Paschalina Nada v Ami Qamara

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT ARUSHA LAND APPEAL NO. 35 OF 2020 PASCHALINA NADA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS AMI QAMARA .............................. RESPONDENT / DEFENDANT JUDGMENT MAHIMBALI, J This is an appeal arising from the judgment and decree of the District Land and Housing Tribunal for Manyara Region at Babati (hereinafter referred to as “the trial Tribunal”) in Application No. 22 of 2017, delivered on 28th June, 2020. By the impugned decision, the trial Tribunal declared the late Ami Qamara, the original applicant, to be the lawful owner of the disputed landed property measuring approximately sixteen and a half acres, ordered the appellant, Paschalina Nada, to vacate the land and awarded costs to the original applicant. The matter has had a long and unusual procedural journey. Following the decision of the trial Tribunal, an appeal was lodged. However, the appellate Page. 1 proceedings which subsequently followed were affected by serious jurisdictional irregularities. The matter eventually reached the Court of Appeal of Tanzania in Civil Appeal No. 506 of 2024, wherein the Court of Appeal found that the purported transfer and subsequent determination of the appeal by a Resident Magistrate exercising extended jurisdiction had not been effected in accordance with the law. The Court of Appeal consequently held that the proceedings and judgments arising from that purported appellate process were nullities. The Court of Appeal, while exercising its powers under section 6(2) of the Appellate Jurisdiction Act, Cap. 141 R.E. 2023, revised and nullified the defective appellate proceedings, quashed the impugned judgments and decrees, and remitted the appeal for hearing and determination afresh in accordance with the law. The Court of Appeal did not determine the merits of the dispute concerning ownership of the suit land. This Court is therefore now called upon to determine the appeal against the original judgment of the trial Tribunal afresh and on its merits. The dispute concerns a parcel of land measuring approximately sixteen and a half acres, situated at Qalusendo Village, Dirma Ward, Hanang District, Manyara Region. The late Ami Qamara, who was the applicant before the trial Tribunal, claimed that he acquired the land after clearing virgin bush sometime around 1974/1975 and thereafter occupied and used it for a considerable Page. 2 period. His case was that the appellant subsequently approached him and requested a portion of land on which to establish a temporary shelter. It was alleged that he permitted her to occupy a small portion, approximately half an acre, on a temporary basis. The appellant was subsequently accused of refusing to vacate and of extending her occupation over the disputed land. On that basis, the original applicant sought, among other reliefs: 1. a declaration that he was the lawful owner of the disputed land; 2. an order requiring the appellant to vacate the land; and 3. costs of the proceedings. The appellant resisted the application. Her case was not that she was merely a licensee or temporary occupier of the disputed land. She asserted a positive claim of ownership. According to her evidence, she and her husband had acquired, cleared and occupied the disputed land before the dispute arose. She maintained that the late Ami Qamara had entered her land and was, in effect, the trespasser. The appellant also acknowledged that she had at some stage received or used a separate portion of land connected with the late Ami Qamara, but her case was that such portion was distinct from the disputed sixteen and a half acres. The central controversy before the trial Tribunal was therefore straightforward: Page. 3 Who, between the parties, had established lawful ownership of the disputed sixteen and a half acres? The trial Tribunal framed two issues: 1. Who is the lawful owner of the disputed land? 2. What reliefs are the parties entitled to? The original applicant called two witnesses. The late Ami Qamara testified as PW1. The record shows that he did not know Swahili and therefore gave his evidence through an interpreter named Sino Safari. The proceedings identify Sino Safari as aged 40 years, Christian. Thereafter, the proceedings record the evidence of PW1 through the said interpreter. PW1 testified, among other things, that he had cleared and occupied the land and that the appellant had subsequently been allowed to establish a temporary shelter on a portion of his land but later refused to vacate. It is this evidence which forms the subject of the first ground of appeal and which shall be considered in greater detail later in this judgment. PW2, Yona Sambo Badinai, generally supported the case of the original applicant. He testified concerning the late Ami Qamara's occupation and ownership of the land and supported the allegation that the appellant had been permitted to occupy a portion temporarily. Page. 4 The appellant testified in support of her defence and counterclaim. She maintained that the land belonged to her and gave her own account concerning its acquisition and occupation. She also called a witness, Lulu Mayumba Abiel, in support of her case. The appellant's evidence disclosed some inconsistencies regarding, among other matters, the period and manner in which she claimed to have acquired and occupied the land. At the conclusion of the proceedings, the assessors advised that the original applicant's claim should be dismissed and that the appellant should succeed. The learned Chairman of the trial Tribunal did not agree with the assessors. The learned Chairman found that the appellant's evidence contained material contradictions concerning the manner and circumstances of her acquisition and occupation of the land. The Tribunal consequently rejected her account and accepted the case of the original applicant. The trial Tribunal therefore, declared the late Ami Qamara to be the lawful owner of the disputed land; ordered the appellant to vacate; granted the consequential reliefs sought; and awarded costs to the original applicant. Being dissatisfied with that decision, the appellant lodged the present appeal. The appellant initially preferred six grounds of appeal. During the course of the written submissions, the third ground was abandoned. Page. 5 The appeal therefore substantially proceeds on the following complaints: 1. that the proceedings were vitiated because the interpreter through whom PW1 testified was not sworn or affirmed before undertaking the interpretation; 2. that the trial Tribunal failed to comply with Regulation 12 of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, G.N. No. 174 of 2003; 3. that the disputed land was not properly or consistently identified; 4. that the original applicant failed to prove his case on a balance of probabilities; and 5. that the trial Tribunal erred in failing to visit the locus in quo despite the alleged uncertainty concerning the identity and boundaries of the land. The appellant prays that the appeal be allowed, the judgment and decree of the trial Tribunal be set aside and that appropriate consequential orders be issued. The respondent opposes the appeal. Before addressing the grounds of appeal, it is necessary to restate the duty of this Court as a first appellate court. The well-settled position is that a first appellate court is required to reconsider and re-evaluate the evidence which was before the court or tribunal of first instance and to draw its own conclusions, while bearing in mind that it did not have the advantage of seeing Page. 6 and hearing the witnesses. The principle was stated in Selle and Another v Associated Motor Boat Co. Ltd and Others [1968] EA 123. It has also been consistently followed in Peters v Sunday Post Ltd [1958] EA 424. Accordingly, this Court is not restricted to asking whether there was some evidence upon which the trial Tribunal could have arrived at its decision. The Court is under a duty to examine whether the evidence, the applicable law and the procedure followed properly justified the conclusion which was reached. I shall now consider the grounds of appeal. The first ground of appeal is whether the failure to swear or affirm the interpreter vitiated the proceedings. This ground has assumed particular importance in this appeal. The appellant's complaint is that PW1, the principal witness and original applicant, did not know Swahili and gave his evidence through an interpreter, Sino Safari, but the record nowhere shows that the interpreter was sworn or affirmed before undertaking the interpretation. The appellant relies, among other authorities, on Kigundu Francis & Another v Republic, Criminal Appeal No. 314 of 2011, [2011] TZCA 71, in which the Court of Appeal emphasised the necessity of administering the appropriate oath to an interpreter before interpretation is undertaken in judicial Page. 7 proceedings. The respondent initially contested this ground on the basis that the omission was merely found in the typed proceedings and that the original handwritten proceedings contained the relevant oath or affirmation. That contention necessitated a re-examination of the original primary record. I have accordingly rechecked the original handwritten proceedings of the trial Tribunal. I find, as a matter of fact, that the original handwritten proceedings disclose nothing different from the typed proceedings on this issue. The original handwritten record identifies the interpreter as Sino Safari; that he was 40 years old; that he was a Christian; that PW1 did not know Swahili and testified through the interpreter; but does not record any oath or affirmation having been administered to Sino Safari before he undertook the function of interpretation. The record thereafter proceeds to show that PW1 himself was sworn or affirmed and thereafter testified through the interpreter. Thus, the distinction which the respondent sought to draw between the typed proceedings and the handwritten original record does not exist. The respondent's contention that the oath was actually administered but omitted during typing is, therefore, not supported by the original record. The requirement that an interpreter be duly sworn or affirmed before undertaking Page. 8 judicial interpretation is not an empty procedural formality. An interpreter performs an essential judicial function. Where a witness speaks in one language and the proceedings are conducted in another, the court or tribunal does not directly receive the witness's words in the language in which the evidence is officially recorded. The interpreter becomes the channel through which the evidence is transmitted. The integrity of the evidence therefore depends upon faithful, accurate and impartial interpretation. The purpose of the oath or affirmation is to impose upon the interpreter a formal and legally recognised obligation to faithfully perform that function. The importance of the safeguard does not disappear merely because the proceedings are civil rather than criminal. It is true that Kigundu Francis & Another v Republic arose from criminal proceedings. However, the underlying procedural principle concerning the administration of an oath to a judicial interpreter is equally relevant where the evidence of a material witness in civil proceedings is received through interpretation. What differs between criminal and civil proceedings may be the broader constitutional and procedural context. However, the Court cannot safely treat an unsworn judicial interpreter as a matter of no consequence where the evidence received through that interpreter forms the foundation of the decision. Page. 9 The importance of the defect is particularly apparent from the position occupied by PW1 in the case. PW1 was not an incidental or peripheral witness. He was the original applicant; the principal claimant; the person asserting original acquisition and ownership of the land; the principal source of evidence concerning the alleged clearing and occupation of the land; and the person alleging that the appellant had been granted only temporary occupation. The trial Tribunal substantially relied upon his evidence in concluding that he had established ownership. His evidence was, however, received through an interpreter who, according to the original handwritten judicial record, was not sworn or affirmed. This Court cannot speculate that the oath may have been administered outside the record or that the omission was accidental. The official record is the authoritative record of what transpired in the proceedings. The Court has now specifically re-examined the original handwritten proceedings and found no entry showing that Sino Safari took the prescribed oath or affirmation. The proceedings therefore disclose a material procedural irregularity affecting the reception of the principal evidence upon which the original claim was founded. The question is not whether Sino Safari may in fact have been a truthful or competent person. That is not the test. The issue is whether the legally prescribed safeguard for judicial interpretation was complied with and Page. 10 recorded. It was not. I therefore find that the first ground of appeal has merit. The first ground is accordingly upheld. The appellant's second complaint concerns Regulation 12 of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, G.N. No. 174 of 2003. The appellant argues that, at the commencement of the proceedings, the trial Tribunal was required to read and explain the contents of the application to her and thereafter record her answer before framing the issues. It is common ground that the proceedings do not expressly record that the application was read over and explained to the appellant in the precise manner contemplated by Regulation 12. The question, however, is whether that omission, in the circumstances of this case, automatically invalidated the entire proceedings. The purpose of Regulation 12 is plain and important. A party must know the nature of the case which she is required to answer. The Regulation is intended to ensure that the respondent understands the claim, states whether it is admitted or denied, and thereafter participates in the formulation of the issues requiring determination. The Regulation therefore safeguards the right to a fair and informed hearing. However, the Court must also consider the actual circumstances of the proceedings. Was the appellant prejudiced? Page. 11 The record demonstrates that the appellant represented by an advocate; filed a written statement of defence; denied the claim; advanced her own positive claim to ownership; participated in the proceedings; cross-examined witnesses; testified in her own defence; and called a witness. It cannot, therefore, reasonably be concluded that she was unaware of the claim which she was required to answer. The appellant has not demonstrated that the alleged non-compliance deprived her of any particular defence, prevented her from presenting evidence or otherwise caused a miscarriage of justice. It is well settled that not every procedural irregularity necessarily vitiates otherwise substantive proceedings. The Court must distinguish between a procedural omission which goes to the root of the jurisdiction or fairness of the proceedings and an omission which, though irregular, has not occasioned prejudice or a miscarriage of justice. I am satisfied that, on the facts of this case, the omission to record compliance with Regulation 12 did not prevent the appellant from knowing, understanding or answering the claim. The second ground is therefore dismissed. The fourth and sixth grounds concern whether the land was properly identified and whether the original applicant proved his case. These grounds are closely connected and shall be considered together. Page. 12 The appellant's case is that the late Ami Qamara did not prove the precise parcel of land which he claimed because the description contained in the application differed materially from the evidence of his own witnesses. The appellant also points to the difference between the allegation that the land was acquired around 1974 and evidence suggesting that clearing occurred in 1975. The starting point is the elementary principle contained in the Evidence Act, Cap. 6 R.E. 2023, that he who asserts must prove. In Jasson Samson Rwekiza v Novatus Rwechungura Nkwama, Civil Appeal No. 305 of 2020, the Court of Appeal reaffirmed that the burden rests upon the party asserting facts in support of his claim. The late Ami Qamara therefore bore the burden of proving, on a balance of probabilities the existence and identity of the land claimed; the manner in which he acquired or lawfully occupied it; and his entitlement to the reliefs sought. He could not succeed merely because the appellant's case was weak or contradictory. A weakness in the defence does not relieve the plaintiff or applicant from proving his own case. The original application described the boundaries of the approximately sixteen and a half acres in one manner. However, the evidence of PW1 and PW2 gave differing descriptions. The appellant correctly points out that certain persons and features were placed in different cardinal directions in the Page. 13 application, in PW1's evidence and in PW2's evidence. For example, persons referred to as neighbours or adjoining landholders were not consistently placed on the same side of the land by the different witnesses. This Court must determine whether those discrepancies were immaterial variations or whether they affected the identity of the property claimed. I shall first dispose of the discrepancy concerning the years. The original applicant's claim suggested acquisition or occupation from about 1974, whereas evidence referred to the clearing of the bush in 1975. In my view, that discrepancy is not material. The process of acquiring and developing unregistered rural land may involve several stages. A person may begin occupation, take possession or claim land at one time and physically clear or cultivate it at another. The difference between 1974 and 1975, standing by itself, is therefore not sufficient to destroy the original applicant's case. The discrepancies concerning the boundaries stand on a different footing. The boundaries are not peripheral details. They relate directly to the identity of the subject matter of the suit. A declaration of ownership cannot meaningfully be made over an unidentified parcel of land. Likewise, an order requiring a party to vacate land must relate to land which can be identified with reasonable certainty. Page. 14 The evidence disclosed differences concerning the persons and features allegedly lying to the north, south, east and west of the disputed land. The trial Tribunal did not adequately reconcile those differences. Instead, the learned Chairman concentrated principally upon contradictions in the appellant's evidence and concluded that the original applicant had proved his case. With respect, that approach was incomplete. The Tribunal was required to ask itself: What precise parcel was claimed in the application? It was then required to consider: Did PW1 describe that same parcel? And Did PW2 support PW1's description of the same parcel? The judgment does not show a satisfactory analysis of those questions. The appellant also argues that the original applicant's evidence departed from his pleaded description of the suit land. The general principle is that parties are bound by their pleadings and that the evidence must be directed towards proving the case which has been pleaded. A party may not ordinarily obtain judgment on a materially different case from that which he presented in his pleadings. Of course, not every difference between a pleading and oral evidence is fatal. The law is concerned with materiality. Where the difference concerns the very identity of the land claimed, however, the matter becomes more serious. The problem in the present case is that the original applicant's own evidence and that of his supporting witness gave differing descriptions of the same sixteen Page. 15 and a half acres. The trial Tribunal was therefore required to explain why those differences did not affect the identification of the property. It did not do so. I agree with the trial Tribunal that the appellant's own evidence disclosed inconsistencies concerning her alleged acquisition and occupation of the land. However, that alone was insufficient to determine the case in favour of the original applicant. The original applicant carried the initial and substantive burden of proving his claim. The proposition that the appellant's case was contradictory could not automatically cure deficiencies in the original applicant's own evidence. A court must not reason as follows: “Because the defence is contradictory, the plaintiff must therefore have proved his claim.” The correct approach is: “Having considered the weaknesses, contradictions and strengths in both cases, has the claimant independently discharged the burden of proving his pleaded claim on a balance of probabilities?” The trial Tribunal's reasoning did not adequately subject the original applicant's evidence to the same scrutiny which it applied to the appellant's evidence. That was a significant omission. The difficulty concerning the identification of the land must also be considered together with the first ground. The evidence of PW1 was the principal Page. 16 evidence of the original applicant. PW1's testimony was received through Sino Safari. The original record does not show that Sino Safari was sworn or affirmed before interpreting. The Court has therefore found that the principal evidence upon which the original applicant relied was received through a procedurally defective process. The evidence of PW2, although supportive of the original applicant, did not cure the entire problem. PW2's own description of the boundaries also differed from that of the original applicant and from the description contained in the application. Thus, the case was affected by two cumulative difficulties: 1. the principal testimony of PW1 was received through an interpreter who, according to the original record, was not sworn or affirmed; and 2. the identity and boundaries of the precise parcel claimed were not consistently described and were not adequately reconciled by the trial Tribunal. In those circumstances, the finding that the original applicant had proved his case on a balance of probabilities cannot safely stand. I therefore uphold the fourth and sixth grounds of appeal. Page. 17 The appellant’s complains on the fifth ground is that, the trial Tribunal failed to visit the locus in quo. I agree with the respondent that a visit to the locus is not mandatory in every land case. The necessity of such a visit depends upon the particular circumstances of the case. Where documentary and oral evidence sufficiently identify the property, a visit may be unnecessary. A tribunal cannot be faulted merely because it does not conduct a physical inspection. However, where there is substantial uncertainty concerning the physical identity or boundaries of the property, a visit may become useful and, in appropriate circumstances, necessary to clarify the issues. In the present case, the conflicting boundary descriptions created a genuine difficulty concerning the precise identity of the suit land. A visit to the locus could potentially have assisted the Tribunal in understanding the location of the adjoining owners; the cattle paths and other physical features; the extent of the alleged sixteen and a half acres; and whether the different witnesses were actually referring to the same parcel. Nevertheless, neither party appears to have specifically requested the Tribunal to visit the locus. I therefore do not consider the failure to visit the locus, standing alone, to be an independent error sufficient to invalidate the proceedings. The fifth ground is accordingly dismissed as an independent ground. Page. 18 However, the failure to visit the locus remains relevant to the overall assessment because the Tribunal had material inconsistencies concerning the physical identity of the land before it and did not satisfactorily resolve them through the evidence on record. The record shows that the assessors advised that the original applicant's claim should be dismissed and that the appellant should succeed. The learned Chairman disagreed with them. It is settled that the Chairman of a District Land and Housing Tribunal is not bound to adopt the assessors' opinion merely because it has been given. The opinion is advisory. The judicial officer may disagree with it, provided that he gives reasons for doing so. I therefore find no error merely because the learned Chairman disagreed with the assessors. However, the reasons given for rejecting the assessors' opinion cannot be considered in isolation from the overall evidentiary record. The learned Chairman concentrated upon contradictions in the appellant's evidence. The Tribunal did not equally address the contradictions concerning the description of the land in the original applicant's case. The error therefore lies not in the fact that the learned Chairman disagreed with the assessors but in the insufficiency of the analysis supporting the final finding of ownership. Page. 19 The appellant has prayed that, upon allowing the appeal, this Court should declare her to be the lawful owner of the disputed land. I have carefully considered that prayer. I am unable to grant it. The setting aside of the original applicant's judgment does not automatically establish the appellant's ownership. The appellant also made a positive claim to ownership. Her evidence concerning acquisition and occupation was itself challenged and contained inconsistencies. This Court is therefore not dealing with a situation where the only possible result is either the original applicant succeeds; or the appellant must automatically be declared owner. The matter requires a procedurally regular and comprehensive determination of the competing claims. The Court must not substitute one unsafe judgment with another. Having found that the principal evidence of PW1 was received through an interpreter who, according to the original handwritten proceedings, was not sworn or affirmed; the respondent's contention that the original record contained the oath is unsupported by the original record itself; the identity and boundaries of the disputed land were materially inconsistently described; the trial Tribunal did not adequately reconcile those contradictions; the finding that the appellant's case was contradictory did not relieve the original applicant of his burden of independently proving his own case; and the resulting judgment cannot safely be sustained, the appropriate remedy is a retrial. Page. 20 Ordinarily, an appellate court should be slow to order a retrial because litigation must ultimately come to an end. However, where a material procedural irregularity and evidentiary deficiencies have undermined the reliability of the original proceedings, and where a final determination of the competing rights of the parties cannot safely be made from the existing record, a retrial becomes necessary in the interests of justice. This is one such case. The retrial shall be conducted de novo. It shall be conducted before a differently constituted District Land and Housing Tribunal so as to ensure a fresh and independent evaluation of the dispute. At the retrial: 1. all witnesses requiring interpretation shall be heard through an interpreter duly sworn or affirmed in accordance with the applicable law, and the fact of such oath or affirmation shall be properly recorded; 2. the exact identity, location, extent and boundaries of the disputed land shall be properly established; 3. the parties shall be required to clearly define the property claimed and the basis of their respective claims; 4. the Tribunal shall independently evaluate the evidence of each party; Page. 21 5. the Tribunal shall not determine the dispute merely by relying on weaknesses in one party's case without determining whether the opposing party has independently discharged the burden of proof; 6. where necessary and legally appropriate, the Tribunal may obtain admissible evidence capable of clarifying the physical identity and boundaries of the land; and 7. the matter shall be heard and determined as expeditiously as possible. I am conscious that the original dispute has been in litigation for a considerable period and has already travelled through several forums, including the Court of Appeal. The retrial must therefore be handled without unnecessary delay. For the reasons stated above, I make the following findings: 1. The first ground of appeal succeeds. The original handwritten proceedings confirm that Sino Safari, who interpreted the testimony of PW1, was identified by name, age and religion but was not recorded as having been sworn or affirmed before undertaking judicial interpretation. The respondent's assertion that the oath appears in the handwritten proceedings is not borne out by the original record. 2. The second ground of appeal fails. Although the proceedings do not expressly record compliance with Regulation 12 of the Land Disputes Courts Page. 22 (The District Land and Housing Tribunal) Regulations, the appellant was represented, fully participated in the proceedings and has not demonstrated any prejudice or miscarriage of justice arising from the omission. 3. The fourth and sixth grounds of appeal succeed. The original applicant did not establish his claim with sufficient certainty because material inconsistencies concerning the identity and boundaries of the suit land were not adequately reconciled by the trial Tribunal. 4. The fifth ground of appeal fails as an independent ground. A visit to the locus in quo is not mandatory in every land dispute. Nevertheless, the circumstances concerning the uncertainty of the boundaries reinforce the conclusion that the identity of the land was not satisfactorily resolved. Accordingly, I make the following orders: 1. The appeal is partly allowed. 2. The judgment and decree of the District Land and Housing Tribunal for Manyara Region at Babati in Application No. 22 of 2017, delivered on 28th June, 2020, are hereby quashed and set aside. 3. The matter is hereby remitted to the District Land and Housing Tribunal for Manyara Region at Babati for a retrial de novo before a differently constituted Tribunal. Page. 23 4. At the retrial, the Tribunal shall ensure that: i. the proceedings are conducted in accordance with the applicable procedural law; ii. all interpretation is undertaken by a duly sworn or affirmed interpreter; iii. the administration of the interpreter's oath or affirmation is clearly and specifically recorded; iv. the exact identity, boundaries and extent of the disputed land are properly established; v. the competing claims of ownership are independently and comprehensively determined upon the evidence; and vi. the matter is concluded expeditiously. In view of the history and circumstances of this matter, each party shall bear his or her own costs of this appeal. It is so ordered. Dated at ARUSHA this 2nd of September 2026 . Page. 24 F. H MAHIMBALI JUDGE OF THE HIGH COURT Page. 25