agnery fiberth mlenge vs ndulu nsulwa 2021 tzhclandd 6913 10 december 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL 270 OF 2019 AGNERY FIBERTH MLENGE APPELLANT VERSUS NDULU NSULWA RESPONDENT (Appeal form the Judgment and Decree of the District Housing and Land Tribunal for Kilombero/Ulanga district at Ifakara (Hon. C.P. Kamuoisha. m.)) dated the 25^ day of October, 2019 in Application No,02 of 2018 JUDGMENT OF THE COURT Date of Ust Order: 17/11/2021 & Date of Judgment: 10/12/2021 S.M. KALUNDE. J.: This is an appeal against the decision of the District Housing and Land Tribunal for Kilombero/Ulanga district at Ifakara C'the tribunal") in Application No. 02 of 2018 dated 25''^ day of October, 2019. Before the tribunal the appellant unsuccessfully instituted a suit against the respondent for recovery of a piece of land measuring 79 acres located at Ngohelanga Village within Mallnyi District i Morogoro Region fthe suit iand"). Aggrieved by the decision of the tribunai the appeiiant has preferred the present appeai. The facts giving rise to the appeai as may be discerned from the record of appeai, show that on 19'^ Aprii, 2015 the appeiiant entered into a iand saie agreement for saie of the suit iand for a consideration of Tshs. 7,000,000.00. The proceeds were to assist the appellant in the treatment of his father who was seriously sick at the time. It was agreed that Tshs. Tshs. 4,000,000.00. was to be paid at the signing of the agreement and the outstanding balance was to be paid by SO''^ May, 2015. Unfortunately, the appellants family was not happy with the actions of the appeiiant to saie the suit land. A proposal was made so that the iand leased to the respondent for a period of three years at a cost of Tshs. 2,500,000.00 instead of an outright sale. Since the respondent had already paid Tshs. 4,000,000.00. parties allegedly agreed that Tshs. 1,500,000.00 be deducted and returned to the respondent to satisfy the lease price of Tshs. 2,500,000.00. As pointed out above, the lease was to run for a period of three years. However, at the expiry of th lease, in 2017 th respondent refused to yield up vacant possession of the suit iand. The appeiiant commenced proceedings before the tribunai for recovery of iand. The respondent insisted that the contractual price of Tshs. 7,000,000.00. was paid in two instalments as agreed between the parties and ownership documents were transferred to him. He thus contended to be the lawfui owner of the suit iand. In the end the tribunai was satisfied that the respondent has estabiished that he purchased the suit land from the appellant. The tribunal declared the respondent to be the lawful owner of the suit land having lawfully purchased the same from the appeiiant. The application was dismissed with costs. Discontented by the decision of the tribunai the appeiiant now appeals to this Court on seven grounds of grievance, namely: (a) That the tribunai erred in law and In fact In delivering judgment different from the proceedings of the tribunal; (b) That the tribunai erred in law and in fact in dosing the applicant's case when the applicant was stiii calling more witnesses; (c) That the tribunai erred in law and in fact in failing to consider that the sale agreement wa^j^ nullified by the Village Council for lack of consent from other family members; (d) That the tribunal in law and in fact in relying on Exhibit Dl; (e) That the tribunal erred in law and in fact in holding that the final instalment was made on May, 2015; (f) That the tribunal erred in law and in fact in relying on the testimony of DW2 who said he witnessed payments being made on 01^ July, 2015 when the agreement was signed on 04^ July, 2015; and (g) That the tribunal in law and in fact in relying on Exhibit Dl which was signed by the applicant, respondent and five Kitongoji members. Relying on the above grounds, the appellant prayed for this Court to quash the proceedings and set aside the judgment and decree of the tribunal thereby ordering a fresh trial of the matter. In response to the above grounds the respondent filed a reply to the petition of appeal in which he objected to the appeal and the prayer for the dismissal of the appeal with costs. On the 17^^ day of November, 2021 when the matter was slated for hearing, both parties appeared in person. I brought to th attention of the parties that the records of the tribunal do not show whether the Chairman of the tribunai did not afford assessors an opportunity to readout their opinion before delivery of the judgment despite the fact that the application was conducted with the aid of assessors. In view of the aiieged irregularity in the proceedings, I ordered parties to appraise the Court of their recoiiection of what transpired during the proceedings before the tribunal. At the hearing, the appeiiant reported that indeed the triai was conducted with the aid of two assessors. He also remember the two assessors to have asked parties and their witnesses questions. However, he said he did not see or hear them deiiver their opinion before deiivery of judgment. He said, judgment was first scheduied for 10'^ October, 2019 and then adjourned to October, 2019 when it was finaiiy delivered. No opinion was readout. On his part, the respondent aiso recaiied hearing assessors asking questions but not deiivering their opinion. He aiso remembered to have heard the judgment being delivered without hearing the assessors reading their opiniotr^^ At this juncture I wish to point out that, I raised the issue suo motu based on the requirement of section 23 (1) and (2) of the Land Disputes Courts [Cap. 216, R,E. 2019] read together with regulation 19 (1) and (2) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2002, G.N. 174 of 2003. The section reads: "23-(l) The District Land and Housing Tribunai estabiished under section 22 shaii be composed of at least a Chairman and not less than two assessors. (2) The District Land and Housing Tribunai shall be duly constituted when held by a Chairman and two assessors who shall be required to give out their opinion before the Chairman reaches the judgment [Emphasis mine] The position under section 23 (2) of Cap. 216 is further amplified under regulation 19(2) of G.N. 174 of 2003. The regulation states that: "Notwithstanding sub-regulation (1) the chairman shall, before making his judgment require every assessor present at the conclusion of the hearing to give his opinion In writing and the assessor may give his opinion in Kiswahiii.^ [Emphasis niine]^«^ The wording of section 23 (1) and (2) of Cap. 216 read together with reguiation 19 (2) of G.N. 174 of 2003 demands that upon conciusion of the trial and before deiivery of judgment the Chairman of the tribunai must afford every assessor an opportunity to present his or her opinion in the presence of the parties. This view has been maintained by the Court of Appeai in several decision inciuding the case of Ameir Mbarak and Azania Bank Corp. Ltd vs. Edgar Kahwili, Civii Appeai No. 154 of 2015; Tubone Mwambeta vs. Mbeya City Council, Civil Appeal No.287 of 2017 (unreported); and Dora Twisa Mwakikosa vs. Anamary Twisa Mwakikosa (Civil Appeal No.l29 of 2019) [2020] TZCA 1874; (25 November 2020 TANZLII). In Dora Twisa Mwakikosa vs Anamary Twisa Mwakikosa (supra) the Court of Appeal,(Mwarija, J.A.) stated: "In the case at hand, as shown above, the record does not reflect that the assessors were required to give their opinion in the presence of the parties after the closure of defence case. The written opinions of the assessors did, however, find their way into the record in an unexplained way. Nevertheless, in his judgment, the Chairman stated that he considered those opinions. In our considered view, since the parties were not aware of existence of the assessors' opinions, we agreq/d 7^ with the counsel for the parties that in essence, the provisions of Regulation 19 (2) of the Regulations were flouted. The failure by the Chairman to require the assessors to state the contents of their written opinions in the presence of the parties rendered the proceedings a nuiiity because it was tantamount to hearing the application without the aid ofassessors. We are supported in that view by our previous decision in the case of Tubone Mwambeta (supra) cited by the appellant's counsel. When confronted wittn a similar situation as in this case, we held as follows: "We are increasingly of the considered view that, since Regulation 19 (2) of the Regulations requires every assessor present at the trial at the conclusion of the hearing to give his opinion inwriting, such opinion must be avaiied in the presence ofthe parties so as to enable them to know the nature of the opinion and whether or not such opinion has been considered by the Chairman in the final verdict,"[Erc\p\\^s\s supplied]" In the instant case, it is common ground that the trial was conducted with the aid of two assessors. The record show that on 25^ July, 2019 when the tribunal framed issues and commenced hearing of the applicants case the assessors present were Mr Otilia Mhomera and Mr. Omari Abdallah. The two assessors attended the entire trial until the conclusion of the defence case on 04^^ September, 2019. At the closure of the defence case the tribunal made the following orders: "Order: Assessors to give their opinion. Judgment on 10/10/2019 Sgd. 4/9/2019" On the 10^ day of October, 2019 the judgment was not ready so the matter was adjourned to the 25^^ day of October, 2019. On the respective day the assessors present before the tribunai were Mrs. Fatuma and Mr. Mohamed. This set was different from the set of assessors that heard the case. The opinion was therefore not read as even the present assessors were not the one who had heard the evidence. Judgment was finally delivered on 25^ day of October, 2019. The coram for the day read as foiiows: "Date:23/10/2019 Coram: C.P. Kamugisha C/man Applicant: Present Respondent:Present^^ Tribunal: Judgment delivered. Right ofappeai fuiiy expiained. Sgd. 25/10/2019" The above records are clear that on the date of delivery of the judgment the assessors who had attended the trial were not present and no opinion was read over to the parties. Surprisingly, the Chairman, at page 4 of the typed judgment purported to refer the opinion of the two assessors, that is Mrs. Otilla Mhomera and Mr. Omari Abdallah. That opinion is even included In the records of the tribunal. However, as pointed out above, the records of the tribunal do not show that, at any stage, the assessors were Invited readout their opinion in the presence of parties. That was clear breach of the mandatory provisions of section 23 (1) and (2) of Cap. 216 read together with regulation 19 (2) of G.N. 174 of 2003. In view of the decision cited in Dora Twisa Mwakikosa vs Anamary Twisa Mwakikosa (supra), the failure by the Chairman to require the assessors to state the substances of their written opinions in the presence of the parties rendered the proceedings and decision of the tribunal a nullity as it was tantamount to hearing the application without the aid of assessors^^ 10 That said and done, I have no alternative other than invoking the revisionai powers vested to this Court in terms of section 43 of the Land Disputes Courts Act (supra) and revise the entire proceedings of the District Land and Housing Tribunai for Kiiombero/Uianga district sitting at Ifakara in Appiication No. 02 of 2018. Accordingiy, I quash aii the proceedings therein and set aside judgment and decree resuiting therefrom. In the circumstances, whoever is interested may approach the appropriate forum subject to the rules of limitation. Shouid either of the parties refiie the matter before the tribunai, I make an order that the matter be retried before another Chairman and new set of assessors. Having raised the issue suo motu, and it being a fauit of the tribunai, I make no orders as to costs. Order accordingly. DATED at MOROGORO this 10**^ day of DECEMBER, 2021 KJ f ^7 S.M. UNDE JUDGE 11