Ndibalema

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DODOMA SUB REGISTRY AT DODOMA LAND APPEAL NO. 15/2023 (Arising from the District Land and Housing Tribunal for Dodoma at Dodoma in Land Appeal No. 43 of 2021) PLACIDIUS NDIBALEMA................................................... APPELLANT VERSUS MACDONALD MUHEMBANO..............................................RESPONDENT JUDGMENT Date of Last Order: 04/7/2024 Date of Judgment: 09/8/2024 MASABO, J:- This is the second appeal. It originates from Makulu Ward Tribunal (trial tribunal), Dodoma District in Dodoma region where the appellant was successfully sued over trespass into the suit land allegedly owned by the respondent. He appealed to the District Land and Housing Tribunal for Dodoma (the appellate tribunal) on the following nine grounds of appeal. One, the trial tribunal ignored the fact that he lawfully owned the suit land which he purchased from Amon Muhembano in 2019. Two, the tribunal did not consider the principle of natural justice. Three, the quorum of members of the tribunal was not properly constituted, Four, the tribunal did not consider that he had a letter of offer of the suit plot obtained from Dodoma City Council. Five, the tribunal ignored the fact that he has obtained a building permit from Dodoma City Council and has built a house therein. Six, the tribunal did not properly evaluate the evidence. Seven, the tribunal Page 1 of 12 erroneously refused to admit the documents constituting proof of his ownership of the suit land. Eight, the value of the suit plot was four million shillings hence above the pecuniary limit of the ward tribunal. The appeal ended barren. The appellant is still aggrieved. He has appealed to this court. His appeal is based on seven grounds of appeal which I summarise as follows: One, the first appellate tribunal erred in law and fact to pronounce a decision without considering the facts that the land in dispute belongs to the appellant. Two, the first appellate tribunal failed to evaluate the evidence adduced. Three, the appellate tribunal erred in law and facts to pronounce a decision without considering the principle of natural justice. Four, the appellate tribunal did not consider the quorum of members while adjudicating the dispute; Five, the appellate tribunal ignored the fact that the trial tribunal rejected to admit the documents he intended to tender in proof of his ownership of the suit land. Six, the appellate tribunal erred in law and fact in not considering the evidence adduced by the appellant and by only considering the evidence adduced by the respondent which was weak and contradictory. Last, the appellate tribunal erred in law and fact by pronouncing decision which was tainted with procedural irregularities. Hearing of this appeal proceeded in writing. The appellant was represented by Ms. Jane Nkya, learned counsel whereas the respondent had no representation. He fended for himself. Both parties filed their submissions as per the schedule. Page 2 of 12 Opening her submission, Ms. Nkya submitted that, the appellate tribunal being the first appellate authority, abdicated its duty. It did not properly analyse the trial court proceedings. Hence, did not take judicial notice of the illegalities contrary to the rule in Alibariki Malley vs Salimu H. Karata (Civil Appeal No. 67/2022 [2023] TZCA 226 TanzLII. Had it analysed the evidence on record, it would have observed that the trial tribunal's proceedings were marred by glaring irregularities that vitiated the trial tribunal proceeding. The irregularities include the refusal by the trial tribunal to admit the appellant's documentary evidence and failure to afford him the right to cross examine the respondent and his witnesses. She then proceeded to submit in support of the first ground that, the decision of the trial and appellate tribunal are all erroneous as they ignored the fact that the appellant proved that the land belonged to him. He bought it from the respondent's father one Amon Muhembano and he has all along been living in the suit land and developing it without any disturbance. On the second ground, it was argued that both the trial tribunal and the first appellate tribunal failed to evaluate the evidence adduced hence offended the principle in Abubakari I.H Kilongo and Another vs. R, Criminal Appeal No. 30 of 2021 [2022] TZCA TanzLII, Leornard Mwanashoka vs. Republic Criminal Appeal No. 226 of 2014 [2014] TZCA 294 TanzLII and Jeremiah Shemweta vs. Republic [1985] TLR 228. On the third ground of appeal, she submitted that the appellant's right to be heard was infringed as he was not afforded the right to cross examine the Page 3 of 12 witnesses. She cited the provision of section 146 of the Evidence Act Cap. 6 R.E 2019 and the cases of EX-D 8656 CPL Senga Idd Nyembo and Others vs. Republic Criminal Appeal No. 16 of 2018 [2020] TZCA 381 TanzLII and Kabulofwa Mwakalile and 11 Others vs. Republic [1980] TLR 144 to support her argument that the parties have the right to cross examine and the failure thereto, breaches the rule of natural justice. Regarding the fourth ground, it was submitted that the quorum of the trial tribunal was not properly constituted. The names, signatures and gender of the members of the trial tribunal were not indicated. Also, the ward tribunal visited the locus in quo but the record is silent on the members who visited the locus in quo. It was also the appellants submission of the appellant that the procedures to be followed during visit to the locus in quo as stated in the case of Nizar M.H vs Gulamali Fazal Mohamed [1980] TLR were not adhered as the names, sex and signature of the members of the trial tribunal who visited the locus in quo are not shown. Even the names of the parties and the witnesses who attended are not listed. Also, the proceedings recorded at the locus in quo was not read. In support of her argument, the counsel cited the case William Stephen vs. Ms. Leah Julius (Administratix of the estate of the late Neeva Saboro Civil Appeal No. 65 of 2013, Anne Kisunga vs. Said Mohamed, Misc. Land Appeal No. 59 of 2009, Mariam Madali vs. Hadija Kihemba, Misc. Land Case No. 16 of 2019, and Kassimu Ngoroka vs. Bernard Masembula Misc. Land Appeal No. 3 of 2016. Page 4 of 12 On the fifth and sixth grounds of appeal, Ms. Nkya submitted that, the appellant's complaint is that the evidence adduced by the respondent was weak and contradictory. There is no proper record of case proceedings. The appellant proved the case on the balance of probabilities that the suit land belongs to him. He developed it and got the certificate of title which was not admitted before the trial tribunal. Regarding the seventh ground, she submitted that the chairman of the appellate tribunal sat with one assessor and did not assign reasons for departing to the opinion of the assessor which is contrary from the provision of section 23 (2) and 24 of the Land Disputes Courts Act and Regulation 19(2) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations. He added that noncompliance with the provisions above vitiated the proceedings and judgment of the appellate tribunal as stated in the case of Zubeda Hussein Kayagali vs. Oliva Gaston Luvakule and Tanu James Gwoma, Civil Appeal No. 312 of 2017. The appellant also challenged the judgment of the trial court because it lacked the contents which it ought to have particularly the critical analysis of both evidences adduced by both parties. Moreover, Ms. Nkya submitted that the appellate tribunal wrongly raised the issue of objection proceedings and non-joinder of parties and determined the same without affording the parties an opportunity to address the tribunal thus violating their rights to a fair hearing provided under Article 13(6) (a) of the Constitution of the United Republic of Tanzania of 1977 and the case Page 5 of 12 of Mbeya-Rukwa Auto Parts and Transport Ltd vs. Jestina George Mwakyoma [2003] T.L.R 251. She concluded by arguing that the omission constitutes an illegality and the consequences thereto is nullification of the judgment as held in the case Ex-B8356 S/SGT S.Nyanda vs. The Inspector General of Police and Attorney General (supra). She further submitted that there is an error on the face of the record. It is apparent in the title of the judgment of the appellate tribunal. It termed the appeal as Application No. 43/2021 instead of Appeal case No. 4/2021. Conclusively, she prayed that that the appeal be allowed with costs. In reply, the respondent replied on each ground of appeal. Starting with the first ground of appeal he submitted that he discharged his burden of proof by proving how he acquired the suit land. His proof was in line with the rule in section 110(1) of the Evidence Act, Cap 6 R.E 2019 and the case of Hemedi Said vs. Mohamed Mbilu [1984] TLR 113. If the appellant wanted the first appellate tribunal to reverse the decision of the trial tribunal he was supposed to convince it on how the trial tribunal erred in rendering a decision in favour of the respondent but he did not. On the second ground of appeal, it was briefly argued that the appellant's submission on the second ground is based on what transpired before the trial tribunal and not first appellate tribunal hence irrelevant. On the third ground, it was submitted that the principle of natural justice was adhered. Both parties were represented by learned counsels and the appeal was disposed of by way of written submissions. Thus they were accorded right Page 6 of 12 to fair hearing. The respondent has failed to address this court how the first appellate tribunal did not observe the principle of natural justice. Replying on the complaint raised in the fourth ground as regards the quorum of the appellate tribunal, it was submitted that it is the requirement of the law that the District Land and Housing Tribunal be comprised of a Chairman and two assessors. However there is an exception to this as provided by section 23(3) of the Land Disputes Courts Act, Cap. 216 that in case one or both members of the tribunal who were present at the commencement of the proceeding are or is not present the chairman and remaining member may continue and conclude the proceedings. This is what happened happened before the appellate tribunal. One member could not proceed to the conclusion of the matter. Thus the chairman proceeded with the remembering member. On the issue that the chairman departed from the opinion the remaining assessor. It was argued that the reasons for departure from the opinion of the remaining assessor was stated by the chairman. With regard to the fifth and sixth ground of appeal, it was submitted that the first appellate tribunal arrived at its decision based on the submissions brought by the parties' counsels before it and the evidence adduced by the parties before the trial court. Submitting on the last ground of appeal, the respondent argued that there were no irregularities. He argued that, sitting with one assessor does not invalidate the decision of the first appellate tribunal. He added that the opinion of the remaining assessor was included Page 7 of 12 and the signature was appended as provided for under Regulation 19(2) of the Land Dispute Courts (the District Land and Housing Tribunal) Regulations 2003. He proceeded to submit that the chairman did not discuss new facts in the judgment. What he did was resolving the grounds raised by the appellant before the appellate tribunal and as elucidated in their written submissions. On the error on the face of record, Ms. Nkya submitted that, the appellant was duty bound to lead the first appellate court to correct the title since he was the one who lodged the appeal. His complaint is therefore without merit. In conclusion, he prayed that the appeal be dismissed with costs and the decision of the trial and first appellate tribunal be upheld. In rejoinder, by and large the appellant reiterated his submission in chief. I have keenly considered the grounds of appeal, the records and submissions of both parties. I shall now proceed to determine the appeal while mindful that this is a second appeal and that the two tribunals have concurrent finding as to the owner of the suit land. It is a settled principle of the law that in such cases, the second appellate courts should be reluctant to interfere with the concurrent findings of the two courts below except in cases where it is obvious that such findings was based on misdirection or misapprehension of evidence or violation of some principles of law or procedure hence occasioning a miscarriage of justice (see Helmina Nyoni vs. Yeremia Magoti, Civil Appeal No. 61 of 2020, [2022] TZCA 170 (Tanzlii); Amratlal Damodar Maltaser and Another t/a Zanzibar Silk Page 8 of 12 Stores vs. A.H Jariwala t/a Zanzibar Hotel [1980] TLR 31, Neli Manase Foya vs. Damian Mlinga [2005] TLR 167, Salum Mhando v R [1993] TLR 170 and Wankuru Mwita v the Republic, Criminal Appeal no 219 of 2012 (unreported). In Wankuru Mwita the Court of Appeal held that; following to say: "The law is well settled that on a second appeal, the court will not readily disturb the concurrent findings of the facts by the trial court and the first appellate court unless it can be shown that they are perverse, demonstrably wrong or clearly unreasonable or are a result of a complete misapprehension of the substance, nature or non­ direction on the evidence; a violation of some principle of law or procedure or have occasioned a miscarriage of justice." In view of these authorities, I have to consider whether the concurrent findings of the lower courts were wrongly arrived at as a result of misdirection or misapprehension of evidence and whether there is a violation of some principles of law or procedure occasioning a miscarriage of justice. Starting with the alleged violation of legal principles, in the 3rd and 4th grounds the appellant has lamented that there was an abrogation of the principle of natural justices as he was denied the right to be heard. In support of this lamentation, the appellant has, through his learned counsel, submitted that he was not afforded an opportunity to cross-examine the respondent. Page 9 of 12 While scanning through the trial tribunal's record, I have observed that it is silent on whether the parties were afforded the right to cross examine and whether they waived it. All that we have from each particular witness is his/her narration. This was materially wrong. As held by the Court of Appeal in the case of Ex-D. 8656 CPL Senga S/O Idd Nyembo and 7 Others v. R, Criminal Appeal No. 16 of 2018 [2020] TZCA 381 TanzLII "..... the trial court record of proceedings must indicate clearly that a party was given the opportunity and show whether he utilized it or otherwise." Since the record is silent on whether the parties were afforded the right but waived it, I am inclined to agree with the appellant that the parties were not afforded the right to cross examine. The appellant has passionately argued that the omission was an abrogation of the principle of natural justice as regards the right to be heard. I entirely concur with him. It is a settled law that, in any trial, be it civil or criminal, cross-examination of an adverse witness is of utmost importance. It is an essential tool for the elucidation of the truth and value of the testimony. Hence, a key ingredient of the right to be heard and to a fair trial. Propounding this principle in Kabulofwa Mwakalile & 11 others v. Republic (1980) TLR 144, this court (Samatta, J. as he then was) stated that: "A party to a court proceedings has the right to cross examine any witness of the opposite party regardless of whether the witness has given his testimony under oath (or affirmation as the case may be) or not this right is a fundamental one to any judicial inquiry and the denial of it will usually result in the decision in the case being overturned...... According to the law of this country, the testimony of a witness cannot be taken as legal evidence unless it is subject to cross Page 10 of 12 examination and the testimony affecting a party cannot be the basis of a judicial pronouncement unless the party has been afforded the opportunity of testing its true prayerfulness or accuracy by way of cross examination." The Court of Appeal when faced with a similar question in Ex-D. 8656 CPL Senga S/O Idd Nyembo and 7 Others v. R (supra) endorsed the above principle and instructively stated thus: "We must emphasize that a party to court proceedings has the right to cross-examine any witness of the opposite party regardless of whether the witness has given his testimony under oath or affirmation (as the case may be) or not. This right is a fundamental one to any Judicial proceedings and thus the denial of it will usually result in the decision in the case being overturned. Unless a party has waived his right to cross-examine the witness, the testimony of a witness cannot be taken as legal evidence unless it is subject to cross examination. Consequently, the testimony affecting a Party cannot be the basis of decision of the court unless the party has been afforded the opportunity of testing the truthfulness by way of cross examination. Having observed so, the Court nullified and quashed the proceedings of the first appellate court for having emanated from nullity proceedings of the trial court which were conducted without affording the appellant the right to be heard. The Court took a similar position in Shehe Ramdhani @ Idd vs Republic (Criminal Appeal No. 82 of 2020) [2020] TZCA 1784 TanzLII and in Charles Kidaha & Others vs Republic (Criminal Appeal 395 of 2018) [2021] TZCA 526 TanzLII. Page 11 of 12 On the strength of these authorities from which I am properly guided, I have found merit in Ms. Nkya's submission that, the trial tribunal's proceedings was marred by a fatal and an incurable irregularity. The third ground of appeal is therefore with merit. Having found merit on this ground which sufficiently disposes of the appeal, I see no need to proceed to the remaining grounds. Accordingly and based on this sole ground, I invoke the powers vested in this court by section 43(l)(b) of the Land Dispute Court Act, Cap 216 R.E 2019 to revise, nullify and quash the proceedings, judgment and decree of the appellate tribunal. Ordinary, this would be a fit case for rehearing. However, since the ward tribunal no longer have adjudication powers, I let it to the parties to re-institute the matter in the proper forum if they so wish. In the interest of justice, the parties shall bear their respective costs. DATED and DELIVERED at DODOMA this 9th day of August 2024. J. L. MASABO JUDGE Page 12 of 12