Robert Joseph Antony vs Charles Bitamale (Land Appeal No 23874/2024) [2025] TZHC 8748 (19 December 2025)

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB - REGISTRY AT BUKOBA LAND APPEAL NO 2 3874 /2024 ( Arising from Bukoba District Land and Housing Tribunal Land Case No 90 / 202 3 ) ROBERT JOSEPH ANTONY ………… … ……………………………………………….. APPELLANT VERSUS CHARLES BITAMALE ………… ……………… ……………………………….… …….. R ESPONDENT JUDGMENT OF THE COURT. Date of last order: 14 /08/2025 Date of Judgement: 19 /1 2/ 2025 BEFORE: G.P. MALATA, J This appeal originates from Land Application No. 90 of 202 3 of District Land and Housing Tribunal for Bukoba which ended in favour of the respondent herein. Aggrieved by the decision thereof , t he appellant appealed to this Court armed with four ( 4 ) grounds of appeal namely:

1. That, the trial tribunal Chairman erred in law by composing and delivering judgment and decree on the matter that he did not take evidence without a justifiable reason known to the parties .
2. That, the trial Chairman erred in law by relying on annexure as evidence

2 when arriving at the final decision. 3. That, the trial Chairman erred in law and facts by reaching to the final decision against the weight of evidence whereas the Respondent failes to prove his case. 4. That, the trial Chairman erred in law and fact by failure to record the assessor's opinions as required by the law. On 14 th August, 2025, this appeal came for hearing, whereby M r. Victor Blasio learned counsel appeared for the appellant , and the respondent appeared in person. This court ordered the appeal to be disposed of by way of written submissions. Both parties filed written submissions pursuant to th is court’s order dated 14 th August , 2025. The Appellant argued 1 st ,2 nd and 3 rd grounds of appeal and abandoned the 4 th ground. Submitting on the FIRST GROUND , M r. Victor Blasio learned counsel stated that, the trial Chairman Hon. E. Masao, erred in law by allowing Hon. P. J. Makwandi to compose the judgment despite not having heard the evidence. It was submitted that, Hon. P. J. Makwandi the Chairperson composed and delivered judgement but the case was heard by Hon. Masao Chairperson. That there were no reasons stated as to why such changes. It was argued that, the tribunal acted in contravention of

3 the principles propounded in the case of Yono Auction Mart & Court Broker vs. Augusta John Ntiruka t/a Sanganiye Food Supplier , Civil Appeal No 92/ 2017 where by this court held that, in case of charge of magistrate or judge in a case reasons thereof must be stated. Finally, he asked this court to nullify the proceedings. On the SECOND GROUND of appeal the appellant argue d that the tribunal Chairman erred in law by relying on an annexure (CB1) which piece of evidence was not tendered and admitted in evidence . M r. Victor Blasio learned counsel submitted that, f rom the start to end , it is clear that, that piece of evidence, a contract was not tendered but merely attached. Astonishingly, when composing a judgement on page 9 of the last paragraph, it was said: “Pamoja na kumbukumbu kutoonyesha kuna mkataba wa manunuzi ulitolewa wakati wa kusikiliza hili shauri hata hivyo nakala yake (photocopy) ipo kama kiambatanisho” CB1”. The appellant cites the case Godless Jonathan Lema vs. Musa Hamis Mkanga and others , Civil Appeal No. 47 of 2021 TZCA at Arusha, where the Court of appeal principled that, annexures to the pleadings are not considered evidence unless properly tendered. The appellant request ed that , the part of judgement arrived in consideration of annexure s expunged from the judgment.

4 Regarding the THIRD GROUND , M r. Victor Blasio learned counsel submitted that, the trial tribunal's decision was not proven. The respondent failed to prove that they bought the disputed land. While the respondent claimed to have signed a purchase agreement with the late Joseph Mu l okozi, the contract was never tendered in evidence. It was argued that, given the nature of the case involving purchase, there could be no proof without the document itself, the purchase agreement. F ailure to present the contract r endered the respondent’s case unproven. Furthermore, the appellant presented evidence that, the sale of land was suspended due to family burial arrangement, meaning that, there was no such engagement. M r. Victor Blasio learned counsel prayed for nullification of judgment by Hon. P. J. Makwandi ended in contravention of the law . Alternatively , he prayed that, the appeal be upheld with costs. In reply to the FIRST GROUND that , the respondent argued that, it is true that Hon. E. Masao , Chairman framed the issues and heard the evidence but the judgement was lawfully compose d by Hon. P. J. Makwandi chairperson. It was submitted that: f irst ; H on. Masao was temporarily at the tribunal for a “cleanup session,” and therefore left a complete and clear record to enable his co - chairman Hon. P. J. Makwandi chairperson to continue the matter , s econd ; t he High Court can request the tribunal file verif ication that , the proceedings were properly

5 recorded , t hird ; e very procedural step was on record, therefore judgment was properly compos ed by Hon. Makwandi . On the SECOND GROUND , the respondent submitted that, w hen the case was filed on 9 August 2023, all copies of the sale agreement were annexed to all sets of documents and served to the appellant. The respondent kept the original contract for safe custody to avoid tampering. At the hearing, the original sale contract was tendered before the Chairman for comparison with the photocopies. Therefore, the appellant’s request to disregard annexure CB1 is misleading and unfair, especially given the respondent’s alleged loss of trees worth T ZS 6,000,000 due to the appel lant. Regarding the THIRD GROUND, the respondent argues that, PW 2, PW3 and PW4 testified in support of the sale transaction, and their evidence was never challenged by the appellant. Besides, their testimony was unopposed, the respondent’s case was proven on the balance of probabilities. The respondent made reliance to the cases of Hemed Said v. Mohamed Mbilu (1984) TLR 113 in support of the principle that , the party with heavier evidence must win. The respondent pray ed that , t he appeal be dismissed with costs, and t he court orders compensation for the trees allegedly harvested by the appellant.

6 In determining the appeal, this court will be guided by legal position settled in the case of Malmo Montagekonsult Vs. Margaret Gama , Civil Appeal No 86 of 2001 where the court of appeal principled that: “An appellate Court is not expected to answer the issues as framed at the trial. That is the role of the trial Court. It is, however, expected to address the grounds of appeal before it. Even then. It does not have to deal seriatim with the grounds as list ed in the memorandum of appeal. It may, if convenient address the grounds generally or address the decisive ground of appeal only or discuss each ground separately " Guided by the above position, in determining an appeal, the first appellate court is required to re - evaluate the entire evidence adduced at the trial and subject it to critical scrutiny and arrive at an independent decision. This court can either side with the trial court’s decision or differ. The above legal position is gathered from the case of Salumu Muhando vs. Republic [1993] TLR 170, Siza Patrice vs R , Criminal Appeal no. 19 of 2010, CAT, unreported, Alex Kapinga and 30 others vs R , Criminal Appeal no. 252 of 2008, CAT, unreported. In the case of Siza Patrice (supra), the court held that; “ We understand that, it is settled law that a first appeal is in the form of a rehearing. The first appellate court has a duty to re - e valuate the enter

7 evidence in an objective manner and arrive at its own findings of fact, if necessary. ” Having re - evaluated the entire evidence in objective manner as principled in the case of Siza Patrice vs R , supra and in view of the approach settled in the case of Malmo Montagekonsult v. Margaret Gama , supra, where the court of appeal stated that, the court can arrive to final decision in an appeal by three ways; one , conveniently addressing the grounds generally two , addressing the decisive ground of appeal only and three , discuss each ground separately In the presence case, it is evident that : one ; the Land Application No.90 of 2023 was filed on 09/08/2023 and assigned to Hon. Makwandi, the Chairperson of the tribunal, two ; on 19/09/2023 the case came before Hon. Makwandi , however , it was a djourned to 06/11/2023. On 06/11/2023 parties appeared before Hon. Makwandi in which t he proceedings thereof, reads that: Tarehe: 06 . 11 .2023 Akidi: P.J.Makwandi - Mwenyekiti Mwombaji: Yupo M/Maombi ; Hayupo kwa taarifa toka kwa Robert Joseph K/B: Mizambwa ……………………………………………………….

8 BARAZA : Shauri litasikilizwa tarehe 16.01.2024 Sahihi: P.J.Makwandi Mwenyekiti 06 . 11 .202 3 Three ; on 16/01/2024 the case was before Hon.E. Masao , Chairperson for hea r ing and the proceedings reads that: Tarehe: 1 6.01.2024 Akidi: Hon. Masao E - Mwenyekiti Wajumbe: 1. Mrs Christina 2. Mr. Yusuph. Mwombaji: Yupo Mjibu Maombi:Miss Liberatha wakili, yeye mjibu Maombi hayupo. K/B: Felister. Mjibu Maombi : Mhe . Shauri limepangwa leo kwa kusikilizwa ila mjibu Maombi ni mtu mzima sana wa miaka 90 na kwa umri wake hawezi kufika Barazani. Hivyo tumeanza mkakati wa kupata nguvu ya kisheria (Power of Attorney) na itakuwa tayari wiki hii ijumaa ili mtoto wake aweze ku endelea na shuari hili. Hivyo Mhe. Ni Maombi yetu kuwa shauri hili liweze kuhairishwa hadi tarehe nyingine. Mleta Maombi : Mh. Sina pingamizi na kila kilicho amuliwa. Pia ni Maombi yangu kuwa kuna barua niliyowasilisha ya kuongeza kielelezo cha thamani ya uaribifu. Naomba kipokelewe. Baraza: mjibu Maombi anapewa nafasi ya kukamilisha taratibu za kumpata mwakilishi mwenye ngu vu ya kisheria. Na

9 pia kwa Mleta Maombi afuate taratibu za kuingiza vielelezo vya nyongeza ikiwa ni Pamoja na kulipia maduhuri ya Serikali. Napanga tarehe ya kusikiliza. AMRI : kusikiliza tarehe 23.01.2024 Wote mfike Signed: E. Masao Mwenyekiti 1 6 .0 1 .2024 Four , based on the above proceedings, it is evident that, there was no order for transfer of Land A pplication No. 90/2023 from Hon. Makwandi to Hon.E. Masao, the Chairpersons, accompanied with reason thereof. Five , on 13/02/2024 Hon. E. Masao, the Chairperson ordered for closure of the respondent’s case as prayed and adjourned the case for assessors’ opinion on the case. The case was scheduled for hearing on 28/03/2024. Six , on 28/03/ 2024 parties appeared before Hon. Makwandi, the Chairperson for assessors’ opinion and the proceedings reads that: Tarehe: 28.03.2024 Akidi: P.J.Makwandi - Mwenyekiti Mwombaji: Yupo M/Maombi ; Yupo WAJUMBE: 1. Yusufu Mbelwa

10 2. Christina Kabigiza K/B: Mizambwa BARAZA : Maoni bado hayajaandikwa. Kusomwa maoni tarehe 18.04.2024 Sahihi: P.J.Makwandi Mwenyekiti 28 .0 3 .2024 Indeed, once again there was no order for transfer of Land Application No. 90/2023 from Hon.E. Masao to Hon. Makwandi, the Chairpersons accompanied with reason thereof. Other appearance of parties was made on 18/04/2024, 17/05/2024, 05/06/2024 and 16/07/2024. While Land Application No. 90/2023 was already before Hon.Makwandi since , 28/03/2024 without any reason for re - transfer from Hon.E. Masao to Hon. Makwandi, the chairpersons , the proceeding of 16/07/2024 reads that: Tarehe: 16.07.2024 Akidi : P.J.Makwandi - Mwenyekiti Mwombaji: yupo M/Maombi: Yupo WAJUMBE: 1. Yusufu Mbelwa 2. Christina Kabigiza Wakili:…………..

11 Baraza:………….. BARAZA : Kwa kuwa Mhe.Masao yupo Baraza la Ardhi na Nyumba Geita Shauri nitaendelea nalo ili kusomwa maoni ya wajumbe na kuandaa hukumu Imeamriwa hivyo Sahihi: P.J.Makwandi Mwenyekiti 16.07.2024 Baraza: Maoni yamesomwa Hukumu itasomwa tarehe 06.08.2024 Sahihi: P.J.Makwandi Mwenyekiti 16.07.2024 It is trite law in our jurisdiction that, reassignment of case from one magistrate/judge to another must be preceded with reasons thereof. Under Order XVIII Rule 15 of the Civil Procedure Code Cap 33 R.E.2023. The rule provides that:

1. 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

12 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. Order XX Rule 2 and 3 of the Civil Procedure Code(supra)stated that: (2) A judge or magistrate may pronounce a judgment written but not pronounced by his predecessor. (3) The judgment shall be written by, or reduced to writing under the personal direction and superintendence of the presiding judge or magistrate in the language of the court and shall be dated and signed by such presiding judge or magistrate….” This was settled by the court of appeal in the case of Mariam Samburo vs. Masoud Mohamed Joshi and two others Civil Appeal no. 109 of 2016 where it was stated that: In the circumstances, we are settled that, failure by the said successor judges to assign reasons for the reassignment made

13 them to lack jurisdiction to take over the trial of the suit and therefore, the entire proceedings as well as the judgment and decree are nullity . Also , in the case of Geita Gold Mine Vs Truway Muneth & Another , Civil Appeal No.66 o f 2020 , the Court o f Appeal did settle that:

1. The court held that the trial proceedings were vitiated due to the improper succession of magistrates, as the successor magistrate failed to document reasons for taking over from the predecessor. This failure amounted to a procedural irregularity that could not be cured by the overriding objective principle.
2. The court affirmed that the practice of individual calendar system must be followed, where a magistrate or judge records reasons for taking over a case to promote accountability. The absence of such reasons rendered the proceedings irregular and amenable to revision.
3. The court determined that the High Court erred in not finding it irregular for the successor magistrate not to put on record the reasons for takeover, leading to a potential misapprehension of evidence by the successor magistrate.

14 Based on the principles cited herein above, it is clear that, assigning reasons for transfer or reassignment of case from one judicial official to another is not court’s discretion or option rather it is mandatory legal requirement for obvious reasons underlying stated in various court decisions. Failure to record reasons is fatal and renders the proceedings and judgement a nullity. The present proceedings and judgement are nullity as the assignment of Land Application No.90 of 2023 from Ho. Makwandi to Hon. E. Masao, the Chairpersons were not preceded with reasons. In the event therefore, this court hereby hold that, since the proceedings and judgement in Land Application No.90 of 2023 are nullity, the only remedy is invoke revisional mandate under section 47 of the Land Disputes Courts Act, Cap.216 R.E.2023 . The section reads that: (1) In addition to any other powers in that behalf conferred upon the High Court, the High Court - (a) shall exercise general powers of supervision over all District Land and Housing Tribunals and may, at any time, call for and inspect the records of such tribunal and give directions as it considers necessary in the interests of justice, and all such tr ibunals shall comply with such direction without undue delay;

15 (b) may in any proceedings determined in the District Land and Housing Tribunal in the exercise of its original, appellate or revisional jurisdiction, on application being made in that behalf by any party or of its own motion, if it appears that there has been an error material to the merits of the case involving injustice, revise the proceedings and make such decision or order therein as it may think fit. (2) In the exercise of its revisional jurisdiction, the High Court shall have all the powers in the exercise of its appellate jurisdiction . Since, the FIRST GROUND has ably dispose d the matter, this court will not labour itself in to the second and third grounds of appeal. Consequently, in terms of the above referred provision of the law , this court hereby revise the proceeding s and judgment in Land Application No.90 of 2023 and order s that :

1. proceedings from 16/11/2023 to the end and judgment in Land Application No.90 of 2023 are nullity ;
2. T rial de novo to commence from 16/11/2023 before the matter been taken by Hon. E. Masao, the Chairperson ;
3. The case be heard expeditiously;
4. Each party to bear his/her own cost.

16 IT IS SO ORDERED DATED at BUKOBA this 1 9 th December, 2025. G. P. MALATA JUDGE 1 9 / 12 /2024 JUDGEMENT delivered at BUKOBA in chamber this 1 9 th December, 2025 in the presence o f both parties. G. P. MALATA JUDGE 1 9 / 12 /2024