SIMON CHIWANGA

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA LAND APPEAL NO. 18 OF 2023 (Originating from Dodoma District Land and Housing Tribunal in Land Application No. 202 o f2020) SIMON CHIWANGA................................................................APPELLANT VERSUS PASACAL M. KAGHUSA &36 OTHERS................................. RESPONDENTS RULING 10.09.2024 HASSAN, J.: The appellant Simon Chiwanga appeared before this court pained by the decision of the District Land and Housing Tribunal (DLHT) of Dodoma at Dodoma in the Land Application No. 202 of 2020 of which the respondents emerged victorious. Now before the court, the appellant preferred three (4) grounds of appeal for resoluteness. However, for reasons which will be apparent hereunder, I will not replicate the same. l During hearing of the appeal, appellant was represented by learned counsel Ms. Faraja Shayo. Whereas, all 37 respondents were absent, after efforts to serve respondents through normal route proved in vain. To that effect, affidavit to prove service of summons has been deponed by court process server, one, Benson Audax Chamlesile which was admitted and endorsed by the court as part of records. Seeing that, order for substituted service through publication was issued and the same was complied. Thus, publication was made in Nipashe newspaper of 9th November, 2023 but it also proved unsuccessful. In the circumstance, matter proceeded ex-parte. Coming on 9thAugust, 2023 when appeal came up for hearing, counsel for the appellant readily raised irregularities in the proceedings of the DLHT. She pointed the irregularities observed as such, that the chairman who presided over the tribunal failed to append his signature at the end of each witness statement. And also, that assessors were not properly involved in the conduct of the tribunal. By addressing the court to the irregularities observed, Ms. Shayo submitted that the chairman did not append his signature at the end of each witness's statement after he had recorded it. She cemented that the requirement to append signature in the evidence of each witness can be 2 found under Order XVII rule 5 of the Civil Procedure Code, Cap. 33 R.E. 2019. For further reference, she directed the court the case of Tubone Mwambweta v. Mbeya City Council, Civil Appeal No. 287 of 2017 CAT (unreported) which provide: "Consequently, the omission by the trial judge in the instant case to append signature at the end o f each witness testimony vitiate the proceedings o f the trial court." Moving ahead, she submitted that the aforesaid irregularity vitiate can the whole proceedings, and for that reason, she prayed the court to nullify the proceedings, and set aside the order meted by the trial tribunal. In the end, seeing that this point is sufficient to dispose of proceedings, she left the remaining point of irregularity undiscussed. At his juncture, it is sufficient for the present purpose to cite the provision of Order XVIII Rule 5 of the Civil Procedure Code, Cap. 33 R.E 2019 which provides: "The evidence o f each witness shall be taken down in writing, in the language o f the Court, by or in the presence 3 and under the personal direction and superintendence o f the judge or magistrate, not ordinarily in the form o f question and answer, but in that o f a narrative and the judge or magistrate shall sign the same." To take stock off, in time without numbers, the Court of Appeal has held that, failure to append signature after recording the witnesses' evidence is a fatal irregularity which vitiates the entire proceedings. See for instance in Yohana Mussa Makubi v. Republic, Criminal Appeal No. 556 of 2015 (unreported) where the court held that: "We are thus satisfied that, failure by thejudge to append his/ her signature after taking down the evidence o f every witness is an incurable irregularity in the proper administration o f 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) o f the CPA and we find no doubt in taking inspiration there from. In view o f the stated omission the trial proceedings o f the High Court were indeed vitiated and are a nullity and neither did they constitute the record o f the trial and the appeal before us. Again, similar position was upheld in the cases of Sabasaba Enos @ Joseph v. Republic, Criminal Appeal No. 411 of 2017, Tubone Mwambweta v. Mbeya City Council (supra) and Chacha Ghati @ Magige v. Republic, Criminal Appeal No. 406 of 2017 (all unreported). That said, it is apparent from the records of evidence, both original and in the typed proceedings, that the chairman had not appended his signature onto the evidence of each witness who had testified. For instance, looking on the applicant, Simon Elia Chiwanga (SMI) his evidence was not appended by signature of the chairman. The same flaw appeared in the evidence Kukosonza Lidya Ishangema (SM2). In the context thereof, I am certain that, it needs not to raise one's eyebrows to see the flaw. Indeed, the chairman completely failed to append his signature at the end of each witnesses' evidence after he had recorded it. Equitably judged, that is a fatal error in the eye of law. Therefore, needless to say, as rightly submitted by Ms. Shayo, learned counsel for the appellant, 5 and as veiled out in the aforesaid authorities, in such a case the proceedings become nullity. In the circumstance, I nullify the proceedings, quash the judgment and set aside the orders meted by the tribunal. Ultimately, I order for retrial before another chairman and a new set of assessors. More so, since this ground is enough to dispose of the appeal, I see no precious need to match on the other ground of irregularity with respect to the involvement of assessors. That said, I make no order as to costs. Ordered accordingly. DATED at DODOMA this 10th day of September, 2024. JUDGE 10/ 09/2024 6 Ruling delivered this 10th day of September, 2024 in the presence of the advocate for the appellant and the matter was ordered to start afresh under new panel of members. JUDGE 10/ 09/2024 7