MESSU NDIKWA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SHINYANGA SUB REGISTRY AT SHINYANGA LAND APPEAL NO. 202409031000021806 (Arising from Land Application No.102 of 2023 before Kahama District Land and Housing Tribunal) MESSU NDIKWA MESSU........................................APPELLANT VERSUS 1. MANYANDA MAYALA MVUMBI 2. SABINA MALIMKI ..............RESPONDENTS JUDGMENT 3rd &29th October 2024 F.H.MAHIMBALI,J The nutshel of this case is that the first respodent sued the appellant for trespassing his parcel of land located at Kasuke village within Ushetu district in Kahama municipality measuring 4 acres. It is allged that the first respodent got the said land by pucharse from the second respodent in 2011 for a consideration of 650,000/=. In 2020 the appellant tresppased the said land and destroyed the first respodnent’s crops which caused mass damages. The trial tribunal after its thorough digestion of 1 the case entered its verdict in favour of the first respondent and the consequent oders of compensation of Tshs 500,000/= for destruction of the crops by the appellant. The appellant is not amused with the decsion of the trial tribunal, hence this appeal armed with three grounds of appeal; 1. That, the chairman of the trial tribunal erred in law to determine the dispute which was fully decided by Kasuke ward tribunal on the same disputed land and its execution fully done and that no appeal was preferred against it. 2. That the chairman of the trial tribunal erred in law to hold that the 1st respondent is the lawful owner of the dipsuted land without clear evdience on how the 2nd respondent owned the disputed land. 3. That the chairman of the trial tribunal erred in law to hold the 1st respodent is the lawful owner of the disputed land while the evidence on record does not prove the same. In turn point, the respodents filed their joint reply resisting all the grounds of appeal by the appellant . During the hearing of this appeal, the appellant had legal representation of Mr. Makunga learned advocate, while the first respondent appeared in person and unrepresented. However, the matter proceeded exparte against the 2nd respondent who did not enter 2 appearance on the contemplated reasons advanced by the first respondent that she was sick, thus the matter proceeded exparte against her. Amplifying for the appeal, on the first ground of appeal Mr. Makunga submitted that, the Chairman of the DLHT had erred in determining the matter while it had already been decided by Kisuke Ward Tribunal on the same land that the parties are at dispute today and that no appeal was preferred against that decision. Therefore, as per law, the DLHT of Kahama ought not to have determined the same matter (Land Application No. 102 of 2023) for the reason that the said land dispute had already been determined by Kisuke Ward Tribunal and that even its execution had already been done vide Misc. Land Application No. 223 of 2021 whereby the appellant was handed over his land plot on 21st September 2021. Since the decision of the Kisuke Ward Tribunal which decreed in favour of the appellant was not appealed against to date, the filing of fresh suit at the DLHT was legally superfluous. To him, this then makes an existence of two judgments of two different tribunals co-existing. Mr. Makunga boosted his argument with reference to the case of Miriamu Athumani Mleli versus Wiljohn Athumani Mleli and 4 Others, Civil Appeal No. 406 of 2021, CAT at Moshi at page 8. Mr. Makunga was of the view that, 3 the first respondent before he had instituted the case at the DLHT, ought to have first challenged the decision of the Kisuke Ward Tribunal. As regards to the second ground of appeal, Mr. Makunga stated that, the grief is, the DLHT had erred in analysis of the said evidence in record, thus reached a wrong verdict as per law. As per evidence in record, the 1st respondent is said to have purchased the said land from the 2nd respondent while the 3rd witness for the 1st respondent had testified that the 2nd respondent had purchased the said land from one Majaliwa Milambo. Unfortunately, the 2nd respondent's witness is doubtful as he never witnessed any sale agreement between the appellant and the first respondent save only that she saw her husband's signature. That means, she just heard of it. Mr. Makunga alluded that the proof of ownership rarely needs mere words but strict proof of the same how it moved from Majaliwa Milambo to the 2nd Respondent for her to warrant her ownership. By missing relevant documents authorizing her ownership, it is hard to establish the lawfulness of the possession of the disputed land by the first respondent. It is surprising by 1st respondent in her reply boasting the area to be hers, without there being strict proof of the same. Mr. Makunga added that it is trite law that anyone claiming title over suit land, he/ she should describe the suit land - Order VII Rule 3 of the CPC. This was also clarified in the case of Chacha Juma (as administrator 4 of the late BmGabriel Matiko V. Mwita Juma Magiko and Another, Civil Appeal 32 of 2022, CAT at page 6. Mr. Makunda said. With the last ground of appeal, Mr. Makunga argued that the grief is, the trial tribunal had erred to declare the first respondent as lawful owner of the suit land in the absence of concrete proof. Mr. Makunga fortified that basing on the legal principle that he who alleges must prove the existence of the alleged facts. In the current case, Mr. Makunga was of the legal mind that, taking the 1st respondent's evidence together lacks the said substance. Since the 2nd respondent was not associated/involved in establishing the said ownership, this vitiates the substance of section 110 of the Evidence Act, of Cap 6, R.E 2022. As this was not done, her claims stood unestablished. The alleged document (sale agreement) admitted as exhibit P1 didn't pass the admission regulations such as reading it after it was admitted. It is the legal demand that for documentary evidence admitted as exhibit, it must be read out immediately after its admission. Failure to do so, vitiates the proceedings. He referred the case of Anasy Omary V. The Rep, Criminal Appeal No. 05 of 2022, CAT at Tabora - at page8. If this is expunged, the remaining evidence leaves the 1st respondent with 5 no established case. Mr. Makunga finally pressed for the appeal to be allowed with costs. On his part, the 1st Respondent argued while also accommodating the second respondent’s concerns, he generally resisted the appeal and contended that their reply to the memorandum of appeal be adopted and form part of their submission. Thus, prayed for the appeal be dismissed with costs. No rejoinder was made. Having heard the submissions of the both parties, I have now to determine this appeal, and the issue for deliberation is whether this appeal is merited. Mr. Makunga had argued this Court be pleased to hold that the tribunal erred to determine the matter which is res judicata. That the matter had already been fully decided by Kisuke ward tribunal in the year 2020 being land application No.13 of 2020. I should first admit that as a matter of law the doctrine of Res Judicata as defined under section 9 of the Civil Procedure Code, Cap. 33 R.E 2019 cannot apply unless it is established that the dispute before it has already been determined by a competent court on the same subject matter and between the same parties. As correctly argued to me by Mr. 6 Makunga when he cited the case of Miriamu Athumani Mleli versus Wiljohn Athumani Mleli and 4 Others (supra), also in addition are the cases of Zanzibar Telecom Co.ltd versus Haidary Y. Rashid t/a Narasisa Enterprises, Commercila Case No.2 of 2009 and Satyadhayn Ghosal versus Deorjin Debi, AIR 1969 SC941. I have gone through the referred ward tribunal’s judgment, indeed it particularized that the decreed land is ¾ size within an acre to be a property of the appellant. The said land is situated at Mazimbo. Now, looking at the Land application before the DLHT the complaint is on four acres on the land located at Kasuke village within Ushetu district in Kahama manicipality. From the face of record, this suit involves two distinct subject matters. Even if execution warranted ought to have confined only to ¾ of an acre given to the appellant, it had nothing to do with the four acres as complained by the appellant. Thus, the suit land before the trial tribunal was rational to be there to resolve the dispute which existed between the partties on the suit land measuring four acres at Kasuke village. However, this argument ought have been raised at the trial tribunal for deliberation either by way of objetion but not at this stage. Mindful matters not raiased at the trial court cannot be raised at the appellate 7 stage. Going through the trial tribunal’s records, none of this was raised. It is trite law that matters not raised at the trial court always cannot be put into consideartion at the appellate stage. Thus, this ground of appeal is devoid of merit and is accordingly dismissed. See cases of Mohamed Enterprises (T) vs Masood Mohamed Nasser, Civil Application No. 33 OF 2012 at page 15, and Isana Nile vs Makingo Roketi, Land appeal No. 3 0f 2022. The appellant also complained that, there was no sufficient evidence to prove that initially the suit land was owned by the second respondent to enable her to pass the title to the first respondent. Mr. Makunga had alluded that PW3 testified that initially the land was owned by Majaliwa Milambo - a husband of second respondent. Thus, it is unexplainable how the suit land passed to the second respondent as there is no documentary evidence on that. Cleary, it is undisputed that the suit land was originally owned by Majaliwa Milambo a husband of the second respondent now a deceased. It is a probate principle that once a spouse dies the properties so acquired first revolve to the surviving spouse - a wife/husband of the deceased spouse before other probate administrative procedures take head. See also testimonies of PW2 and PW3. 8 Therefore, it is hardly convincing to hold that the second respondent had no title over the suit land. Thus, the disposition she made to the first respondent was lawful. I did not grasp Mr. Makunga what kind of documentary evidence was needed to prove ownership under this situation, other than the declaration made in Exhibit P1 which exhibited that the suit land belonged to her, thus competent to dispose it. However, I am in controversy with the argument of Mr. Makunga when he made reference to Order VII Rule 3 of the CPC and the case of Chacha Juma (as administrator of the late BmGabriel Matiko V. Mwita Juma Magiko and Another, (supra) on description of the suit property to the effect that ought to be proved by the second respondent. Mr. Makunga had contradicted the legal perception that none description of suit land amounts to none proof of ownership of land and thus the onus under section 110 of Evidence Act was not complied by the respondents. If that is his serious concern, the paradigm shift ought to have been raised at the trial. As that was not done, therefore, this ground of appeal is dismissed for being impotent. Mr. Makunga has also complained that the tribunal erroneously admitted exhibit P1 on the sense that it was not read out after it was 9 admitted by the Court. Such error vitiates the whole proceedings of the tribunal. It is trite law that upon admission of documentary exhibits, the law requires that, they must be read out in order to ascertain and make clear understood to the parties as argued by Mr. Makunga when referring the case of Anasy Omary versus The Rep (supra), In Robinson Mwanjisi and Others versus Republic, (2003) TLR, the Court stated among other things that; “Whenever it is intended to introduce any document in evidence, it should first be cleared for admission and be actually admitted, before it can be read out” See also the case of : Mbaga Julius versus Republic, Criminal Appeal No.131 of 2015, Jumanne Mohamed and two others versus Republic, Criminal Appeal No.534 of 2015 (unreported) and the case of Nkolozi Sawa and Another versus Republic, Criminal Appeal No.574 of 2016 (CAT) at page 7. In the case of Nkolozi (supra), the Court observed that “Failure to read out the documentary exhibits was irregular as it denied the appellants an opportunity of 10 knowing and understanding the contents of the said exhibits” Though most of the cited and referred cases make reference to criminal trials, my brother Mugeta J in Pyrethrum Company of Tanzania Limited vs Homange Pastory Kunzulaga (Civil Appeal 1 of 2023) [2023] TZHC 17153 (27 April 2023) says that, in his humble view, this principle is not absolute. The rationale being this Criminal trials in subordinate courts does not involve exchange of documents prior to the hearing of the case, therefore, if an exhibit is not read in such trials, indeed, the opposite party would be prejudiced. I think the purpose of the rule as was held in Mwinyi Jamal Kitalamba @ Igonza and Four Others v. R [2020] T.L.R 508 is to bring about a fair trial in situations where the opposing party had no opportunity to access the content of the document prior to its tendering and admission. Conversely, the principle, in his view, would be inapplicable, for example, to trials in civil cases where the contents of document is read to the accused person during committal proceedings and the documents are supplied to him to keep and read for the whole period pending trial. 11 In this case, the appellant was in possession of the documents in issue, namely, the contract (exhibit Pl), prior to the trial. This document was pleaded and annexed to the plaint which offered the appellant the opportunity to know its contents. Therefore, the said rule in my considered view would be less restrictive when dealing with civil cases/trials. I say so, on an imagination of a bulk document of hundred pages (a contract may be), that it be read out a whole of it. However, the Judiciary of Tanzania’s Exhibits Management Guidelines provides for the necessary steps in tendering exhibits including: Step 1: Ensure a witness has laid a foundation evidence for tendering an exhibit, (i.e. witness explains how the exhibit is connected to the case and how it came in his possession). Step 2: Ensure the exhibit is shown to the opposing party for comment. Step 3: Whether or not there is an objection, the exhibit will be shown to a magistrate or judge to see and inspect. 12 Step 4: Where there is an objection, the party who seeks to tender that exhibit has to be accorded an opportunity to respond; in case a new point is raised by a party proposing to tender it, then the party objecting will rejoin. Step 5(i): Where there is no objection, the judge or magistrate may admit the exhibit provided it has passed the admissibility test. Step 5(ii): Where there is an objection, the presiding judge or magistrate will rule on the admissibility of the exhibit. Step 6(i): When the exhibit is rejected it will be returned to the party who proposed to tender it. Step 6(ii): When the exhibit is admitted the judge or magistrate will mark and endorse it. Step 7: Once the exhibit is admitted, a person tendering the exhibit shall read out its contents in court. It should be noted that during the tendering process, the contents of the documents should not be read out 13 in court until it has been admitted as an exhibit [Emphasis added]. My understanding in the reading of the Exhibits Management Guidelines, the above requirements are not reserved for criminal cases only but cater for both; civil and criminal trials. This is because the procedure regarding admission of exhibits applicable in civil cases is generally applicable in criminal cases, save for the requirement of attaching them to the pleadings and list of documents. Going through the trial tribunal records exhibits P1, was not read before the Court. The shortcoming to those effects is that such exhibits is to be expunged from the court records as it was wrongly admitted. In addition, I have noted that the trial Chairman did not append his signature after had recorded witnesses’ testimonies contrary to the requirement of the law. Here I 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. Order XVIII rule 5 of the CPC provides as follows; 14 "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." Further, under section 210(1) of the CPA it is provided that: ''s.210(1) In trials other than trials under section 213 by or before a Magistrate/ the evidence of the witnesses shall be recorded in the following manner; (a) 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 superintendence and shall be signed by him and shall form part at the record" In a countless number of cases including Yohana Mussa Makubi and Another vs Republic, Criminal Appeal No. 556 of 2015, Sabasaba Enos @Joseph vs Republic, Criminal Appeal No. 411 of 2017, Chacha 15 Ghati @ Magige vs Republic, Criminal Appeal No. 406 of 2017 and Mhajiri Uladi & Another vs Republic, Criminal Appeal No. 234 of 2020, North Mara Gold Mine Limited versus Isack Sultani, Civil appeal No.4S8 of 2020, (all unreported); The Court of Appeal 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. In Yohana Makubi and Another (supra) the Court held, among other things, that; "In the absence of the signature of the trial Judge at the end of the 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 questions as raised by the appellants' 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 reasons that the witnesses before the DLHT gave their evidence and the Chairman did not append his signature at the end of every witness’ testimony and also on the above stated position of the law, I find 16 that the omissions vitiated the authenticity of the proceedings of the I DLHT. Cumulatively, I am satisfied that the pointed omissions and irregularities mounted to a fundamental procedural error that have occasioned a miscarriage of justice to the parties and had vitiated the proceedings and entire trial before the Tribunal. Therefore, the whole proceedings are vitiated and nullified. Similarly, judgement and decree of the trial tribunal thereof are hereby quashed and set aside. For the pointed out legal errors, the matter is remitted to the trial tribunal for retrial before Hon. Chairman with different set of assessors expeditiously. No orders as to costs. DATED at SHINYANGA this 29th day of October, 2024. F.H. Mahimbali Judge. 17