SANCHO MUYOVELA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

DODOMA SUB REGISTRY

AT DODOMA LAND APPEAL NO. 28655/2023 (Arising from the District Land and Housing Tribunal for Singida at Singida in Application No. 78 of 2019) SANCHO MUYOVELA IDDIFONSI............................. APPELLANT

VERSUS MAYUNGA PAM BA JISENGO................................ RESPONDENT

JUDGMENT Date of Last Order: 05/9/2024 Date of Judgment: 27/9/2024 MASABO, J:- Mayunga Pamba Jisengo, the respondent herein, was the applicant in Application No. 78 of 2019 before the District Land and Housing Tribunal for Singida at Singida (the trial tribunal). He was suing the appellant for breach of a lease agreement. The background of the appeal as discerned from the record is not difficult to establish. The respondent is the owner of the suit premises described as a business kiosk in Plot No. 45 Block BB located at Misuna Area, Singida Municipality (the suit premise). He leased it to the appellant at a rent of TZS. 100,000/= per month payable in a three-month lump sum of TZS. 300,000/=. The appellant did not pay the rent for nine months from January to September 2019. When approached by the appellant on 12th June 2019, he promised to pay his dues by 28th August 2019 but did not honour the promise. The respondent sued him before the trial tribunal. Page 1 of 11 When replying to the application, the appellant accompanied his reply with a counterclaim alleging that it was the respondent who breached the lease agreement. He claimed a sum of TZS 22,000,000/= being the amount he invested in the renovating of the suit property, a sum which as per their agreement, had to be recovered in the land rent for 9 years during which the appellant was to use the suit land without paying

rent. The 9 years had not lapsed when the respondent instituted the application. He had used the suit premise for two years only. Hence, the breach and the counterclaim. After the hearing of the application, the trial tribunal found the respondent to have proved his suit and ordered the appellant to pay rent arrears from July 2019 up to the date of handing over the suit premise. The counterclaim was dismissed. Aggrieved by the trial tribunal's decision the appellant has come to this court armed with five grounds of appeal which I summarized as follows: one, the trial tribunal erred in law and fact for holding that there was no agreement to erect buildings in the leased area. Such finding ignored the fact that there was an oral agreement entered between the appellant and respondent in 2016 allowing the appellant to erect the building on the suit land; two, the evidence adduced by the respondent was weak compared to the evidence adduced by the appellant; three, the trial chairman did not properly analyze the evidence adduced by the parties hence reached an erroneous decision; four, the trial chairman did not append a signature after recording the evidence of witnesses and last, the trial chairman erred in holding that the counter claim was not proved. Page 2 of 11 Hearing of the appeal proceeded by way of written submission. The parties were unrepresented. They filed their

respective submission as per the court schedule. Submitting on the first ground of appeal the appellant argued that he managed to prove the counterclaim he had raised against the respondent claiming the costs he incurred in developing the leased premises. He paraded witnesses who ably proved that the respondent owed him a refund of the cost he incurred while developing and renovating the suit premises. On the second ground of appeal, it was submitted that the appellant proved the case to the required standards. He paraded witnesses and tendered documentary evidence that was heavier and sufficient for the trial tribunal to decide in his favour. The case of Hemedi Saidi vs Mohamedi Mbilu [1984] TLR113 was cited in bolstering the submission. Supporting the third ground, the appellant argued that it is a trite law that before the court reaches its decision it should appropriately and adequately evaluate, analyse and examine all the evidence adduced by the parties as held in Abdallah Seif vs The Republic, Criminal Appeal No. 122 OF 2020 [2022] TZCA 196 TanzLII, Mkulima Mbagala v. R, Criminal Appeal No. 267 of 2006 [2011] TZCA 181 TanzLII and Leonard Mwanashoka v. R, Criminal Appeal No. 226 of 2014 [2015] TZCA 294 TanzLII. Contrary to this rule, the trial tribunal failed to evaluate, analyze and examine the evidence adduced by the parties hence reached an erroneously decision. The

analysis disregarded the testimony of DW2 who witnessed how the appellant entered into the suit premises. The evidence Page 3 of 11 by PW1 that the respondent never complained about the alterations done by the appellant on the suit land was also ignored. Even the agreement relied upon by the trial tribunal was executed in 2019 whereas the appellant was occupying the suit premise based on the 2017 agreement. On the fourth ground, it was submitted that the construction done by the appellant had the blessing of the respondent. It was orally obtained hence binding on them as there was an oral agreement. In fortification, he cited the case of Leonard Dominic Rubeye t/a Rubuye vs Yara Tanzania Ltd, Civil Appeal No. 219 of 2018 [2022] TZCA 419 TanzLII. On the last ground it was argued that, as per Order XVIII Rule 5 of the Civil Procedure Code, Cap 33 R.E. 2019 and the case of Geofrey Raymond Kasambula vs Total Tanzania Limited Civil Appeal 320 of 2019 [2022] TZCA TanzLII, Yohana Mussa Makubi and Another vs Republic, Criminal Appeal No. 556 of 2015 (TANZLII) and Iringa International School vs Elizabeth Post, Civil Appeal No. 155 of 2019(TANZLII), the chairman must sign at the end of the evidence of each witness. The omission is fatal as it vitiates the evidence. Therefore, in the present case, the proceedings were vitiated as the chairman did not observe this rule. It was conclusively

argued that the proceedings and the judgment should be quashed and set aside and the appeal be allowed with cost. In reply, the respondent submitted that it is not in dispute that the appellant and respondent were tenant and landlord respectively and their relation was a result of the lease agreement they executed on 1/1/2019 in respect of Plot No. 45, Block "BB", Misuna Area, within Singida Municipality. He proceeded that, the suit premise being in a registered Page 4 of 11 land is governed by Part IX of the Land Act, Cap 113 [RE 2019]. As per this law, one of the lease conditions is that the tenant had no right to make repairs to the house without the consent of the landlord as provided for under 93 of the Land Act Cap 113, RE 2019. Therefore, the appellant herein was not at liberty to make any changes, repairs, extensions, improvements, additions or developments to the building beyond what was permitted in the lease agreement. If he wanted to make such alterations, he had to seek the consent of the landlord but he did not. The appellant produced no proof that he obtained such consent. His witness, DW2, simply testified that he heard from the respondent that he had agreed with the appellant to give him a place to build. This, he argued, was below the threshold of the burden of proof in civil cases which required the appellant to prove his counterclaim on the balance

of1 probabilities. The second, third and fifth grounds of appeal were consolidated and argued together the justification being that they concern the weight, analysis and evaluation of the evidence tendered by the parties. It was then argued that the weight of evidence is not dependent upon the number of witnesses but the quality of such evidence. That, in the present case the respondent's evidence credibly established that the lease agreement prohibited the appellant from doing any maintenance, repairs or alterations without the consent of the lessor/landlord. Since the appellant was asserting that he obtained the consent, the burden rested on him to prove such assertion but he rendered no proof. The omission suggests that the landlord never consented. The cited case of Hemedi Saidi vs Mohamed! Mbilu (Supra) is therefore, irrelevant and inapplicable. Page 5 of 11 It was argued further that, the assertion as to the existence of an oral agreement between the parties was not proved. The testimony of the respondent while testifying as PW1 was a misinterpretation. PW1 testified that the parties entered an oral lease agreement with the appellant and on 1/1/2019 they executed a written lease agreement but there was no proof that they had an oral agreement for improvement of the leased premises. None of the witnesses credibly testified on the existence of the oral agreement and the

assertions that the respondent acquiesced to the improvements were all misguided and devoid of any merit and for these reasons, they were found to have not proved the appellant's counterclaim. On the fourth ground of appeal as regards the omission by the trial chairman to append his signature at the end of the record of the witnesses' testimony, it was replied that the argument is with no merit as the trial chairman appended her signature after the testimony of every witness who appeared and testified before her. The trial tribunal's record, is therefore, fully compliant with the dictates of Order XVIII Rule 5 of the Civil Procedure Code. In the foregoing, he distinguished the cited cases of Geofrey Raymond Kasambula vs. Total Tanzania Ltd (supra) Yohana Musa Makubi and Another vs. Republic (supra) and Iringa International School vs. Elizabeth Post (supra). In the alternative, he submitted that should this court find that the trial chairperson did not append the signature, it should invoke the principle of overriding objective as embodied under section 45 of the Land Disputes Courts Act, Cap 216 RE 2019 read together with sections 3A and 3B of the Civil Procedure Code, to cure the anomaly. In the end, it was submitted and prayed that the appeal be dismissed with costs. Page 6 of 11 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 after considering the appellant's five grounds of appeal is whether the appeal has merit and should be allowed. I will start with the complaint in the fourth ground of appeal regarding the trial chairperson omission to append his signature to the record of the testimony of the witnesses. Both parties are in agreement that the law mandatorily requires the trial chairman to append his signature at the end of the record of the testimony of each witness. In building their submission, they cited Order XVII Rule 5 of the Civil Procedure Code. My observation while reading the trial court's record is at par with the appellant. The proceedings conspicuously show that no signature was appended at the end of the record of the testimonies of SMI Mayunga Pamba Jisengo, SU1 Sancho Nyovela Iddfonsi, SU2 Josephat Ughulika, SU3 Esrom Toke, SU4 Ibrahim Mohamed and SU5 Josephat Gabriel. The immediate issue is whether the omission constitutes a fatal irregularity. As submitted by both counsels, the requirement for trial magistrate or judge to append his signature at the end of the record of the testimony of each witness is part of our law. For civil trials, it is embodied under Order XVIII rule 5 of the Civil Procedure Code and for criminal trials it is provided for under section 210(l)(a) of the Criminal

Procedure Act, R.E.2022. Order XVIII rule 5 of the Civil Procedure states thus: "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 Page 7 of 11 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." Interpreting section 210 (1) (a) of the Criminal Procedure Act, the Court of Appeal in Chacha s/o Ghati @ Magige vs Republic (Criminal Appeal 406 of 2017) [2021] TZCA 132 TanzLII, the Court of Appeal dealing with a similar omission, reckoned its previous decision and instructively held as followed:- "The effect of failure to append signature in the proceedings was stated by the Court in Yohana Mussa Makubi (supra) as follows: " In light of what the Court said in WALIIABDALLA KIBWITA's and the meaning of what is authentic can it be safety vouched that the evidence recorded by the trial Judge without appending her signature made the proceedings legally valid? The answer is in the negative. We are fortified in that account because, in the absence ofsignature of trial Judge at the end of testimony of every witness: firstly, it is impossible to authenticate who took down such evidence. Secondly, if the maker is unknown then, the authenticity ofsuch evidence is put to question

as raised by trie appellant's counsel. Thirdly, if trie authenticity is questionable, the genuineness ofsuch proceedings is not established and thus; fourthly, such evidence does not constitute part of the record of trial and trie record before us." The Court went on to state that: "We are thus, satisfied that, failure by the Judge to append his/her signature after taking down the evidence of every witness is an incurable irregularity in the proper Page 8 of 11 administration of criminal justice in this country. The rationale for the rule is fairly apparent as it is geared to ensure that the trial proceedings are authentic and not tainted. Besides, this emulates the spirit contained in section 210 (1) (a) of the CPA and we find no doubt in taking inspiration therefrom." In the end, it nullified the proceedings holding that the failure rendered the proceedings unauthentic and it subsequently ordered a retrial. In Iringa International School vs Elizabeth Post (supra) TanzLII, the court was dealing with proceedings from the Commission for Mediation and Arbitration (CMA). Cementing its position in Yohana Mussa Makubiand Another vs Republic, (supra), Sabasaba Enos @ Joseph vs Republic, Criminal Appeal No. 411 of 2017, Chacha s/o Ghati @ Magige vs Republic, (supra) and Mhajiri Uladi & Another vs Republic, Criminal Appeal No. 234 of 2020, it held that a signature must be appended at

the end of the testimony of every witness and that an omission to do so is a fatal irregularity to the proceedings. Further while acknowledging the peculiarity of CMA proceedings, it held that: "Although the laws governing proceedings before the CMA happen to be silent on the requirement of the evidence being signed, it is still a considered view of this Court that for purposes of vouching the authenticity, correctness and providing safeguards of the proceedings, the evidence of each witness need to be signed by the arbitrator. On this, we need to draw inspiration from the Civil Procedure Code [Cap 33 R.E.2019] (the CPC) and the Criminal Procedure Act [Cap 20 R.E. 2019] (the CPA) wherein it is mandatorily provided that the evidence of each witness must be signed." [Emphasis added]. Page 9 of 11 The court cemented this position in the case of Uniliver Tea Tanzania Limited vs David John (Civil Appeal 413 of 2020) [2021] TZCA 547 TanzLII, when it was once again dealing with proceedings from the CMA. It stated thus: "Though there is no requirement under the Rules obliging the arbitrator to sign witnesses' evidence, we are of the considered view that the omission is fatal to the proceedings. This is because it jeopardizes the authenticity, correctness, and veracity of the evidence of the witnesses as it cannot be said with certainty that what is contained in the record is the true

account of the evidence of the witnesses since the recorder of the evidence is unknown," Just as in Iringa International School vs Elizabeth Post (supra) it consequently nullified and quashed the proceedings and set aside the award. The respondent has passionately argued that should this court find that the alleged irregularity exists, it should invoke the principle of overriding objective to cure it. I aptly decline the invitation as it is inconsistent with the authorities above. As clearly demonstrated above, irrespective of the peculiarity of the CMA proceedings, in both cases, the Court having observed the omission, nullified and quashed proceedings and set aside the award. It also, subsequently, quashed and set aside the proceedings and judgment of the High Court for having originated from nullity proceedings and it remitted the record back to the CMA so that the disputes could be heard de novoty another arbitrator. This is what should happen in the present appeal to this fate. Page 10 of 11 In view of the foregoing, I find merit in the fourth ground of appeal and allow it as, in view of the authorities above, the omission to append the signature has rendered the proceedings of the trial tribunal unauthentic and a nullity. As the finding in this ground sufficiently disposes of the appeal, I see no need to proceed to the remaining grounds. Based on this sole ground, I allow the appeal, nullify the proceedings, judgment and decree of the trial tribunal and subsequently remit the record to the trial tribunal for retrial. The costs of this appeal shall be paid by the respondent. DATED and DELIVERED at DODOMA this 27th day of September 2024. J. L. MASABO

JUDGE Page 11 of 11