RAMADHANI MGHENYI

IN THE HIGH COURT OF TANZANIA DODOMA SUB-REGISTRY AT DODOMA LAND APPEAL NO. 9486 OF 2024 (Arising from the Land Application No. 05 of 2023 before the District Land and Housing Tribunal for Singida) RAMADHANI IDDI MGHENYI (as administrator of the estate of the late Iddi Mghenyi Allute)…...….. APPELLANT VERSUS EMMANUEL URUMBA ………………..………….………RESPONDENT JUDGMENT Date of last order: 02/09/2024 Date of Judgment: 12/09/2024 LONGOPA, J.: This is an appeal arising from the decision of District Land and Housing Tribunal for Singida at Singida in Land Application No. 5 of 2023. On 18th March 2024, the Tribunal entered judgment and decree in favour of the respondent herein against the appellant that he failed to prove his case. The appellant was aggrieved by the whole of the decision hence on 30th April 2024 he appealed against the whole decision on the following grounds: 1|Page 1. That, the Honourable Chairman of the District Land and Housing Tribunal erroneously erred in law and fact for failure of the Chairman to append signature after the evidence of each witness. 2. That, the Honourable Chairman of the District Land and Housing Tribunal erroneously erred in law and fact for failure of the Chairman to put into proceedings the assessor’s opinion. 3. That, the Honourable Chairman of the District Land and Housing Tribunal erroneously erred in law and fact for procedural irregularities. 4. That, the Honourable Chairman of the District Land and Housing Tribunal erroneously erred in law and fact for hearing and determine case without certificate for mediation from Ward tribunal. 5. That, the Honourable Chairman of the District Land and Housing Tribunal erroneously erred in law and fact because the judgment is temped with illegality for dismissing the case and failure to determine the right of the parties. 6. That, the Honourable Chairman of the District Land and Housing Tribunal erroneously erred in law and fact 2|Page for not considering that the respondent has no locus stand. On 2nd September 2024 parties appeared before me for hearing of the appeal. The appellant enjoyed the legal services of Ms. Isabela Mwalulefu, learned advocate while the respondent enjoyed the legal services of Mr. Denis Odhiambo, learned advocate. The appellant advocate submitted that, appellant was dissatisfied by the decision of District Land and Housing Tribunal for Singida thus this appeal against the whole of the decision on six grounds of appeal. The first ground was on failure to sign the testimonies of each witness. It was submitted that, on 12/08/2023 the proceedings were not signed whereas the PW1 testified and the same was not signed. All the three witnesses’ testimony was not authenticated by signing. The Tribunal Chairman was not signing including 25/01/2023, 10/11/2023, 8/12/2023. This contravened the law as there was no authentication that the witnesses’ testimonies were recorded on that material date. The second ground was on the opinion of assessors and procedural irregularities as the third ground, it was submitted that, no issues were framed to guide the parties and the Tribunal. The issues were only stated in the Judgment. This was contrary to the law as the parties were unaware of the issues. The case of Bank of Africa (T) Ltd vs Malima Magembe Chiwanyi Civil Appeal No. 43/2021, at p. 5 the 3|Page High Court addressed the effect of failure to frame issues was to retrial of the matter. In respect of the opinion of assessors, it was lucid that opinion in the proceedings were different from that in the judgment as in the later he has not stated what was the opinion of the assessor. On 4th ground, regarding determination of the matter before the parties’ proof of mediation certificate from Ward Tribunal, appellant advocate submitted that there was no tendering of the Ward Tribunal certificate of mediation. The respondent complained that he has not been called to the mediation. On 5th ground, relates to failure of the Tribunal to determine the rightful owner of the Plot of land in dispute. Page 4 indicated that the application was dismissed with costs but none was declared to be the owner of land in question. On 6th ground, it was submitted that the Tribunal failed to note that respondent lacked locus standi. The respondent stated that the land belonged to his father. The case of Omary Yusufu Administrator of Estate of Yusuph Haji vs Albert Munuo, Civil Appeal No. 12 of 2018, the Court expunged the whole of the proceedings in the District Land and Housing Tribunal and Ward Tribunal as the parties were not competent to handle the matter. The Tribunal had an obligation to direct 4|Page and guide the parties as they were unrepresented especially the applicant. They prayed that this appeal be allowed and dismiss the whole decision of the District Land and Housing Tribunal and any other appropriate remedy that this Court considers necessary fit and appropriate to grant. On reply, respondent council submitted that, on 1st ground, there was no law that require the Trial Tribunal to sign after recording of testimony of every witness. The Chairperson signed at the end of the proceedings of that date. On 2nd and 3rd grounds, the pleadings were on declaration that the applicant was the owner. All the evidence was on who is the owner of the land in dispute. All the witnesses were stating about the nature of ownership and the boundaries. The Bank of Africa Tanzania Ltd case is distinguished as the parties were not afforded opportunity to submit on the framed issues. The failure to raise issues is not fatal as the parties knew what they were contesting. For that reason, the same was shown on the judgment. On the opinion of the assessors, the opinion was read before the parties. The Chairperson disregarded departed from the opinion of the assessor. 5|Page On 4th ground relating to the certificate of mediation from the Ward Tribunal, that it was not appearing. The ground has no merits as there was no such requirement. On illegalities, the appellant was fully heard as the appellant and witnesses of both sides were heard and present in Court. Pages 7-12 of the proceedings indicate that appellant’s witnesses were heard. At page 5, the appellant was given opportunity to amend the pleading. On 6th ground regarding locus standi, the respondent was sued because he was found in the disputed land. The respondent had no dispute with anyone except the appellant was the one who was required to have locus standi to institute the case. The cited case of Omary Yusufu had no relevance to this appeal at all. The locus standi issue is on the party who institute a case. The Tribunal was correct to decide. They prayed that the appeal be dismissed with costs for lack of merits and that the decision of District Land and Housing Tribunal be uphold. In rejoinder, the appellant counsel reiterated that, on first ground, it appears that on the appellant’s witnesses there was no signature at all. But for all the defence witnesses the same was signed after completion of evidence of each witness. The hearing on 12/08/2023 was a nullity. On 2nd and 3rd grounds, issues were not framed and it was contrary to the law. It was mandatory requirement and it was not done. 6|Page It was raised suo moto in the judgment. The opinion was different from that on record. The judgment did not declare the rightful owner of disputed plot. This was not right. They reiterated that this appeal should be allowed. Having heard all the parties on this matter, it is pertinent to analyse the available record to find out whether this appeal is meritorious. In determining this appeal, it is pertinent to evaluate the grounds relating to procedural irregularities first. These are the 1st, 2nd, 3rd and 4th grounds as procedural irregularities. Regarding the issue of appending signature, it is important to revisit the procedure for tendering evidence in the Land and Housing Tribunal. The procedure is governed by the Land Disputes Courts Act, Cap 216 R.E. 2019 and the Land Disputes Courts (District Land and Housing Tribunal) Regulations, GN No 174 of 27th June 2003. In particular, Regulation 14 of the Land Disputes Courts (District Land and Housing Tribunal) Regulations, 2003 provides that a party to the application or his advocate may be required to produce evidence orally or through written submission before the Tribunal. However, the provision does not state the manner of recording evidence. 7|Page The guidance in those circumstances on manner of recording the evidence can be found in Section 51(2) of the Land Disputes Courts Act, Cap 216 R.E. 2019. It provides that: (2) The District Land and Housing Tribunals shall apply the Regulations made under section 56 and where there is inadequacy in those Regulations it shall apply the Civil Procedure Code. Given the inadequacy of the law and its regulations on manner of recording evidence, then explicit provisions of the Civil Procedure Code, Cap 33 R.E. 2019 apply to address the inadequacies. It is true that Order XVIII Rule 5 of the Civil Procedure Code, Cap 33 R.E. 2019 provides the way evidence of the witnesses must be recorded. The provisions state that: 5. The evidence of each witness shall be taken down in writing, in the language of the court, by or in the presence and under the personal direction and superintendence of the judge or magistrate, not ordinarily in the form of question and answer, but in that of a narrative and the judge or magistrate shall sign the same. 8|Page This provision its concerns the hearing of the suit and examination of witnesses and it requires that trial court must ensure that evidence of each witness is taken down in writing and the trial judge or magistrate appends his signature thereto. The words used in the provisions are "shall be taken down in writing" and "shall sign" are implying the mandatory nature of the provision. It is a law of this jurisdiction that use of word “shall” connotes the mandatory nature of the action. This is a per section 53(2) of the Interpretation of Laws Act, Cap 1 R.E. 2019 states that ‘where in a written law the word “shall” is used in conferring a function, such word shall be interpreted to mean that the function so conferred must be performed.’ It is on record of the proceedings of the District Land and Housing Tribunal for Singida that all the evidence of applicant before it (the appellant herein) appearing in pages 7 to 12 of the proceedings have no signature appended thereto for all the three witnesses of the applicant/ appellant. Neither evidence in chief nor cross examination or re- examination was appended with signature of the trial Chairman. However, for the respondent’s evidence the situation is different for respondent’s evidence. Each stage of the evidence is categorically appended with a signature of trial Chairman at the end of that stage for 9|Page each of the three witnesses of the respondent. This is reflected in pages 16-22 of the proceedings. In the case of Patrick William Magubo vs Lilian Peter Kitali (Civil Appeal No. 41 of 2019) [2022] TZCA 441 (18 July 2022) (TANZLII), at page 12, the Court of Appeal stated that: By the use of the word 'shall', the above provision implies that, compliance with section 101 above is mandatory except where there is evidence of existence of extraordinary circumstances making it impracticable for the parties to refer their dispute to the Board. It is settled law in this jurisdiction that where there is examination in chief, cross examination or and re-examination of a witness at the end of each stage of the examination and procedure, appending of the signature is a mandatory requirement and very important. This was a principle stated in the case of Geofrey Raymond Kasambula vs Total Tanzania Limited (Civil Appeal 320 of 2019) [2022] TZCA 747 (1 December 2022), at page 10, where the Court of Appeal of Tanzania that: Also, times without number this Court has emphasized that failure to append a signature to the witnesses' evidence vitiates the authenticity of the evidence taken and it is fatal to the proceedings. We took this stance in the case of Chacha s/o Ghati @ Magige v. 10 | P a g e Republic, Criminal Appeal No.406 of 2017 (unreported) when we stated as follows: "...we entertain no doubt that since the proceedings of the trial court were not signed by the trial Judge after recording evidence of witnesses for both sides, they are not authentic. As a result, they are not material proceedings in determination of the current appeal. Therefore, the appending of signature is to safeguard the authenticity and correctness of the record. The failure of the Chairman in the tribunal to append signature while recording the evidence of all three appellant witnesses is fatal as it is impossible to authenticate who took down such evidence and for this the genuineness of the proceedings of the trial tribunal was not established; and this is incurable irregularity in the proper administration of justice. Having observed that the whole of evidence of the appellant was recorded in contravention of the mandatory provision of law thus procedural irregularities which vitiate the authenticity of the whole proceedings. I find that there are merits on the first ground of appeal. Another aspect of irregularities is with regarding the assessor’s opinion. The issue of assessors in land matters before the District Land and Housing Tribunals is very lucid in this jurisdiction. It calls for active participation of at least two assessors who must give their opinion which should be read in court in presence of the parties before the decision is 11 | P a g e reached. The matter regarding assessors is governed by section 23(1) and (2) of the Land Disputes Courts Act, Cap. 216 R. E 2019. It states that: (1) The District Land and Housing Tribunal established under section 22 shall be composed of one Chairman and not less than two assessors. (2) The District Land and Housing Tribunal shall be duly constituted when held by a Chairman and two assessors who shall be required to give out their opinion before the Chairman reaches judgment. Regulation 19 (2) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2003 GN No. 173 of 2001 which provides that: Notwithstanding sub-regulation (1) the Chairman shall, before making his judgment, require every assessor present at the conclusion of hearing to give his opinion in writing and the assessor may give his opinion in Kiswahili. Upon perusal of the proceedings and judgment of the District Land and Housing Tribunal for Singida in Land Application No. 05 of 2023, it is lucid at page 22 of the proceedings the trial Chairman stated that: Amri Wajumbe wa baraza kutoa maoni yao kwa njia ya maandishi, maoni kusomwa tarehe 30/1/2024 12 | P a g e B. Colex Mwenyekiti 8/12/2024 At page 23 inter alia it was written that: Baraza: wajumbe wa baraza wanasoma maoni yao leo. ……….. Baraza: maoni ya wajumbe yamesomwa na wajumbe mbele ya mleta maombi na mjibu maombi. Amri: Hukumu tarehe 29/02/2024 This shows that there was written opinion of each of the assessors which were read before the appellant and respondent herein. In the judgment at page 4, the trial Tribunal Chairperson considered the opinion of the assessors and departed on those opinions which is allowed by assigning reasons for the departure. Therefore, there was no differences of the opinion contrary to what was argued by the appellant’s advocate that contents of opinions in writing differed from what the trial Chairperson referred to in the judgment. It is settled law that the Chairman is not bound by the opinion of the assessors, but he is bound to state reasons for not accommodating the opinion of the assessors. In the case of Tubone Mwambeta vs 13 | P a g e Mbeya City Council (Civil Appeal No. 287 of 2017) [2018] TZCA 392 (5 December 2018) (TANZLII), at pages 11-12, the Court noted that: In view of the settled position of the law, where the trial has to be conducted with the aid of the assessors, as earlier intimated, they must actively and effectively participate in the proceedings so as to make meaningful their role of giving their opinion before the judgment is composed. Unfortunately, this did not happen in the instant case. We are increasingly of the considered view that, since Regulation 19 (2) of the Regulations requires every assessor present at the trial at the conclusion of the hearing to give his opinion in writing, such opinion must be availed in the presence of the parties so as to enable them to know the nature of the opinion and whether or not such opinion has been considered by the Chairman in the final verdict. We are fortified in that account by section 24 of the Land Disputes Courts Act, which categorically provides: "In reaching decisions the Chairman shall take into account the opinion of the assessors but shall not be bound by it, except that the Chairman shall in the Judgment give reasons for differing with such opinion." As expressly stated under the law, the involvement of assessors is crucial in the adjudication of land disputes because apart from constituting the Tribunal, it embraces giving their 14 | P a g e opinions before the determination of the dispute. As such, their opinion must be on record. As such, I cannot agree with the submissions of the appellant’s advocate that there were any irregularities in respect of assessor’s opinion in the matter before the Tribunal. The procedure of receiving the opinion, its treatment and analysis was well within the legal prescription thus correctly handled. The opinion was in writing. The same was in Kiswahili. It was read before the parties in the Tribunal before composition of the judgment and trial Tribunal’s Chairperson considered the same in the judgment. I shall proceed to overrule this ground on the assessor’s opinion being infiltrated by irregularities. There is also complaint based on absence of certificate from the Ward Tribunal on failure to mediate the parties. It is a general rule that it is mandatory for District Land and Housing Tribunal to hear or determine the matter that affecting the title or any interest in land after the ward tribunal has certified that it has failed to settle the matter amicably. However, there is a proviso to that rule to the effect that any aggrieved party may proceed to institute the land dispute without the certificate from the Ward tribunal as provided under Section 45 (4) of the Written Laws (Miscellaneous Amendments) (No.3) Act, 2021. In the circumstances of the matter therefore, it was proper for the appellant to institute the matter in District Land and Housing Tribunal 15 | P a g e even though there were no certificate from ward tribunal. This ground is also overruled. On the 5th ground concerning the illegality for dismissing the case and failure to determine the right of the parties. The appellant advocate stated that the Tribunal failed to determine the rightful owner of the plot of land in dispute and considered this as failure of the tribunal to determine the right of the parties. Upon perusal of the records, I find that, the rights of the parties were adhered and in the judgment the Chairman dismissed the case after stating that the applicant who is appellant in this case failed to prove the case. The Court is enjoined to determine the matters which are pleaded by the parties. It cannot entertain matters that are not adjudicated before it. That duty was emphasized in the case of Barclays Bank T. Ltd vs Jacob Muro (Civil Appeal 357 of 2019) [2020] TZCA 1875 (26 November 2020) (TANZLII), at pages 11-12, the Court stated that: By way of emphasis, we wish to refer, with approval, to a passage in an article by Sir Jack I.H. Jacob bearing the title, "The Present Importance of Pleadings," first published in Current Legal Problems (1960) at p. 174 thus: “As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rules of pleadings .... For the sake of certainty 16 | P a g e and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation.” In the instant case, the appellant prayed for a declaration that the land in question be declared to belong to the appellant herein. The appellant was duty bound to prove that he is entitled to be declared as the rightful owner of that land. The principle is settled in Tanzania that who alleges must prove. In the case of Registered Trustees of Joy in The Harvest vs Hamza K. Sungura (Civil Appeal 149 of 2017) [2021] TZCA 139 (28 April 2021) (TANZLII), at pages 16-17, the Court of Appeal guided that: With the above evidence at our disposal, and in order to decide whether the respondent managed to prove the 17 | P a g e case at the required standard we had to revisit the trite principles in the law of evidence; the general concept of the burden and the standard of proof in civil litigations. The concept is "he who alleges must prove," and it means that the burden of proof lies on the person who positively asserts existence of certain facts. The concept is embodied in the provisions of section 110 (1) and (2) of the Evidence Act [Cap 6 R.E. 2019] which provides that: -"(1) Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person." Certainly, the position that he who alleges must prove is part of our jurisprudence as per this Court's decisions in The Attorney General v. Eligi Edward Massawe, Civil Appeal No. 86 of 2002 and Ikizu Secondary School v. Sarawe Village Council, Civil Appeal No. 163 of 2016 (both unreported) and the standard of proof, in civil cases is on the balance of probabilities, see the decision in Manager, NBC Tarime v. Enock M. Chacha [1993] TLR 228. Given the fact that the appellant herein failed to prove the case against the respondent, the trial Tribunal was entitled to dismiss the 18 | P a g e applicant/appellant’s case for failure to prove that a particular land in disputed belonged to the applicant. Simply, the Tribunal found against the appellant for failure to prove the case to the required standard. On page 4 of the trial Tribunal’s judgment is lucid and explicit that the trial Tribunal did not mince the words. It stated categorically that evidence of the appellant was not sufficient to establish the claim that his late father one Iddi Mghenyi Alute was the owner of the land. Thus, the Tribunal declared that the land alleged to have been trespassed does not belong to the estate of the late Iddi Mghenyi Alute who is represented by the personal legal representative, the administrator of estate i.e. the applicant/appellant herein. Thus, the ground challenging the trial Tribunal’s determination that rights of the parties were not determined is far-fetched and has no merits. It stands overruled for being destitute of merits. With regard to the 6th ground of appeal concerning locus standi of the respondent. Appellant counsel argues that respondent did not had locus standi to appear before the tribunal but appellant was the one instituted the matter before the tribunal suing the respondent. This means the appellant was the one required to know who to sue, it was not the duty of the respondent. In the case of Peter Mpalanzi vs Christina Mbaruku (Civil Appeal 153 of 2019) [2021] TZCA 510 (23 September 2021) at page 6, the Court stated: 19 | P a g e Locus standi is a rule of equity that a person cannot maintain a suit or action unless he has an interest in the subject matter. Unless a person stands in a sufficient close relation to the subject matter so as to give a right which requires protection or infringement of which he brings the action, he cannot sue on it. Further, Locus standi is a point of law rooted into jurisdiction. It is for that reason that it must be considered by a court at the earliest opportunity or once it is raised. Ordinarily, locus standi is about the person who brings a matter to court be able to show his rights or interest that has been breached or interfered with. In this case at hand respondent said that the land belonged to his late father, therefore it was proper for the appellant to withdraw the case and sue the lawful appointed administrator of the estate of the deceased who can sue or be sued for or on behalf of the deceased. As provided under Section 71 of the Probate and Administration Act as follows: After any grant of probate or letters of administration, no person other than the person to whom the same shall have been granted shall have power to sue or prosecute any suit, or otherwise act as representative of the deceased, until such probate or letters of administration shall have been revoked or annulled. 20 | P a g e Therefore, after respondent declaration that the disputed land belonged to his father, the Tribunal or applicant/appellant was supposed to withdraw or to strike out in order applicant to sue a proper party. However, I am of the settled view that appellant does not deserve leniency of the court in this aspect. It is on record that on 26/05/2023, the applicant before the Tribunal prayed to amend the application before the Tribunal as the same had weaknesses. The prayer was not objected and the Tribunal ordered that the appellant herein was afforded a total of 14 days to amend his application especially on aspect of the nature of the dispute and the cause of action. However, on 09/06/2023 it was recorded that the applicant/appellant herein failed to amend and file the amended application thus the order for amendment was vacated and the hearing was ordered to proceed. I am of the view that two important aspects should be noted. First, it was the applicant who is duty bound to decide and determine who to sue. It was not the respondent’s responsibility to determine whether to be sued or otherwise. Second, the appellant herein was afforded opportunity namely the whole 14 days to amend the proceedings but he decided not to act on the same. Thus, the appellant was bound by his own pleadings. In Paulina Samson Ndawavya vs Theresia Thomasi Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453 (11 December 2019) 21 | P a g e (TANZLII), at page 13, the Court of Appeal reiterated the role of pleadings in the following words: The other remark which we find ourselves compelled to make relates to pleadings. In doing so we cannot do better than reiterate what we said in James Funke Gwagilo vs. Attorney General [2004] TLR 161 whereby we underscored the function of pleadings being to put notice of the case which the opponent has to make lest he is taken by surprise. From that same decision we reiterated another equally important principle of law that parties are bound by their own pleadings and that no party should be allowed to depart from his pleadings thereby changing his case from which he had originally pleaded. I am of the settled view that it is inappropriate to entertain the appellant’s argument that respondent was not properly sued. It is an afterthought that should not be entertained. The 6th grounds of appeal is also destitute of merits thus it is overruled. Save for the lack of signature of the trial Tribunal’s Chairperson during the recording of the evidence of the applicant, all other grounds of appeal must crumble for being devoid of merits. 22 | P a g e That said and done, in exercise of powers vested to this Court under sections 42 and 43(1) (b) and (2) of the Land Disputes Courts Act, Cap 216 R.E 2019, I hereby nullify the proceedings of the District Land and Housing Tribunal for Singida in Land Application No. 05 of 2023. I also set aside the impugned judgment and decree/order thereto. Each party shall bear his own costs since it was the tribunal which committed the irregularities that have brought this appeal to an end. It is so ordered. DATED at DODOMA this 12th September 2024. E.E. LONGOPA JUDGE 12/09/2024. 23 | P a g e