IN THE HIGH COURT OF THE UNITED REPUBLIC OF TAriZANIA

{i^lOROGORO SUB-REGISTRY)

AT ^iOROGORO

LAND APPEAL NO. 38 OF 2022

(Arising from Land AppHcation No. 84 of2018;In the District Land and Housing
Tribunaifor Morogoro, at Morogoro)

YASi^STA CASSIANI MCHILO ......APPELLANT

VERSUS

HWANAHAMISI RAMADHANI RESPONDENT

JUDGEMENT

31^^ August, 2073

chaba' J.
, This fifst appeal originates from the District Land and Housing Tribunal for

Morogoro, at Morogoro (the trial DLHT / Tribunal) in Land Application No. 84 of

2018, where the appellant unsuccessfully sued the respondent for trespassing

over Plot No. 479, Block'M' situated at Klhonda within Morogoro Municipality.

The background of the matter, albeit in brief as discerned from the court

records is that, the appellant instituted Land Case No. 84 of 2018 before the

DLHT for Morogoro against the respondent for trespassing over her landed

property registered as Plot No. 479, Bock "M", located at Kihonda within

Morogoro Municipality/. According to the record, the appellant claimed that, Plot

Page 1 of 23
No. 479, Bock "M", was allocated to her by the Municipal Council herein

Morogoro in the year 2004.

Before being allocated the said Plot No. 479, the appellant applied for and

was allocated Plot No. 273, Block "M"situated at Kihonda in the year 2002 and

issued with a letter of offer. When she made onsite visit to that land, she

realized that Plot No. 273, Block "M" was a property of someone else. Without

delay, the appellant immediately communicated to the Municipal Executive

Director at Morogoro Municipal Council (Municipal Council) and informed him

that. Plot No. 273, Block'M'was already allocated and placed into the ownership

of one person (though the trial Tribunal's proceedings are silent as.to who was

in possession of that land by then). Following that information, the Municipal

Council alternatively decided to re-allocate the appellant on another Plot. It was

at this juncture, through an official letter dated on 27^^ September, 2004, the

said authority resettled the appellant on Plot No. 479, Block "M" situated at

Kihonda .(the disputed suit land).

Further, it was the appellant's assertion that, when she visited the disputed

suit land for the first time so that she could start making improvements thereon,

she found the same was already placed into the possession of the respondent

herein. Seen that, the appellant notified the Municipal Council so that it could

intervene and resolve the muddle. When the respondent was notified to attend

the meeting that aimed to resolve the said confusion (dispute), the respondent

disobeyed and / or refused to heed. As a result, the appellant unsuccessfully

Pa.c'e 2 of 23
instituted a.land matter registered as Land Appllcation No. 84 of 2018 before

the Trial Tribunal for Morogoro. However, the findings and orders issued by the

trial Tribunal did not amuse the appellant, hence this appeal. To challenge that

decision, the appellant fronted five (5) grounds of appeal as hereunder: -

1. That, the trial tribunal erred in law and facts by not considering the

evidence of the appellant and her witnesses.

2. That, the trial tribunal erred in Jaw and fact by holding that the

Municipal had no better title to pass while there was enough evidence

to justify how did the Municipal obtained the land from the original

occupiers.

3. That, the trial tribunal erred in law and facts by holding that the

mother of the respondent bought the land without a valid

documentary evidence of a sale agreement.

4. That, the trial tribunal erred in law and facts by not holding the

respondent a trespasser who failed to prove how did she inherit from

her mother.

5. That, the trial tribunal erred in law and facts by entertaining a matter

in which parties were not properly constituted.

Based on the above grounds of appeal, the appellant invited this Court to quash

the decision of the trial Tribunal. She further prayed the Court to declare her as

a lawful owner of the disputed suit land and the respondent be condemned to

pay costs at this stage of appeal and below. On the other side, the respondent

in her reply to the memorandum of appeal, vehemently contested all grounds

Page 3 of 23 . ,
of appeal raised by the appellant. She supported the decision of the trial DLHT

and prayed this Court to dismiss the appeal with costs and uphold the decision

of the trial DLHT. Respondent further prayed to be awarded costs at this stage

of appeal and before the trial DLHT. In addition, both parties through their

respective pleadings were at common that, the Court should issue any other

orders where the interest of justice so demands.

At the hearing of the appeal on 11^*^ July, 2022, both parties appeared in

persons and their learned advocates. Whereas, Mr. Asifiwe Alinanuswe, learned

Advocate appeared for the appellant, Mr. Bahati Hacks, also learned advocate

entered appearance for the respondent. By consensus, parties agreed to

dispose of the appeal orally.

Arguing in support of the first ground, the Counsel for the appellant, Mr.

Asifiwe faulted the trial Tribunal that it erred in law and fact for failure to

consider the evidence of the appellant and her witnesses. He submitted that,

before the trial Tribunal, the appellant explained clearly how she acquired the

disputed iand. He averred that, the evidence is clear that the appellant was

allocated the disputed parcel of land by the allocating Authority, that is the

Commissioner for Lands at Morogoro Municipal Council. It was his argument

that, since the appellant's names was registered in the Land registry, the

Chairperson at the DLHT erred in law to hold otherwise as he did.

Convincingly, Mr. Asifiwe referred this Court to the provision of section 2

of the Land Registration Act [CAP. 334 R. E. 2019] and accentuated that, the
Page 4 of 23
law says that, the provision recognizes ownership of the landed property by the

presence of the names of a person(s) dully registered in the Land registry. In

this regard, Mr. Asifiwe averred that, since all relevant evidence were tendered

before the trial DLHT showing that it was the appellant's names that was

registered in the Land registry, he wondered to see that the appellant was not

declared as a lawful owner of the disputed parcel of land. He underlined that,

on the other side, respondent did not submit anything (including relevant

documentary evidence or exhibits) to prove her ownership and she failed to

describe even the boundaries of the disputed parcel of land.

As regards to the 2"^ ground, the Counsel highlighted that the trial DLHT

erred in law and fact when it failed to consider strong evidence adduced by

AW3 (Helman Paul Hambara). He argued that, this witness being the Land

Officer from the Municipal Council in Region testified and elaborated before the

trial DLHT the entire process on how the suit land was surveyed and measured.

AW3 explained how the previous owners were compensated and finally the

Land Authority became the owner of the land in dispute. Mr. Asifiwe submitted

further that, the respondent's names and the names of her late mother were

not among the names that were listed by the Authority deserving

compensation..He vigorously faulted the finding of the trial Chairperson that he

made a wrong decision upon condemning the Municipal Council that it had no

better title to pass..

Page 5 of 23
 Arguing on the 3^"^ ground, Mr. Aslfiwe submitted that it was wrong for the

trial tribunal to hold that respondent's mother had a better title while there was

no documentary evidence to that effect. He underlined that, there was no sale

agreement that was exhibited at the trial Tribunal. To buttress his contention,

Mr. Asifiwe cited the provision of section 64 (1)(a) of the Land Act [CAP.113

R. E. 2019] which provides that: -

"Section 64(1)- A contract for the disposition ofa fight of

occupancy or any derivative right in it or a mortgage is

enforceabie in a proceeding oniy if:

(a) the contract is in writing or there is a written

. memorandum ofits terms.

(b) NA.

He went on accentuating that, since the respondent and her witnesses

failed to tender any exhibit to prove ownership or tender evidence proving that

there was transaction showing selling and buying of the disputed land or else

an agreement that involved her late mother, then it was wrong for the trial

DLHT to decide in favour of the respondent. He stressed that, the provision of

section 180 of the Land Act (supra) is clear that, subject to the provisions of

the Constitution and this Act, the law to be applied fy the courts in

implementing,,interpreting and applying this Act and determining land disputes

arising under this Act or any other written law shall be the customary laws of

Tanzania and the substance of the common law and the doctrines of equity as

Page 6 of 23
applied from time to time in any other countries of the Commonwealth which

appear to the courts to be relevant to the circumstances of Tanzania. So,failure

to abide by the provision of section 64 (1) of the Land Act, in his opinion, was

a serious error.

As regards to the 4^^ ground, Mr. Aslfiwe submitted that the respondent

testified at trial that she inherited the land in dispute from her mother, Mariam

Bakari but did not tender any documentary evidence, inventory or even a clan

meeting stating that she was sometimes appointed as an administratrix of the

estates of her late mother. More-over, she did not summon even her close

relatives to support her testimony. She referred this court to provision of section

100 of the Probate and Adrninistration of the deceased's estates [CAP. 352 R.

E. 2019] which articulates that:

executor or administrator has the same power to sue

in respect ofail causes ofaction thatsurvive the deceased,

and may exercise the same powers for the recovery of

debts due to him at the time ofhis death, as the deceased

had when iiving'\

Based on the above subrhission, he insisted that the respondent is the

trespasser of Plot No. 479, Block"M"situated at Kihonda at Morogoro Municipal

Council.

Arguing on the 5^^ ground, the Counsel for the appellant highlighted that

the trial Tribunal erred in law and fact to entertain the matter in which parties
Page 7 of 23
were not properly constituted. He said, since the respondent told the trial

Tribunal that It was her mother who bought the disputed parcel of land, then

the seller was supposed to be joined as party of the trial proceedings. Mr.

Asifiwe placed reliance upon the case of Juma B. Kadala vs. Rauient

Mkande [1983] TLR 42, wherein the Court held that, where there is an

allegation that someone has bought a land, the buyers and sellers must be

made party of the proceedings. Mr. Asifiwe was of the view,that, since the

principle articulated in the case of Juma Kadala's case was violation, no doubt

that trial Chairperson had no justifiable cause to declare the respondent as the

lawful owner of the land in dispute.

To conclude, the Counsel for the appellant on the basis of his submission

he prayed and urged the court to quash the decision of the trail DLHT and

declare the appellant to be lawful owner of the disputed parcel of land and any

other orders that may deem just and fit to grant, and costs to follow the event.

On her part, the respondent through the services of the learned advocate,

Mr. Bahati Hacks, responded to the appellant's submission by highlighting the

grounds of appeal in pattern but brainly and brief as follows:

On the ground, Mr. Bahati submitted that the evidence adduced by a

witness from Morogoro Municipal Council (AW3) as reflected on pages 4-5 of

the typed trial Tribunal's judgment, clearly shows that he testified before the

DLHT the way he understood the dispute and tendered no any document or

even a minute's sheet which could have explained and gave the trial Tribunal a

Page 8 of 23
picture on how the land in dispute was acquired by the Land Authority. He

contended further that, the appellant's witness failed to tell the trial Tribunal

how the Village Leaders were Involved in the process of taking or acquiring the

land in dispute from the inhabitants and even how the said Authority involved

the owners who are the "wananchf in the process of acquiring their native land,

or how each of the above-mentioned parties did participate in the whole

process.

On the 2"^ ground, Mr. Bahati began by supporting the finding reached by

the trial Tribunal and proceeded to argue that, at page 7 para.2 of the typed

trial Tribunal's judgment the Land Authority acquired the disputed parcel of land

without explaining fully how the deemed right of occupancy shifted to granted

right of occupancy. The allocating Authority through AW3 was duty bound to

advance sufficient evidence to elaborate how she acquired the disputed land.

He averred that, failure of which it can be taken that the Authority vested with

the powers to allocate the land to the citizen (Morogoro Municipal Council/Land

Authority) illegally acquired, the respondent's parcel of land and had no better

tittle to pass to the appellant herein.

In respect of the ground, the Counsel for the respondent submitted

shortly that the land in dispute was sold by Zena Saiumu to the late Mariam

Bakari (respondent's late mother). He referred this court to the testimony

tendered by Fatma Thabit at page 6 of the typed judgment. He underlined that

the circumstance of the case show that the seller of the disputed parcel of land

Page 9 of 23
was right to sale it to the respondent under customary law and auspices of

deemed right of occupancy. In view of the above, Mr. Bahati concluded that

the sale transaction between the Zena Salumu and the late Mariam Bakari

Mussa was a legal transaction. He further urged this court to consider the

decision of this court (J.L. Masabo, J.) in Mechtiida Kateme Kabagile vs-

Rashid Ramdhani StTwoOtherS; Land Case No. 166 of 2012.

On the 4^^ ground, Mr. Bahati contended that if the Municipal Council did not

follow the relevant proper procedures to acquire the disputed parcel of land

from the citizen (the original owners), in the circumstance cannot shift its

burden and complaint as well to the respondent. He stated that, since the sale

tran^actidn- took place without any dispute, then all done were legal. He

however, emphasized that majority of citizen do not go to court and institute

matters pertaining to probate and administration of estates of the deceased

persons. Most of them prefer customary arrangements to deal with the

deceased's estates. On this facet he once again cited the case of Mechtiida

Kateme Kabagire's case-on page 19.

As regard to the 5^^'ground, Mr. Bahati accentuated that before the trial

Tribunal the seller (Zena Salumu) was called as a witness and testified as DW2

as indicated on page 6 para.3 of the Tribunal's typed copy of Judgment. He

further underlined that the fact that the seller was not joined as a party to the

cas^byWe respondent-had no validity. He submitted that the appellant had a

rigiit to cross-examine her. He concluded that, the sale agreement took place

Page 10 of 23
in the year 1994 while the Land Act of 1999 which is act to provide for the basic

law in relation to land other than the village land, the management of land,

settlement of disputes and related matters, came into operation in 2001, hence

irrelevant. He concluded that, since the entire appeal is devoid of merits, he

prayed the Court to dismiss it with costs.

By way of rejoinder, Mr. Asifiwe reiterated what he submitted in chief. He

insisted that the appellant did not advance sufficient evidence before the trial

Tribunal. He maintained that, the trial Chairperson did not explain why he

disregarded the appeliant's'evidence. He said, on page S para.3 DW3(Fatuma

Thabit) explained on how the process was adhered to and what was conducted

by the Municipal Authority to acquire the disputed parcel of land.

He went on underlining that, the decisions relied upon by the Counsel for

the respondent is distinguishable in this case and that the document mentioned

by Mr. Bahati wasn't admitted as exhibit at trial. Again, Mr. Asifiwe submitted

that, one Zena Salumu appeared before the trial Tribunal and testified as a

witness. However, her testimony contradicted with that of Fatuma Thabit who

was involved in the survey process as a local leader.

Rejoining on the 4^^ ground, Mr. Asifiwe argued that the case cited by the

Counsef for the respondent, Mechtilda Kateme Kabagire's case is

distinguishable because Hon. Masabo, J., was trying to distinguish some facts

in this case and the case of 3ohn Petro vs. Peter Chipaka, PC. Civil Appeal

No. 80 HCT - Mwanza. He insisted that the trespasser herein the respondent

Page 11 of 23
did not call or bring any relative on her party to prove her administratrix of the

estate of the late Mariam Bakari.

On the 5^^ ground, he maintained that Zena Salumu being the seller of the

land in dispute was supposed to be joined as a necessary party to resolve the

dispute. He ended to submit by asking the Court to allow the appellant's appeal

as prayed.

Having summarized the rival submissions from both sides and

dispassionately considered the records at trial and before this Court, the issue

for consideration, determination and decision thereon is whether this appeal

has merits or otherwise.

However, before I embark on deliberation of this appeal, I would like to

emphasis at this juncture two cardinal principles of law governing appeals at

this first appellate stage while I am preparing to consider and determine the

grounds of appeal in line with the entire Court records and submissions made

by the learned Counsel for the parties.

First of all, it is trite law that this being the first appellate Court, it has

power to rehear and re-evaluate the evidence tendered before the trial Tribunal

(The District Land and Housing Tribunal for Morogoro, at Morogoro) and come

up with its own finding of fact, if any. The authorities on this stance is not

peripheral. For instance, in the case of Fred Samwel @ Kindumba vs.

Republic, Criminal Appeal No. 68 of 2021, HCT at Sumbawanga, reported at

Page 12 of 23
https://tanzlii.Org/akn/tz/1udqment/tzhc/2022/l078l/enq@2Q22-07-26, this

Court at page 5 had the following to say:

"777/5 court being the appellate court,lam In the position

ofreevaluating the evidence ofthe trial courtand make my

own determination ofthe same''

Likewise, the same principle was enunciated by the Court of Appeal of Tanzania

(the CAT) in the case of Siza Patrice vs. Republic, Criminal Appeal No. 19 of

2010 (CAT- at Mwanza), where the Court held Inter-a/la \hdX.\ -

"We understand that It Is settled law that a first appealIs In

the form ofa rehearing. As such, the first appellate court

hasa duty to re-evaluate the entire evidence In an objective

manner and arrive atIts own finding offact. Ifnecessary".

Secondly, it should be noted that, Court records unlike other normal records

are serious documents and it is presumed that Court records accurately

represents the truth of what happened, hence it should not be lightly

impeached. In the case of Halfan Sudi vs. Abieza Chichili [1998] T. L. R

527 at page 529, the CAT held that: -

"We entirely agree with our learned brother, and the

authorities he relied on which are bud and dear that "A

Court record Is a serious document Itshould not be lightly

Page 13 of 23
 impeached.... There is aiways the presumption thata court

record accurateiy represents what happened."

Having highlighted the guiding principle, I now move to the first ground of

appeal. In this ground, the Counsel for the appellant submitted that the trial
Tribunal failed to consider the evidence adduced by the appellant and her

witnesses. He further argued that, at the trial DLHT the appellant tendered clear

evidence showing how she acquired and became the owner of the disputed

parcel of land and that her names to-date are still existing in the Land Registry.

Mr. Asifiwe cited the provision of section 2 of the Land Registration Act[334 R.

E. 2019] to reinforce his argument. In addition, the Counsel for the appellant

highlighted that the respondent had nothing to prove ownership of the disputed

parcel of land as she failed to describe the boundaries of the land in dispute.

On the other hand, the Counsel for the respondent, Mr. Bahati responded

by stating that the evidence adduced by the AW3 as reflected on pages 4-5 of
the trial Tribunal's judgment displays that AW3 neither tendered document(s)

nor any minutes sheet from the Land Authority. Mr. Bahati was of the view that,

the appellant's witness failed to tell the trial Tribunal how the local leaders and
the citizen (Wananchi) within the locality were involved in the process of survey

and measuring of the respective land.

To determine and resolve this ground of appeal, I had ample time to go

through the impugned judgment dated 30*^^ March, 2022 and thoroughly
scrutinized the entire records, parties' pleadings and hand written proceedings.

Page 14 of 23
In the course I noticed that, records of the trial Tribunal clearly show that the

proceedings started to be taken and recorded on 7^^ June, 2018 and ended on

30^^ March 2022. The records reveal further that from 7^^ June, 2018 to 30^^

March, 2022 the case file was presided over by three different Chairperson.

Among the three, neither of the two learned Chairperson took trouble to keenly

read the records. But as alluded to earlier, it is the duty of this Court to re-

evaluate the lower records and come up with an independent finding, if any.

On reviewing the trial DLHT's records, I have noted that the same show

that, at first, the Land Application No.84 of 2018 was presided over by Mr.

P. 3. Makwandif Esq. Chairperson and on 7^*^ June, 2028 the parties and

their advocates appeared before the Hon. Chairperson. To actualize what

exactly transpired on 7^^ June, 2018, I propose to reproduce the record taken

on the material date as clearly reflected hereunder: -

"7/6/2018.

CORAM: Mr. P. J. Makwandi-Chairman.

MEMBERS:(1)Mukama,(2)Njovu

FOR APPLICANT'Asiflwe

RESPONDENT-Present/TheophHy for Respondent

RMA'Joyce

Mr. Asifiwe: The respondent had to file a reply.

Mr. TheoohU: We intend to file the same today.

Order The reply be filed. Mentioned on 30/07/2018

Page 15 of 23
 S/ffUCd tmmiiil
7/06/2018

It is on record that, when the matter came up for mention on 30^^ July,

2018, it was presided over by a different Chairperson namely; Mr. O.Y. Mbega

who sat with new set of accessors and proceeded to schedule the matter for

hearing on 10/09/2018. The matter stood adjourned before him until on

12/12/2018, when Hon. Mbega, Chairperson commenced to hear and record

(started hearing) the evidence of the appellant herein. This is what transpired

on the 30^^ July, 2018: -

30/07/2018

CORAM: O.K Mbega-Chairman

MEMBERS:(1)Mr. Mpite(2)Mr. Mngazija

FOR APPLICANT"Absent/Asifiwe AUnanuswe for the applicant

RESPONDENT- Present/ Theophify for Respondent

RMA- Ghana!

Tribunal:

The matter is for mention. Pleadings are ready let fix the date for hearing.

Order: Hearing be on 20/09/2018.

Signed «««•«>«
30/07/2018"

Page 16 of 23
 On 12^^ December, 2018 the case was heard by 0. Y. Mbega who sat with

Mr. Njovu and Mr. Mpite (accessors). On that day parties appeared with their

respective advocates. Before hearing the testimonies of the appellant, issues

for determination were framed and afterwards the trial Tribunal proceeded with

the hearing of the applicant / appellant who featured as AWL At the end of the

day, the appellant closed her evidence. Thereafter, the matter continued to be

adjourned until on 5^^ May, 2021 when it found itself in the hands of another

Chairperson namely; Hon. Mogasa who took off the hearing of the case without

assigning any reason for transfer of the same from Hon Mbega to him.

According to the records, on that particular date i.e., 5^ May, 2021 both
parties appeared with their trained mind persons. The 2"^ appellant's witness

one George Ndeka (the appellant's husband)testified before the presiding

Chairperson Hon. Mogasa till the end on 30^^ March, 2022. For easy of reference

the record taken and reduced into writing on 5*^^ May, 2021 as reflected on the

trial Tribunal's record, is illustrated hereunder: -

"4/5/2021

Akidi- Mogasa

Wajumbe 1 2.....

Mwombaji Wapo

M/Maombi

Karani-Chanai

Adv. Asifiwe: NamwakiHsha mdai.

Page 17 of 23
 Adv. TheotiHos: NamwakiHsha mdaiwa

From the foregoing records of the trial DLHT, it is clear that there were no

reasons recorded and / or assigned by the Chairpersons explaining why the

case file was moving from one Chairperson on another as a result it was handled

by different three Chairpersons. It is undisputed facts that the trial Chairperson,

An Arbitrator, Magistrate or a Judge might be prevented from continuing with

the proceedings, for some unforeseen event(s), by either death, transfer or any

other cause, to its finality. But as the law requires that the change of one

Chairperson or judicial officer to another during the proceedings be it in criminal

or civil trials, must be accompanied with reasons. Such reasons must be

recorded first, dated and signed by the successor. My brethren in the Bench

Hon. Mganga, J., was faced with akin situation in the case of Charles Samwel

Koja vs. Kobil Tanzania Limited, Revision Application No. 173 of 2023(High

Court Labour Division, DSM) in which three different arbitrators presided over

the same case without assigning reasons for doing. In the course of

determination, this Court held inter-alia\k\aX.\ -

"There is no room foran arbitrator to take proceedingsfrom

another arbitrator and continue with arbitration without

being assigned. It is undisputed that for some unforeseen

event, an arbitrator may not arbitrate the dispute to its

conciusion, but reasons must be on record as to why

another arbitrator is taking over"

Page 18 of 23
 On this subject, there is a plethora of case laws explaining the importance

and the consequences of a successor Chairman, Arbitrator, Magistrate or Judge

to assign and record reasons for taking over the file from the predecessor.

[See: Priscus Kimario vs. Republic, Criminal Appeal No. 301 of 2013;

Charles Chama & Others vs. The Regional Manager (TRA) & Others,

Civil Appeal No. 224 of 2018 [2019] TZCA 417; National Microfinance Bank

vs. Augustino Wesaka Gidimara T/A Builders Paints & General

Enterprises; Civil Appeal No. 74 of 2016; M/S Georges Center Limited vs.

The Hon. Attorney General & Another, Civil Appeal No. 29 of 2016 [2016]

TZCA 629; M/s Flycatcher Safaris Ltd; Hon. Minister for Lands & Human

Settlements Developments & Another, Civil Appeal No. 142 of 2017[2021]

TZCA 546; Leticia Mwombeki vs. Faraja Safarali & Others, Civil Appeal

No..133 of 2019 [2022] TZCA 349; and Hamisi Miraji vs. Republic, Criminal

Appeal No. 541 of 2016 [2018] TZCA 237 (All unreported), just to mention but

a few.

For instance, in. the case of Hamisi Miraji vs. Republic (supra), the CAT

quoted its earlier decision in Priscus Kimario's case (supra) and observed: -

".. where it is necessary to re-assfgn a partly heard matter

to another magistrate, the reason for the failure ofthe first

magistrate to complete must be recorded. If that is not

done, it may iead to chaos in the administration ofjustice.

Anyone,for persona!reasons couldjustpick up any

Page 19 of 23
 file and deal vdth it to detriment ofjustice. This

mustnot be allowed^',[Emphasis added].

In M/S Georges Center's case (supra), the Court of Appeal having

considered the provisions of Order XVIII, Rule 10 of the Civil Procedure Code
[CAP. 33 R. E. 2019], held that: -

'The genera!premise that can be gathered from, the above

provision is that once the triai ofa case has begun before

one Judicial officer thatjudicial officer has to bring it to

completion unless for some reason, he/she is unable to do

that The provision cited above imposes upon a successor

judge or magistrate an obligation to put on record why

he/she hasto take up a case thatispartly heard byanother.

There are a number ofreasons why it is important that a

trial started by one judicial officer be completed by the

same judicial officer unless it is not practicable to do so.

For one thing, as suggested by Mr. Maro, the one who

sees and heats the witness is in the bestposition to

assess the witness's credibility. Credibility of

witnesses which has to be assessed is very crucialin

the determination ofany case before a courtofiaw.

Furthermore, integrity of judicial proceedings

hinges on transparency. Where there is no

Page 20 of 23
 transparencyjustice may be compromised".[Bold is

mine].

Therefore, guided by the above binding precedents, it is my holding that

failure by the successor Hon. Chairpersons to assign reasons for reassignment

or taking over the proceedings recorded by the predecessor Chairperson who

handled the dispute between the parties at the initial stage, vitiates the entire

proceedings and the judgment, decree and orders emanated therefrom.

Indeed, that was procedural irregularity. The CAT in the case of Mariam

Samburo vs. Masoud Mohamed Joshi & Others, Civil Appeal No. 109 of

2016 [2019] TZCA 541 underscored that:

the circumstances, we are settled that, failure by the

said successor judges to assign reasons for the

reassignment made them to iack jurisdiction to take over

the trial of the suit and therefore, the entire

proceedingsas wellas thejudgmentand decree are

nullity."[Boid is mine]

Apart from above noticeable irregularity, although Counsel for the appellant
failed to point out, in particular which evidence or testimony on the appellant's
side was or were not considered by the trial DLHT, but my scrutiny of the lower

proceedings displays the answers.

One; Some evidences that were recorded during the hearing at the trial
tribunal was neither considered nor reflected in the impugned Judgment. These
Page 21 of 23
evidences include the evidences adduced by AWZ-George Ndeeka on 5*^ May,

2021.

Second, the evidences of the appellant, Yasinta Cassian Mchilo recorded

by the trial Chairperson in the proceedings on 12'** December, 2018 is

more detailed on what transpired over the disputed land, but the material

evidences were omitted in the judgment hence occasioned injustice.

Three; It is apparent that trial Tribunal for reasons better known by

itself completely ignored the' appellant's documentary evidence / exhibits

that were tendered and admitted during trial. These documentary

evidence / Exhibits are: I.D-l, Exhibits A. E-1; A. E-2; A. E.-3; A. E-4; and

A. E-5.

Four; Though Exhibits I.D-l and A. E-2; A. E.-3; A. E-4; and A. E-5 were

tendered and admitted during trial, these documents are not reflected in the

court file. These irregularities left serious doubts as much as the administration

of justice is concerned.

From the above reasons stated, I am of the settled view that the

above irregularities in the trial tribunal proceedings suffice to dispose of

the entire appeal. Therefore, the first ground of appeal is meritiously.
Consequently, the proceedings of the DLHT are hereby nullified, the
Judgment, Decree and Orders stemmed from the said proceedings are
hereby set aside with no costs. Further, I order and direct that, this case
Page 22 of 23
be tried de-novo before a different tribunal chairperson with a different

set of accessors without any delay. For avoidance of doubt, the case be

heard within four (4) months from the date of its Institutions. I so order.

DATED at MOROGORO this 31^ day of June, 2023.

M. J.

JUDGE

31/08/2023

Page 23 of 24
Court:

Judgment delivered this 31=^ day of August, 2023 in the presence of

Ms. Charity Mzinga, Learned Advocate holding brief for Mr. Asifiwe

Alinanuswe, Learned Advocate for the Appeiiant and in the presence of

the Respondent.

A. A. MMBANDO
wv

'DEPUTY REGISTRAR
MO

31/08/2023

Court:

Rights of Appeal to the parties fully explained.

> 4

A. A. MMBANDO

DEPUTY REGISTRAR
cr
AJOPO^
31/08/2023

Page 24 of 24