LORINA MUNA

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA LAND APPEAL NO. 3737 OF 2024 (Arising from Land Application No. 10 o f2023 before District Land and Housing Tribunal for Singida at Singida) LORINA MUNA KUFIKA.................................................................. APPELLANT VERSUS PAUL IKIMBIA MAMBI............................................................... RESPONDENT RULING 11th November, 2024. HASSAN, J.: The respondent herein sued the appellant claiming to be a lawful owner of the disputed land located at Nkundi village, Kikio Ward, Ikungi District within Singida Region. The application was heard in the District Land and Housing Tribunal (DLHT) and was decided in favour of the respondent. The Appellant being aggrieved with the said decision lodged this appeal bearing two (2) grounds of appeal for resoluteness. However, for reasons which will be apparent hereunder, I will not replicate the same. 1 When the matter was called on for court deliberation on the 8th day of October, 2024 the appellant was represented by Mr. Deus Nyabiri, learned counsel, while the respondent appeared in person. However, upon perusal of the proceedings the court observed some irregularities in the record of proceedings from the DLHT which appeared to be material to the merits of the case involving injustice. The error noted is to the effect that the chairman did not append his signature at the end of each witness's testimony. Upon such observation, the court invited the appellant to address the court on the questions raised. On his part, Mr. Nyabiri conceded to the anomaly and submitted that, Order XVIII Rule 5 of the Civil Procedure Code directs on how to record evidence of the witness. On that, the law directs that Judges or Magistrates are required to append signature at the end of each witness's testimony. He cemented his submissions by citing Juma Ramadhani Hakumu v. Juma Athumani Kilinja, Land Appeal No. 26967 of 2023 where the court held that if evidence was not signed by chairman, then its authenticity is questionable. He went on submitting that, looking on the case at hand, at page 7 the testimony of Pwl was not appended with signature. Also, at page 9 for PW2, page 10 for PW3 and page 12 for PW4 chairman had not appended signature. Similarly for respondent at page 2 15 for DW1 and page 19 after assessors have delivered their opinion, chairman failed to append signature. Therefore, due to this flaw, he suggested that the whole evidence becomes a nullity. Thus, he prayed the application to be remitted to the DLHT of Singida to be retried de novo by another chairman and a new set of assessors. On his part, the respondent, knowing that this was a legal issue, he had little to say. He simply asked the court, that law should take its course. Since the irregularity observed involves a point of law, I will only base my determination of the same as it is worth determining the appeal to its finality without touching the merits of the appeal. Indeed, it is evident in the record of proceedings, the chairman of the trial Tribunal failed to append his signature after every witness's evidence except for the evidence of Samson Hamisi (SU2) as well submitted by the appellant's counsel. In law, position with respect to this issue is very clear. For instance, Order XVIII Rule 5 of the Criminal Procedure Code, [Cap. 33 R. E 2019] provides as follows: 3 "The evidence o f each witness shall be taken down in writing, in the language o f the Court, by or in the presence and under the persona! direction and superintendence o f the judge or magistrate, not ordinarily in the form o f question and answer, but in that o f a narrative and the judge or magistrate shall sign the same. " In a number of decisions, the Court of Appeal has held that, failure to append signature after recording the witnesses' evidence is a fatal irregularity which vitiate the entire proceedings. See for instance in Yohana Mussa Makubi v. Republic, Criminal Appeal No. 556 of 2015 (unreported) where the court held that: 'We are thus satisfied that, failure by the judge to append his/ her signature after taking down the evidence o f every witness is an incurable irregularity in the proper administration o f criminal justice in this country. The rationale for the rule is fairly apparent as it is geared to ensure that the trial proceedings are authentic and not tainted. Besides, this emulates the spirit contained in section 210 (1) (a) o f the CPA and we find no doubt in taking inspiration there from. In view o f the stated omission the trial proceedings o f the High Court were indeed vitiated and are a nullity and neither did they constitute the record o f the trial and the appeal before us. Similar position was upheld in the cases of Sabasaba Enos @ Joseph v. Republic, Criminal Appeal No. 411 of 2017, and also Chacha Ghati @ Magige v. Republic, Criminal Appeal No. 406 of 2017 (all un reported). That said, it is apparent from the records of evidence, both original and in the typed proceedings as in the instant case that, the chairman had not appended his signature onto the evidence of each witness who had testified except for Samson Hamisi (SU2). For instance, looking on the applicant (SMI), who is the respondent in this appeal, his evidence was not appended by signature of the chairman. The same defect appeared in the evidence of other applicant's witnesses, including Paulo Petro Ntui (SM2) and Paskali Athumani (SM3). On the other hand, the chairman had also failed to append his signature in the evidence of applicant's legal representative, Paskali alphonce (SU1). 5 In the context thereof, I am certain that, on these issues raised, it needs not to raise one's eyebrows to see the flaw. Indeed, the chairman has completely failed to append his signature onto the evidence of some witnesses who testified, and that is a fatal error in the eye of law. Since most of the witnesses' evidence was not appended by the trial chairman, the remedy thereto is to expunge from the record of the proceedings in the trial court, the evidence of all the three witnesses from the applicant's case and one witness (SU1) from the respondent's case. Thus, the evidence of SMI, SM2, SM3 and SU1 is hereby expunged from the record of proceedings. Now the question remains, whether expunging the witnesses' evidence prejudices the trial in the DLHT. Indeed, since SMI (the respondent) was the applicant in the trial Tribunal, SM2 and SM3 being his witnesses whose evidence carries the whole claim and reliefs sought. And SU1 being the respondent's representative, thus, expunging their evidence from the record of proceedings prejudices the whole trial since the remaining evidence of SU2 carries no weight to the trial. That being the case, the court is left with no option other than nullifying the entire proceedings. 6 In the circumstance thereof, I invoke the powers vested to this court under section 43 (1) (b) of the Land Dispute Courts Act, Cap. 216 to nullify the entire proceedings, quash the judgment and set aside the orders handed down by the trial tribunal. Ultimately, I order for retrial before another chairman and a new set of assessors. More so, since the irregularity was raised by the court suo motto, suit costs will remain arbitrio judicis. Thus, I make no order as to costs. Ordered accordingly. DATED at DODOMA this 11th day of November, 2024. JUDGE 11/ 11/2024 This ruling delivered this 11th day of November, 2024 in the presence of the parties and the matter is ordered to start afresh under new panel. 11/ 11/2024 7