MAHONA FINAL

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB-REGISTRY AT GEITA LAND APPEAL NO. 80 OF 2025 (Originating from the decision of the District Land and Housing Tribunal for Geita in Land Application No. 32 of 2023 dated 22 November 2024 before A.R Maganya- Chairperson) ZAKAYO MAHONA--------------------------------------------------------- APPELLANT VERSUS MLINDWA MAGANGA ------------------------------------------------- RESPONDENT JUDGMENT Date of last Order: 17/02/2025 Date of Judgment: 14/03/2025 K. D. MHINA, J. This is the first appeal. It stems from the District Land and Housing Tribunal ("the DLHT") for Geita in Land Application No. 32 of 2023, whereby the appellant in the instant appeal, inter alia, claimed against the respondent for ownership of the land measuring ¼ acres located at Mwabasami Street within Ililika Village, Nyarugusu Ward in Geita District. Following that controversy, the appellant claimed before the DLHT the following reliefs; 1 (1) To be declared the lawful owner of the disputed land. (2) An order to restrain the respondent, his agents or workmen from entering the suit premises. (3) General damages of TZS. 8,000,000/= (4) Costs and (5) Any other relief (s) the Court may deem fit and equitable to grant. At the end of the trial, the DLHT dismissed on merits the applicant’s application. Further, it ordered the respondent to continue to occupy the suit land, which was owned by his father. Undeterred by the DLHT judgment, the appellant is now approaching this Court by way of appeal with the following four (4) grounds of appeal; i. That the trial chairperson erred in law and fact by basing the decision on the contradictory respondent’s evidence while the appellant’s evidence was heavier than the respondent’s evidence. ii. That the trial chairperson erred in law and fact, declared the father of the respondent as the lawful owner of the suit land while he was not part of the suit. iii. That the trial chairperson erred in law and fact, declared the respondent as a winner based on the land, which was not part of the dispute. 2 iv. That the trial chairperson erred in law and fact, by failing to assign reasons for taking over the hearing of the suit while the matter was already partly heard by another chairman. Also, the chairman failed to inquire from the parties if they were ready for the continuation of the hearing for the suit, which was already partly heard by another chairman. The appeal was argued by way of oral submissions. The appellant was represented by Mr. Yessey Lobunda, a learned advocate, while the respondent was represented by Mr. Vianney Mbuya, also a learned Advocate. In supporting the appeal, Mr. Lobunda joined the 1st and 3rd grounds of appeal, which revolved around the issue of evidence and argued them together. To amplify the grounds, he submitted that the DLHT failed to consider the appellant's evidence and considered the evidence of the respondent, which related to the land/area not in dispute. He explained that the land for which the respondent testified was different from the land on which the appellant complained that it was invaded. Thus, the respondent never testified on the land the appellant complained was invaded. 3 Therefore, he argued that in such a circumstance, the DLHT erred by deciding the case on the land which had no dispute. Had the DLHT considered the appellant's evidence (from PW1 to PW4) and the respondent's evidence (SU2), that evidence would have indicated how the appellant owned that land. He further argued that on the balance of probabilities, the appellant's evidence was heavier than the respondent's evidence by considering the appellant’s witnesses and the evidence of SU2, who acknowledged that the appellant’s land was close to the land for which the respondent gave the evidence. Furthermore, he stated that the suit land (land which the appellant claimed to be invaded) was left without any decision, and thus, the controversy of who owned ¼ acre of land was not solved. Regarding the 2nd ground, he submitted that before the DLHT, the respondent was Mlindwa Maganga. The appellant had no dispute with the late father of the respondent. He explained that the appellant purchased the suit land in 2004, and since then, he has never had a dispute with the respondent's father, and 4 the appellant has never sued the late father of the respondent or the administrator of the estate. Therefore, declaring that the suit land belonged to the respondent’s father while he was not part of the suit resulted in the DLHT decision being a nullity. He substantiated his submission by citing the case of Agripina Nsele vs. Sophia Mbungi, Land Appeal No. 47 of 2020 HC Mbeya (Tanzlii) at page 12. He also raised a point about how that judgment would be executed and who would file the application for the execution in such circumstances. Therefore, the decree was unexecutable. Further, the DLTH acted ultra vires. Therefore, the decision was fatal and a nullity. On the 4th ground, he submitted that previously the case was heard by Masao as the Chairperson who heard the appellant’s case. Later, Masao was transferred while the suit was partly heard. On that, he stated that the law is clear that the successor, before continuing with the hearing, shall give the parties an opportunity/ right to choose to continue with the hearing or start afresh. That right must be 5 clearly in the proceedings. Further, the successor must give reasons why he/she continues with the hearing of the case. He argued that, unfortunately, the successor Chairperson of the DLHT did not comply with that requirement of law as indicated in the proceedings dated 17 July 2024. To bolster his argument, he cited Rule 15 of the Civil Procedure Code (Amendment of the first schedule rules 2021) G.N No. 760 of 2021, which provides that where a judge is prevented from continuing a hearing by any cause, the successor must give reasons for taking over and the case of Salvatory Balweta vs. Godfrey Simeo and five others, Misc. Land Case Appeal No. 17 of 2019 HC-Bukoba (Tanzlii) at page 6. He concluded by telling this court that the remedy for the failure of the Chairperson to give reasons for taking over is that the judgment and proceedings should be quashed and a retrial be ordered. In response, starting with the 1st and 3rd grounds of appeal, Mr. Mbuya submitted that what the learned counsel for the appellant submitted did not feature in the proceedings and judgment of the DLHT. There was nowhere the appellant testified at the DLHT that the land in dispute 6 measuring ¼ acre was not part of the land measuring 70/70 (1 acre), which the respondent claimed ownership of. He explained that the respondent's evidence at the DLHT was to the effect on how his father acquired that land measuring one (1) acre. At page 10 of the proceedings, the respondent testified that the land in dispute was within that one acre. On the other hand, the appellant did not state the opposite. Further, the respondent testified that his father was given that land in 1970 and officially in 1974 during “Operation Vijiji”. In addition, SU2 and SU4 testified that since they were born, the suit land belonged to the respondent’s father. Amplifying further, Mr. Mbuya stated that from the evidence of SU2, it was true that the appellant had a land where he lived and had no dispute. The problem was that he overlapped inside the land that belonged to the respondent's father by ¼ acre. Therefore, the ¼ acre of land was/ within the disputed land measuring 70/70 (1 acre). On the 2nd ground, he responded that each case has its own circumstances. The way the DLHT received the evidence and analysed it at 7 the conclusion, it was satisfied that the land belonged to the respondent’s father. That complaint in the 2nd ground also raised a concern that the appellant filed a case against the wrong party. He ought to file the case against the administrator of the estate, the late respondent’s father. However, in this case, the DLHT properly decided that the land belonged to the respondent's father. He further submitted that at page 17 of the proceeding, the respondent informed the DLHT that the dispute arose on 7 June 2023 after the appellant trespassed onto their land. Therefore, it is not true that the appellant has been living on trespassed land since 2004. In addition, Mr. Mbuya stated that In addition, at page 5 of the proceedings, the appellant testified that at the time he purchased the land, there was a part of the land in front of his land used by a woman Mwana Bwire. That woman was the sister of the respondent’s father. That was the land in dispute and it was used by Mwana Bwire after the passing of her brother. When Mwana Bwire became 8 sick and stopped using that land, that was when the appellant trespassed into that land. Commenting on the cited case of Agripina (Supra), he stated that it is distinguishable as it has different circumstances. Regarding the last ground, Mr. Mbuya submitted that the successor Chairperson informed the parties regarding the continuation of the hearing before him. At page 15 of the proceedings, it is indicated that the parties stated that they were ready to proceed with the hearing. Further, at page 16, there was an order of the DLHT ordering the continuation of the hearing of the suit. Therefore, the procedure was complied with. In a brief rejoinder, Mr. Lobunda reiterated his earlier submission in chief that the ¼ acres was outside the 70/70 (one acre of land). Further, in the proceedings, it was not indicated if PW2 did not state the parties to the suit had no dispute over ¼ acre of land. On the 2nd ground, he rejoined that the main issue of concern was for the DLHT to grant ownership of suit land to a person, not a party to the suit. The trespasser was the respondent and not the father of the respondent. Therefore, that was a nullity. 9 Regarding the last ground, he reiterated that the chairperson did not give the parties their right before she proceeded with the hearing of the case and that order of DLHT was not preceded by any submissions by the parties. Having objectively gone through the grounds of appeal, the submissions by both parties and the entire records of appeal, I find it pertinent to start with the 4th ground of appeal. This is because the merits or demerits of this ground may be decisive in the instant appeal. The controversy between the parties in this ground of appeal is whether the chairperson who decided the suit assigned the reasons for taking over the hearing of the suit while the matter was already partly heard by another chairman and whether she inquired from the parties if they were ready for the continuation of the hearing for the suit, which was already partly heard by another chairman. On this, in exercising its powers, the DLHT is governed and regulated by the Land Disputes Courts (The Land and Housing Tribunal) Regulations 2003 (“The 2003 Regulations”). Unfortunately, the Regulations are silent on the issue of taking over incomplete proceedings by another chairperson in 10 the event the previous chairperson is unable to proceed with the hearing of the suit for any cause. Therefore, the Regulations are inadequate. The law under the land regime is clear that in case of inadequacy and lacuna in the Regulations, Section 51(2) of the Land Disputes Court Act comes into effect as it offers a “leeway. That leeway is to resort to the Civil Procedure Code (“the CPC”). That section reads that; “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”. Under the CPC, the law allows the successor magistrate or judge to proceed with the hearing of the suit from the stage the predecessor left, in case the predecessor is prevented by death, transfer or other cause from concluding the suit. This is provided under Order XVIII Rule 10, which reads; “Where a judge or magistrate is prevented by death, transfer or other cause from concluding the trial of a suit, his successor may deal with any evidence or memorandum taken down or made under the foregoing rules as if such evidence or memorandum has been taken down or made by him or 11 under his direction under the said rules and may proceed with the suit from the stage at which his predecessor left it”. However, the law also included some conditions for the successor to proceed with the hearing of the suit. On this, precisely and as rightly submitted by Mr. Lobunda, is Rule 15 of the Civil Procedure Code (Amendment of the first schedule rules 2021) G.N No. 760 of 2021, which deals with powers to deal with evidence taken before another judge or magistrate. These Rules are made under section 81 of the CPC. Rule 15 reads; “Where a judge or magistrate is prevented by death, transfer or other cause from concluding the trial of a suit, his successor may deal with any evidence or memorandum taken down or made under the foregoing rules as if such evidence or memorandum has been taken down or made by him or under his direction under the said rules and may proceed with the suit from the stage at which his predecessor left it: Provided that the reasons for taking over are recorded in the proceedings by the successor judge or magistrate at the time of taking over and communicated to the parties”. [Emphasis provided] 12 Therefore, cumulatively from the above provisions of the law, the following can be gleaned; One, a successor judge or magistrate (in the case of this appeal, the chairman of the DLHT) may proceed with the hearing from the stage the predecessor left. Two, however, the reason (s) for taking over must be recorded in the proceedings by the successor at the time of taking over. Three, the reason (s) for taking over must be communicated to the parties. This is also a position in a plethora of authorities by the Court of Appeal and this Court. For instance, the Court of Appeal in Hamza Byarushengo vs. Fulgencia Manya and four others, Civil Appeal No. 246 of 2018 (Tanzlii), held that; “We are aware that the Court has in its numerous decisions stated that reasons for the taking over must be stated by the successor Judge. However, the reasons which prevent the trial Judge to continue with the trial include death, transfer or other cause and this is what must be brought to the attention of the 13 parties before the continuation of the hearing before the successor Judge”. At the trial, the records reveal that the hearing commenced on 7 November 2023, before Masao-Chairperson who proceeded to the appellant’s case which had five witnesses. On 17 July 2024, Maganya- Chairperson took over, heard the respondent’s witnesses to the end and delivered a judgment on 22 November 2024. Further, the records on 20 June 2024 indicated that the suit was presided over by Masao- Chairman, who adjourned the matter to 17 July 2024. On 17 July 2024, the record indicates as follows; 17/07/2024 A.R Maganya-Mwenyekiti J. Mushi-Katibu Wajumbe: Florence na Onesmo Mleta maombi: Yupo Mjibu maombi: Yupo Mleta maombi: Nipo tayari kusikilizwa Mjibu maombi: Nipo tayari kusikilizwa Baraza: Shauri lilikuwa limeshauriwa kusikilizwa mbele ya Mhe. Masao na kesi ya mdai ilikwisha sikilizwa sasa utetezi unaanza leo na wako tayari kuendelea na utetezi mbele yangu. 14 After that, the successor chairman proceeded with the hearing of the respondent’s side's evidence and witnesses. From the above, it is clear that on 17 July 2024 or anywhere in the proceedings, the successor chairperson neither recorded the reason (s) for the recorded reason(s) for taking over the hearing of the suit nor communicated the reason (s) for taking over to the parties. The rationale for the successor to record reasons for taking over and inform the parties was clearly elaborated by the Court of Appeal in M/S Flycatcher Safaris Ltd vs. Hon. Minister of Lands and Human Settlements Development and another, Civil Appeal No. 142 of 2017 (Tanzlii), while it cited to its earlier decisions of Charles Chama and two others vs. The Regional Manager, TRA and three others, Civil Appeal No. 224 of 2018 and Fahari Bottlers and Southern Highland Bottlers Ltd vs. The Registrar of Companies and the National Bank of Commerce (1997) Ltd, Civil Revision No.1 of 1999 (both unreported). It states that; "One, that the one who sees and hears the witness is in the best position to assess the witness's credibility which is very crucial in the determination of any case before a court; and 15 two, that the integrity of judicial proceedings hinges on transparency. Where there is no transparency, justice may be compromised. Also; “the individual calendar system requires that once a case is assigned to an individual judge or magistrate, it has to continue before that particular judge or magistrate to its final conclusion, unless there are good reasons for doing otherwise. The system is meant not only to facilitate case management by trial judges or magistrates but also to promote accountability on their part. The unexplained failure to observe this procedure in this case is very irregular, to say the least. Such irregularities and the accompanying confusion, in our view, are not amenable to the appellate process for remedy. They are amenable to the revision process”. Therefore, from the above deliberations, there is a clear and apparent violation of Rule 15 of the Civil Procedure Rules, 2021. Thus, the trial was vitiated. Hence, the judgment and decree are a nullity. This is the position of the Court of Appeal in M/S Georges Centre Ltd vs. Honourable Attorney General and another, Civil Appeal No. 29 of 2016 (Tanzlii) where it was held that; 16 We need not belabor ourselves more on this matter. Having discussed it as above, we find that all the proceedings that were conducted …….. as from 17/3/2014, including the judgment and decree, were a nullity. In the exercise of our powers under section 4 (2) of the Appellate Jurisdiction Act, Cap 141 R. E. 2002, we quash and set aside those proceedings. We remit the matter to the High Court for continuation of the trial in accordance with the law”. On the way in the instant appeal, regarding procedural irregularity found in the 4th ground of appeal, in my view, the circumstances of this matter and the nature of the dispute lead this court to a finding that the irregularity is incurable. The trial was flawed and affected the resultant judgment, order and decree. Therefore, and consequently; i. The proceedings of the District and Housing Land Tribunal for Geita in Land Application No. 32 of 2023 from 17 July 2024 onwards when the successor chairman took over are nullified, and the resultant Judgment, order and decree are quashed and set aside. ii. The case file be remitted to the District Land and Housing Tribunal for Geita to be heard de-novo and the taking over chairman should adhere 17 to the provisions of Rule 15 of the Civil Procedure Code (Amendment of the first schedule rules 2021) G.N No. 760 of 2021, Further, it is advisable for the DLHT to visit the locus in quo because of the nature of the dispute and the suit land in dispute. However, in visiting the locus in quo, it shall adhere to the principle laid down in Kimonidimitri Mantheakis vs. Ally Azim Dewji and seven others, Civil Appeal No. 4 of 2018 (Tanzlii). Flowing from above, since the 4th ground of appeal is decisive and has disposed of this appeal, I don’t see the necessity of determining the remaining grounds of appeal because the remaining grounds will not change the outcome of the decision. Thus, the appeal is allowed with no order to costs. It is so ordered. K. D. MHINA JUDGE 14/03/2025 18 Court: The right to appeal is fully explained to the parties. K. D. MHINA JUDGE 14 19