abdallah mwalimu vs rashid salumu matimbwa 2019 tzhclandd 30 23 september 2019

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPEAL NO. 137 OF 2017 (From the decision of the District Land and Housing Tribunal of Temeke District at Temeke in Land Appeal No.26 O f 2017 Originated from ward tribunal of Pemba Mnazi application No. 8 of 2017) ABDALLAH MWALIMU.............................................. APPELLANT VERSUS RASHID SALUMU MATIMBWA.................... .......... RESPONDENT JUDGMENT ON APPEAL S.M. MAGHIMBI, J: This is an appeal against the decision of the District Land and Housing Tribunal of Temeke ("The Tribunal") in Land Appeal No. 26 of 2017 originated from Pemba Mnazi Ward tribunal ("The Ward Tribunal") in Land Case No. 08 of 2017 whereby the present Appellant sued the Respondent in ward tribunal and lost. He then appealed to Tribunal on ground that the ward tribunal erred in law and facts by determining the matter while it has no jurisdiction and deciding in favour of the respondent who claim to inherit the disputed property without sufficient proof of the same. Further that the evidence on records does not match with findings of the ward i tribunal. Upon determination the appeal, the Tribunal found the appeal to have no merit hence dismissed the appeal with costs. Aggrieved by the Tribunal's decision, the Appellant has preferred this 2nd appeal on the following grounds 1. The District land and Housing Tribunal Chairman erred in law and facts in overlooking the fact that the quorum of the members of the ward tribunal contravene section 4 of the ward tribunals act Cap 206 R:E 2002 hence the proceeding and the decision was a nullity. 2. That the District Land and Housing Tribunal Chairman erred in law and facts when overlooked the fact that the trial ward tribunal chairman ruled in fevour of one MUCCADM who was not the party to the proceeding. 3. The District Land and Housing tribunal Chairman erred in law in disregarding the fact that the persons who are recorded to be in actual as the buyers of the said land are not parties in the land dispute and nullifying the proceedings. 4. That the District Land and Housing Tribunal Chairman erred in law in analyzing the evidence pertaining to the ownership of the land undisputed by the respondent. 5. That the District Land and Housing Tribunal Chairman erred in law and failed to analyze the evidence properly as regards the issue of the administration of the estate vis a vis the ownership of the land in dispute. 6. That the District Land and Housing Tribunal Chairman decided the appeal unfairly by disregarding to consider the argument of the appellant and the opinion of the gentleman members of the tribunal. 7. The District Land and Housing Tribunal Chairman erred in law and facts in allowing TAHER MUCCADAM advocate who is declared to be the owner of the land in dispute by both the village land council and the ward tribunal and prosecute as an advocate. 8. The District Land and Housing Tribunal Chairman erred in law in not considering the development and the land value in kigamboni in assessing the jurisdiction of the trial tribunal. When the appeal called for hearing the appellant fended by Mr. Benson Ngowi, [earned advocate while the respondent enjoyed the service of Mr. H.B.F Tahir Mukaddam, Advocate. The appeal was disposed of by way of written submissions. In order to gain better appreciation of the partie's arguments in respect to this matter at hand, I found expedient to begin examining the records of trial tribunal before indulging on the grounds of appeal. However, while going through The Tribunal records, I have come across procedural irregularity which involve assessor opinion that this Court find the need to raise "suo motto". In trial tribunal's records the procedures used by tribunal does not comply with statutory requirement in handling assessor's opinion before chairman read the judgment, the records reveals one opinionof assessors that 3 speaks in plural language. However the said opinion has been signed but the name of that assessor who signed it is anonymous. The presumed document of what it seems to be assessor's opinion is very confusing as from the face of it, suggests both assessors hold one pen, one handwriting thus jointly wrote the said opinion because it is not self- explanatory. The said opinion is not clear as to who is the author of the document between the two assessors given the further concern of concealment of the name of the assessor who signed the document. The opinion speaks as herein last page: "MAONI YA WAZEE WA BARAZA" Kutokana na maelezo ya mrufani na mrufaniwa pamoja na vielelezo na mashahidi zao baraza la kata ni wazi kuwa mrufani alishindwa kuthibitisha shamba afilipataje........ MAPENDEKEZO Wazee wa baraza tunapenekeza kuwa.... (SIGNED) (SIGNED) " These records made me ask myself whether the above assessor(s)'s opinion by the trial tribunal reveals the active participation of assessor in trial Tribunal and whether assessor's opinion followed the statutory requirement on what it means to be an assessor opinion. Section 23(2) the Land Dispute Courts act (CAP 216 RE: 2018) states "The District Land and Housing Tribunal shall be dully constituted when held by a chairman and two assessors who SHALL give out 4 their opinion before the chairman reading the judgment" (emphasis is mine) Furthermore the duty to make sure assessor opinion are complied with is imposed on the chairman under Regulation 19 (2) of The Land Dispute courts (The District Land and Housing Tribunal)Regulation 2003 which states; "Notwithstanding sub-reguiation (1), the chairman SHALL before making his judgment, require every assessor present at the conclusion o f hearing give HIS opinion in writting." (Emphasis supplied). From the cited provision the law requires each assessor to write his or her opinion in English or Kiswahili and present to the chairman before reading of judgment. The law does not provide for joint opinion hence an opinion on the records of the tribunal which is jointly signed cannot be considered as an opinion in compliance with the law. The importance of involvement of assessors was emphasized by the court of appeal In Land Appeal No. 25 of 2015 Tubone Mwarnbeta Vs. Mbeya City Council, whereby her Ladyship Mugasha J. A stated: " The role o f the assessors will be meaningful if they actively and effectively participate in the proceeding before giving their opinion at conclusion o f the trial and before judgment is delivered" Having observed the manner in which the opinion of assessors was not received according to the requirements of the cited provisions of the law, I find the irregularity to be incurable which affects the first appeal including 5 the decision therein. Consequently, the judgment and decree of the first appellate tribunal in Land Appeal No: 26 of 2017 are hereby quashed and set aside. The appeal is remitted back to the tribunal for hearing and determination of the appeal. Given the length of time that the appeal has been pending in this court, I further order an expedited re-hearing of the appeal before the tribunal presided over by another Chairman and new set of Assessors. I make no order as to costs. Dated at Dar es Salaam this 23rd day of September, 2019. ^ ^ ^ AGH IM BI JUDGE. 6