ABDALLAH MBARA

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA LAND APPEAL NO. 95 OF 2023 (Originating from Singida District Land and Housing Tribunal in Land Application No. 80 o f2020) ABDALLAH MBARA {Administrator o f the Estate of the Late Mbara Mahamudu)............................................... APPELLANT VERSUS ABUBAKARI MAHAMUD HATIBU MARIAM SAID NASSORO L................................. RESPONDENTS HADIJA MBARA RULING 18.10.2024 HASSAN, J.: The appellant Abdallah Mbara, Administrator of the Estate of the Late Mbara Mahamudu appeared before this court pained by the decision of the District Land and Housing Tribunal (DLHT) of Singida at Singida in the Land Application No. 80 of 2020 of which the 2nd respondent emerged victorious. l Now before the court, the appellant preferred three (3) grounds of appeal for resoluteness. However, for reasons which will be apparent hereunder, I will not replicate the same. When the application came for hearing, the appellant appeared in person, the 1st and 2nd respondents were represented by Mr. Joseph Wawa, learned counsel while the 3rd respondent appeared in person. Before parties jumped into own submissions, the court suo mottu observed some irregularities which need satisfaction of the court as to the appropriateness of the proceedings from the land tribunal bellow. The issue observed touches appending of signature by the chairman in the evidence of each witness he recorded. The matter proceeded by way of written submissions. Parties complied to the order of preference in filing their written submissions. Since the irregularity observed involves a point of law I will only base my determination of the same as it is worth determining the appeal to its finality without touching the merits of the appeal. On his submissions as regards to the anomaly, the appellant acknowledged the anomaly and argued that the same is not fatal since it can be cured by section 45 of the Land Disputes Courts Act, Cap 216. 2 On their part, the 1st and 3rd respondents addressed the anomaly by first acknowledging the anomaly and also suggesting that the same to can be cured by section 45 of the Land Disputes Courts Act. The 3rd respondent did not canvass the anomaly but rather the merits of the appeal. Going through the above, there is no dispute as seen in the trial tribunal's records that DLHT has faulted its proceedings on the anomaly observed by the court. The chairman failed to append his signature to the evidence of all the witnesses from both sides, that is SMI, SM2 and SM3 on the applicant's side and, SU1, SU2, SU3, SU4 and SU5 on the respondent's side. He only appended the order for admission of exhibits on SMI's evidence and SU5's evidence ignoring the rest of the witnesses' evidence. In the upshot, I am alive of the provision of Section 45 of Land Disputes Courts Act (supra) relied by the appellant, 1st and 2nd respondents, which states inter alia that: "No decision or order o fa Ward Tribunal or District Land and 4 Housing Tribunal shall be reversed or altered on appeal or revision on account o f any error, omission or 3 irregularity in the proceedings before or during the hearing or in such decision or order or on account o f the improper admission or rejection o f any evidence unless such error, omission or irregularity or improper admission or rejection o f evidence has in fact occasioned a failure o fjustice. " I however, find that the omission of appending signature after the witnesses' testimony cannot be cured under Section 45 of Land Disputes Courts Act (supra). In land matters the Land Disputes Courts Act, can not be read in isolation of other procedural laws. The use of the Civil Procedure Code [Cap 33 R. E 2019] is empowered by section 49 of the Land Disputes Courts Act [Cap 216 R. E 2019] as well as section 180 of the Land Act, [Cap 113 R. E 2019]. Having said so, the position of the law as regards to the issue of appending signature is precisely clear under Order XVIII Rule 5 of the Civil Procedure Code, [Cap. 33 R. E 2019] which provides as follows: "The evidence o f each witness shall be taken down in writing, in the language o f the Court, by or in the presence and under the personal direction and superintendence of the judge or magistrate, not 4 ordinarily in the form o f question and answer, but in that o f a narrative and the judge or magistrate shall sign the same. " Enduring on this issue, for ages, the Court of Appeal has been lecturing on the aspect of failure to append signature after recording the evidence for every witness, that it is a fatal irregularity which vitiates the entire proceedings. In Yohana Mussa Makubi v. Republic, Criminal Appeal No. 556 of 2015 the court held that: "We are thus, satisfied that, failure by the judge to append his/ her signature after taking down the evidence o f every witness is an incurable irregularity in the proper administration o f criminal justice in this country. The rationale for the rule is fairly apparent as it is geared to ensure that the trial proceedings are authentic and not tainted. Besides, this emulates the spirit contained in section 210 (1) (a) o f the CPA and we find no doubt in taking inspiration there from. In view o f the stated omission the trial proceedings o f the High Court were indeed vitiated and are a nullity and neither did they constitute the record o f the trial and the appeal before us. We are thus satisfied that before us there is no material proceedings upon which the appeal could be determined." Other decisions in which the above position has been adopted and upheld as the law on the subject in this jurisdiction include; Chacha Ghati Magige v. R, Criminal Appeal No. 406 of 2017, Magita Enoshi Matiko v. R, Criminal Appeal No. 407 of 2017 and Sabasaba Enos Joseph v. R, Criminal Appeal No. 411 of 2017 (all unreported). The significance of appending a signature to the evidence after recording it is to, positively affirm that indeed the evidence was recorded by an appropriate magistrate or judge who is purported to have recorded it, see also Richard Mebolokini v. R, [2000] TLR 90. Also, the position of the law in the case of Iringa International School V. Elizabeth Post, Civil Appeal No. 155 of 2019 the Court underscored the remedy available where a Judge or Magistrate failed to append his or her signature after the testimony of each witness. The Court held that: "Failure by the magistrate or Judge to append signature to the evidence of each witness Is fatal and vitiates the proceedings o f the court". 6 Couched from above, it is understandable that the requirement to append signature is vital for the assurance of authenticity, correctness and veracity of the witnesses' evidence. Therefore, failure to append signature in the evidence tantamount to fatal irregularity thus the anomaly can not be cured by section 45 as submitted by the parties. In the light of the above quoted decisions and the foregoing reasons, I find that failure by the Chairperson to append his signature at the end of the testimony of each witness in the instant case vitiated the proceedings before the trial District Tribunal. That being the position of law, I find this ground to have merit. Consequentially, the whole proceedings, and the decision ought to be quashed and set aside. Therefore, on the way forward, I nullify the whole proceedings from the DLHT, quash and set aside the judgment and orders meted thereto. At the end, I remit the Land Application No. 80 of 2020 to the DLHT of Singida for retrial by another chairman and new set of assessors. No order as to costs. It is ordered. DATED at DODOMA this 18th day of October, 2024. JUDGE This Ruling delivered this 18th day of October, 2024 in presence of the Appellant and the counsel for the 1st and 2nd Respondent who were linked through VC from Singida and Dar es salaam respectively. 18/10/2024 8