CIVIL APPEAL NO 40 OF 2022 PRAXEDA MTANA VS RICHARD ELANGWA SHAIDI

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPEAL NO. 40 OF 2022 fCORAM: MWANDAMBO. 3.A.. MWAMPASHI. 3.A. And FELESHI. J.A.^ PRAXEDA M TANA................................................ .................. APPELLANT VERSUS RICHARD ELANGWA SHAIDI..................... ................ ......RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, [Land Division] at Dar es Salaam) (Maqhimbi, J.1 ) dated the 25th day of September 2020 in Land Case No. 338 of 2016 JUDGMENT OF THE COURT 25th February & 6th March, 2025 MWANDAMBO, J.A.: The determination of the instant appeal turns on ground one in the memorandum of appeal which faults the trial court on the alleged irregularities in the conduct of the visit to the locus in quo as shall become apparent later. The material background to the appeal is as follows: the respondent, Richard Elangwa Shaidi, sued the appellant Praxeda Mtana for the alleged trespass to his land described as Farm No. 2994 situate at Sungwi Village Kisarawe District comprised in certificate of title No. 85519 allegedly committed on/about 2015. TTie appellant denied having trespassed any land belonging to the respondent as alleged. Her case was that she owned a five acres piece of land situate in Masaki Village acquired by purchase from four different people in the year 2012. Before the commencement of the trial, the High Court (Maghimbi, J.) framed three issues for determination, that is, one, who is the lawful owner of the disputed land; two, whether the respondent trespassed into the disputed land and; three, the reliefs to which the parties were entitled. At the instance of the parties, the trial court made an order for the visit to the locus in quo ahead of commencement of the hearing. After visiting the locus in quo and having obtained elaborations from the visit, the trial commenced with both parties calling witnesses in support of their respective cases. At the end of it all, the trial court was satisfied that the respondent had proved his case on the ownership of the disputed land holding the appellant a trespasser thereon. It thus entered judgment for the respondent with the attendant orders including costs. Dissatisfied, the appellant instituted the instant appeal upon three grounds but, as hinted earlier, the determination of the appeal turns on the 1st ground in which the appellant faults the trial court for its failure to adhere to the procedure for conducting the visit to the locus in quo. 2 The appellant appeared in person at the hearing of the appeal and stood by her written submissions lodged earlier on with some clarifications in support of her appeal. So did the respondent in reply acting through Mr. Robert Rutaihwa, learned advocate who represented him at the hearing of the appeal. Essentially, the appellant's submissions on the 1st ground were to the effect that, although the trial court had made an order for visiting the locus in quo which indeed took place, the procedure governing the visit was not only irregular but also the record of proceedings does not reveal what actually transpired during the respective visit thereby vitiating the trial and the resultant judgment. On what the trial court should do where it finds necessary to conduct the visit to the locus in quo, the appellant placed before the Court several of its decisions, remarkably, Nizar M.H. Ladak v. Gulamali Fazal Janmohamed [1980] TLR 29 and Kimon Dimitri Mantheakis v. Ally Azim Dewji & 7 Others [2021] T7CA 663, 3 November 2021; TANZLII and, Prof. T.L Maliyamkono v. Wilhelm Sirivester Erio [2022] TZCA 39, IS November, 2022; TANZLII to which we shall turn to later. In her oral submission, she referred to other decisions of the Court in Registered Trustees of Telesina Sisters And 10 Others v. Nassoro Thabit Lipangile (As administrator of the Estate of the Late Rukia 3 Lipangile) & Another [2024] TZCA 1241, 10 December, 2024; TANZLII to reinforce her argument on the procedure governing visits to the iocus in quo. The appellant was insistent that, contrary to the governing procedure articulated in the cases cited, the trial court did not comply with such procedure rendering the trial a nullity. She implored the Court to sustain the 1st ground and quash the proceedings and set aside the impugned judgment for being a nullity. On his part, the respondent's counsel began his onslaught resisting the appeal with a contention in the written submissions that the appellant has not laid any ground on the procedure allegedly not complied with by the trial court after resuming in court for hearing following the visit to the locus in quo. We agree with him and are mindful that, in the absence of anything in the record on what transpired at the locus in quo it will be next to impossible to make a determination this way or the other. Nevertheless, that is not equal to saying that the conduct of the visit was necessarily proper notwithstanding the fact that the judgment of the trial court is conspicuously mute on it. Mr. Rutaihwa contended in his oral arguments that that the submission in this ground was incongruent with the complaint itself and we think we understood him correctly, that he appeared to be 4 suggesting that the Court should find the ground unsubstantiated. It was contended on the other hand both in the written and oral arguments that, whilst there is no dispute that the trial judge's notes on what transpired at the locus in quo shown to be attached to the proceedings but conspicuously missing from the record, the trial judge made no reference to such notes in the judgment as a basis for her findings on the issues framed. On the contrary, it was argued that the trial court's findings were made on the strength of the evidence adduced by the witnesses for each of the parties from which the trial court was satisfied that the respondent sufficiently discharged his burden of proof on both the 1st and 2nd issues independent of anything which transpired at the visit to the locus in quo. Before winding up his submissions on this ground, Mr. Rutaihwa advanced an alternative argument on the status of the notes produced from the visit of the locus in quo before the commencement of the trial as against a visit made in the course of the trial. Counsel placed before us a decision of the High Court of Uganda in Owon Akwilino Okongo v. Omara Yosam, Civil Appeal No. 11 of 2020 (unreported) to argue that, what transpires at the pre-hearing visit to the locus in quo has no evidential value considering that witnesses are not sworn compared to the visit made during the trial. By this argument, counsel impressed 5 upon us to find no relevance in the impugned conduct of the visit for being worthless to the determination of the suit, regardless of the fact that the notes are missing from the record. On the basis of the foregoing, counsel invited the Court to dismiss the 1st ground for lack of merit. In the further alternative, it was submitted that, should the Court find any irregularity in the impugned conduct of the visit to the locus in quo, it should not accept the appellant's invitation to nullify the trial but order a fresh visit in accordance with the established practice which will entail nullification of the judgment with an order remitting the record to the High Court for composition of a fresh judgment. He supported that approach by the Court's decision in Saidi H. Lipite & 680 others v. Ministry of Defence& Another [TZCA] 17876 , 22 November 2023; TANZLII. In rebuttal, the appellant argued that, much as the visit to the locus in quo was not mandatory, it was, in this case critically important considering, not only the respondent's own urging but also, the fact that it was central to the determination of the suit. Having examined the written submissions and heard oral arguments from the appellant and Mr. Rutaihwa, we find it convenient 6 to dispose some issues raised against the 1st ground. We shall begin with the complaint that the ground is incongruent with the submissions. For easy reference, we find it pertinent to reproduce the first ground as under: "That, the learned trial judge erred in law and fact for failure to follow the proper procedures governing visit [to] the locus in quo after [the parties had resumed] in the court room for hearing hence unfair trial." Although, there was no response to Mr. Rutaihwa's contention from the appellant, we do not think there is any merit in the complaint. Whilst the complaint in the way it is discerned from the 1st ground appears to be directed at the irregularity in the procedure to be followed in court after the conduct of the visit to the locus in quo, the essence of the complaint is that the whole process was flawed. Upon our careful examination of the complaint against the submissions and the record of appeal, it is instantly apparent that, there is hardly any dispute that the conduct of the visit to the locus in quo was fundamentally flawed. The record of appeal reveals at pages 92 and 93 as under: "22/ 06/2020 Coram: Hon. S. Maghimbi, J. i For the plaintiff: Ms. Lightness Minja, Advocate For the Defendant: Present in person RMA: Agnes Ms. Minja: Madam judge, we have applied for the court to visit the locus in quo before we proceed with the matter because we might resolve the issue there. We therefore still pray that the court visits the locus before proceeding with hearing. Defendant: I also pray that we visit the locus. Order: Visit to the locus in quo on 26/06/2020." It is glaring that the prayer for the visit was made by the learned advocate for the plaintiff ( respondent) being convinced that, such visit would have resulted in the resolution of the dispute then and there. The defendant (appellant) shared the same position. Satisfied that the visit was necessary, the court granted the prayer. The record shows at page 93 that the visit was conducted on 26/06/2020. After the conclusion of the visit, the record reflects the following: •' Court: Visiting the locus in quo. The proceedings and elaborations as per attached papers. Sgd. S.M. Maghimbi Judge 8 26/ 06/2020 Order: 1. [Having] visited the locus and got elaborations the dispute shall proceed to hearing where parties can be able to adduce evidence so that each can prove ownership." After that order, the court fixed dates of hearing in August 2020 which are not directly relevant to the determination of the issue under consideration. Gathered from the pleadings the parties were at issue on the location of the land allegedly trespassed by the appellant which necessitated a physical visit to satisfy the court whether parties were referring to one and the same piece of land and, possibly resolve the issue then and there as suggested by the erstwhile advocate for the respondent. However, there is nothing on the record revealing what transpired at the locus in quo except and indication on the elaborations but without more. That question remains unanswered since the trial judge's notes said to be in papers containing proceedings and elaborations allegedly attached are nowhere to be seen in the record. Neither is there any indication that the visit revealed that the dispute involved the same land the respondent claimed to have been trespassed so much so that the issue remained one of ownership on which evidence was to be led by the disputants as ordered by the trial court. 9 At this stage we find it convenient to revert to the cases cited in the appellant's submissions. In Nizar M.H. Ladak (supra), the Court had the following to say: "... When a visit to a focus in quo is necessary or appropriate and as we have said, this should only be necessary in exceptional cases, 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, and for instance, if the size o f a road or width o f a road is a matter in issue, have the room or road measured in the presence o f the parties, and a note made thereof. When the court re-assembies in the court room, all such notes should be read out to the parties and their advocates, and comments, amendments or objections called for and if necessary incorporated notes in order to understand or relate to the evidence in court given by witnesses. We trust that this procedure will be adopted by courts in future." That has been, and remains to be the law regulating the conduct of visits to the locus in quo followed consistently as can be seen from an unbroken list of the cases we have landed our eyes on including 10 those placed before us by both the appellant and the respondent, particularly, Kimon Dimitri Mantheakis; Saidi H. Lipite & 680 Others v. Ministry of Defence& Another (supra) and Registered Trustees of Telesina Sisters And 10 Others v. Nassoro Thabit Lipangile (As administrator of the Estate of the Late Rukia Lipangile & Another (supra). It is instructive that, in our decision in Saidi H. Lipite & 680 others, we referred to Depson Balyagati v. Veronica J. Kibwana [2023] TZCA 17772, 23 October 2023; TANZLII in which the Court drew inspiration from a passage in a decision of the Ugandan Court in David Acar and 3 Others v. Alfred Acar Aliro [1982] HCB 60 on the essence of visits to the locus in quo which we find inevitable to repeat in this judgment thus: "When the court deems it necessary to visit the locus in quo, then both parties and their witnesses must be told to be there. ... It is a court sitting at the locus-in-quo. ... the purpose o f the visit o f the locus in quo is for the witnesses to clarify what they stated in courts; he/she must do so on oath: The other party must be given opportunity to cross-examine him. The opportunity must be extended to the other party. Any observation by the trial li m agistrate m ust form p a rt of the proceedings..." [Bolding added for emphasis] The position in the instant appeal appears to be the opposite of the above. Although the trial court's record at page 93 shows that the court got elaborations for the visit, the details are not part of the record. With respect, there can be no serious dispute that such a visit cannot be free from difficulties to be meaningful and serve the intended purpose. The above takes us to the second issue arising from the argument advanced by Mr. Rutaihwa in the status of the notes taken at the locus in quo prior to and during the course of the hearing relying on the decision of the High Court of Uganda in Owon Akwilino Okongo v. Omara Yosam (supra). With respect, we are not persuaded by that decision. It is plain from that decision that the conduct of the visits of the locus in quo in Uganda is regulated as can be seen at page 18 of the said decision thus: This Court understands that this is now guided by the rules o f this Court, as amended in the year 2019. See 0.11 rule 3(2) CPR, as amended. That is not the same position in this jurisdiction making the decision distinguishable. Worthy for what it is, we are not prepared to go along with Mr. Rutaihwa's argument in view of the law applicable in Tanzania reflected by the cases cited above. 12 Reverting to the crux of the matter on the authorities referred to above, following the conduct of the visit, the trial court was bound to resume in court room and proceed with the hearing upon compliance with the procedure laid down in Nizar M.H. Ladak's case (supra) reiterated in various subsequent decisions, amongst others, the cases referred to shortly before. As this was not done, we find merit in the appellant's submission. Consequently, we allow the 1st ground. After holding that the visit to the locus in quo was flawed, the next issue for our consideration is on the way forward. While the appellant pressed that the irregularity vitiates the entire proceedings, the respondent argues that the proceedings were not affected by the irregularity and so we can retain them taking the same route we took in Saidi H. Lipite (supra). Upon our careful consideration of what transpired in the case from which the appeal has emanated, we have come to the conclusion that justice of the case in this appeal cries in favour of the position touted by the respondent's counsel. It will be recalled that, in Saidi Lipite, the circumstances were such that the trial had been concluded and judgment but was reopened later upon the trial judge realizing the need to conduct a visit to the locus in quo meant to look for and obtain clarifications on the boundaries in the disputed land. The notes taken 13 at the visit revealed irregularities in the conduct of the visit and that was the reason for nullifying the offensive proceedings following the locus in quo with an order directing the trial court to conduct the visit afresh. The position obtaining in the instant appeal is that the visit to the locusin quo was conducted before the start of the hearingof the case incourtwhich was, on authorities reviewed, not proper. In Kimendimitri Mantheakis, we referred to an earlier decision of the Court in Avit Thadeus Massawe v. Isidory Assenga, Civil Appeal No. 6 of 2017 (unreported) on the essence of the visit to the locus in quo. The Court drew inspiration from the Nigerian case of Akosile v. Adeye (2011) 17 NNWLR (Pt 1276) p.263 where it was held that: "The essence o f a visit in locus in quo in land matters include location o f the disputed land, the extent, boundaries and boundary neighbour, 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 about physical objects." [Emphasis ours]. The above presupposes that the hearing precedes the locus in quo after the witnesses have testified in court and not before. The visit 14 to the locus in quo in the suit, subject of this appeal was ordered to take place before the trial commenced presumably on the belief that the dispute could have been resolved then and there which did not materialise. Be it as it may, since there is no complaint against the trial proceedings as such, we are constrained to go along with Mr. Rutaihwa that the justice of the case does not warrant nullifying the entire proceedings but the offensive locus in quo. Much as there was no reference to anything that transpired during the visit to the locus in quo in the judgment, we are satisfied that the circumstances of the case warranted the visit with a view to resolving the dispute on the location of the land alleged to have been trespassed by the appellant. In our view, a finding on who, between the appellant and respondent was the lawful owner of the suit land could not be resolved without the trial court satisfying itself on the location of the disputed land. This necessitates conducting of the locus in quo afresh to clarify on the location and boundaries before composing a fresh judgment based on the evidence already on record and notes from the visit to the locus in quo to be conducted in accordance with the law as discussed above. In the event, the impugned decision must be and is hereby quashed and decree set aside. Hie record shall be remitted expeditiously to the trial court for composition of judgment after 15 conducting a fresh visit to the locus in quo in the manner above stated preferably by another judge. The appeal is in consequence allowed. In view of the circumstances behind our decision, we order each party to bear his own costs. Order accordingly. DATED at DAR ES SALAAM this 5th of March, 2025. L. J. S. MWANDAMBO JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL Judgment delivered this 6th day of March, 2025 in the presence of the Appellant in person and Mr. Thodore Primus, learned Advocate for the Respondent, is hereby certified as a true copy of the original. 16