COSMAS SOTERI

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA LAND APPEAL NO. 108 OF 2023 (Originating from Land Application No. 142 o f 2018 in the District Land and Housing o f Singida at Singida) COSMAS SOTERI {Administrator o f the Estate o f the Late Soteri Basi/i)....... APPELLANT VERSUS THOMAS MWANGU ................................. RESPONDENT RULING . 22 07.2024 HASSAN, J.: The appellant herein, one Cosmas Soteri being aggrieved and dissatisfied by the judgment and decree of the Application No. 142 of 2018 in the District Land and Housing Tribunal (DLHT) of Singida at Singida delivered on 20th September, 2023, appealed to this court on the following grounds: 1 1. That the trial tribunal erred both in law and fact for failure to consider and evaluate the evidence adduced by the appellant and his witnesses. 2. That the trial tribunal erred both in law and fact for basing and relying on the respondent's contradictory evidence. 3. That the trial tribunal erred both in law and fact for holding that the appellant's evidence departed from his pleadings. 4. That the trial tribunal erred both in law and fact for failure to declare the appellant as the lawful owner o f the disputed land while there was ample evidence in the tribunal's records to show that the appellant was dully allocated the land in dispute since 1998 by the Nkwae village council. 5. That the trial tribunal erred both in law and fact for failure to note the fact that the respondent's witnesses in fact identified and acknowledged the stamps features o f the Nkwae village office stamps to be the same as those found in the appellant's exhibit P2 and P3f hence corroborated the appellant's testimony. 6. That the trial tribunal erred both in law and fact for failure to recognise the existence o f a relationship (friendship) between the respondent and the late Soteri Basi/i, hence failed to draw inference o f probability that the two might have earlier agreed to exchange their plots as alleged by the appellant. On the other side, the respondent replied the memorandum of appeal by disputing all grounds of appeal and henceforth, he demanded the appellant to furnish the proof thereof. Coming on 8th day of July, 2023, the appeal was called on for hearing. During hearing, the appellant was represented by Mr. Peter Njaro, learned advocate. Whereas, the respondent entered presence himself unrepresented by advocate and hearing proceeded orally. Before the parties were allowed to canvass their submissions, the court suo motto observed some irregularities in the record of proceedings which are material to the outcome of this appeal. The irregularity observed are: 3 One, that the chairman who presided over the tribunal failed to append the evidence of each witness after they have testified. Two, that the appellant who stands under the status of an administrator of estates of the Late Soteri Basili has not been proved to litigate under such representation status. Seeing that, each party was invited to address the court. On his part, Mr. Peter Njaro, learned advocate for the appellant kickstarted to submit on the point that, the chairman has failed to record amendment which were ordered to introduce administrator of estates on 25/02/2021 which was to be filed within 14 days. He added that, after that order, there is nowhere in the court records where it is shown that an amendment was filed. Therefore, he reiterated that since it has not been recorded that the appellant is an administrator of estate, his involvement to the trial was illegal and thus, this is a fatal omission which as per the law, it is as if the tribunal has proceeded with hearing without a proper record and went on to deliver its verdict. With respect to the issue that the chairman failed to append his signature to the evidence of each witness who had testified is thus, it is true that the chairman has committed such fatal anomaly which cannot be cured. Hence, the only remedy available at this juncture is to nullify the whole 4 proceedings and order for retrial. He further submitted that, since what happened was an obvious error caused by the tribunal, he prayed for the order of retrial. On the other side, Mr. Thomas Mwangi, the Respondent herein submitted briefly that since the anomaly observed by the court based on the legal issues, he left the matter to the court's hands for decision. Having gone through the proceedings thoroughly with a view to scrutinise what was transpired by the trial tribunal, it emerged that, indeed there was no records concerning the engagement of the appellant as an administrator of estates of the late Soteri Basili. To that effect, the proceedings recorded from when the appellant started to be engaged in litigation became futile. Also, with respect to the failure of the chairman to append his signature in the evidence of each witness after he has recorded it. The benchmark is made 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 5 and under the personal direction and superintendence o f the judge or magistrate, not 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. " Again, looking on the records it is apparent that the chairman had not appended his signature at the end of each witnesses' evidence, including the evidence of applicant and his two witnesses. Also, the evidence of the respondent and his two witnesses was not appended. It is unfortunate that, though it has been insisted in time and time again that the chairman who presides over the tribunal has to append his signature at the end of each witnesses' evidence after he/she has recorded it, however the undertaking is still a hard nut to crack. Repeatedly, this procedure is flawed by the tribunals. Therefore, it is a trite law that failure to comply with such requirement will amount to nullification of the entire proceedings. That was the line of reasoning clearly adopted in Yohana Mussa Makubi and Abuubakar Ntundu v. R, Criminal Appeal No. 556 of 2015 (Unreported), where it was held: 6 "We are thus satisfied that, failure by the Judge to append his or 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 not tainted. Besides, this emulates the spirit contained in section 210 (1) o f the CPA and we find no doubt in taking inspiration therefrom. " On the same footings, the authority above has been in number on other civil decisions which were faced with the same glitch including land cases. To mention a few, see for example John Fortunatus Makoko v. GPH Industries Limited, Civil Appeal No. 108 of 2018 CAT (unreported); Iringa International School v. Elizabeth Post, Civil Appeal No. 155 of 2019 CAT (unreported). In the latter case of Iringa International School (supra), for example, where the Court of Appeal was faced with a situation in which the arbitrator omitted to append his signature at the end of witnesses' evidence, it considered the issues and stated as follows: 7 "For reasons that the witnesses before the CMA gave evidence without having first taken oath and as the arbitrator did not append her signature at the end o f the testimony o f every witness and also on the above stated position o f the law, we fmd that the omissions vitiated the proceedings o f the CMA ." Thus, with these authorities, I am persuaded to follow the same course. Consequently, by invoking the power assumed to this court by virtue of section 43 of the Land Disputes Courts Act, [Cap. 216 R.E. 2019] I nullify the entire proceedings, quash the judgment and set aside the orders handed down by the tribunal. To that effect, I remit the file to the tribunal to expedite retrial before another chairman and a new set of assessors. That said, I make no order as to costs. Ordered accordingly. DATED at DODOMA this 22nd day of July, 2024. 8 22/ 07/2024 This ruling delivered this 22nd day of July, 2024 in the presence of the parties and the matter is dismissed with costs. 9