20160913 TZHC Mbeya

1 - IN THE HIGH COURT OF TANZANIA AT MBEYA LAND APPEAL NO.6 OF 2014 (From the Decision of the District Land and Housing Tribunal of Mbeya District at Mbeya. In Land Case No 37 of 2008) GIBSON NAMBALA & VERSUS E rV1AN UEL AfvI BANGILE.. ... .. ...,•,••• •• • ........ RESPON DENT JUDGMENT 09.09.2016 & 13.09.2016 CHOCHA,): Two appellants namely Gibson Nambala arid Lusubilo Mwambapa who shall be cited as the 1 and 2 nd appellants respectively raised through their counsel, a four grounds memo of appeal which is hereunder restated: - "L The trial District Land and Housing Tribunal erred in law and fact when Hon Hatson Chrispin Chairman composed and deilvered a judgment while he did not preside the proceedings. 2. The trial District Land and Housing Tribunal erred both in points of law and facts when failed to analyse both oral and documentary evidences adduced by patties. That the trial tribunal erred in law and facts when failed to 1St appellant used the disputed land more than consider that the 37 years. That the trial tribunal erred both in points of law and fact when admitted and relied to deliver judgment on the purported agreement which was weak in Iaw' As may be tabulated from the nature of, the grounds of appeal, the parties dispute revolve on the land which the Resp'ôñdent Emanuel Ambangile through his advocate Mr. Mushokorwa contends that it belongs to the late his father who has over years passed away. Sequel to his death, the suitland bequeathed to him by inheritance. The respondent and the 1 appellant rare blood cousins. The respondent claims that the 1 appellant was Invited by his uncle (the deceased) to stay in the suitland and therefore the1 appellant had no any valid title to pass by way of sale to the 2h1appellant, who it is now obvious that he was involved in these proceedings by virtue of being a bonafide purchaser of a suitland/premise upon which he clirn to have undertaken extensive unexhausted improvements by erecting more houses. The 1 appellant does not admit, that he was an invitee on the suitland. He claims to have purchased the same from Mwafute in 1974 as he (appellant) was still a government employee. He claimed to have been undertaking gradual unexhausted improvements on the land before he 'decided to dispose it by way of sale to the 2nd appellant. The suit was attended by succession. Mr Nyaruka recorded the parties' entire evidence for one year w.e.f. 26th July 2011 to 25.07.2012. sm- Upon his transfer, his successor Mr. Hatson composed and delivered a ) judment. The practice has been chaflenged by the appellants' advocate who complains that his client was prejudiced. He does not explain how. Provided that the complaint constitutes the I st ground of appeal. Let me point out that grounds of appeal should not be drawn as a fashion. When drawing the memorandum or petition, the appellant must firstly define and then clearly state what, exactly he.; is aiming to fault. Understandably, an appeal is usually against evidence orlaw or both. So, when the appellant cites the faulty area, hemust subsequently elaborate the nature of fault, such that where for example he contends that the error lies on both the law and evidence, he must show the offended law and evidence. The appellants counsel could not indicate w.hith Jaw did the chairmen offend when they attended the suit by succession. On his party Mr Mushokorwa managed to', take us through the provisions of 0 XVIII R. 10 of the Civil Procedure Code Cap 33 which he believes has been violated. The Rule provides for power to deal with evidence taken before another judge or magistrate. It Js let to speak:- "Where a judge or magistrate is prevented by death, transfer or other cause' from conduding the trial of a suit, his successor may deal with any evidence or memorandum taken down or made under the foregoing ru/es as if such evidence or memorandum has been taken down or made by him or under his dire clion under the said ru/es and may proceed with the suit from the stage at which his predecessor left it Very closely looked at, this provision preferred by Mr Mushokorwa refers and is relevant to the recording of evidence. It has nothing to do with the judgment especially in its initial stages. As for the judgment, the relevant provision is 0 XX R.3 of Civil Procedure Code (supra); thus:- "The judgment shall be writén by, or reduced to - writing under the personal directiOn and superitendence 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..." Under 0 XVIII R. 10 (supra), the evidence may be taken or acted upon by succession upon the predecessor's failure to condude the same. The position is different with judgment. The wordingof 0 XX R. 3 (supra) makes it clear that the writing of the judgment is the presiding Judge or magistrate's duty. The successor magistrate or judge may by operation of OXX R. 2 of the Civil Procedure Code (supra) only be permitted to pronounce the judgment written by the presiding judge unless for reasons beyond control, it is impracticable to have the presiding judge or magistrate write the judgment. I am associating with the parties' fear that reasons assigned by the successor chairman to justify his interference in the suit particularly the writing of the judgment, are flImsy and inadequate. The only reason assigned is that his predecessor was transferred. A transfer which is not Wii 13 m asçiated with any disability cannot be a ground for thepresiding magistrate to be exempted or excused from writing a judgment after recording evidence to its completion. When writing a judgment, the presiding judge or magistrate is better placed to consider a number of factors such as demeanour which his successor who will be surrounded by only papers, can never afford to access. Under the circumstances therefore, a composition of a judgment by a' successor should be a last resort. ' As we now talk, the presiding chairperson is not only alive, but is still employed in the same capacity, and fortunately within this jurisdiction. Although the appellant's advocate did nbt.share this court how his client was prejudiced, on my party I am sustaining the ground because the law does not favour the procedure adopted. MrHatson's judgment cannot be left to stand. It is quashed. The Respondents advocate Mr. Mushokorwa had a fairly health proposl as a way, forward under the circumstances. The trial record is to be forwardedto Hon Nyaruka who is directed to write a judgment and either pronouncè it or cause the same to be pronounced in line with 0 XX R. 2 (supra). That done, it amounts to nothing but an academic exercise to consider the remaining grounds. In view of the nature of the cause of consequences,' as for this appeal, each party shall bear his costs. Provided that subsequent costs may be as will be directed by the District Land and Housing Tribunal Chairperson after writing a proper judgment. The appeal is allowed on that ground only. - N.P.Z. Chocha Judge 5 1. Daè 13.09.2016 Coram: N.P.Z. Chocha, 3., ist Appellants: present. 2'present. For Appellant: Mr. Lucas Ngogo - Advocate. Respondent: Present. For Respondent: Ms Dames Luhwago. - Advocate Court: Judgment delivered. Order: Right of Appeal Explained. N.P.Z. Judge 13.09.2016 N .