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IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY THE HIGH COURT OF TANZANIA MBEYA SUB – REGISTRY AT MBEYA LAND APPEAL NO. 1555 OF 2024 (Arising from Land Application No. 08 of 2022 in Rungwe District Land Housing Tribunal). HASSAN MWAISUMO MWANDETELE…………………... APPELLANT VERSUS ANYASIME NJABULA…………………………………......RESPONDENT JUDGMENT Date: 4 July 2024 & 29 August 2024 SINDA, J.: The appellant at the District Land and Housing Tribunal (the DLHT) filed Land Application No. 08 of 2022 claiming to be the lawfully owner of 2.7 acres piece of land located at Kitabe village, kyimo Ward within Rungwe District (the Disputed Land). He claimed that he was gifted the Disputed Land in 1994 by his father. The respondent also claimed to be the owner of the Disputed Land. He alleged that he inherited the Disputed Land from his father. At the end of hearing the DLHT found that the Disputed Land belongs to the respondent. 1 Dissatisfied with the decision of the DLHT the appellant filed a memorandum of appeal with five grounds of appeal as follows: 1. That, the learned trial chairman of the trial tribunal erred in law and facts for extracting and issuing a decree that is not drawn up in accordance with the judgment. 2. That, the learned trial chairperson erred in law and fact for falling to make findings, address and determine each issue as framed in record. 3. That, the trial court erred in law and fact by assuming the roles of a probate and or family court and award ownership of the suit premises to the respondent contrary to the framed issues and adduced evidence. 4. That, the learned chairman of the trial tribunal erred in law and in fact to entertain the matter while the tribunal was not dully constituted. 5. That, the learned trial chairman of the trial tribunal erred in law and fact for failure to properly evaluate and analyzing the evidence tendered before reaching his decision. 2 During hearing of the appeal, the appellant was represented by Mr. Ignas Ngumbi, learned counsel and the respondent appeared in personal. The appeal was argued by way of written submission. Before submitting on grounds of appeal the appellant raised two points of law as follows: 1. There was a change of the presiding trial chairman without assigning of any reasons. 2. That, the opinion of assessors was not reflected in the judgment. With leave of this court, the appellant submitted on the first point of law, Mr. Ngumbi submitted that the proceedings of the DLHT (the Proceedings) reveals that from 28 April 2022 when the case came before the DLHT was preceeded over by Hon. B. J. Cyril Chairperson who also heard the entire evidence of the prosecution and of the three witnesses of the defense. However, on 24 October 2023 when the defense case was still open proceedings were adjorned before Hon. S. Msemwa Chairperson as it was said the presiding chairperson had an emergence on that day. On 6 November 2023 the proceedings came again before Hon. J. S. Msemwa Chairperson who proceeded with hearing of the remaining defense witnesses to its conclusion and issued a judgment. He submitted that there was no any reason on records as to why Hon. Msemwa 3 Chairperson took over the conduct of the Proceedings from Hon. B.J Cyril Chairperson. Mr. Ngumbi was of the view that the omission is fatal and goes to the root of the Proceedings which has the effect of nullifying the Proceedings. He referred the case of Marage Lite ltd vs. Best Tigra Industries Ltd, Civil App. 78 of 2016 (2019) TZCA 332 (20 September 2019) TANZLII at page 23 and Order XVII, Rule 10 (1) of the Civil Procedure Code, Cap, 33 R.E 2019 (the CPC). On the second point of law, he submitted that the total involvement and participation of assessors in the trial before the DLHT must be shown and indicated in the Proceedings and judgment as it was stated in the case of Tubone Mwambeta vs. Mbeya City Council, Civil App. No. 287 of 2017 (2018) TZCA 392 Tanzlii from page 10 to 16 inclusively. He submitted that in this case the DLHT only stated that the chairperson agrees with the assessors without including the opinion of the assessors. He argued that this was fatal irregularities as the chairperson out to have reflected the opinion of the said assessors in his judgment which he seems to agree upon. He referred to the case of Casto Mwambembela vs. Raheli Mwakyusa and Another, Land Appeal No. 57 of 2020 [2022] TZHC 1005 (31 March 2022) Tanzlii at page 5. 4 The appellant advocate also prayed to abandon, ground no one and four on the memorandum of appeal and argued the second and third ground together. He submitted that on 19 December 2022 when the matter came for hearing the DLHT framed two issues for consideration and determination that: 1. Iwapo mleta maombi ni mmiliki halali wa eneo lenye mgogoro. 2. Ni nafuu gani wadaiwa wanastahili. He argued that the DLHT chairman did not make finding on each issue framed. That, the learned chairman covered only issue number one negatively but the issue was framed to determine only whether or not the applicant is the lawfully owner of the Disputed Land and not whether the respondent also was the owner of the Disputed Land because the fact that the applicant was not found to be the lawfully owner of the Disputed Land does not necessarily mean that the respondent is the automatic owner. On fifth ground, Mr. Ngumbi submitted that had the DLHT chairman properly evaluated the evidence on record he couldn’t arrive to such conclusion. The DLHT Chairman arrived to such conclusion because the respondent testified that the Disputed Land belongs to his family. However, his witness called Danford Athuman Mwakatika (DW2) stated 5 that the Disputed Land is the sole property of the respondent as he inherited it from his father. Further, Hebron Mwaisumo (DW3) stated that the Disputed Land belongs to the respondent by virtual of long use after demise of his father. Mr. Ngumbi stated that based on those contradictions the DLHT ought to have drawn adverse inference on defense witness. In reply to the points of law raised by the appellant, the respondent argued that it is upon the court to find out as to whether the change of the DLHT chairman amount to failure of justice because the DLHT chairman have equal qualifications. On the issue of the assessor’s opinion, the respondent submitted that they are reflected on record on page thirty- seven (37) of the Proceedings when the DLHT was winding up the proceedings. The respondent submitted that the appellant claim is an afterthought because he said that his father passed away on 2008 and the Disputed Land passed to him in 1994. While in his evidence, the appellant said that he used the Disputed Land for 30 years. Regarding the framed issue, the respondent submitted that the DLHT was correct. 6 On the issue of contradiction by the appellant that the respondent stated that the Disputed Land belonged to the family members, the respondent submitted that it is not strange because the evidence adduced by the witnesses was that the Disputed Land belonged to the respondent. In the final analysis, the respondent argued that the submission by the appellant should not be considered because the appeal is an afterthought. I have considered the court records, grounds of appeal and submission made by the parties. I find the whole appeal can be disposed under the points of law raised by appellant that there was a change of presiding DLHT chairman without assigning any reasons. Starting with first point that there was a change of presiding trial chairman without assigning reason. Order XVIII Rule 10 of the Civil Procedure Code, Cap. 33 R.E. 2019 (the CPC) refers to powers to deal with evidence taken before another judge or magistrate. It provides that: "10 (1) Where a judge or magistrate is prevented by death, transfer or other cause from concluding the trial of a suit, his successor may deal with any evidence or memorandum taken down or made under the foregoing rules as if such evidence or memorandum has been taken down or made by him or under his direction under the said rules and may proceed with the suit from the stage at which his predecessor left it” 7 The above provision imposes two conditions that must exist. One, the trial judge or magistrate must have been prevented from continuing with the proceedings by either death, transfer or other cause. Secondly, there must be pending suit partly tried by the predecessor judge or magistrate. In the case of M/S. Georges Centre Limited vs. The Honorable Attorney General, Civil Appeal No. 29 of 2016, the Court had this to say: "The general premise that can be gathered from the above provision is 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/she is unable to do that. The provision cited above imposes upon a successor judge or magistrate an obligation to put on record why he/she has to take up a case that is partly heard by another. There are a number of reasons why it is important that a trial started by one judicial officer be completed by the same judicial officer unless it is not practicable to do so. For one thing, ...the one who sees and hears the witness is in the best position to assess the witness's credibility. Credibility of witnesses which has to be assessed is very crucial in the determination of any case before a court of law. Furthermore, integrity of judicial proceedings hinges on transparency. Where there is no transparency justice may be compromised." Also, in the case of Priscus Kimaro v. Republic, Criminal Appeal No. 301 of 2013 (CAT-unreported) the Court observed that: 8 " . . . where it is necessary to re-assign a partly heard matter to another magistrate, the reason for the failure of the first magistrate to complete the matter must be recorded. If that is not done it may lead to chaos in the administration of justice. Anyone, for personal reasons could just pick up any file and deal with to the detriment of justice. This must not be allowed" Going through the Proceedings of this case as argued by Mr. Ngumbi that this case was previous presided by Hon. B.J Cyril and he heard the whole prosecution witnesses and three defense witnesses. On 24 October 2023 when the case came for hearing Hon. J.S. Msemwa took over the matter. He stated that the presiding chairman has emergence and on 06 November 2023, Hon. Msemwa proceeded to receive evidence for one defense witness and composed the Judgment. Now the issue for determination is whether the re-assigned DLHT chairman Hon. J.S Msemwa was required to assign reasons for the transfer of the case file. In my opinion the answer is yes. This is because almost the whole case was heard by Hon B.J Cyril. Therefore, at the stage the case file was taken over by Hon. J.S Msemwa only one defense witness had remained. Therefore, there was a chance of causing miscarriage of justice to parties because Hon. B.J Cyril was the one who heard almost all witnesses in this case. He was in the best position to 9 assess the witness's credibility which is very crucial in the determination of any case before a court of law. So, if there was reason which prevented Hon. B.J Cyril to continue with the case then it was supposed to be indicated in the Proceedings but the same was not done by Hon. J.S Msemwa when he took over the matter. This was fatal irregularities and the effect is to nullify the proceeding, judgment and orders of Hon. J.S Msemwa. I find the appeal has merit. I proceed to quash the proceedings of Hon. J.S Msemwa and set aside the judgment and orders thereto. I order the file be remitted back to the DLHT for continuation of trial before Hon. B.J Cyril from where he ended. If there is any reason preventing him from continuation with the matter then the matter be properly re-assigned to another Chairman and reasons for transfer be assigned in the proceedings. Given the circumstances of this case, I award no costs. DATED at MBEYA on this 29 day of August 2024. A. A. SINDA JUDGE 10