michael valeli kipoto vs efremu tobias kaziweni 2023 tzhc 21578 22 september 2023

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA LAND APPEAL NO. 49 OF 2022 (Originating from the District Land and Housing Tribunal for Mpanda at Katavi in Application No. 48 of2022) £! MICHAEL VALELI KIPOTO VERSUS! EFREMU TOBIAS KAZIWENI.......... .WB^„..W„...M.......RESPONDENT JUDGMENT 4:'! August & 29!' September, 2023 MRISHA, J This is an appeal ggainst the lx-parte judgment and decree of the District Land and^Housihg^ibiinal fbrfepanda at Katavi in Application No. 48 of 2022 which waBgroundedibn 31.10.2022 before the said trial tribunal. In the trial JI tribunal, the appellant sued the respondent one Efremu Tobias Kaziweni for allegedly invading his 4 1/2 acres piece of land (the suit land) and began cultivating crops therein at different times starting from the year 2019. According to the records of the trial tribunal the suit land is located at Mamboyo Hamlet in Karema Village which is within Tanganyika District of Katavi Region, and it is estimated to worth 1,200,000/= Tanzanian Shillings. i It appears that after admitting the applicant's/appellant application, the learned trial chairman ordered a summons to be served to the respondent for him to appear on 23.06.2022 at 0900 hours before the trial tribunal for hearing of the said application. The said summons reached to the respondent who responded by writing behind such document that he could not be able to attend on that date because he was sick. Having received the said summons with the respondent's|reply, the learned trial chairman adjourned the matter until on12.07«2022|fpr hddring. On that date the applicant/appellant appeareS||but th^res[3|ndent did not appear before the said trial tribunal. Then^03efofejieanhg||ommencedz the learned trial chairman wrote the following as,parTdf the':said tribunal's proceedings: - "Baraza: Shaun hiiidinasikiiizwa upande mmoja kwakuwa mjibu maombi ameshindwu.kufika kutokana na haliyake..." Thereafter thedearnAtrial chairman framed three issues for determination and beganW) recordfthe evidence of the applicant/appellant who apart from testifying orall^ls^Sendered what he alleged to be a sale agreement which was admitted by the trial tribunal as exhibit MK-1, as it appears at page 6 of the trial tribunal's typed proceedings. It is also on records that on 06.10.2022 the appellant closed his case and the learned trial chairman adjourned the appellant's case until on 27.10.2022 for the trial tribunal to visit the loqus in quo. The typed proceedings of the trial 2 tribunal also show that on that date the appellant did not appear, but this time the respondent appeared and was afforded an opportunity to testify before the said tribunal, then after gathering evidence from the respondent and other persons, including one Isabela Damas Kapita whom the applicant mentioned as one of the vendors who sold the suit land to him, the learned trial chairman adjourned the case until on 31.10.2022 for summing up of the case. It appears that on such particular date no summing upw/as done, but the learned trial chairman received the opinions of thesgentJerpenWssessors who opined that the suit land which was sbidi<twice tfcthe applicant, is belonging to the respondent, then before delivering jtfdgmeniSjfe, learned trial chairman wrote the following words: Hukumu apaso^a ied^mbele ya Mjibu Maombi pasipokuwepo M^mba^S^^tBB^Madmbi ni Mtu Mzee (sic), Mwombaji hakufika batzBani Maku^di kwasababu aiitaka kupoteza muda..., Imesainiwa 31.10.2022" Following the above order by the learned trial chairman, an ex-parte judgment was delivered in favour of the respondent on the ground that the applicant 3 was the one who trespassed into the suit land because the procedures of selling the suit land to him, were not certain meaning that he did not comply with the procedural requirements which require the Village Council to witness the sale agreement of the land. As a result, the learned trial chairman dismissed the appellants application with costs and declared the respondent as the lawful owner of the suit land. It is due to the above decision, that the appellant decided to come to this Wb A court in order to challenge the decision of thetpi^Ifribunaldb^gfronting six grounds of grievance as follows: - 'W, Wf 1. That, the trial tribunal err^^ ll^^^W^ding in favour of the respondent who produced^ no^olbpents|nor oral submission proving ownership over the^suitdand. W 2. That, thedial tApunalmisdireiflPitself to hold that the vendor did not sigp^^^leag^nidqtirid’that the same was forged while the same Hl was property (sic) signed by Isabela Kapita who was one of the Vendor (sic) wlg^^^^l before the trial tribunal and confirmed the authenticity of the sale agreement. 3. That, the trial tribunal erred at law to hold that the appellant failed to prove his claims while in actual fact the appellant proved his case in accordance with the standard required by law, 4 4. That, the trial tribunal erred at law by assuming the role of the Respondent instead of umpire. 5. That, the Tria! tribunal misdirected and hence erred at law by giving its judgment in Application 48/2022 instead of Application 30/2022 hence it reached a wrong conclusion. 6. That, the whole trial was null and void due to procedural irregularity as only one assessor participated during the. hearibg|gf the Appeal but three assessors visited the locus in quo whileTwd<essessbrs^participated Due to the above grounds, the appeHant has urged|this court to declare that the suit land is his propertyjand that,he be^awarded costs of this appeal. As it happened at the trial tribgnal|the respondent did not appear when the instant IB Submitting befot'egjhe court, the appellant stated that he filed his memorandum of appeal with this court on 21st November, 2022. Hence, he prayed the same to be adopted by this court so that they can form part of his submission in chief stating that the grounds of appeal contained in his memorandum of appeal, are self-explanatory. Having so submitted, the appellant implored me to allow his appeal with costs. 5 Oh my part I have carefully gone through the grounds of appeal as they have been raised by the appellant herein, and I have also gone carefully through the entire proceedings as well as the judgment of the trial tribunal, together with the appellant's submission which is very brief, may be due to the fact that being a layman, he had nothing more to add rather than opting to let the tawa vs Christina Raja Lipanduka & 2 present appeal be dealt with accordingly by this court, as per the law. Dar es Salaam(unreported). However, the e^^^^^^^^^^general rule Having done so, I am of the view that the issueghais twhere calls for appellate court thedetermination is whether the present appeal has merit. Before, I d^fcnSfibtharfeSil, I should finds it^fSnient^'tq^^her|address the grounds of appeal generally, or say at this juncture, that as a matter oJpi^gedu^theWppellate court is bound address decisive (3^|dobappeal only which can enable it to dispose of the to consider all the grounds of a^peail^ais®^ tHBa||ellant and come up with appeal befJi!|iJ|gg|b:' Malmo Montagekonsult AB Branch v. Margret Gama, Civil Appeal No.86 of 2001 (unreported). In that case the Court of Appeal stated that: "In the first place, an appellate court Is not expected to answer the issues as framed at the trial. That is the role of the trial court. It Is, however, expected to address the grounds of appeal before it. Even 6 then, it does not have to deal seriatim with the grounds of appeal as listed in the memorandum of appeal It may, if convenient, address the grounds generally or address the decisive ground of appeal only or discuss each ground separately." From the above decision of the Apex Court, it is obvious that sometimes the appellate court can address the grounds of appeal either generally or choose to address the decisive ground of appeal only where it sees ,convenient to do so. As I have alluded before, there are siHfeundsW appeal which, as a matter of procedure, are supposed tgube aBdressedby this-being the first appellate court. However, I find it tveniep^^^dd^h only the sixth one which appears to be the decisi&egrdund of appeal assessment. It is a trite law that visiting the locus in quo, has the same status as hearing of the case; See Hamis Waziri vs Mwanaid Salimu, Misc. Land Appeal No. 13 of 2020(unreported). 7 This means the chairman of the trial tribunal must ensure that the tribunal to which he presides over, is properly constituted before the hearing of the land case before him takes off. Also, under regulation 19(3) of The Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2003 it is provided that: "Notwithstanding Sub-regulation (ij the Chairman shah before making his judgment, require everyassessorpresent at the conclusion of hearing to give his Opfhi^^^h^j^tmg and the assessor In my reading of the above proyisiorWOhedaw, it is crystal clear that the said regulation is coached in mandator^gterms to the extent that failure by the learned trial chairman tcRsit with the same? assessors who were present at the conclusion of heaping is|fatalasdt vitiates the whole proceedings; See Hamis w »■ W Now reverting back t^the case at hand, it appears to me that the complaint Jlf by the appellanbthat the whole trial before the trial tribunal was null and void due to the fact that there was a change of assessors at the hearing of his application, is unfounded. This is because at all times the learned trial chairman sat with the same set of assessors, save for some days when the case had to be adjourned either due to absence of either the applicant or the learned trial chairman, which is not fatal. 8 This can be inferred at pages 2,6 and 7 of the typed proceedings where it is revealed that the assessors who sat with the learned trial chairman at the hearing of the applicant's application, were B. Mlundwa and W. Chambi. However, although it appears that the appellant has somehow missed a point in defending his sixth ground of appeal, yet I find that the same still remains to be a soundful ground of appeal when addressed in a different angle. l am saying so because while revisiting the typecLproceii^gs as well as the impugned judgment of the trial tribunal, J^oticed^ome^^OT^^gularities committed by the learned trial ch||mgn Meh Itjfind pertinent to be 'W addressed by this court. First, despite showing at pa|e 2 ^tug^idg^nFthat the applicant/appellant sworn in before is not what the said trial chairman did. The abov^cb^^ observation is fortified by what the learned trial chairma^ecbfa^^t^^ thertrial tribunal's typed proceedings, and I propose to reproltce the re^ant^art as hereunder:- SMI, JINA: Michael Valeli Kipoto." UMRI:49 KAZI: Mkulima MAKAZI: Karema 9 KABILA: Mfipa DINI: RC. Mwaka 2029 (sic) aiinunua Shamba ekari 4 V2 kwa Elizabeth Dama Kapita na Zabera Damas Kapita, kupitia Ofisi ya Mwenyekiti wa Kitongoji, na Mwaka huo alianza kulifanyia kazi kwa kupanda Mazao ya kudumu. -Mwka (sic) 2021, alitokea Efrem Kaziw$iiLna^kudai kuwa eneo hi/o ni a (sic) kwake, baada ya kuf^^a^a iadrdhiJ^Kijiji kwa aji/i ya Usuluhishi ulifanyika ^pyunAd^ Utaratibu aiiomba kuambatanisha Nyaraka. nesainiwa. reveals anbther anomaly which is to record the evidence of a witness in a second persorr-singlilr form (like "...he bought a fami), instead of the witness's own words which is normally supposed to be recorded in the first- person singular form (like "...I bought a farrrf'. The practice of courts of law in countries like ours which follow the adversarial system, is that normally a judge of a magistrate will compose his/her 10 judgment in a second person form because at that time he will be referring to what the witness said before the trial court during trial. I had spent some time to read both the Land Disputes Courts Act, Cap 216 R.E 2019 (the LDCA) and The Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2003 in order to see if the said laws provide for the manner of recording evidence before the District Land and Housing Tribunal, but I found none. However, it is my settled opi^oUthat such lacuna '&d” have been bestowed with powers to|d^spgnsedustice|through inquiring and determining land disputes in the lahd<courtsTheypreside over. In a normal circumstance, i^oes^^^^^welFto find a witness's evidence is recorded in a quiteB^tisuallfom asil|hasbeen observed in this appeal in regards to the^Tecords of the trial tribunal. If that is to be left aside unresolv^pthe^it^W^ be-djfficult to grasp the authenticity of witness's evidenceWn our courts ofdaw. Hence, it is a high time, I suppose, that something needs^togbe done- in order to cure such absurdity. Coming to the anomaly that the learned trial chairman omitted to take oath of the applicant/appellant, it is a trite law that every witness who testifies before a court or law or any decision-making body should do so upon his/her oath or affirmation been taken by the trial magistrate or judge. Luckily, there is a plethora of authorities in our legal system on that legal aspect. ii For instance, section 4(a) of the Oaths and Statutory Declarations Act [ CAP 34 R.E. 2019] (the OSDA) provides that: "4. Subject to any provision to the contrary contained in any written law, an oath shall be made by- (a) Any person who may be lawful examined upon oath or give or be called upon to adduce evidence befordWrata^law oLany decision-making case may be. Also, in ^iumbeP|^^§t|£ourt of records in this country have been declaring that the ^pisg^^to^ke a witness's evidence under oath/affirmation is fatal and vitiates the proceedings before the trial court; See Joseph Elisha vs Tanzania Postal Bank, Civil Appeal No. 157 of 2019 and Catholic University of Health and Allied Sciences vs Epiphania Mkunde Athanace, Civil Appeal No. 257 of 2020(both unreported). In the latter case, the Court of Appeal stated that: 12 "'Where the law makes it mandatory for a person who is a competent witness to testify on oath, the omission to do so vitiates the proceedings because it prejudices the parties'case." I am aware that section 4(a) of the OSDA which I have referred above, is qualified in the sense that for it to be applied in mandatory terms, there should not be any provision to the contrary in any mother written law which provides for the manner of recording evidence befor|the^ court. However, since neither the LDCA nor theT|pd DisputellOpurtsRegulations, 2003 has a provision which goes cont^^^^^te^fcen provided for under section 4(a) of the OSDA, I arn^pf Ihe seBlep opinion that even the judicial officers presiding over in the District Lan^ arid: Housing Tribunal are duty bound to ensure that theyTakejoath/affi^mation of the witness before starting to record the wfess'^^ide^^ In the present appealw is apparent that the learned trial chairman did not take oath^^he apqlcant/appellant before recording his evidence as it has been shown aboveyand if that is not enough, it is also on record that even after paying visit to the locus in quo. He even did not do so after paying a visit to the locus in quo when recording the testimonies of persons who testified before him, including the respondent who appeared and testified before him. This is shown at page 8 of the trial tribunal typed proceedings where the learned trial chairman wrote the following: - 13 '\..Kauzeni: Eneo /a Mgogoro alipata kwenye Serikali ya Kijiji aiipewa na Kamati... Imesainiwa G.K.R 27/05/2022" Suffice it to say that since the learned trial chairmanromitted to take oath of witnesses before recording their testimonies; the proceedings before the said tribunal were vitiated by his omission which cdnllquentl^prejudiced the parties' case. Another irregularity I have noticed after going through, the records of the trial tribunal; is that the learnedftrial chairman|didnbt append his signature at the end of the evidence adducedjoy the applicant/appellant, as shown in the original casefileftegardnng Sp^atiohSNo. 48 of 2022; although the typed proceedingsatjpage^febibtsdzhathe appended his signature. In my view, the typed, proceedings of the court stem from the original casefile in sense th^Bthekone who prepares a typed proceedings for the use of the appellate court; is expected to be honest by making sure that he/she types exactly what was recorded by the presiding officer of the court; otherwise; the typed proceedings cannot be helpful for the appellate court to arrive at the just decision. 14 At this juncture, I would like to remind and advise all judicial officers who are preparing the court records for the use of the appellate court and/or general public, to ensure that they also take time to go through the typed court proceedings to be dispatched to the appellate court before certifying the same as true copies of the original. In order to do so successfully, they may also adopt one of the so-called Judge Painter's Rules wh^Ms to the effect that, "Edit, Edit and Edit Again" in order to avoid unpecessary typological errors or omissions, ensure that the typed proceedings are cori^ and|contain the actual witness's, evidence they record§.j^jrii^^ial^^^^^^ With the above being said, that what the learned trial chairman did was an in^^^e^^^toy as^underscored by the Court of Appeal in a number W cases including* but not limited to the case of Sabasaba Eno^^Jbjph^^^epuolic, Criminal Appeal No. 411 of 2017 which of Iringa International School vs Elizebel^Post, Ci^^^al No. 155 of 2019 (all unreported) whereby the Court of ApB|aty/a|J|iphatic 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" As I have intimated above, the learned trial chairman did not append his signature at the end of the testimony of the applicant/appellant, nor did he do 15 so after recording the testimonies of the respondent and other person who testified before him at the locus in quo. Thus, given the said omission and considering the principles of law stated in the above cases, I am of the considered view that the omission by the learned trial chairman to append his signature at the end of the testimony of the applicant/appellant and the rest of the witnesses who testified before him, was fatal to the proceedings before the trial tribunal. The other apparent irregularity is that avfee locuk in^qubithtelearned trial chairman proceeded with hearing of tbe^pplicant's case interpartes without complying with the procedural ^requiremenilto bebbllowed in the event the respondent does not appeaftpn the.date filied^forhearing. That can be in^y^t page tribunal typed proceedings which show that the le^^^^chaiqgan recorded the evidence of the respondent as show^^^^der^^^^^^ 'Vtai/zem: Eneqi/a Mgogoro alipata kwenye Serikali ya Kljljl (sic) aiipewa na KamaS„ Also, at page 7 of the said proceedings the coram of the trial tribunal show that on 27.10.2022 both parties were present, but the applicant was not afforded an opportunity to cross examine the respondent. It should be remembered that initially the learned trial chairman ordered the applicants 16. application to be heard ex- parte. To justify his order, the learned trial chairman wrote the following words as can be inferred at page 2 of the typed proceedings: - "Baraza: Shauri Upo kwaaajHi ya kusikfflzwa Mwombaji yupo tayari...Shauri hill finasikitizwa Upande Mmoja kwakuwa Mjibu Maombi ameshindwa kufika kutokana na hallyake." In a literal meaning, the above excerpt means t^i^ie learned triakchairman ordered the applicant's application to heard e^partemecause the respondent failed to appear on the dh^^xie^ptihgrip^due to his condition. However; the learned trial cha^^^^id^^^^^^^di condition precluded the respondent from appeal^ on tha^^rin^ate, or did he show that the respondent did not fu™tahi^taunal with good cause for his absence. Considering whaBthe learned trial chairman had written in the above excerpt, the nagging questonstwhich emerges here can be where did he get those words thawthe respondent failed to appear due to his condition on 12.07.2022 during the hearingfofTzhe applicant's application? Again, if we are to assume that on that particular date the respondent did not furnish the trial tribunal with good cause of his absence and therefore the tribunal was justified to have ordered the applicant's application to he heard ex-parte, was it correct for the learned trial chairman to proceed with the hearing of the said 17 application interpartes on 27.10.2022, while he had previously ordered the same to be heard ex-parte? It is due to those unanswered crucial questions, that I persuaded to find that the learned trial chairman misdirected himself when he proceeded with hearing of the applicants application instead of ordering otherwise, if he had enough reasons to believe that there were sufficient reasons to do so. With all due respect to the learned trial chairman, wHdtJhe^ki was a misconception and misplacement of the 'law which r^^l^ite^rials in the District Land and Housing Tribunal (tn®LHT). The law;?is very clear on what the DLHT is supposed to^do ^Mre^llpwin^wie respondent whose absenteeism leads to an order obex- [darte hearing, to enter his defence and/or testify before :theR|LHT|k. Il I would like at "this m|ment,Yo<?rernind the learned trial chairman about a proper ,procedure>to "be followed when he is confronted with a similar situation,^teobservAabove. Regulation 11(2) of The Land Disputes Courts (The District SRlarid Housing Tribunal) Regulations, 2003 provides clearly that: ’Y-ZJzzz N/A (2) A party to an application may, where he is dissatisfied with the decision of the Tribunal under sub-regulation (1), within 30 days 18 apply to have the orders set aside, and the Tribunal may set aside its order if it thinks fit so to do and in case of refusal appeal to the High Court [Emphasis added] By virtue of the above provision of the law, it is crystal clear that there are two remedies available to the respondent, as the one in this case, who is dissatisfied with the order of the Tribunal; first, he<way apply to the same Tribunal within 30 days that the DLHT be pleaded to setbaside its ex-parte . r J____________ I ■ _____ _ . [ ___ — Si: —■ —1 !./_ dismissal order of the DLHT. In the case at hand, the records^are silent aPto whether the respondent lb applied to the trial tribunal to haye it seffaside its previous ex-parte order. In the circumstanc^^w^ not ^or learned trial chairman to proceed with the|lllBihg,.pf^tf3| applicant's application interpartes as if no ex-parte order haokbeen m^de byTim before, and which was not set aside by the tribunal he wahprading over. From the foregoing reasons, the above main issue is answered positively that the present appeal has merit. I therefore, allow it to the extent herein stated above. In consequence thereof, I nullify the entire proceedings of the trial tribunal, quash the impugned judgement of the trial tribunal, set aside the orders made thereto and order the original casefile to be remitted back to the 19 trial tribunal for it to conduct a retrial of the applicant's case in compliance with the applicable relevant laws and procedure. As for the costs, I am aware that the applicant has prayed for them as part of his reliefs. However, considering the fact the trial tribunal contributed to the above pointed flaws, I refrain from making any order as to costs. Each party to party to bear its own costs in this court and the court. Order accordingly. JUDGE 29.09.2023 ii - DATED at SUMBAWANGA this 29th Day of September, 2023. k.A/MRISH/ JUDGE 29.09.2023 20