HIPOLITI BANGA 222222 EDITED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI LAND APPEAL NO. 10353 OF 2024 (Arising from Land Application No. 30 of 2021 in District Land and Housing Tribunal for Hanang'at Katesh) AE HHATSINAY ERRO............................ APPELLANT VERSUS HIPOLITI BANGA............................................... 1st RESPONDENT JOSEPH WEMA JACOB........................................... 2nd RESPONDENT LEONCE BANGA...................................................... 3rd RESPONDENT JUDGMENT 5thAugust & 23rd September, 2024 Kahyoza, J.: AE Hhatsinay Erro, (the appellant) sued Hipoliti Banga, Joseph Wema Jacob and Leonce Banga before the District Land and Housing Tribunal of Hanang' at Katesh (the tribunal). He lost the claim. Aggrieved, AE Hhatsinay Erro appealed to this Court claiming that the tribunal did not consider his strong evidence, the proceedings were defective because the presiding chairmen and assessors changed without assigning reason, the third respondent did not adduce his evidence and that the tribunal did not properly and appropriately analyze the evidence. Hipoliti Banga, Joseph Wema Jacob and Leonce Banga (the respondents) vehemently opposed the appeal. A short background to this case is as follows; The appellant claimed ownership of land comprising 30 acres located at Basodeshi Gaulolo, in Dilma 1 ward within Babati District. The appellant claim that the suit land belongs to his as the administrator of the estate of his late mother, Theresia, who died in 1999. She contended that his mother purchased the suit land in 1999 before his demise in the same year. Hipoliti Banga, the first respondent, claims that the land belongs to him since 1998 as he acquired it after he cleared the virgin land with his brother Leonce Banga, the second respondent. Hipoliti Banga, and Leonce Banga, the third respondent, alleged that they leased the suit land to Joseph Wema Jacob, the second respondent. After hearing the evidence, the trial tribunal concluded the wrangle in favor of the respondents by declaring them the lawful owners of the suit land. AE Hhatsinay Erro appealed raising four grounds of appeal, that trial tribunal declared respondents as lawful owners without considering that the appellant had strong evidence. That, judgment of trial tribunal emanated from defective proceedings because the presiding officers and assessors changed without assigning reason. That, the third respondent did not appear in the tribunal to adduce his evidence. That, the trial tribunal delivered judgment without making proper and appropriate analysis of the evidence of the parties and their witnesses. The appeal raised three issues as follows- 1) whether the appellant proved his claims; 2) whether the proceedings were fatally defective; and 3) whether the third respondent's failure to testify was fatal. 2 Having considered the grounds of appeal and the submissions, I decided to the issues raised by the grounds of appeal commencing with the issue challenging the competence of the proceedings. The issue is whether the proceedings were fatally defective. Are the proceedings defective? The appellant raised a point law, which may be the basis of determining the appeal if this Court sustains it. The appellant complained that the learned chairman of the trial tribunal erred in law as he delivered a judgment emanating from defective proceedings. He contended that the presiding chairpersons and assessors changed without assigning reasons. The trial tribunal records of the proceedings show that, Chairman H.E. Mwihava took over the matter which was formerly before Chairman F. Mdachi without assigning any reasons for the change. During framing of issues, the presiding officer was H.E. Mwihava but the signature is of Chairman K.C Ngonyani. Order XVIII, rule 10(1) of the Civil Procedure Code, [Cap. 33 R.E 2019] (the CPC) provides that- "10. -(1) Where a judge or magistrate is prevented by death, transfer or other cause from conducting the trial of the suit, his successor may deal with any evidence or memorandum take, done or made under the foregoing rules as if such evidence or memorandum has been taken down or made by him or under his direction under the said rules and may proceed with the suit from stage at which predecessor left it." 3 Basing on the above provision, it is a duty of a successor trial judge, magistrate, or chairman to explain to the parties the reason taking over. As the record bears testimony, the chairman changed before the hearing or trial commenced. The Court of Appeal stated clearly that when a magistrate or the judge takes over the partly heard matter is obliged to disclose the reason for taking over. It held in Priscus Kimaro v. Republic, Criminal Appeal no. 301 of 2013 (unreported) the Court observed- . where it is necessary to re-assign a partly heard matter to another magistrate, the reason for the failure of the first magistrate to complete the matter must be recorded. If that is not done it may lead to chaos in the administration of justice. Anyone, for personal reasons could just pick up any file and deal with to the detriment of justice. This must not be allowed." In yet another case, the Court of Appeal in Criminal Appeal No. 116 of 2015 Abdi Masoud @ Iboma and Others v. the R., the Court went further and held that - "...in the absence, on record, of any reason for the taking over, by a different magistrate of the trial of a case that is partly heard, the successor magistrate lacks jurisdiction to proceed with the trial and consequently all proceedings pertaining to the takeover of the partly heard matter becomes a nullity." Given the fact a different chairman took over the conduct of the trial without assigning reason before predecessor chairman heard evidence, the omission is not fatal. It did not occasion any injustice. Thus, I do not find merit in the first part of the complaint. 4 The appellant's second complaint was that assessors changed during trial without the chairman giving reasons for the change. The respondents did not reply to the complaint or submit in opposition. On the date the appeal came for hearing, the third respondent could not submitting regarding the appeal as he had engaged an advocate and he expected his advocate to argue the appeal. He was surprised to note that his advocate was not in attendance. To address the appellant's complaint, I had bird's view of the both hand written and typed proceedings. I noticed that there existed significant differences between typed and handwritten proceedings. Both types and written proceedings depicted that the tribunal mismanaged the record as to appearances of assessors. The record portrayed the following irregularities regarding assessors; one, that assessors who were part of the proceedings before the commencement of trial did not proceed with the trial. This irregularity was immaterial; Two, on 12.9.2023 when the trial commenced, the hand written coram does not indicate that the chairman sat with assessors. It reads- "Tarehe 12.9.2023 Akidi: H.E. Mwihava Mwenyekiti Mleta Maombi - Yupo/ Wakili Kilobwa Mjibu Maombi - 1. hayupo 2. & 3- Wapo” Whereas, the typed coram showed that there were two assessors. It reads- "Tarehe 12.9.2023 Akidi: H.E. Mwihava Mwenyekiti 5 Bw. Sulle Bi Barie....................Washauri Mleta Maombi - Yupo/ WakiH KHobwa Mjibu Maombi - 1. hayupo 2. & 3 - Wapo/Wakili Mbeya" Three, as if the above is not enough, the despite the hand-written proceedings showing that there were not assessors, it is in the proceedings that chairman asked the assessors if they had question for clarification. Although the proceedings do not indicated who were the assessors when Pwl and Pw2 testified but when it came for Pw3 to testify on the same day it is indicated Mrs. Mkuti (the assessor) asked a question and Mr. Mduma (another assessor) had no question to ask. The question is who were the assessors; were Mr. Sulle and Mrs Barie or Mrs, Mkuti and Mr Mduma? No one can tell with certainty. I would have ignored the typed coram in favour of hand written coram, unfortunately the hand written coram depicts that the chairman did not sit with assessors. Four, the malpractice did not end there as on 3.11.2023 when tribunal heard the defence, the hand written proceedings and typed written proceedings indicates that the chairman sat with no assessors. The coram reads- "Tarehe 3.11.2023 Akidi: H.E. Mwihava Mwenyekiti Bw. Bi. Mleta Maombi - Yupo/ WakiH KHobwa Mjibu Maombi - WakiH Mbeya/Wapo" 6 The proceedings show that, the chairman gave assessors who do not appear in the coram an opportunity to ask questions. They had no question to ask Dwl. On that day Dw2 commenced to testify but he did not complete his testimony. Dw2 testified and completed his evidence on 23.2.2024 when the coram indicated that the assessors were Mrs.Mkuti, Mr. Mduma and Mrs. Mgumuo. Finally, Mrs.Mkuti and Mr. Mduma, assessors composed written opinion, which were read to the parties on 25.3.2024. The proceedings on 25.3.2024 indicated that the opinion of the assessors was read to the parties. It does not contain the opinion. I am of the view that, since each assessor composed his opinion and filed it as required by law, the omission was not fatal. The composition of the tribunal is not ambiguous as section 23(1) and (2) of the Land Dispute Act, [Cap. 216 R.E. 20190 (the LDCA) states that the tribunal shall be composed of the chairman with at least two assessors. It provides that- 23. -(1) The District Land and Housing Tribunal established under section 22 shall be composed of one chairman and not less than two assessors. (2) The District Land and Housing Tribunal shall be duly constituted when held by a Chairman and two assessors who shall be required to give out their opinion before the chairmen reaches the judgement. (3) Notwithstanding the provisions of sub-section (2), if in the course of any proceedings before the tribunal either or both members of the tribunal who were present at the commencement i of proceedings is or are absent, the chairman and the remaining member if any may continue and conclude the proceedings notwithstanding such absence" The coram of the tribunal is not complete unless the chairman and two assessors are in presence. There are exceptions to the general rule that is when the tribunal may sit with one or no single assessor but that such a situation happens the record must speak. For unavoidable reason, the assessors may change during trial when that occurs, at least one of the assessors must be among the assessors in attendance throughout the trial. The rationale behind is to enable the assessors to make informed or rational opinion (see Ameir Mbaraka and Another v. Edgar Kahwili Civil Appeal No. 154 of 2015). The consequence of unclear involvement of assessors is to vitiate the trial and it renders it a nullity. Furthermore, where an assessor who has not heard all the evidence is allowed to give an opinion on the case, the trial is a nullity as it was held in Joseph Kabul v. Reginam [1954-55] EACA Vol XXI -2. In the present case, the assessors changed before trial commenced which was not fatal. However, after trial commenced, it is difficult to tell if assessors changed or not. On two appearances, the chairman did not indicate the names of assessors who sat with him. It is difficult to tell with certainty if there was at least one assessor who sat from the commencement of trial to an end. The Court of Appeal had instructively held Amri Shabani Gunder v. Salum Mohamed Mashauri, (Civil Appeal 84 of 2021) [2022] TZCA that, at least one assessor must be among the assessors who is attendance throughout the trial. It is held- 8 "The cited provision clearly indicates that, st least one of the assessors must be among the assessors in attendance throughout the trial so as to enable them to make an informed and rational opinion. Moreover, the opinions of the assessors must be in the record and that apart, it must be read out to the parties before the chairman proceeds to compose the judgement". In the end, I find that the proceedings were vitiated by change of assessor or by the fact that it hard to tell if the assessors who gave opinion or one of them, sat with the chairman from the commencement of trial to the end, the trial is a nullity. Since the proceedings were a nullity the resultant judgment was also a nullity. (See Salma Hassan Mwahim v. Innocent Hezron Mweaikambo and Tanzania Postal Bank PLC, Land Appeal No. 246 of 2022). Consequently, I quash the proceedings, set aside the judgment and decree of the trial tribunal. In lieu thereof, I order a retrial not necessary before another Chairman but in the presence of assessors as per the law. I make no order as to cost as there is no one to blame. I see pressing need to determine the remaining ground of appeal as I have nullified the proceedings. I order. Dated at Babati this 23rd day of September, 2024 John R. Kahyoza. Judge 9 Court: Judgment delivered in the virtual presence of the parties. B/C. Ms. Fatina (RMA) present. John R. Kahyoza. Judge 23.9.2024 10