KAPAYA KAYENGELELE V

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF SHINYANGA

AT SHINYANGA LAND APPEAL NO. 54 OF 2021 (Arising from the decision of the District Land and Housing Tribunal for Shinyanga in the Land Application No. 62 of 2023) KAPAYA KAYENGELELE ……………………………. APPEALANT

VERSUS AYUBU JOSEPH …………….……………………. RESPONDENT

JUDGMENT 29th November & 12th December, 2024. S.M. KULITA, J. This is an appeal from the District Land and Housing Tribunal for Shinyanga. The story behind this matter in a nut shell is that, the appellant herein instituted a Land Application Case No. 62 of 2023 at the said tribunal claiming for the ownership of the suit land, sized one and half (1.5) acre located at Kihongwe Suburb, Mwamanyunda Village, Imesela Ward within Shinyanga District in Shinyanga Region, claiming that it is the property of his 1 late father, and that, the same had been unlawfully sold to the Respondent by a person who was not the owner of the said premise. That, the tribunal decided the matter on favor of the Respondent. Aggrieved with the decision delivered on 19/07/2024, the Appellant herein lodged this appeal with 3 (three) grounds as follows; 1. That, there was no evidence to prove that the Respondent was given the alleged pierce of land by the Appellant’s father.

2. That, there was no evidence to prove that, before going to Bukombe, the respondent entrusted the said land to somebody Kube Nzwalila to look after it.

3. That, the Trial Tribunal did not evaluate the evidence properly. The matter was argued by way of written submissions. Both parties complied with the scheduling orders. While Ms. Grace Sakali Egha, Advocate, represented the Appellant, Mr. Audax Constantine, Advocate, represented the Respondent. In the cause of replying the Appellant’s written submission, Advocate for the Respondent, Mr. Audax Constantine, didn’t reply on the merit of the Appellant’s submissions, but came up with the argument that, upon going 2 through the tribunal’s proceedings whose judgment has been appealed herein, he did notice that the said proceedings have the defects which lead to failure of justice to both parties. Among them, he mentioned it being failure of the presiding Chairman to append his signature after recording the witnesses’ evidence in their reply to the Assessors questions. He said that the Chairman was to authenticate them by signing after recording them, as they are part of the court’s proceedings. The Counsel also stated that the complainant in the original case one Ayubu Joseph, who before the tribunal testified as SM1, did allege before the Chairman that he is not conversant with Kiswahili language, particularly in speaking. Mr. Audax, Advocate, submitted that, what the Chairman did was to find the interpreter just from that point. He said that the record is silent as to whether the

said interpreter continued to serve the tribunal for that purpose. He said that, the fact that the record is silent on that issue, impliedly the said person, interpreter, did not further attend the said tribunal. Hence the subsequent trials proceeded without interpreter. For those reasons, Mr. Audax sought for this court to declare the whole proceedings of the tribunal null and void, hence the same be nullified and the case be tried de novo for non-compliance of the procedural aspects. 3 The Appellant’s Counsel replied that the defects that can be noticed in the proceedings are minor. She said that the same do not go to the root of the case. She added that the alleged defects have been raised by the Respondent’s Counsel after he had noticed that there is a great possibility for the appeal to succeed, hence he intends to create the issue for the said proceedings of the trial tribunal to be regarded null and void, so that this court can order re-trial (trial de novo), and thus, his client, Respondent herein, can use that venue to fill the gaps. As for the issue of defects in recording the proceedings, that the presiding Chairman was not appending his signature under the proceedings that he had been recording, particularly in the questions put to the witnesses by the Assessors, the Appellant’s Counsel submitted that, it is a trite principle of law that procedural defect in

recording proceedings should not be allowed to defeat substantive justice, unless the said defects affect the rights of the party(s). She cited section 45 of the Land Disputes Court Act [Cap 216 RE 2019] to support her argument. She said that this doctrine touches even the issue of interpretation of the proceedings between Kisukuma and Kiswahili, the Counsel said that the procedure was actually adopted by the tribunal, hence the Respondent was not prejudiced. 4 The Counsel concluded that the said defects are not fatal to render the proceedings of the tribunal a nullity. She thus sought for this court to abandon them. In composing the judgment, I came to note that Mr. Audax’s submission based on the preliminary objections rather than replying the Appellant’s submission which based on the merit of the case. I thus took trouble in resolving those objections instead of dealing with the grounds of appeal. Further, be it noted that, position of the law is that, the preliminary objections should be determined first, prior to the merit of the case, and that, this being the first appellate court, has a duty of stepping into the shoes of the trial court and re-evaluate the evidence in record in case it finds any fault in the analysis made thereon. See, Future Century Ltd V. Tanesco, Civil Appeal No. 5 of 2009, CAT at DSM in which it was held; "This is a first appeal. The principle of law

established by the Court is that the appellant is entitled to have the evidence re-evaluated by the first appellate court and give its own findings" In doing the said task of re-evaluating the evidence on record, I had to earnestly go through the entire record of the tribunal. 5 As it has been alleged by the Respondent’s Counsel, Mr. Audax Constantine, Advocate, it is vivid in the records that the proceedings of the District Land and Housing Tribunal for Shinyanga, whose proceedings and judgment led to the arising of this appeal, show that the presiding Chairman was not appending his signature after recording the witnesses’ reply to the questions put by assessors which is part of that court’s proceedings. It is not in dispute that, this case was heard and determined by the District Land and Housing Tribunal. The said Tribunal exercises its duties in accordance with the Land Disputes Courts Act [Cap. 216 RE 2019] and the Land Disputes Courts (the District Land and Housing Tribunal) Regulations, 2003. However, both legislations do not have provisions guiding the Tribunal in the mode of recording the evidence. Therefore, in terms of section 51(2) of the said Land Disputes Courts Act, the Civil Procedure Code [Cap. 33 RE 2019] should apply. Now, looking at the Civil Procedure Code, the procedure for recording of evidence is provided for under Order XVIII, Rule 5 which

stipulates; "The evidence of each witness shall be taken down in writing, in the language of the court, by or in the presence and under the personal direction and superintendence of 6 the judge or magistrate, not ordinarily in the form of question and answer, but in that of a narrative and the judge or magistrate shall sign the same." The fact that the trial tribunal declined to comply with this mandatory requirements of the law, the proceedings it has recorded and the judgment entered thereon are declared a nullity. Hence, upon the said proceedings of the tribunal being regarded fatal, they cannot serve purpose for this court to step into its shoes and re-evaluate the evidence adduced before it. As for the issue of failure of the presiding Chairman to append signature in the proceedings that he is purported to have taken, it leads to unauthenticity of the tribunal’s record. While confronted with the same scenario in Yohana Musa Makubi V. R, Criminal Appeal No. 556 of 2015, CAT at Mwanza (unreported) the Court of Appeal held that; "In light of what the Court said in WALII ABDALLA KIBWITA's and the meaning of what is authentic can it be safely vouched that the evidence recorded by the trial Judge without appending her signature made the proceedings legally valid? The answer is in the negative. 7 We are fortified in that account because, in the absence of signature of trial Judge

at the end of testimony of every witness: firstly, it is impossible to authenticate who took down such evidence. Secondly, if the maker is unknown then, the authenticity of such evidence is put to question as raised by the appellant’s counsel. Thirdly, if the authenticity is questionable, the genuineness of such proceedings is not established and thus; fourthly, such evidence does not constitute part of the record of trial and the record before us..." For the foregoing reasons, the Court of Appeal went on to hold as follows on the failure of the trial judge to append his or her signature after recording the evidence of each witness; “We are thus, satisfied that, failure by the Judge to append his/her signature after taking down the evidence of every witness is an incurable irregularity in the proper administration of criminal justice in this country. The rationale for the rule is fairly apparent as it is geared to 8 ensure that the trial proceedings are authentic and not tainted” The above quoted principle applies to both criminal and civil cases. As alluded earlier that in her appeal the appellant seeks to challenge the trial tribunal on evaluation of the evidence in record. In my view, this ground cannot be determined in the circumstances where the authenticity of the evidence adduced during trial is doubtful. Further, it has been alleged and the record so transpires at page

6 of the typed proceedings that the Respondent, who was the complainant in the Tribunal, told the Chairman that he is not conversant in Kiswahili language, particularly in speaking. The response by the Chairman on it was to order for the Interpreter to be brought and upon that being complied with, the case proceeded for the next stage which was cross-examination, without considering that the testimony that had already been made by that person in the examination in Chief, which had been done in the absence of the interpreter. Even if the said person was late to notify the trial tribunal on that, it could be wise for the Chairman to restart his testimony, of which, by then, could have involved the engaged interpreter. 9 Further, the record is silent as to whether the said interpreter continued with the said task of interpretation on the subsequent proceedings. For those reasons, I am inclined to exercise the revisionary powers vested to this Court under section 43(1)(b) of the Land Disputes Courts Act [Cap. 216 RE 2019). In doing so, I hereby nullify the proceedings of the trial Tribunal from 9th April, 2023 to the end. I also quash and set aside it’s judgment and decree thereon. Consequently, I order for an immediate re-trial of the case from the proceedings of the above mentioned date. For the interest of justice, it is ordered that the matter be heard by another Chairman with a new set of Assessors. Having considered the circumstances of the case, I make no order as to costs. S.M. KULITA

JUDGE 12/12/2024 10 DATED at SHINYANGA this 12th day of December, 2024. S.M. KULITA

JUDGE 12/12/2024 11