SAYI NINDWA HUKUMU

IN THE HGH COURT OF THE UNITED REPUBLIC OF TANZANIA SHINYANGA SUB REGISTRY AT SHINYANGA LAND APPEAL NO.67 OF 2023 (Arising from Land Application No. 21 of 2023, before Maswa District Land and Housing Tribunal) SAYI NINDWA ……………………………………………...APPELLANT VERSUS NYANGETA NINDWA …………………….………….. RESPONDENT JUDGMENT 22ndFebruary & 12th April 2024 MASSAM, J.: The respondent herein filed a suit before the trial tribunal against the appellant for the claims of parcel of land located within Itilima District in Simiyu region measuring eight (8) acres. It was further alleged that the suit land was allocated to the respondent in 1997 by the Village Council and proceeded to utilize it from that period until when the appellant trespassed it without any due cause. The trial tribunal after a thorough consideration entered its judgement in favour of the respondent. Aggrieved by that decision he has approached this Court with limbs of five grounds of appeal to wit; 1 1. That the honourable chairman did not sin at the end of testimonies of PW3, Limbu Ntalima, DW3 Ikoba Shalo, and Mabuga Senga Contrary to the Law. 2. That the honourable chairman did not require assessors to give their opinion contrary to the Law. 3. That the assessors did not read over their opinion to the parties contrary to the law. 4. That the opinion of the assessors does not form part of proceedings of trial tribunal contrary to the law. 5. IN THE ALTERNATIVE to grounds 1-4 herein, the honourable chairman erred in law and facts for relying on exhibit P1, a judgement of Bumera Primary Court which does not form part of record of trial tribunal in application No.21 of 2023. During the hearing of this appeal, the appellant enjoyed legal service of Mr. Audax Constantine learned advocate, while the respondent appeared in person and unrepresented. However, the matter persisted by way of written submission and the parties headed to the court schedule. Arguing for the appeal, Mr. Audax submitted that in respect to the first ground of appeal the trial tribunal chairman did not sign at the 2 end of testimonies of the evidence of PW3 Limbu Ntalima at page 8-9 of the typed proceedings; Similarly to testimonies of DW3, Ikoba Shalo and Dw4 (Mabuga Senga) the same is contrary to the mandatory provision of Order XVIII Rule 10 of the Civil Procedures Code, Cap 33 RE 2019. Mr. Audax also added that the requirement to sign at the end of testimonies of each witness at the end is to certify its authenticity. He banked his argument by refereeing this Cout to the case of: Yohana Musa Makubi vs Republic, Criminal Appeal No. 556 of 2015. In respect with the 2, 3, and 4 grounds of appeal Mr. Audax submitted that on 12/9/2023 the trial chairman ordered that, opinion of assessors on 22/9/2023 to be delivered but nowhere shown that he requires the assessors to give their respective opinion in terms of the mandatory provision of Regulation 19 (2) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulation, 2003 GN No174 of 2023. Mr. Audax also stated that on 12/9/2023 the trial chairman recorded that the matter was coming for assessors’ opinion and that such assessors read over the opinion and opined that the suit land belonged to the respondent. In his view since it was latter recorded that the respondent was absent on 22/9/2023, it cannot lawfully be 3 concluded that the opinion of the assessors was read over to the parties as required by the law. He fortified so by referring to the decision in the case of: Edina Adam Kibona vs Absolom Swebe (Sheli), Civil Application No.286 of 2007. He also alluded that, the records do not reveal as to whether assessors’ opinion were read over and separately recorded as required by the law. And so, in his view such opinion of assessors does not form part of proceedings. Mr. Audax pressed for the appeal to be allowed on account that the tribunal judgment and its proceedings are tainted with irregularities that vitiates the whole proceedings. He also concluded that the judgment so reached if null and void need to be quashed and set aside. On the side of the respondent, on his reply he disputed all the arguments advanced by the appellant. With respect to the first ground of appeal, the respondent submitted that what was argued by the appellant is not true rather the honourable chairman signed the proceedings as required by the law after each witness had finished his testimonies. In respect of 2, 3 and 4 ground of appeal the respondent objected the averments by the appellant and further submitted that the assessors 4 gave their opinions as the proceedings and judgement of the tribunal show, and these were done after both parties had closed their evidence and that on the present day of giving opinion both parties including the respondent were present. Thus, no law was violated. There was no rejoinder. Having heard both parties on merit and upon scanning the trial tribunal records, the issue for consideration is whether this appeal has been brought with sufficient cause. This court in determining the same will start by perusing what was submitted by both parties starting with Mr. Audax who started by complaining that the trial chairman did not append his signature when PW3, DW3, DW4 had finished giving their testimonies. And in his view such erroneous vitiate the proceedings of the trial tribunal. I have thoroughly digested the parties' submissions and the relevant law in command. In essence, the DHLT exercises its duty in accordance with the Land Disputes Courts Act [Cap. 216, R.E.2019) (the LDCA) and the Land Disputes Courts (the District Land and Housing Tribunal) Regulations, 2003. However, both legislations do not have provisions regarding the manner of recording of evidence. Therefore, in 5 terms of section 51 (2) of the LOCA, is when the CPC come into application at the DLHTs where there is Lacuna. Now, looking at the CPC, the procedure for recording of evidence is provided for under Order XVIII; Rule 5 which is reproduced hereunder: "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 3 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. " The said provision makes clear that, the evidence of each witness must be taken down in writing by or under the personal direction of the judge or magistrate in a narrative and the judge or magistrate is required to sign the evidence of each witness. The provision is coached in mandatory forms; Thus, it must be complied with. The rationale requiring the trial judge or magistrate to sign the evidence of each witness is to authenticate the recorded evidence. This position was underscored in the case cited by Mr. Audax to wit; Yohana Musa Makubi vs R, Criminal Appeal No. 556 of 2015 when the Court of Appeal held that: 6 "We are thus, satisfied that, failure by the Judge to append his/her signature after taking down the evidence of every witness an incurable irregularity in the proper 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” From the above position, failure by the trial judge or magistrate to, append his/her signature after recording the evidence is fatal to the proceedings (See also the case of Joseph Elisha vs Tanzania Postal Bank, Civil Appeal No. 157 of 2019 CATat Iringa, Iringa International School vs. Elizabeth Post, Civil Appeal No. 155 of 2019, Unilever Tear Tanzania Ltd vs Davis Paul Chacha, Civil Appeal No. 290 of 2029). Coming to the case at hand, it is evidenced throughout the trial at the trial tribunal's proceedings that the learned trial chairperson did not append his signature after recording the evidence of PW3, and DW3 and DW4 as complained by Mr. Audax, Therefore, in the light of the above decision, the authenticity of the evidence adduced during the trial is at issue. The omission by the trial, chairperson to append his signature after recording the evidence of the witnesses is an incurable irregularity. 7 Therefore, the proceedings of the trial Tribunal in respect to the testimonies of PW3, DW3 and DW4, their evidence are from nullity. It also affected the judgment and decree thereon. Worth enough even testimonies of other witnesses like PW1, PW2, the trial chairman appended his signature not on the right place as required and dates of recording the same were missing this was seen to the proceeding dated on 13/6/2023, 6/9/2023, and 12/9/2023. These vitiates the proceedings so recorded by the trial chairman. Also Mr. Audax complained the issue of assessors opinions that were not reflected in the proceedings and the same were not read before the parties. He averred that when the matter came for assessors to give their opinion on 22/9/2023 the respondent was recorded to be absent before the tribunal, yet the honourable chairman at the end recorded that assessors’ opinions were read to the parties. In his view that was not right as the information was not true.This court found out that it is on record that, from 13thJune, 2023 to the completion of the trial on 12nd September 2023, the chairperson sat with two assessors, namely, Ms. Mageuza, and Ms. Kulwa. 8 The chairman person he then adjourned the matter and fixed for hearing assessors’ opinion on 22 September 2023, where by the Hon. Chairman held that; “Baraza – shauri linakuja kwa maoni ya wajumbe wa baraza nao wamesoma maoni yao kwa wajumbe, eneo la mgogoro ni mali ya mdaiwa, sayi Nindwa” In other words, assessors’ opinions were not put in the trial records, nowhere to be seen the reflection of assessors’ opinions. With that regard I find it apposite to reproduce the contents of provisions of Section 23 (1) and (2) of the Land Disputes Courts Act, Cap 216 RE 2019. The said section provides that: "23(1) The District Land and Housing Tribunal established under section 22 shall be composed of one Chairman and not less than two assessors; and (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 the judgment” 9 In addition, Regulation 19 (1) and (2) of the Regulations impose a duty on a chairperson to require every assessor present at the conclusion of the trial of the suit to give his or her opinion in writing before making his final judgement on the matter. The said Regulations 19 (1) and (2) provides that: - (1) " The Tribunal may, after receiving evidence and submissions under Regulation 14, pronounce judgement on the spot or reserve the judgement to be pronounced later; (2) Notwithstanding sub-regulation (1) the chairman shall, before making his judgement, require every assessor present at the conclusion of hearing to give his opinion in writing and the assessor may give his opinion in Kiswahili" The above provisions have been considered and interpreted by the Court in several occasions. See for instance cases of General Manager Kiwengwa Stand Hotel v. Abdallah Said Mussa, Civil Appeal No. 13 of 2012; Ameir Mbarak and Azania Bank Corp. Ltd v. Edgar Kahwili, Civil Appeal No. 154 of 2015; Tubone Mwambeta v. Mbeya City Council, Civil Appeal No. 287 of 2017; Edina Adam 10 Kibona v. Absolom Swebe (Sheli), Civil Appeal No. 286 of 2017 and Y.S. Chawalla& Co. Ltd v. Dr. Abbas Teherali, Civil Appeal No. 70 of 2017. Specifically in Ameir Mbarak and Azania Bank Corp (supra) when the Court noted that the record of the trial proceedings did not show if the assessors were accorded the opportunity to give their opinion as required by the law, but the chairperson only made reference to them in his judgment as in the current case, observed that:- " Therefore, in our own considered view, it is unsafe to assume the opinion of the assessor which is not on the record by merely reading the acknowledgement of the Chairman in the judgement.In the circumstances, we are o f a considered view that, assessors did not give any opinion for consideration in the preparation of the Tribunal's judgment and this was a serious irregularity." Likewise, in Tubone Mwambeta (supra) in underscoring the need to require every assessor to give his opinion and the same be recorded and be part of the trial proceedings, the Court observed that:- 11 "In view of the settled position of the law, where the trial has been conducted with the aid of the assessors...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...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." In the matter at hand, as I have vividly demonstrated above when the chairperson of the Tribunal closed the defense case, adjourned the matter and scheduled it for hearing assessors’ opinions, but it is on record that, though, the opinions of the assessors were not solicited and reflected in the Tribunal's proceedings, the chairperson purported to refer to them in his judgment. It is not clear as to how and at what stage the said opinion found their way in the Tribunal's judgement. 12 On the strength, I am satisfied that the pointed omissions and irregularities amounted to a fundamental procedural error that have occasioned a miscarriage of justice to the parties and had vitiated the proceedings and entire trial before the Tribunal. Having observed the same, my conclusive view is that this appeal has been brought with sufficient cause and consequently is hereby allowed. The judgement and decree of the trial tribunal are hereby quashed and set aside. The matter be remitted to the trial tribunal for retrial by different Hon. Chairman with different set of assessors. Regarding the circumstances of this case, No orders as to costs. It so ordered. DATED at SHINYANGA this 12th day of April, 2024. R.B. Massam JUDGE 12/4/2024 13