20191217 TZHC Mbeya 1

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA DISTRICT REGISTRY AT MBEYA LAND APPEAL NO. 58 OF 2017 (Originating from Application No. 48 of 2014 of the District Land and Housing Tn bunal for Mbeya) MARY AMBWENE MWAKANG'ATA .............................APPELLANT VERSUS SCHOLASTICA HAULE (The Administratix of the Estate of the late Lusekelo Mwakang'ata) ................................ . .......... RESPONDENT JUDGMENT Date of last Order:13/12/2019 Date of Judgment: 171121.2019 Dr. A. J. Mambi, J In the District Land and Housing Tribunal of Mbeya at Mbeya (the Tribunal), the appellant (Mary Ambwerie Mwakang'ata) unsuccessfully sued the respondent who is administratix of the estate of the late Adam Lusekelo Mwakang'ata in Land Application No. 48 of 2014 that she is the owner of plot No. 1356 Block "X" Mbeya City. The trial Tribunal decided the matter in favour of the 1 irregularity was repeated during testimony of the Respondent witness DW1 one SCHOLARSTICA HAULE as indicated at page 27 of the Proceedings. Further submitted that, Section 51 (1) of the Land Disputes Courts Act, Cap. 216 R.E. 2002 allow the District Land and Housing Tribunal to apply the Evidence Act, Cap. 6 R.E. 2002. Examination of witness, cross examination and re- examination of witness is the duty of parties during the conduct of trial and not the Court; this is as per Section 146, and 147 of the Evidence Act Cap 6 R.E. 2002. The same position was held in the case of Ajili Ajili vs. R, Criminal Appeal No. 316 of 2015 (unreported) CAT at page 12 to 17, whereby after discussing on the issue, at page 16 the Court quoted with approval the principle stated in In reply, the respondent's learned counsel submitted argued that the questions asked by the assessors were normal ones and if cross-examined the witnesses then that it was wrong for the assessors and Chairman to contrary to the law. With regard to the opinion of the assessors, the respondent Counsel argued that the chairman is not bound by opinion of the assessors, as per Section 24 of the Land Disputes Courts Act of 2002, therefore there was no need for the opinion of the assessors to be read to the parties. She thus argued that the trial tribunal delivered a fair and just Judgment since there are no strict rules on the Land Disputes Courts (District Land and Housing Tribunal) Regulation, GN. No.174 of 2003. 3 I have carefully gone through the submissions from both parties including the records from the trial tribunal. In my considered view ) this appeal forms almost four issues that are interrelated as follows: Whether assessors were invited to give their opinion to be considered in the judgment or not Whether the tribunal acted on some wrong principles by involving assessors during cross examination or not Before I embarked on addressing all grounds of appeal and reply by the respondent I will first dwell on the issue of assessors. Indeed the composition of assessors and how to deal with their opinion are envisaged under 23(1) and (2) of the Land Disputes Courts Act, [Cap. 216 R.E. 2002] provides that; "23 (1) The District Land and Housing Tribunal established under section 22 shall be composed of one Chairman and not less than two assessors. (2) The District Land and Housing Tribunal shall be duly constituted when held by a Chairman and two assessors who shall be required to give their opinion before the Chairman reaches the judgment." Having gone through the records of the trial Tribunal, my perusal from the records show that the Trial Tribunal proceedings and judgment were tainted with irregularities. The law is clear that the chairman and assessors are barred from cross-examining witnesses. If one look at the proceedings, one will clearly find the chairman and assessors actually cross-examined the witnesses 4 contrary to the law. See Ameir Mbarak and Azania Bank Corp Ltd vs. Edgar Kahwili, Civil Appeal No. 154 of 2015 (unreported) and in the case of Edina Adam Kibona vs. Absolom Swebe (Shell), Civil Appeal No. 286 of 2017 (unreported). More specifically the Court in Mathayo Mwalimu And Masai Rengwa Vs. Republic, Criminal Appeal No.147 Of 2008 (Unreported) observed that: As at what stage in the trial can assessors ask questions, we think that this depends on the trial Judge. In our Respectful Opinion, Opinion, however, we think that assessors can safely ask questions after the re-examination of the witness". The above decision of the court is clear that the assessors can only ask the witnesses' questions after the re-examination and not before. Similarly, section 177 of the Evidence Act, Cap 6 R.E. 2002 as painted hereunder; "In cases tried with assessors, the assessors may put any questions to the witness, through or by leave of the court, which the court itself might put and which it considers proper." In the matter at hand, examining witnesses by assessors at the stage of cross examination amounted to cross examination. This means that by cross-examining the witnesses, the assessors crossed boundaries and acted beyond the intendment of the legislature which is to assist a court in a fair trial. It was not lawful for trial Tribunal to allow the assessors to examine witness at the stage of cross-examination. 6-1 The other serious omission or irregularity is the trial Tribunal record of proceedings did not show if the assessors were accorded opportunity to give their opinion as required by the law but the Chairman made reference to them in his judgment. Indeed the Trial Tribunal records do not show if the Chairpersons recorded the assessors' opinion apart from just saying that the assessors opined that the respondent was the lawful owner. Indeed the position of the law is clear that the Tribunal Chairman must record and consider the assessors' opinion and in case of departure from the assessors' opinion he/she must give reasons. The records show that the Hon Chairman in his judgment did not show if he considered the assessors' opinion and he even evaluate the evidence and give the reasons for his decision. In my considered view, the role of assessors will be meaningful if they actively and effectively participate in the proceedings before giving their opinion during trial and before judgment is delivered. The Court in TUMBONE MWAMBETA vs. MBEYA CITY COUNCIL, Land Appeal No. 25 of 2015 CAT at Mbeya (unreported) which cited the case of SAMSONNJARAI AND ANOTHER vs. JACOB MESOVORO, Civil Appeal No. 98 of 2015 (unreported) had this to say: "in determining an appeal which originated from the District Land and Housing Tribunal whereby, the Court said, even if the assessor had no question to ask, the proceedings should show his name and mark "NIL" or else it will be concluded that he/she was not offered the opportunity to ask questions and did not actively participate in the conduct of the trial. The failure of actively and effectively 6 by seeking the opinion of the Chairman as to how he received opinions of assessors..." Having obseed the Trial tribunal proceedings and judgment were tainted with immense irregularities, I am of the considered view that the vest way is to invoke powers of this court enshrined under the provisos of the laws. Indeed this court is empowered to exercise its powers under section 42 and 43 of the Land Disputes Courts Act, [Cap. 216 R.E. 2002] to revise the proceedings of the District Land and Housing Tribunals if it appears that there has been an error material to the merits. Indeed section 43 (1) (b) the Land Disputes Courts Act provides that; "In addition to any other powers in that behalf conferred upon Supervisory and the High Court, the High Court (Land Division) (b) may in any proceedings determined in the District Land and Housing Tribunal in the exercise of its original, appellate or revisiOnal jurisdiction, on application being made in that behalf by any party or of its own motion, if it appears that there has been an error material to the merits of the case involving injustice, revise the proceedings and make such decision or order therein as it may think The underlying object of the above provisions of the two laws are to prevent subordinate courts or tribunals from acting arbitrarily, capriciously and illegally or irregularly in the exercise of their jurisdiction. See Major S.S Khanna v. Vrig. F. J. Dillon, Air 1964 Sc 497 at p. 505: (1964) 4 SCR 409; Baldevads v. Filmistan Distributors (India) (P) Ltd., (1969) 2 SCC 201: AIR 1970 SC 406. The provisions cloth the High court with the powers to see 8 that the proceedings of the subordinate courts are conducted in accordance with law within the bounds of their jurisdiction and in furtherance of justice. Looking at the records, I am of the settled mind that this court has satisfied itself that there is a need of revising the legality, irregularity, correctness and propriety of the decision made by the trial and appellate Tribunals. Having established that in this case the trial chairman has failed to follow the legal principles that renders the judgment incompetent, the question is, has such omission or irregularity occasioned into injustice to any party? I wish to refer the decision of court in Fatehali Manji V.R, [1966] EA 343, cited by the case of Kanguza slo Machemba v. R Criminal Appeal NO. 157B OF 2013. The Court of Appeal of East Africa restated the principles upon which court should order retrial. The court observed that:- • in general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances and an order for retrial should only be made where the interests of justice require it and should not be ordered where it is likely to cause an injustice to the accused person..." I subscribe the above position by the court which started that an order for retrial should only be made where the interests of justice require it. In my considered view, there is no any likelihood of causing an injustice to any party if this court orders the remittal of the file for the trial court to properly deal with the matter immediately. The Tribunal should consider this matter as priority on and deal with it immediately within a reasonable time to avoid any injustice to the appellant resulting from any delay. It should be noted that all appeals that are remitted back for retrial or trial de novo need to be dealt expeditiously within a reasonable time. For the reasons given above, I nullify the proceedings and judgment of the Tribunal in Land Application No 48 of 2014 and the decree made thereto. This matter is remitted to the District Land and Housing Tribunal to be freshly determined. Given the circumstances of this case, this court orders the mater be heard de novo by the same District Land and Housing Tribunal but chaired by a different Chairperson. Where it appears the Same Tribunal has no more than one Chairperson, the chairperson from other nearest Tribunal within Mbeya region should be assigned this case. If the parties are interested to proceed prosecuting their case, they should all be summoned to appear within reasonable time. Order accordingly. ,öURT -ii I> UAA I> I JUDGE * 17.12. 2019 10 Judgment delivered in Chambers this 17 1h day of December ) 2019 in presence of both parties. DR. ADAM J. MAMBI JUDGE 17.12. 2019 Right of appeal explained. DR. ADAM .J. MAMBI JUDGE 17.12. 2019 11