20140320 TZCA Arusha

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: OTHMAN. C.J: BWANA. 3.A; And ORIYO. J.A.^ CIVIL APPEAL NO. 65 OF 2013 WILLIAM STEPHEN ............................................. APPELLANT VERSUS MS. LEAH JULIUS (administratrix of the estate of the late Neeva Saboro............................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Arusha) (Nyerere, J.Q Dated 18th day of May, 2012 In Misc. Land Appeal No. 4 of 2007 JUDGMENT OF THE COURT 19th & 21th March, 2014 BWANA. J.A.: This is a third appeal. Initially the appellant instituted a land suit no. 5 of 2006 before the Mateves Ward Tribunal, Arumeru District. He was unsuccessful. He appealed to the Land and Housing Tribunal at Arusha where he won the appeal. The High Court of Tanzania at Arusha, however, reversed that decision following a successful appeal by the respondent. Aggrieved by that decision, he lodged this third appeal before this Court raising four grounds of appeal in his Memorandum of Appeal. When the matter came before us for hearing, Mr. Elvaison Maro, learned counsel for the appellant, was of the view that the said appeal evolves around a consideration as to whether there is a valid judgment delivered by the Ward Tribunal. Apparently the said Ward Tribunal handed down two conflicting decisions. The first, a hand written one, is said to have been delivered by the Ward Tribunal on 27 June 2006 while second one, typed, was delivered on 6 July 2006. Both "judgments" are said to have been signed by the Chairman and Secretary of the Ward Tribunal of Mateves. The two "judgments" are. in conflict with each other. In the hand written judgment one party won while in the typed one, the other party was successful. It is against this background that both the Arusha Land and Housing Tribunal and the High Court were asked to determine as to the validity of either judgment. According to Mr. Maro, there is no legal requirement on the part of Ward Tribunal's judgments to be sealed or stamped. That legal requirement applies in situations provided for under Rule 9 of the High Court Registry Rules, 2005 (GN 96 of 15th April, 2005) which do not cover judgment/decisions of the Ward Tribunal, asserted Mr. Maro. He further averred that in the alternative, if we were to hold that a seal and or stamp is required, then lack of the same is not a fatal omission, it does not vitiate that judgment of the Ward Tribunal. Regarding an order by the High Court for retrial, Mr. Maro was of the view that as there is no illegality or serious irregularity in the Ward's proceedings, necessary ingredients for such an order. He cited the case of The DPP versus Owden Kasanja & 9 Others, Criminal Appeal No. 305 of 2009 (unreported) in support of his arguments. He further averred that the High Court erred in basing its order for retrial on the basis that there was no valid judgment between the two. Mr. Maro believed that the handwritten judgment dated 27 June 2006 is the valid one. On his part, Mr. Duncan Oola, learned counsel for the respondent, controverted Mr. Maro's position. He believes the typed judgment to be the valid one as it follows the sequence of the proceedings, including typed proceedings, signed and stamped. He supports the High Court's concern over the "amazing situation and contradictions" noted in the proceedings of the Tribunal. Given those serious irregularities, Mr. Oola supports the decision to order a retrial. Going through the record, it is apparent that the two "judgments" are purportedly signed by the same Chairperson and Secretary of the Ward Tribunal. This in itself is a gross irregularity and or illegality warranting an appellate court to order a retrial. We prescribe to the stand taken by the court in Fatehali Manji versus Republic (1966) EA 344 that: "In general a retrial may be ordered only when the original trial was illegal or defective .... each case must depend on its own facts and an order for retrial should only be made where the interests o f justice require..." (emphasis provided) We are alive to the fact that under section 15(1) of the Ward Tribunals Act, Cap 206 RE 2002 the Ward Tribunals are not bound by any rules of evidence or procedure applicable to any court. However the proceedings before the Ward Tribunal, in our considered view, contain several irregularities which would warrant an order for retrial. Such irregularities, include, in addition to what the second appellate court held, the improper procedures adopted by the Ward Tribunal in the recording of its proceedings (p. 6 to 18 of the record); not showing who were present during the trial; whether the parties (or one of them) were present on the date the "judgment"was delivered; inclusion of an administrative letter in the record without clear indication as to how and when it was admitted on the record, and more others. We are aware of the need to free tribunals such as the Ward Tribunal, from legal technicalities and allow them to administer substantive justice. Indeed justice may be done in substance without impeding it with technicalities. However, where it is in the opinion of the court that the irregularities and or illegalities detected on the record lead to a miscarriage of justice and offend the very basis of justice, they cannot be ignored. Section 16(1) of the Ward Tribunals Act enjoin the Ward Tribunal to seek to do justice between the parties in all their proceedings. Substantive justice as enshrined under Art. 107A (2) (e) of the 1977 Constitution of the United Republic of Tanzania does not, in our considered view, do away with the need to observe procedural requirements of the law. Doing so may result in causing injustice to the parties concerned. In the instant case it is apparent that the recorded proceedings contain several and serious irregularities, as listed by the High Court Judge, that go to the roots of the matter that was before the Ward Tribunal. Ignoring such irregularities amounts to condoning injustice. In conclusion and having considered all the above, we are satistied with the reasoning and conclusions of the judge in the first appellate coyrt. We accordingly dismiss this appeal in its entirety. We make no order as to costs of this appeal. We believe that given the time taken by I this appeal to reach this stage, the composition of the Ward Tribunal members at Mateves Ward Tribunal may have changed so as to allow the existing present members to proceed with the fresh trial. If not, then we reconfirm the order of the first appellate court that the trial de novo be conducted before a different panel of members of the Ward Tribunal. DATED at ARUSHA this 20th day of March, 2014. M.C. OTHMAN CHIEF JUSTICE SJ. BWANA JUSTICE OF APPEAL K.K. ORIYO JUSTICE OF APPEAL