mbayo athuman buluba versus thomas ngendela 2023 tzhclandd 17304 30 october 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 278 OF 2023 (Arising from Land Appiication No.280 of2020, by the District Land and Housing Tribunalfor liaia) MBAYO ATHUMAN BULUBA APPELLANT VERSUS .RESPONDENT THOMAS NGENDELA. JUDGMENT Date ofLast Order: 23.10.2023 Date ofRuling: 30.10.2023 T.N.MWENEGOHA,J: This appeal is based on the following grounds; - 1. That, the Chairperson of the District Land and Housing Tribunal of Ilala erred in law and fact by falling to properly evaluate the evidence before It hence reached In a wrong conclusion. 2. Tfiat, the Chairperson of the District Land and Housing Tribunal of Ilala erred In law and fact for failure to give the appellant a fair hearing. 3. That, the Chairperson of the District Land and Housing Tribunal of Ilala erred In law and fact by wrongly closing the appellant's case and deny him chance to bring his witnesses. £ 4. That, the trial Tribunal erred in law and fact for admitting exhibit D- 1 In contravention of the procedures of law. 5. That, the trial Tribunal erred In law and in fact for refusing to allow the witness Anthony Mateo, DW-3 to testify and ignore his evidence which proved that, the appellant is the lawful owner of the suit land. The appeal was heard through written submissions. Both, the appellant and the respondent appeared in person. In determining the merits or otherwise of this appeal, I prefer to start with the 3"^^ ground of appeal, as the same touches a crucial right of being heard, although In his submissions, the appellant consolidated it with the and 2"^ grounds. The appellant on the 3'^ ground, has faulted the trial Tribunal for wrongly closing the appellant's case and deny him chance to bring his witnesses. The appellant In his submissions, insisted that, the trial Chairman closed his case unlawfully, hence denying him the chance to have fair hearing. That, the appellant was denied the chance to bring his witnesses, therefore, the Tribunal did not prosecute the appellant's case. This Is contrary to Article 13(6)(a) of the Constitution of the United Republic of Tanzania. In reply, the respondent maintained that, the procedures were followed. That, the appellant's case was closed after the appellant was asked to bring witnesses and failed to bring them in more than five adjournments. After all, the case is not won on a number of witnesses, as there is no particular number of witnesses required to prove the same as provided under section 143 of the Evidence Act, Cap 6 R.E 2019. On my party, I went through submissions of all parties and records set before me. I wish to start by confirming^that I find this this ground to have merits. The reason and analysis on how I reached that conclusion is highiighted beiow. I went through the records of the Tribunai and found the following: On the 10"^ of August, 2022, the triai Tribunal sat, presided over by Hon. A.R. Kirumbi, learned Chairperson. Two incidences appeared on the record on the material date. Firstly, the appellant's Advocate was not present, and the appellant informed the Tribunai that, his Advocate was attending a case before the High Court of Tanzania. Hon. Kirumbi recorded the statement of the appellant and gave a ruling for the appellant to proceed unrepresented, as there was no evidence that the said Advocate was appearing at the High Court. This was a correct Decision and this Court has nothing to fault the trial Chairman on this. The 2"" incidence is what caused the 3'" ground of appeal to be raised. After the appellant was ordered to proceed without his Advocate, he informed the Tribunal that, he did not come with a witness on that day. For that revelation from the applicant, the Tribunai had this to say; ""Kwakuwa Mdai hajaleta shahidi kwa mara ya piH mfululizo na kwakuwa Sfiauri hlishaanza kusikiUzwa, badala ya kuHfuta, tunafunga Ushahidi wa mda!'. In a plain language, the trial Chairperson opted to close the applicant's case because the applicant, now appellant failed to bring any witnesses after he was given two chances to do so. He decided to do so because hearing of the case had already started, hence he saw it wise to dose the applicant's case than dismissing the same. The direction he took In my humble opinion was wrong. That was not his case, rather the appellant's case. He had no control over it. The rules are well settled, the prosecution/plaintiff's or defense case, can only be opened and closed by the parties concerned, be prosecution or defense or otherwise, as the case may be. A Court cannot close either the prosecution/plaintiff's case or defense case, see Republic.V. Deeman Chrispin and others,[1980] TLR 116, and also the case of Director of Public Prosecutions vs Idd Ramadhani Feruzi, Criminal Appeal No. 154 of 2011, Court of Appeal of Tanzania at Zanzibar (unreported). Therefore, what Hon. Kirumbl did on the 10^ of August 2022, was a serious Irregularity which vitiated the legality of the whole proceedings of the Tribunal as far as Land Application No. 280 of 2020 is concerned. For these reasons, I allow the ground of appeal as the same has merits as I have already indicated. After having concluded so, I find no need to discuss the remaining grounds. The findings In the 3''^ ground are capable of disposing the entire Appeal. In the event and In using my powers as given under section 42 and 43(l)(b) of the Land Disputes Courts Act, Cap 216, R.E 2016, I revise whole proceedings by Hon Kirumbl, vide Application No. 280 of 2020. His Decision Is quashed and the Orders that followed are set aside. Further, I order the case to be retried by another Chairperson with a new set of assessors, and it shall proceed where the applicant's case ended. Order as to Costs. T IWENEGOHA JUDGE 30/10/2023