Kalinjuma Jdgment

THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA THE SUB-REGISTRY OF MWANZA AT MWANZA LAND APPEAL NO. 18015 OF 2024 (Arising from the decision of the land and housing tribunal for Mwanza at Mwanza in Application No. 20 of 2019) BOARD OF REGISTERED TRUSTEES OF ANGLICAN CHURCH OF TANZANIA, DIOCESE OF VICTORIA NYANZA ......... APPELLANT VERSUS WILBARD G. KALINJUMA .................................................... RESPONDENT JUDGEMENT 20th November & 5th December, 2024 CHUMA, J. Aggrieved by the decision of the District Land and Housing Tribunal for Mwanza (herein the DLHT) in Application No. 20 of 2019 the appellant preferred this appeal fronting 9 grounds of appeal as follows: - 1. That, the trial Chairperson of the District Land and Housing Tribunal erred in law and fact for failure to notify the parties on the date of delivery of Judgement. 2. 1 That, the Trial Chairperson of the District Land and Housing Tribunal erred in law and fact by delivering the Judgment more than Five months after the conclusion of the proceedings with no good reason. 3. That, the trial Chairperson of the District Land and Housing Tribunal erred in law and fact for failure to apply the correct principle of law in awarding damages resulting in awarding an unreasonable and unjustifiable amount of TZS. 300,000/- per day as special damages from 19th of January, 2019 to 1 27th day of November, 2023 without any justifiable proof of loss. 4. That, Trial Chairperson erred in law and fact under item (v) of the Judgment for ordering the parties to do a calculation of damage while he had already awarded the Respondent damaged amounting to TZS. 300,000/- per day as special damages from the 19th day of January 2019 to 27th day of November 2023 as pointed out in ground No.5 herein above. 5. That, the trial Chairperson of the District Land and Housing Tribunal erred in law and in fact for transferring the court case file from himself to another Chairperson one Hon. Mayeye, then back to himself without giving reason to that effect. 6. That, Trial Chairperson erred in law and fact for failure to take cognizance that the Appellant was sued as a non- existing entity and thus was wrongly sued. 7. That, the trial Chairperson of the District Land and Housing Tribunal erred in law and fact for admitting Exhibit PE.1 which was not even signed by any Trustees of the Anglican Church of Tanzania as per the applicable law and the Constitution of Anglican Church of Tanzania. 8. That, the trial Chairperson of the District Land and Housing Tribunal erred in law and fact in deciding the matter of which, it was not clothed with pecuniary jurisdiction. 9. That, the trial Chairperson of the District Land and Housing Tribunal misdirected himself in law and in fact failure to analyse and evaluate properly the testimony of the 2 appellant's witness and documentary evidence adduced by the Appellant and the Respondent. The appellant then prayed for the following reliefs; (a) That, this Honourable court be pleased to allow this appeal, nullify the proceedings, quash and set aside the decision of the district land and housing tribunal for Mwanza at Mwanza delivered on 27th day of November, 2023. (b) That, the Respondent be ordered to pay costs in this appeal, costs of the District Land and housing tribunal and cost in Mise. Land Application no. 5711 of 2024. (c) Any other relief (s) this court deems fit and just to grant. In this appeal, the appellant was represented by Mr. Amos Gondo and the respondent enjoyed the legal service of Mr. Ditrick both Learned advocates. The learned counsels had a long submission which I see no reason to reproduce but rather will appear in the course of my analysis. In my determination of this appeal, I feel compelled to commence with the firth ground of appeal which is to the effect the trial Chairperson of the District Land and Housing Tribunal erred in law and in fact by transferred the court case file from himself to another Chairperson one Hon. Mayeye, then back to himself without giving reason to that effect. 3 Submitting for the appellant on the firth ground of appeal Mr. Amos Gondo argued that, it is a well-settled position of law that, a transfer of the file to another Chairman has to be done with reasons to be recorded in a proceeding because order XVIII Rule 10 of CPC allows such transfer. His submission was backed up by the case of HTT Infraco Ltd Vs. Francis Francis & Two Others Misc. Land Application No. 38 of 2022 on page 10. He went on arguing that in the present matter, the record indicates a shifting of the matter from Hon. Edward Masao to Hon. Mayeye between 12th June to 15th June, 2023 and back to Hon. Masao once again without assigning reasons. This anomaly holds water which renders this appeal successful. On the other hand, Mr. Ditrick advocate on ground no. five, regarding the transfer of the matter from Hon. Masao to Hon Mayeye, strongly contested that view claiming that there was no such shift or transfer. What was done for Hon. Mayeye to attend the session in which the assessors gave their opinion. The decision was composed and delivered by Hon. Masao. In the cited case of HTT (supra), the facts there differ from the present matter. Hence the principle in that case is distinguishable and not applicable here. 4 In his brief rejoinder, Mr. Gondo's advocate stated that the record is clear on it. The question is whether the recording assessors’ opinion is not a party to proceedings. To him that amounts to. The above parties' submission and my careful perusal of the record, derives me to determine whether the reasons were assigned to justify the shifting of the case file from one Chairman to the other. And the impact behind it. In determining the above issue, I wish to begin by giving the legal position as regards involvement of assessors in a trial before the District Land and Housing Tribunal. Section 23 of The Land Disputes Courts Act Cap 216 provides that, “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 Chairman reaches the judgment.” Whereas Section 24 of The Land Disputes Courts Act Cap 216 provides that: - “In reaching decisions the Chairman shall take into account the opinion of the assessors but shall not be 5 bound by it, except that the Chairman shall in the judgment give reasons for differing with such opinion.” The referred Chairman in sections 23 and 24 of the Act has been defined by Section 2 Cap. 216 R.E 2019, to mean the chairman of a Village Land Council, a Ward Tribunal, a District Land and Housing Tribunal, or a person who presides at proceedings of the Village Land Council, the Ward Tribunal or District Land and Housing Tribunal. [Under scoring is mine] Reverting back to the instant appeal, the record as submitted by Mr. Amos advocate reveals that the applicant's case was heard by Hon. Masao, and the assessor's opinion proceeded before Hon. Mayeye without assigning reasons for the change of chairpersons. I understand that Order XVIII, Rule 10 of the CPC allows changing of the case files between judicial officers after the case was partly heard by another officer, but I am also mindful that the successor judicial officer is obliged to give reasons for the change. The presiding Chairperson defined under the above-cited section 2 in our case is Hon. Masao. Therefore, any change to another Chairperson was subject to assignment of reasons. 6 The above position was discussed in the case of M/S. Georges Centre Limited Vs. The Attorney General, Civil Appeal No. 29 of 2016, where the Court of Appeal held that: - “Once the trial of a case has begun before one judicial officer, that judicial officer has to bring it to completion unless for some reason he is unable to do so.” The reason for a trial started by one judicial officer to be completed by him unless it is not practicable was stated in the case of Duma Ilindilo Pangarasi Vs. R. Criminal Appeal No. 470 of 2019, where the Court of Appeal of Tanzania held that: - “The one who sees and hears the witness is in the best position to assess the witness's credibility.” Guided by the above position Mr. Masao who presided over the application from the beginning was a proper person to preside assessor’s opinion proceedings because is in a better position even to assess them. Since the learned Chairpersons of the tribunal exchanged the case file without recording the reasons, this mixed grill in proceedings between 15th June to 20th June, 2023, vitiated the DLHT proceedings and rendered them nullity. In the light of the foregoing observation, the failure of the presiding Chairman to take or record the assessor's opinion without reason was a 7 fatal irregularity. In the event, the proceedings recorded by Hon. Mayeye between 12th June to 20th June, 2023, are hereby quashed and the impugned decision set aside. I order the matter be remitted back to the presiding Chairman Hon. Masao to record or chair the assessor's opinion session and compose judgment accordingly. This ground suffices to dispose of this appeal without venturing to the rest grounds. The appeal is then allowed to the extent herein above stated. Owing to the circumstances leading to the above order, I make no order as to cost. It is so ordered DATED at MWANZA this 5th day of December, 2024. W.M. CHUMA JUDGE 8 The judgment delivered in court virtually in attendance of Mr. Amos Gondo the appellants’ counsel for appellant and Mr. Ditrick for the respondent this 5th day of December, 2024. C. KISONGO DEPUTY REGISTRAR 9