such evidence could, if necessary, be challenged in cross-examination. But at least the magistrate made his visit on the application of a party to the trial. We completely fail to see why the first appellate judge thought it was necessary for him to visit the premises. He was dealing with an appeal.” 29 | P a g e In the instant appeal there is no iota of evidence on the parties disputing about the location of the disputed land, size of the land or neighbourhood of that land. Both the appellant and the respondent were stating about the same land of 3 acres in size located at Kizaga Hamlet, Misigiri Village, Ulemo Ward in Iramba District within Singida Region. Both parties have demonstrated that within that land exists trees as well as sisal fence. The main contention between the parties was on who between the appellant and respondent herein was the rightful owner of the suit property. This needed no visit of locus in quo. Given the legal position in Tanzania that visiting a locus in quo is not a mandatory legal requirement and that evidence on record do not reveal any facts that would have necessitated the trial Tribunal to grant an order of visiting the locus in quo, it is clear therefore that the complaint on failure to visit the locus in quo lacks basis. 30 | P a g e This Court is fortified by the principle in the case of Kimonidimitri Mantheakis vs Ally Azim Dewji & Others (Civil Appeal No. 4 of 2018) [2021] TZCA 663 (3 November 2021) (TANZLII), at page 6-9, where the Court 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. In this regard, where the court deems it warranted, then it is bound to carry it out properly so as to establish whether the evidence in respect of the property is in tandem with what pertains physically on the ground because the visit is not for the purposes of filling gaps in evidence. Therefore, where it is necessary or appropriate to visit a locus in quo, the court should attend with the parties and their advocates, if any, and with such witnesses as may have to testify in that particular matter. 31 | P a g e In the light of the cited decisions, for the visit of 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 of the court including drawing a sketch plan if necessary which must be made known to the parties and advocates, if any. In order for the visit of locus in quo to be done, it is instructive to this Court to note that such visit in locus in quo is not a compulsory legal requirement but rather a discretion of the Court. Such discretion can only be exercises where exceptional circumstances exist to warrant the Court ordering the visit of the locus in quo. None of the circumstances of this 32 | P a g e appeal warranted exercise of such discretionary powers. Thus, the 3rd ground of appeal is dismissed for being delinquent of merits. Having found that all the argued grounds of appeal are devoid of merits, this appeal deserves to be dismissed with costs for being preferred hopelessly without merits. I shall proceed to dismiss the appeal in its entirety with costs. It is so ordered. DATED at DODOMA this 28th day of November 2024. E.E. LONGOPA JUDGE 28/11/2024. 33 | P a g e