Halima

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MANYARA AT BABATI LAND REVISION NO. 18520 OF 2024 (C/F Land Application No. 104 of 2017, District Land and Housing Tribunal for Babati) HALIMA MOHAMEDI (Administratrix of the estate of the late HAWA MOHAMED GWANDI............................................APPLICANT VERSUS REGISTERED TRUSTEES OF THE GREAT COMMISSION CHURCH OF TANZANIA.................................... RESPONDENT JUDGMENT 10th & 16th October 2024 KAMUZORA, J. The applicant has preferred this application under section 43(l)(a),(b) and (2) of the Land Disputes Courts Act [Cap 216 R.E 2021], seeking for this court to be pleased to call for and examine the records and revise the whole of the judgment and decree of the District Land and Housing Tribunal for Babati in Land Application No. 104 of 2017. The reason advanced by the applicant is that, the purported decision of the trial tribunal lacks points for determination thus, no proper judgment and decree of the trial tribunal. The application was supported by an affidavit affirmed by the applicant. On the other hand, the respondent filed a counter affidavit sworn by Bishop Dr. Katuritsa Dauson Sadyoya, the principal officer of the respondent partly challenging the application. A brief factual background underlying the instant application as could be gathered from the record is that, the Applicant sued the respondent before the trial tribunal for recovery of a piece of land measuring about two acres located at Bagara village, Bagara ward in Babati township. According to the applicant, the suit land was previously owned by the late Hawa Mohamedi Gwandi. That, way back in 2006 there was a dispute regarding ownership of the suit land between Mkuu wa Shule Babati Day and the late Hawa Mohamed Gwandi vide Land Application No. 29 of 2006 and the same was decided in favour of Hawa Mohame Gwandi. The Applicant claimed that sometimes in October, 2017, the respondent invaded the suit land by extending the boundaries of its farm. In its written statement of defence, the respondent disputed the applicant's claim and stated that the suit land was allocated to the respondent by the local government and the same is surveyed. The respondent claimed further that after the acquisition of the suit land compensation was paid accordingly including compensation to the late Hawa Mohamed. Page 2 of 9 After hearing the parties, the trial tribunal made a decision which is the subject of this application as the applicant is challenging its competency. It is on record that, the applicant initially filed Land Appeal 5050 of 2024 but the same was withdrawn for there was no competent judgment to be challenged on appeal. The current application was lodged after an application for extension of time was granted. When the application was called for hearing, the applicant was represented by Mr. John Shirima, learned advocate while the respondent was represented by Mr. Joseph Masanja learned advocate. The application was argued orally. In his submission in support of the application, the counsel for the applicant adopted the affidavit in support of the application and argued that, the judgment and decree of the trial tribunal are incomplete for the judgment lacks points for determination therefore the decree is inexecutable to either of the parties. He urged this court to direct that the matter be retried by another chairperson and new set of assessors. In reply, Mr. Masanja learned advocate readily admitted that the judgment and decree do not determine the dispute between the parties. He supported the prayer by the counsel for the applicant for this court to remit the matter before the trial tribunal for determination by another chairman and new set of assessors. Page 3 of 9 Having gone through the parties' submissions and record of the trial tribunal, I agree with the counsel for the parties that the judgment and decree of the trial tribunal contain no point for determination. The proceedings of the trial tribunal show that, before hearing commenced, three issues were framed; one, who is the lawful owner of the suit land between the parties, two, whether the respondent (the applicant herein) trespassed into the suit land by extending boundaries to the applicant's land (the respondent herein) and three, reliefs to the parties. The proceedings also show that, after the assessors' opinion was read, the trial chairperson composed the judgment. Having gone through the tribunal judgment I agree with the parties that the chairman never addressed the substance of the claim. The learned trial chairperson just reproduced the evidence of the parties but never addressed the issues framed. It was expected for him to address the framed issues, make findings on the issues before making decision with reason for such decision but that was not done. Neither of the parties was declared a lawful owner of the suit land. Apart from that, the handwritten judgment was not even signed and dated by the tribunal chairman. Regulation 20(1) of Land Disputes Courts (The District Land and Housing Tribunal) Regulations G.N 174 of 2003 (hereinafter referred to as the Regulations) gives essential components of the judgment. It reads; Page 4 of 9 "20.— (1) The judgement o f the Tribunal shall always be short, written in simple language and shall consist of: (a) a brief statement o f facts; (b) findings on the issues; (c) a decision; and (d) reasons for the decision." The judgment of the trial tribunal did not comply with the above provision hence, no valid judgment. The court of appeal in Tanga Cement Company Limited vs. Christopherson Company Limited, Civil Appeal No. 77 of 2002 (Unreported) when discussing the contents of a good judgment, it held that the decision which does not contain a concise statement of the case, the points for determination and the reasons for the decision is not a judgment. Similar position was held by this court at Arusha sub-registry in the case of Abraham Wavi Kinyonga Vs. Kereto Nanga Ndarivoi, Land Appeal No. 43 of 2019 (unreported) when discussing the Regulation 20 (1) (a), (b), (c) &(d) of the Regulations which governs judgment writing in District Land and Housing Tribunal. Therefore, since the trial tribunal's judgment lacks important elements for it to stand as a judgment in the eyes of the law, it cannot be allowed to stand. Likewise, the decree arising from incompetent judgment cannot stand. Page 5 of 9 Having found that there was no judgment of the trial tribunal, the issue is what is the remedy available. Both learned advocates for the parties urged the court to remit the record back to the trial tribunal for re-trial before another chairperson and new set assessors. They however failed to point out any irregularity in the proceedings that entails re-trial. However, since this is revision application, I took liberty to go through the proceedings and satisfy myself as to its correctness, legality and propriety. In the course of perusing the tribunal's proceedings I discovered three crucial issues; one, change of chairperson without assigning reasons, two, unusual engagement of assessors and three, an order expunging defence evidence but new evidence not recorded. On the first issue, the proceedings Hon. Mahelele took over the proceedings before hearing had commenced. He recorded evidence of one witness before Hon. Mdachi took over the proceedings and continued recording evidence of the two other witnesses after assigning the reason for taking over the proceedings as found at page 13 of the typed proceedings. Hon. Mwihava took over the proceedings from Hon. Mdachi and proceeded on recording defence evidence and composed a judgement but, recorded no reason for taking over the proceedings from Hon. Mdachi. The position on assigning reason for taking over the Page 6 of 9 proceedings is well settled and do not need much emphasis. Basically, failure to assign reason, vitiate the proceedings. On the second issue, the records shows that when the hearing commenced on 18/09/2019, two assessors; Mbeleke and Hassan were in attendance. On 23/09/2021 when the matter was called for hearing, the presiding chairman proceeded on hearing the case in the absence of assessor and invoked the provision of section 23 (3) of the Land Dispute Courts Act, Cap 216 R.E 2019 for the reason that the assessors' time had expired. Surprisingly, when the matter came for hearing on 28/02/2024, a new set of assessors was introduced; Mr. Hyera and Ms. Hamida. They participated in the hearing of the remained witnesses and gave their opinion. This brings a clear inconsistency in the proceedings of the trial tribunal. The law is clear that assessors giving opinion must fully participate in the hearing of the matter before giving opinion. See, the case of Batholomeo Paulo Chiza Vs. Esau William Ndize, and 3 others, Land Appeal No. 216 of 2017, High Court (unreported). Since the tribunal opted to continue without assessors, it was wrong to introduce a new set of assessors who did not participate fully in the hearing of the case but still gave opinion of the matter. On the third issue, the records show that when SU1 one Askofu Dr. Katulisa Dawson Sadyoya when testifying, he tried to tender documents Page 7 of 9 but the objection was raised that he was not a proper person to tender the documents by virtue of his position. It was argued that SU1 failed to disclose if he was authorized by the board of the registered trustee of the Great Commission Church of Tanzania to tender the documents. In response to that objection SU1 disclosed that he was the chairman and member of that board. In considering parties' submissions, the tribunal chairman moved himself to the pleadings and discovered that SU1 signed the written statement of defence but never disclosed if he was among the members of board of the registered trustee of the Great Commission Church of Tanzania. He considered the written statement of defence as defective for not indicating that the person who signed it was a member of the Board. He therefore expunged the written statement of defence and order a fresh written statement of defence to be filed after being signed by SU1 in the capacity as a board member. He further expunged the evidence of SU1 which was already recorded and adjourned the case to another date for hearing of the defence case. Parties complied with the order by filing a fresh written statement of defence but on the date the suit was scheduled for hearing, a new chairman took over the proceedings and continued recording evidence and admitting exhibits as if the prior evidence of SU1 was still intact. In my view, after the written statement of defence was Page 8 of 9 expunged, it implied that no defence was entered and the remedy was to determine the case based on the plaintiffs evidence. Again, after SUl's evidence was expunged by the trial tribunal, there existed no defence evidence thus, upon resuming the hearing, SU1 was supposed to be sworn afresh to testify before the trial tribunal. The whole procedure in expunging and refiling the written statement of defence and recording SUl's evidence was therefore tainted with irregularities which vitiate the proceedings. In considering the above pointed inconsistencies and irregularities in totality, the proceedings of the trial tribunal cannot be left to stand. Therefore, the entire proceedings, judgment and decree of the trial Tribunal are hereby quashed and set aside with an order for immediate re-trial before another Chairperson and a new set of assessors. In the circumstance, I will not make an order as to costs. DATED at BABATI this 16th day of October, 2024. Page 9 of 9