Rajabu Mwimo Mgwira

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DODOMA SUB REGISTRY AT DODOMA MISCELENEOUS LAND APPEAL NO. 26968 OF 2023 (C/F Land Case Application No. 29 of 2022 before the District Land and Housing Tribunal for Singida) RAJABU MWIMO MGWIRA …………………..………….1ST APPELLANT IDD MWIMO MGWIRA……………………………………2ND APPELLANT VERSUS AMOSI DULLE IGWE…………………………………….1ST RESPONDENT RAMADHANI OMARY IGWE…………………………..2ND RESPONDENT JUDGMENT Last order 15/7/2024 Judgment: 16/8/2024 MASABO, J.:- The respondents herein were the applicants in Application No. 29 of 2022 before the District Land and Housing Tribunal for Singida at Singida (the trial tribunal). They were suing in their capacity as joint administrators of the estate of the late Igwe Mpuku Imbele. Their gravamen was that the appellants had trespassed in the suit land estimated to be 10 acres which is part and parcel of the 125 acres of land property of the late Igwe Mpuku Imbele. The trial tribunal found them to have proved their suit and it allowed it. Aggrieved, the appellants have come to this court armed with three grounds of appeal which I summarized as follows: one, the trial chairman erred in law and fact in not analyzing the evidence tendered before him. Page 1 of 12 Two, the trial chairman erred in law and fact by deciding in the respondents’ favor while the respondents had no cause of action against the appellants. Three, the decision of the trial court is marred by procedural irregularities. When the parties appeared before me for viva voce hearing, the appellants were represented by Mr. Gyunda, learned counsel whereas the respondent was represented by Mr. David Rutayuga, Learned counsel. Opening his submission Mr. Gyunda gave the background of the matter of the appeal and proceeded to submit in support of the grounds of appeal. Submitting on the first ground of appeal he argued that the trial chairman did not properly evaluate the evidence adduced. Had he properly evaluated it, he would have arrived at a different decision as the boundaries of the suit land shows that it is proximate to the appellant’s land and not the respondent’s land. Also, in their written statement of defence the appellants asserted that they own a 7 acre land which they bought from the village. Their testimony was corroborated by PW4 who was the respondents’ witness. Thus, by deciding that the 7 acres belonged to the respondent, the trial tribunal erred as at no point in the proceedings did the respondents allege to have 7 acres. The holding was materially wrong and contrary to the principle that he who alleges must prove. Citing the case of Paulina Samson Ndawavya vs Theresia Madaha, Civil Appeal No. 45 of 2017[2019] TZCA 458 TanzLII, the counsel submitted that the decision be reversed in their favour evidence was heavier. He invited the court to step into the shoes trial court, reevaluate the evidence and draw its conclusion as Page 2 of 12 held in Alen Rutatekururwa Rugazia vs Perfects Ruteganya (Civil Appeal No. 530 of 2022) [2024] TZCA 530 TanzLII. On the second ground of appeal, it was submitted that the respondents had no cause of action against the appellants because the respondents were allocated the suit land by the village council in 2021 whereas the appellant started to occupy it in 2016 and 2019, respectively. The 2nd appellant had built a house therein. This suggests that when the respondents were allocated the suit land, the appellants were already occupying it. Also, apart from alleging that the appellants are trespassers did not state when the appellants trespassed into the suit land. As per this evidence, it shows that when the respondents were allocated the suit land, the appellants were already in occupation. Thus, the suit land is not part of the 125 acres. He concluded that these facts demonstrate clearly that the land belonged to the appellants, not the respondents. On the last ground, it was submitted that there are multiple irregularities in the proceedings as outlined below. First, the trial tribunal did not abide by the provision of Regulation 12(1)1 and (2) of the Land District Courts (the District Land and Housing Tribunal) Regulations of 2003 which demands that the substance of the complaint be read to the defendant before he is required to plead thereto. As per the proceedings of 19/10/2022, this was not done as the issues were framed before the contents of the complaint were read over to the appellants. This rendered the decision unfair. Second, the trial tribunal was not properly composed. For the DLHT to be composed, it must have a chairman and not less than two assessors as per Page 3 of 12 section 23(1) and (2) of the Land Dispute Courts Act, Cap 216 R.2019. This provision requires that the assessors should hear the case from beginning to end and they should give their opinion. This mandatory provision was offended. At the commencement of the hearing, the chairman was D. Colex. When PW3 and PW4 testified before the tribunal on 19/1/2023, the only assessor present was Ms. Kilongo. On 8/2/2023, the matter came for defence hearing whereby DW1 gave his evidence. The assessor on that day was Mr. Kindulu who only attended that day and cross examined DW1. On 20/3/2023, Mr. Kyaruzi resumed. The matter was on that date coming for the continuation of the defense case whereby DW2 testified. The said Kyaruzi continued to attend until the date of the opinion of the assessors whereby he gave his opinion but Mr. Kindulu did not. This was materially wrong. It occasioned an injustice to the appellants as it goes to the root of the matter and abrogated the right to a fair trial as stated in Emmanuel Christopher Lukumay vs Juma Omari Mrisho, (Civil Appeal No. 21 of 2013) [2017] TZCA 404, TanzLII Third, contrary to the law, the chairman cross-examined the defence witnesses. The questions he posed were not for clarification hence not permissible under the law. In questioning the defence witnesses he constituted himself as the prosecution’s advocate and ceased to be impartial. In conclusion, the counsel prayed that the appeal be allowed with costs. In reply, Mr. Rutayuga submitted that the appeal is misconceived. The judgment is well founded and arrived at after weighing the evidence of both parties. Hence it cannot be faulted. The appellants had their time in court Page 4 of 12 but they underutilized it by failing to show how they acquired the suit land. The exhibits they tendered were contradicted in cross examination and doubts were cast on whether they were lawful owners of the suit land as alleged. They had no exchequer receipt of the sale transaction and they never brought any witness to show that they bought the same. Even the village leaders who allegedly allocated them the suit land did not come to testify. Thus, there was no sufficient proof in their favour. All the evidence on record established that the suit land is 10 acres and part of the 125 acres of land. Hence the holding in the respondents’ favour. He submitted further that the law is clear that, the standard of proof in civil cases is on the balance of probabilities. The decision would definitely be in favour of the party whose evidence is heavier, in this case, the respondent as the appellants’ evidence was weak and contradictory. At first, they said that they had rented the suit land but later on they changed and asserted that they bought it from the village. Replying on the second ground, Mr. Ruteyuga submitted that in land matters, a trespasser is the one with the responsibility to prove how he got into the land. Thus, in this case, the appellants had to demonstrate how they got into the land but they did not. Hence, they are mere trespassers with no rights. Concerning the procedural irregularities alleged in the third ground of appeal, Mr. Ruteyuga admitted that the law requires that the substance of the complaint be read over to the respondents before framing issues. However, he quickly retorted that noncompliance with the respective provision is inconsequential considering that the appellants drew and filed their written Page 5 of 12 statement of defence which shows that they read and they were conversant with the dispute. Else, they would not have drawn the written statement of defence. The anomaly if any is technical and curable under the oxygen principle. Concerning the attendance of the assessors, it was argued that, the proceedings shows that the assessors were Ms. FA Kilongo and Mr. N.K. Kyaruzi. He concluded by inviting the court to be guided by the handwritten proceedings. Lastly, on the complaints as to bias, it was argued that the chairman offended no provision as all the questions asked by him were for clarification hence legally permissible. He added that for the court to do justice, it must have a clear picture of the dispute before it and this is the essence of seeking clarification. He invited the court to be further guided by the oxygen principles. By way of rejoinder, it was submitted that the appellants ably proved their case. They testified that they bought the land from the village and they produced the sale agreements which were admitted as Exhibit D1 and D2. Further, the counsel reiterated his submission in chief in respect to all the grounds of appeal. I have considered the submission by the parties and thoroughly read and considered the trial tribunal's record alongside the grounds of appeal. The ultimate issue to be answered is whether the appeal has merit and should be allowed. This being a first appeal, I am enjoined to reappraise and reevaluate the evidence on record and come up with a finding on whether Page 6 of 12 the respondent proved his ownership of the suit land (see Paulina Samson Ndawavya (supra), Jamal Tamim vs. Felix Mkosamali and the Attorney General Civil Appeal NO. 110 of 2012[2013] TZCA 342 Martha Wejja vs. Attorney General and Another [1982] TLR 35 Dotto Ikongo vs Republic Criminal Appeal No. 99 of 2001[2005] TZCA 70 TanzLII and Registered Trustees of Joy in The Harvest vs Hamza K. Sungura Civil Appeal 149 of 2017) [2021] TZCA 139 TanzLII. Before going into the evidence, I prefer to start with the second ground of appeal which deals with illegalities. The appellant’s gravamen in this ground of appeal is there are multiple illegalities apparent on the record of the trial tribunal that vitiate the proceedings and the judgment thereto. The first illegality in his view, is that the trial tribunal contravened Regulation 12 (1) and (2) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2002 GN No. 174 of 2003. For easy of reference, this Regulation provide as follows:- "12 (1) The Chairman shall at the commencement of the hearing, read and explain the contents of the application to the Respondent. (2) The Respondent shall, after understanding the details of the application under sub-regulation (1) be required either to admit the claim or part of the claim or deny." Indeed, as correctly submitted and argued by the learned counsel, this provision requires that the chairman should, prior to the commencement of the hearing, read and explain the contents of the application to the Page 7 of 12 respondent. The essence of this provision is not hard to find. It is intended to remind the parties of the dispute before the tribunal and to build a common understanding between them as to the nature of the dispute between them and the disputed vis-a-vis undisputed facts. The provision is a case management tool and its omission should, in my considered opinion, be determined based on the circumstances of each particular case. In a case where the parties were represented by advocates the omission, should in my considered view, be considered curable and in other cases, the overriding consideration should be on whether the agrieved party was anyhow prejudiced. In my view of the record, I am of the firm view that the appellants were not anyhow prejudiced. Although they were unrepresented, their joint written statement of statement of defence filed on 29th September 2022 is too detailed such that, it could not have been drafted by a person who did not have a deeper understanding and appreciation of the facts as pleaded in the application. Also, it is patently demonstrated in the proceedings that they actively participated throughout the trial by cross- examining the respondent’s witnesses and leading their respective defence/testimonies. Thus, the appellant cannot pretend to have been oblivious of the facts and the disputed vis-a- a vis undisputed fact. Moreover, the appellants have not demonstrated how they were prejudiced by the omission. All they have rendered is a blanket lamentation. In the foregoing, I find the complaint to be a mere afterthought that should not be taken to have vitiated the trial tribunal’s proceedings and judgment and rendered them a nullity as that would serve no purpose other than Page 8 of 12 impending substantive justice which this court is enjoined to protect under section 45 of the Land Dispute Courts Act which states thus: 45. No decision or order of a Ward Tribunal or District Land and Housing Tribunal shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the proceedings before or during the hearing or in such decision or order or on account of the improper admission or rejection of any evidence unless such error, omission or irregularity or improper admission or rejection of evidence has in fact occasioned a failure of justice. Needless to emphasize, for the irregularity to justify a reversal of the decision, it is not sufficient for the aggrieved party to lament that it exists. The party lamenting should do a lot more by demonstrating how he has been prejudiced by such irregularity/omission. Accordingly, since the appellant herein has not demonstrated how they were prejudiced, I accord it no weight and dismiss it. The second irregularity pointed out was on cross-examination by the chairman. It has been submitted that, contrary to the law and practice, the chairman cross-examined the appellant’s witnesses. Section 146 (2) of the Evidence Act, Cap 6 R.E 2022 deals with cross-examination of witnesses and confines the right to cross-examination of witnesses on the adverse party. Thus, as correctly argued for the appellant, cross-examination is the exclusive right of an adverse party and not the trial chairman or an assessor. Page 9 of 12 What constitutes cross-examination is set out under section 155 of the Evidence Act. It provides as follows:- "When a witness is cross-examined he may in addition to the question herein before referred to, be asked only questions which tends (a) to test his veracity (b) to discover who he is and what is his position in life, or (c) to shake his credibility, by injuring his character....” The chairman being part of the tribunal is not supposed to cross-examine as he is supposed to be impartial and not be seen as biased in favour of a certain party in the case. A cross examination by the chairman, magistrate or judge attracts apprehension of favoritism and bias hence inconsistent with the principles of fair trial. In Kulwa Makomelo and 2 Others vs The Republic (Criminal Appeal No. 15 of 2014) [2015] TZCA 559 Tanzlii the Court of Appeal was invited to determine the appropriateness of a cross examination conducted by a court assessors. It emphatically stated that the assessors should not cross-examine as it is not their duty to contradict the witnesses. Being part of the court, they should maintain impartiality and always be seen as impartial, else they would abrogate the right to a fair trial. It states:- “One of the constituents of a fair trial is trial by an impartial tribunal. An impartial tribunal is one that observes the rules of natural justice in its proceedings. One of the rules of natural Page 10 of 12 justice is the rule against bias, be it actual, imputed or apparent. There is actual bias when there is real evidence of bias by one or all members of a tribunal in favour of or against a party in the proceedings. Imputed bias exists where a member of the tribunal has vested interests in the outcome of the proceedings before the tribunal. Apparent bias exists where, by conduct, the tribunal or member or members of a tribunal show openly to be in favour of or against a party in the proceedings before them. In the present case, assessors are part of the court; and the court is supposed to be impartial. Since under section 146 (2) of the Evidence Act, cross-examination is the exclusive domain of an adverse party, by allowing assessors to cross-examine witnesses, the court allowed itself to be identified with the interests of the adverse party, and therefore ceased to be impartial. By being partial the court breached the principles of fair trial now entrenched in the Constitution. With respect, this breach is incurable under section 388 of the Criminal Procedure Act.” Just as the assessors, the chairman, magistrate or judge has no right to cross-examine. If he/she asks a question to any witness, he/she must confine such question to a clarification question not otherwise. In the present case, the answers to the questions complained appear on page 26 of the Page 11 of 12 proceedings. They were asked not by the assessors but the chairman. The questions were posed to DW2 and from the answers, they were meant to contradict him on his previous statements on how he acquired the suit land. This was lucidly wrong. By asking DW2 the two questions whose answers appear in the said page, the chairman allowed himself to be identified with the interest of the adverse party, and therefore ceased to be impartial and offended the 2nd respondent’s right to a fair hearing. As per the authority above, this irregularity is fatal and incurable. It vitiated the trial tribunal’s proceedings, judgment, and decree and rendered them a nullity. In the foregoing, I find merit in the third ground and I allow it. As this irregularity suffices to dispose of the appeal, I will not proceed to the third irregularity and the remaining ground of appeal. In consequence, I hereby invoke revisional powers under section 43(1) (b) of the Land Disputes Courts Act, Cap. 216 R.E 2019 to revise, nullify and quash the proceedings, judgment and decree of the trial tribunal. I, subsequently, order a retrial before a different Chairman and a different set of assessors. Costs to be shared by each of the parties bearing its respective costs. DATED and DELIVERED at Dodoma this 16th day of August 2024 J. L. MASABO JUDGE Page 12 of 12