ALLY JUDGMENT

J A IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA LAND APPEAL NO. 89 OF 2023 (Originating from Land Application No. 135 of2018 ofSingida District Land and Housing Tribunal) ALLY HASSAN NGOI (on behalf of the Nkumbi Clan).................. APPELLANT VERSUS ATHUMAN MBAGHA................................... RESPONDENT JUDGMENT Date: 26.02.2025 Hassan, J.: The appellant herein, one Ally Hassan Ngoi, pained by the decision of the District Land and Housing Tribunal (DLHT) for Singida in the Land Application No. 135 of 2018, of which the respondent, one Athumani Mbagha, emerged victorious. The parties are fighting for the ownership of a sporadic plot of land estimated at about 130 acres, which is owned under customary right of occupancy. l The impugned land is located at Kitunku ward within Ikungi district. The appellant, in his application, claims the ownership of the disputed land, which was acquired by his clan after clearing the virgin land back in 1960, and he wondered to see the respondent trespassing on the same land in 2018. Whereas, on the other hand, the respondent also claims that he owns the disputed land, and thus, he has utilised the land for a long time, and even some of his relatives were buried therein, and since then, no one has interrupted his ownership. Needless to say, when the matter was filed for litigation in the trial tribunal, the respondent herein, who was also the respondent therefrom, emerged a prizewinner. Now before this court, the appellant herein is seeking redress. In his mission to meet the target, the appellant initially lodged five (5) grounds of appeal disputing the evidence relied on by the tribunal and later added two (2) more supplementary grounds of appeal for steadfastness. However, for the reason to be apparent soon, I will not dictate the first five grounds of appeal, and instead, I will introduce the last two grounds filed as supplementary grounds thus: 2 1. That the proceedings, judgmentand decree o f (tie trial tribunal are a nullity for want o f the opinion o f assessors. 2. That the proceedings o f the trial tribunalare nullity for want o fappended signature o f the chairman. During the hearing, the appellant was represented by Mr. Edward Nchimbi, learned counsel, whereas the respondent appeared himself unrepresented by counsel. At this juncture, what the court ought to determine is whether or not this appeal has merit. To begin with, the appellant counsel only decided to present the first ground of appeal, which was listed in the extra grounds of appeal. In light of this, he argued that the trial tribunal's proceedings, award, and orders were void since the assessors had inappropriately participated in their conduct. He emphasised that in accordance with section 23(2) of the Land Dispute Court Act, Cap. 2019, assessors must participate in the land tribunal's proceedings and gives their opinions. Also, under regulation 19 (2) of the Land Dispute Courts (the district land and housing tribunal) Regulation of 2019, the assessor's opinion has to 3 f be in English or Kiswahili, but it has to be in writing and read over to the parties. Further, he stressed, if the said regulation is violated, the remedy is to nullify the entire proceedings. He added that the court of appeal in Edina Adam Kibona vs. Absolom Swebe (Sheli), Civil Appeal No. 286 of 2017 (unreported), surfaced the position. In the end, to recap from the case at hand, Mr. Nchimbi contended that on 30/07/2021 the chairman adjourned the matter and ordered that the assessor's opinion be read on 07/09/2021. However, coming on that date, the record shows that the assessors' opinions were read over to the parties, and the matter was adjourned for judgment. To say the least, in spite of the fact that the chairman's verdict was that the opinions of assessors had been read over, looking at the records, it appears to the contrary; that is, the assessors'opinions were not visibly seen on the face of the records. That is to say, the opinions were neither recorded nor admitted and endorsed by the chairman (if they were written in the separate document) to form part of the records. In the circumstances, to say the least, it is clear that the aforesaid provisions of laws were overlooked by the chairman who presided over the 4 tribunal in consideration of his verdict. Notably so, the omission renders the whole proceedings, decision, and orders meted null and void; hence, the same should be nullified, quashed, and set aside. He therefore concluded that, since this ground can dispose of the matter, to proceed with other grounds is unnecessary; hence, he dropped them altogether. On the other side, the respondent, being a lay man had less word to contribute, but instead, he conceded the appellant's submission altogether. Now, the task ahead is to ascertain whether assessors were actively involved in the conduct of the trial tribunal as required in terms of section 23 (1) and (2) of the Land Disputes Courts Act, [Cap. 216 R. E. 2002], and regulation 19 (1) (2) of the Land Disputes Courts (District Land and Housing Tribunal) Regulations, 2003, which requires assessors to give their opinion, which should be recorded to be part of the proceedings. In the circumstances, looking at the record, the answer to the above question is negative, as rightly submitted by Mr. Nchimbi, learned counsel for the appellant, that, though in the deliberation of the tribunal on 30/07/2021 the chairman adjourned the matter upon the order that assessors' opinions will be read over to the parties on 07/09/2021. Now, coming on that date, the record shows that the assessors' opinions were 4 read over to the parties, and the matter was adjourned for judgment on the future date, of which it was delivered. However, in the record of proceedings, the opinions are not visible, which simply means that they were not recorded to form part of the proceedings. Moving ahead, the basic question for court determination is, what effect does such an omission bring? In my view, the answer is given from the import of sections 23 (1) and (2) of the Land Disputes Courts Act, [Cap. 216 R. E. 2002], and regulation 19 (1) (2) of the Land Disputes Courts (District Land and Housing Tribunal) Regulations, 2003, and also the decisions in Edina Adam Kibona v. Absolom Swebe (Sheli), Civil Appeal No. 286 of 2017 (unreported), and in Peter Makuri v. Michael Magwega, Civil Appeal No. 107 of 2019 (CAT) Mwanza (unreported), where the court pressed the same verdict that assessors' participation in the decision­ making, as thus: "It is a mandatory legal requirement that in adjudicating land matters before the Tribunal, the Chairman sits with aid o f assessors. The assessors sitting in, are vested with 6 mandate to participate by asking questions, giving opinion albeitin writing before the Chairman proceeds to compose decision o f the Tribunal. And all these must be reflected on record of proceedings. Besides, where the Chairman disagrees with the opinion o f the assessors, he must record reasons. In the absence on record of the opinion of assessors, it is impossible to ascertain if they did give anv opinion for consideration in composing the judgment o f the Tribunal." And the case of Emmanuel Christopher Lukumai v. Juma Omari Mrisho, Civil Appeal No. 21 of 2013, where the similar viewpoint was upheld by the court. That said, looking at the case at hand, I am in the similar view with the parties herein that the proceedings were flawed. Notably so, even if it the opinions appears to have been reflected in the judgment, without first being part of the record, it becomes weightless. 7 In the end, it goes without saying that the chairman has violated the principle buttressed in the case of Peter Makuri v. Michael Magwega; and that of Emmanuel Christopher Lukumai v. Junta Omari Mrisho and Edina Adam Kibona v. Absolom Swebe (Sheli) (all supra), where among other things, it was stressed that, assessors sitting in the tribunal are vested with the mandate to participate by asking questions and giving opinions, albeit in writing, before the chairman proceeds to compose the decision of the tribunal. And all these must be reflected on the record of proceedings. Therefore, in my considered view, failure to record each assessor's opinions in the records of proceedings before judgment was composed is a blunder that nullifies the whole proceedings. Thus, in so far as it stands, and guided by the above provisions and dispatched authorities, I hereby nullify the entire proceedings, quash the judgment, and set aside the orders handed down by the tribunal. Additionally, I order that application No. 135 of 2018 be remitted to the DLHT of Singida for retrial by another chairman with a new set of assessors. That said, I make no order as to costs since the flaw was caused by the tribunal. 8 Ordered accordingly. DATED at DODOMA this 26th day of February, 2025. JUDGE 26/02/2025 This Judgment delivered this 26th day of February, 2025 in the presence of the parties, and the matter is ordered to start afresh under the 9