Maganga Malaya

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DODOMA SUB REGISTRY AT DODOMA LAND APPEAL NO. 26954/2023 (Arising from the District Land and Housing Tribunal for Dodoma at Dodoma in Application No. 31 of 2023) MAGANGA MALAYA..................................................... APPELLANT VERSUS MANVULA CHILEWA................................................ RESPONDENT JUDGMENT Date of Last Order: 6/6/2024 Date of Judgment: 16/7/2024 MASABO, J:- Maganga Malaya, the appellant herein, was the applicant in Application No. 31 of 2023 before the District Land and Housing Tribunal for Dodoma at Dodoma (the trial tribunal). He was suing the respondent over ownership of a seven-acre parcel of land, allegedly, trespassed into by the respondent. After the hearing of the application, the trial tribunal found him to have not proved his suit and it dismissed it. Aggrieved, he has come to this court armed with five grounds of appeal which I summarized as follows: one, the assessors erroneously cross examined the witnesses; two, the trial tribunal was not properly composed; three, the trial chairman did not append his signature to the testimony of the witnesses; four, the judgment was composed before the defense closed its case and last, the respondent was Page 1 of 12 erroneously declared the owner of the suit land whereas she was just an invitee. Hearing of the appeal proceeded by way of written submission. The respondent was represented by Mr. Thomas Edward Nchimbi, learned counsel. The respondent had no advocate. She fended for herself. Opening his submission Mr. NChimbi abandoned the second and fourth grounds of appeal hence he remained with the first, third and fifth grounds of appeal. He then proceeded to submit that there was an illegality in the proceedings. The respondent's right to a fair hearing was abrogated because her case was forcefully closed by the court contrary to the principle in the case of David Mushi vs Abdallah Msham Kitwanga (Civil Appeal 286 of 2016) [2022] TZCA 535, TanzLII where the Court of Appeal held that the trial magistrate or judge has no powers to close neither the prosecutions nor the defence case. He prayed that the appeal be dismissed as the irregularity is fatal. Convincing this court to cure this irregularity, he argued that although it was not raised on the grounds of appeal, it is pertinent that it be cured. With regard to the first ground of appeal, it was submitted that the assessors were erroneously allowed to examine the witnesses contrary to section 147 of the Evidence Act, Cap 6 R.E.2022 which provides that cross examination is the exclusive domain of an adverse party to the proceeding, not the court or assessors. He argued further that, since cross examination is aimed at Page 2 of 12 contradicting or weakening the testimony of the witnesses, the assessors should not cross examine as in doing so they would be taking sides and cease to be impartial. Contrary to this rule, on 25th September 2023, the assessors cross examined DW1 on how she acquired the suit land. Summing up this point, the learned counsel submitted by cross examining the witnesses, the assessors occasioned a fundamental procedural irregularity which rendered the proceedings and the judgment thereto, fit for nullification. On the third ground of appeal, it was submitted that Order XVIII rule 5 of the Civil Procedure Code, Cap 33 R.E 2019, mandatorily requires the trial judge or magistrate to append his signature at the end of the testimony of every witness. The omission, he argued, is fatal as it nullifies the proceedings and judgment and necessitates a retrial of the suit as held in the case of Chacha Ghati @Magige vs Republic Criminal Appeal No. 406 of 2017 (CAT-Unreported). Inversely, in the present case, the trial chairman did not append his signature to the record of the testimony of PW1, PW2, PW3, DW1, DW2 and DW3. He concluded that the trial proceedings were rendered a nullity by this omission. Thus, they should be quashed and the case file be remitted back to the trial tribunal for a fresh trial. Lastly, on the 5th ground it was submitted that the tribunal misdirected itself by declaring the respondent as the legal owner of the suit land while the evidence of PW1, PW2 and PW3 demonstrate that the respondent was a Page 3 of 12 mere invitee. Even the evidence of DW1 was in agreement that she was a mere invitee with no right or title over the suit land. In support, the case of Magoiga Nyankorongo Mriri vs Chacha Moroso Saire Civil Appeal No. 464 of 2020 [2020] TZCA 343 TanzLII was cited. Summing up his submission, the counsel prayed that the appeal be allowed and the judgment and decree of the trial tribunal be quashed and set aside. In rejoinder, Mr. Nchimbi reiterated his submission in chief and prayed that the appeal be allowed. I have considered the submission by the parties and thoroughly read and considered the trial tribunal's record alongside the grounds of appeal. As stated above, the appellant had five grounds of appeal but he abandoned two. Thus, he remained with only three grounds which now await determination. The ultimate issue to be answered after determining these three grounds is whether the appeal has merit and should be allowed. In support of the appeal, the appellant has challenged the trial tribunal's proceedings for being marred by two fatal procedural irregularities, that is, cross-examination of witnesses by assessors and omission by the chairman to append his signature at the end of the record of the testimonies of the witnesses who were paraded before him. The appellant's third discontentment is that the respondent wrongly won the case as she was a mere invitee with no colour of right or entitlement over the suit land. There is also, in addition, a complaint that the defence did not close its case. The same was forcefully closed by the tribunal before she was consulted on Page 4 of 12 whether or not she had more witnesses and, in consequence, her right to a hearing was abrogated by the trial tribunal's interference. This being a first appeal, I am principally, mandated to critically re-evaluate the material evidence on record in order to test the soundness of the trial court's finding and, where necessary, come up with a finding dissimilar to the trial court's finding as held in the case Registered Trustees of Joy in The Harvest vs Hamza K. Sungura (Civil Appeal 149 of 2017) [2021] TZCA 139 TanzLII. As state further in this case:- "...... the obligation imposed on the first appellate court in handling an appeal is not a light duty, it is a painstaking exercise involving rigorously testing of the reliability of the findings of the court below." As I embark on this painstaking duty, I have critically looked into the evidence and this is what I have found. In substantiation of his claims, the appellant paraded three witnesses. He was the first to testify as PWI. He told the tribunal that the respondent is his cousin. She was married and when her marriage broke down, she returned to her home village. There, she was received by the appellant and his father (who was also the respondent's paternal uncle) who gave her a house and a parcel of land which is the subject of this appeal. She occupied both, the house and the suit land and remained in occupation until when the appellant's father died. His heirs, the appellant included, demanded the house and the farm back so that they could distribute it amongst themselves. The request sparked the instant Page 5 of 12 dispute. PW2 and PW3 corroborated his story. They too testified that the respondent was temporarily given a house and the suit land after she came back from her broken marriage. The respondent had three witnesses as well. Testifying as DW1, she told the tribunal that when she came back from her marriage, she had no farm. She started to look for one. She saw an abandoned farm and when she asked her uncle (the appellant's father) he told her that the owners of that farm were dead. Since it was unencumbered, she cleared it and started to till it. Her occupation of the farm was not interrupted until after the death of the appellant's father. This is when the appellant and his siblings wanted to take away the farm claiming that it belonged to their late father. DW2 who is the respondent’s brother testified that the disputed land belonged to their father Sipilu and not to the appellant's father. DW3 also testified that the suit land belonged to the respondent's father and not the appellate father. After assessing this evidence, the trial tribunal found the appellant to have failed to prove that the suit land belonged to his father. With this background, I will now move to the grounds of appeal. I will start with the complaint in the third ground of appeal regarding the trial chairman's omission to append his signature to the record of the testimony of the witnesses. Mr. Nchimbi has argued that this was fatal procedural irregularity as the law mandatorily requires the trial chairman to append his signature at the end of the record of the testimony of each witness. In Page 6 of 12 building his submission, he drew inspiration from Order XVII rule 5 of the Civil Procedure Code. My observation while reading the trial court record is at per with Mr. Nchimbi. The proceedings conspicuously show that no signature was appended to the record of the testimonies of each witness of both parties. Therefore, what remains to be answered is whether the omission constitute a fatal irregularity. It is indeed true that the requirement for a trial magistrate or judge to append his signature at the end of the record of the testimony of each witness is part of our law. For civil trials, it is embodied under Order XVII rule of the Civil Procedure Code and for criminal trials it is provided for under section 210(l)(a) of the Criminal Procedure Act, R.E.2022. Order XVIII rule 5 of the Civil Procedure states thus: "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 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." And, section 210(l)(a) of the Criminal Procedure Act, state that: "...the evidence of each witness shall be taken down in writing in the language of the court by the magistrate or in his presence and hearing and under his personal direction and Page 7 of 12 superintendence and shall be signed by him and shall form part of the record;" These two provisions have been interpreted and applied in a plethora of authorities. I will cite just a few starting with the case of Chacha s/o Ghati @ Magige vs Republic (Criminal Appeal 406 of 2017) [2021] TZCA 132 TanzLIIwhich I cite extensively. In this case, the Court of Appeal having observed that the trial judge had not appended his signature at the end of the testimony of every witness, it stated that:- "The effect of failure to append signature in the proceedings was stated by the Court in Yohana Mussa Makubi (supra) as follows: " 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. 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 Page 8 of 12 thus; fourthly, such evidence does not constitute part of the record of trial and the record before us." The Court went on to state that: "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 ensure that the trial proceedings are authentic and not tainted. Besides, this emulates the spirit contained in section 210 (1) (a) of the CPA and we find no doubt in taking inspiration therefrom." In the end, it nullified the proceedings holding that since the trial judge did not sign after recording the evidence of the witnesses for both sides, the proceedings were not authentic. The Court subsequently ordered a retrial. In the second case, Iringa International School vs Elizabeth Post (Civil Appeal 155 of 2019) [2021] TZCA 496, TanzLII, the court was dealing with proceedings from the Commission for Mediation and Arbitration (CMA) whereby it held that:- "In a countless number of cases including Yohana Mussa Makubiand Another vs Republic, Criminal Appeal No. 556 of 2015, Sabasaba Enos @ Joseph vs Republic, Criminal Appeal No. 411 of 2017, Chachas/o Ghati @ Magige vs Republic, Criminal Appeal No. 406 of 2017 and Mhajiri Uladi Page 9 of 12 & Another vs Republic, Criminal Appeal No. 234 of 2020, (all unreported), this Court has insisted that a signature must be appended at the end of the testimony of every witness and that an omission to do so is fatal to the proceedings.... " It proceeded that: "Although the laws governing proceedings before the CMA happen to be silent on the requirement of the evidence being signed, it is still a considered view of this Court that for purposes of vouching the authenticity, correctness and providing safeguards of the proceedings, the evidence of each witness need to be signed by the arbitrator. On this, we need to draw inspiration from the Civil Procedure Code [Cap 33 R.E.2019] (the CPC) and the Criminal Procedure Act [Cap 20 R.E. 2019] (the CPA) wherein it is mandatorily provided that the evidence of each witness must be signed/' [Emphasis added]. Lastly, in the case of Uniliver Tea Tanzania Limited vs David John (Civil Appeal 413 of 2020) [2021] TZCA 547 TanzLII, the Court once again dealing with proceedings from the CMA stated thus: "Though there is no requirement under the Rules obliging the arbitrator to sign witnesses' evidence, we are of the considered view that the omission is fatal to the proceedings. This is because it jeopardizes the authenticity, correctness, Page 10 of 12 and veracity of the evidence of the witnesses as it cannot be said with certainty that what is contained in the record is the true account of the evidence of the witnesses since the recorder of the evidence is unknown." [Emphasis added]. Drawing inspiration from Order XVII rule 5 of the Civil Procedure Code and section 210(l)(a) of the Criminal Procedure Act, the Court of Appeal held that signing of witness's evidence is a mandatory requirement and failure to append the signature is a fatal irregularity as it jeopardizes the authenticity of such evidence. It concluded that: "Consequently, failure by the arbitrator to administer oath to the witnesses and the omission to append his signature at the end of each witness's evidence, vitiated the proceedings before the CM A." [Empasis added]. As for the consequences, in both cases, the Court having nullified the CMA proceedings, it quashed them and set aside the award and subsequently quashed and set aside the proceedings and judgment of the High Court for having originated in nullity proceedings and it remitted the record back to the CMA so that the disputes could be heard de novo by another arbitrator. Page 11 of 12 From these authorities, it is deciphered that the requirement for appending the signature of the trial judge or magistrate at the end of the record of the testimony of each witness is a mandatory legal requirement. It is a cardinal law applicable to ordinary courts and to special tribunals even where the procedural law of such tribunals is silent on this requirement. The omission to sign is, undeniably, a fatal irregularity as renders the proceedings unauthentic and a nullity. In the foregoing, and since as observed that the trial chairman herein did not append his signature to all the testimonies of the six witnesses, the trial tribunal's proceedings have been rendered unauthentic and a nullity by such omission. The third ground of appeal is, therefore, with merit. As the finding in this ground sufficiently disposes of the appeal, I see no need to proceed to the remaining grounds. Based on this sole ground, I allow the appeal, nullify the proceedings and the judgment of the trial tribunal and subsequently remit the record to the trial tribunal for an expedited trial before another chairman. The parties shall bear their respective costs. DATED and DELIVERED at DODOMA this 16th day of July 2024. Page 12 of 12