Land Appeal 34 of 2023 Ruling Mrisha J

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA LAND APPEAL NO. 34 OF 2023 fOriginated from the District Land and Housing Tribunal for Mpanda at Kata vi in Application No. 44 of2021) ’.% • GEOFREY ERNEST HANJA (As the Administrator of the estate of the late Ernest Hanja Usiga).,...................................... APPELLANT VERSUS I; 1 MOSES FUTAKAMBA ................................................... ...... st RESPONDENT EMELDA MPEMBE ......................................................... 2nd RESPONDENT .... RULING May& 15th July, 2024 ' MRISHA, J The appellant herein was aggrieved with the decision of the District Land and Housing Tribunal of Mpanda in Application No. 44 of 2021 which delivered on 30th June, 2023. Briefly, the applicant is the administrator of i estate of late Ernest Hanja Usiga who had owned the disputed land of 20 acres located at Makongoro Village, Magamba Ward within Mparida District in Rukwa Region. It was alleged that the respondents trespassed the land. The applicant prayed to the tribunal to declared that the suit land is the property of the appellant/appellant's family, to stop'the respondents from entering into the disputed land, costs and any other orders as it would deem fit. On the other side, the respondents contested the claims made by the applicant and prayed to the tribunal to struck out the application with costs and declare the respondents as the lawful owners of the disputed land. Upon hearing parties, the District Land; and Housing Tribunal (the trial tribunal) decided the matter in favour of the respondents and declared them to be Jawful owners of the disputed land and the application was struck out with costs. Being unamused by the above decision, the appellant has come up with the present appeal fronting six grounds of appeal as follows: - 2 1. That, the trial tribunal erred in law by undertaking the position of respondents and denying the document (death certificate) which was already received without objection from the respondents. 2. That, the trial tribunal erred in law and fact by holding that the suit land belongs to the 1st and 2nd Respondents while the appellant discharged his burden to establish Ownership of the-.suit land by the late Ernest Hanja Usiga, as per the law. ; ' 3. That, the trial tribunal erred in law and fact by its failure to take into consideration the opinions of assessors as per the legal requirement. ,-:A •••,;<’. -.i,; 's'.-;] 4. That, the trial tribunal erred in law by its failure to endorse the exhibits, as per the law. 5. That, the trial tribunal erred in law by taking testimony of the witnesses in contravention of the law. 6. That, the trial tribunal erred in law by awarding the respondents contrary to what they pleaded in their pleadings. Wherefore, the appellant is praying the court to allow this appeal, quash and set aside the judgment and decree of the tribunal and costs to be borne from the respondents and any other relief as the court may think fit and just to grant. 3 On 22nd May, 2024 when the matter came for hearing, the advocate for Appellant raised a concern that on 2nd April, 2024 he filed a letter for perusal of the records of this case and after making such perusal he discovered presence of two different judgments with different contents with regards to Application No. 44 of 2021. Henceforth, he prayed to address the court on that issue before proceeding with the hearing of appeal; the prayer not objected by the respondents7 advocate; thus, the court granted it and the parties submitted on the said issue. At the hearing of the case, the appellant was represented by Laurence John, learned advocate whilst the respondents were represented by Mr. Angela Deus Rem my, learned advocate. The learned advocate for the appellant started by arguing that the contents of the two judgments found in the file differ as follows; the judgment he used to prepare grounds of appeal does not contain opinion of assessors, it is also not signed by the tribunal chairman on each page. Whereas on the other judgment contain opinions of the assessors and was signed by the chairman on each page. He argued that when the mistake of having two different judgments on same case happens, the remedy is to nullify the whole court proceedings. To: buttress his position, he cited the two cases of The Registered 4 Trustees of Chama Cha Mapinduzi and Another v Paskazia Rwebogora and another. Land Appeal No. 70 of 2016 and Abdala Ra mad han v Joyce Balige, Misc. Land Appeal No. 46 of 2022 (both unreported). In the latter case, the High Court held that: "The existence of two judgments of the same tribunal on the same matter with different contents is a gross irregularity which can never be allo wed to stand. The same renders both judgments a nullity. In the instant case, both judgments of the tribunal are hereby declared a nullity." In winding up, Mr. Laurence submitted that the remedy of such bizarre is to nullify the entire proceedings, although the bizarre was not done by the parties. Hence; he prayed to this court to exercise it revisional powers under section 43(l)(b) of the Land Disputes Courts Act [Cap 216 R.E. 2019] to nullify the proceedings of the trial tribunal and order a trial denovo to another Chairman with another set of assessors, but without making an order for costs. In reply, Ms. Angela Deus Rem my responded that she perused the court records and found the presence of the said two judgments and found 5 anomalies in the two judgments; she thus, submitted that the two judgments have different in contents, one contains opinions of the assessors while the other one which was attached by the appellant on the memorandum of appeal do not contain opinion of the assessors, something which is vital to the judgment. She further submitted that, one judgment was signed by the chairman on each page while the other one was not signed by the chairman on every page. Hence, she concluded by conceding with the prayer of the learned counsel of the appellant that the court be pleased to order a trial denovo. No rejoinder was thereafter made by the appellant's counsel. It has to be noted at this juncture, that this ruling is written after the counsel for the appellant raised a concern before commencing hearing of the instant appeal. However, the said concern was not brought before the court as a preliminary objection, but as a claim that there is a presence of two different judgments with different contents in regard to Application No. 44 of 2021. On my part, I have duly considered the submissions made by the learned counsel for the parties, the records of appeal and the prayer of the parties 6 as well as the two judgments with different contents on the same Application No. 44 of 2021. Hence, it is now my duty to evaluate the claims raised by the appellant's counsel and determined them. I am aware of the position that once judgment was pronounced in open court, signed and dated, shall not afterwards be altered or added to save as provided by section 96 of the Civil Procedure Code Cap 33 R.E. 2022. This position is provided under Order XX rule 3 of the CPC,-provides that: ■'The judgment shall be written by, or reduced to writing under the persona! direction and superintendence of the presiding judge or magistrate in the language of the court and shall be dated and signed by such presiding judge or magistrate as of the date on which it is pronounced in open court and, when once signed, shall not ^afterwards be altered or added to, save as provided by section 96 or on review." In the course of looking at the claims raised by the appellant's counsel, I keenly read the two judgments in dispute as well as the records of appeal and found that the Memorandum of Appeal filed with the court on 28th July, 2023, indicates that the appellant annexed copy of judgment of the 7 trial tribunal whose contents differ with those of the copy of judgment in the trial court records. At this juncture, I wish to show the difference regarding the contents of the two judgments on the issue of opinion of the assessors; both judgments have the same case number, signed by the Chairman and same dates. At page 8 of the judgment annexed, on the Memorandum of Appeal the chairman state as follows: - '-V'" . % "Baada ya kusikiliza hdja za muombaji, wajibu maombi na mashahidi wao niliwataka wajumbe chini ya Kanuni ya 19(2) ya Kanuni za Mahakamaza Migogoro ya Ardhi (Baraza la Ardhi na Nyumba la WHaya), 2003, kutoa maoni yao. Maoni ya wajumbe yaiikuwa kama ifuatayo. Fulgensi Kamapa, alikuwa na maonikuwa kwa kuwa... Beatrice Miindwa, alikuwa na maoni kuwa kwa kuwa... 8 Baada ya kupata maoniya Mjumbe sasa nishughulikie viini vya kesi. Kama eneo na mgogpro ni mail ya Marehemu Ernest Mwanahanja Usiga na kama wajibu maombi waiivamia eneo hilo." In the other judgment which was filed in the trial tribunal, the opinions of the assessors at page 8 of the judgment were recorded as follows: - "Baada ya kusikiiiza hoja za muombaji, wajibu maombi na mashahidi wao niiiwataka wajumbe chini ya Kanuni ya 19(2) ya Kan uni za Mahakama za Migogoro ya Ardhi (Baraza ia Ardhi na Nyumba la Wilaya) 2003, kutoa maoni yao. Maoni ya wajumbe yaiikuwa kama ifuatavyo. ’■ Yh Jr-.--: y.?' ' ' Fulgensia Kapama, aiikuwa na '-maoni kuwa Eneo ia mgogoro Hbaki ’'A'-.".-'. kuwa maH ya Marehemu Evarist Hanja na Geofrey asimamie haki hiyo. Beatrice Mkihdwa, aiikuwa na maoni kuwa eneo bishaniwa ia ekari ishirini Hbaki kumiiikiwa na mieta maombi kwa sababu shamba hiio Hiikuwa ia marehemu baba yake na babu yake hakugawa mirathi hiyo. Hivyo maombi haya yakubaiiwe kwa gharama. 9 Baada ya kupata maoni ya, Mjumbe sasa nishughulikie viini vya kesi. Kama eneo na mgogoro ni mail ya Marehemu Mwahahanja Usiga na kama wajibu maombi walivamia eneo hilo." Flowing from the above two excerpts regarding the opinions of the assessors, it is ciear that the opinions of assessors on the judgment annexed with the memorandum of appeal, were not recorded. However, the Chairman of the trial tribunal acknowledged the assessors' opinions, but those findings were not recorded in the judgment. In my view, that entails there was no full involvement of assessors at the trial tribunal as mere presence without giving opinions is as good as they were not present during trial. : It is well settled that the Chairman of the tribunal is required to sit with not less than two assessors who shall be required to give their opinions before delivering, the judgment and presiding chairman should consider their opinions in composing the judgment. This is provided under section 23(1) and (2) of the Land Disputes Court Act, Cap 216 R.E. 2022. In the present case, it is apparent from the records of the trial tribunal that the chairman who presided over the matter between the parties, sat with io two assessors made their participation by listening to the witnesses' evidence, asking questions and finally giving their opinions, but their opinions were not recorded in the judgment and considered by the presiding Chairman. Additionally, it is a legal requirement that the opinions given by assessors sitting in the tribunal have to be recorded regardless of whether the chairman agrees or disagrees with them;- See Peter Makuri v Michael Magwega, Civil Appeal No. 107 of 2019 (unreported) where the Court of Appeal held inter alia that: ; "Failing to request, receive, read out to parties and consider the assessors opinion in the Tribunal decision as is the case in the instant case, regard!ess whether the chairman agrees or not with the opinion, is a fata! omission that goes to the root of the matter, consequentiy vitiating the proceedings"[emphases mine] Even if it wouldn't be two judgments in the Application No, 44 of 2021, nonetheless, failure to record and consider the assessors' opinion in the judgment of the trial tribunal annexed with the memorandum of appeal, that omission goes to the root of the case to the extent of vitiating the n entire proceedings; See also Elilumba Eliezel v John Jaja, Civil Appeal No. 30 of 2020 (unreported). Regarding the complaint that the judgment annexed on the Memorandum of Appeal was not signed by the presiding Chairman as submitted by counsel for the appellant, looking at the two versions of the judgments, it is crystal clear that the judgment filed on the trial tribunal records appears to be signed by the chairman whilst . the one annexed with the memorandum of appeal was not signed on each page except at the last page of the said judgment. Hence, it is obvious that the two judgments differ in terms of their contents as submitted by both parties. Furtherance, in the course of perusing the said two judgments, this court discovered the same anomaly. It is imperative to say that the Chairman of the Tribunal' is a decision maker who is given a power/mandate to do justice in making variouS'decisions. However, when a person who is given < • .-.I '<.’•'J such mandate conducts such mistakes as mentioned above, the citizens will lose trust to the judicial machinery. At page 11, last paragraph of the annexed judgment on the memorandum of appeal, the presiding chairman acknowledged the assessors' opinions 12 and he agreed with their opinions. Whereas, in the other judgment which was filed on the trial tribunal records, the presiding chairman seems to have acknowledged the assessors' opinions, but he disagreed their opinions. For easy of reference, I shall let the relevant part of the two judgments to speak for themselves as hereunder: At page 11 of annexed judgment on the Memorandum of Appeal the fo I lowi ng i s w h at tra n spi red: - : A \, "Nimezingatia maoni ya wajumbe na nakubaliana na maoni yao. Maombi haya yanatupiiiwa -kwa gharama, wajibu maombi wanatangazwawamiliki halali wa eneo hiio la mgogoro." ’A- !•' 'i> Again, at page 11 of the judgment on the record of the trial tribunal, the trial chairman wrote as follows: - "Nimezingatia maoni ya wajumbe, iakini nimetofautiana na maoni yao i kwa sababu ambazo nimezieieza juu. Maombi haya yanatupiiiwa mbali kwa gharama, wajibu maombi wanatangazwa wamiliki halali wa eneo hiio la mgongano." From the above extracts, it shows that the presiding chairman composed two judgments whose contents differ. This behavior is not acceptable in 13 the eyes of the law, and that irregularity goes to the root of the case. Hence, it vitiates the entire proceedings of the trial tribunal. It is the position of the law that the existence of two judgments of the same matter with different contents is a gross irregularity which can never be allowed to stand. Based on the foregoing reasons, I order a retrial before another chairman with a different set of assessors. Since the appellant's counsel did not press for costs, I make no order as to costs. 15.07.2024 DATED at SUMBAWANGA this 15th day of July, 2024. 14