amiri juma saburi vs adinani omary kalika 2020 tzhclandd 2232 11 september 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM Land Appeal No. 34 of 2019 (Originating form the decision of Chanzuru Ward Tribunal in Land Case No. 4 of 2016 and arising from the decision of the District Land and Housing Tribunal for Kilosa in Land Application No. 03 of 2019) AMIRI JUMA SABURI........................................................... APPELLANT VERSUS ADINANI OMARY KALIKA............................................... RESPONDENT JUDGMENT S.M. KALUNDE, J: This is a second appeal. In 2016, before the Chanzuru Ward Tribunal the respondent successfully filed Land Case No. 4 of 2016 against the appellant. Aggrieved by the decision of the Ward Tribunal the appellant filed Land Application No. 03 of 2019 before the District Land and Housing Tribunal for Kilosa ("the tribunal"). The appellant was unlucky, he lost the appeal. He has now preferred an appeal before this Court. In his Petition of Appeal, the appellant has enumerated the three (3) grounds which may be summarised as follows:- (1) . That the tribunal failed to indicate the quorum and gender of members who participated at the trial before the tribunal; (2) . That the tribunal failed to consider evidence presented by the appellant; and (3) . That the tribunal failed to consider that the ward tribunal did not properly analyse and examine evidence adduced by the parties. Parties to this appeal were lay persons and unrepresented hence fended themselves. Hearing of the application was oral. However, when composing the judgement, I noted an irregularity in the proceedings of the appeal before the tribunal. This is with respect to the question whether the assessors who heard the appeal gave their opinion in the presence of the parties. In view of the irregularity I invited parties to make their submissions whether, before the tribunal, the assessors were afforded an opportunity to read out their opinion in their presence of parties. The appellant recalled that assessors did not read their opinion. On his part, the respondent maintained that each of the assessors at the tribunal read their opinion. On my part, upon review of the records, I am satisfied that the trial before the tribunal was held with the aid of assessors in accordance with section 23 of the Land Dispute Courts Act, Cap. 216 R.E. 2019. I am were that, in accordance with the section the assessors are "required to give out their opinion before the Chairman reaches the judgment". Further to that regulation 19 of the Land Dispute Courts Act (District Land and Housing Tribunal) Regulations, 2002, G.N. 174 of 2003 states that: "(1 ) The Tribunal may, after receiving evidence and submissions under Regulation 14, pronounce judgement on the spot or reserve the judgement to be pronounced later. (2) 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 mine] The requirement cited above is mandatory. However, as noted above, upon review, there is nothing in the records of the tribunal to suggest that the assessors were given an opportunity to read their opinion before delivery of judgment. The records show that hearing of the appeal was conducted on 10th April, 2018 and upon conclusion the tribunal ordered that judgement was to be delivered on 15th May, 2018. It is on record that on 15th May, 2018, the matter was adjourned to 22nd June, 2018; and subsequently to 25th September, 2018; 21st November, 2018; and 10th January, 2019. During all these dates there was no coram recorded. Records show that the appellant and respondent were present. Finally, the judgement was pronounced on 19th March, 2019, in the presence of assessors and parties. However, there is no records indicating that the assessors were given opportunity to read their opinions in the presence of the parties. I am also aware that the records of the tribunal comprise the written opinions of the two assessors who sat at the appeal. It is also not in dispute that the Chairperson quoted the opinion of both assessors on the conclusion of the typed judgement at page 3. The Chairperson concluded that: "I hereby join hands with the opinion of Hon. Assessors as I narrated above, the Appellant's grounds are devoid of merits and cannot stand to reverse the decision of the Ward Tribunal. This appeal is consequently dismissed with costs." I am mindful of the fact that, the couching of section 23 of Cap. 216 and regulation 19(2) of the G.N. 174 of 2003 presupposes that it is mandatory that assessors present their opinion in the presence of both parties and before delivery of the judgement. I say so because both provisions use the word "shall", meaning that the condition so conferred must be performed. The rationale for this is threefold. Firstly, it provides a platform for meaningful engagement of assessors by making sure that they actively and efficiently involved in the proceedings. Secondly, it creates an occasion for the opinion of the assessors to make it into the formal records of the tribunal. Thirdly, it affords parties an opportunity to know the nature of the opinion given by the assessors so that in the end they will be to appreciate whether or not such opinion has been considered by the Chairman in the fin a verdict. In the present case, there is no record to show that assessors were given an opportunity to present their opinions in the presence of assessors. This contravened the provisions of section 23 of Cap. 216 and regulation 19(2) of the Regulations. The failure to afford assessors an opportunity to present their opinions is thus an incurably irregularity, it means that assessors were not actively and effectively involves. Even if they prepared their opinions, the same is not in the tribunal records. Worse still none of the parties is aware of the nature of the said opinion. Certainly, one cannot cure the irregularity by making a reference or quoting the opinion in the judgement. With the above analysis, I have no flicker of doubt that the tribunal made a fatal irregularity in failing to comply with the mandatory provisions of section 23 of Cap. 216 and regulation 19(2) of the G.N. 174 of 2003. The consequence of such irregularity is to vitiate the whole proceedings before the tribunal. Consequently, I invoke my revisional powers under section 43 (1) (b) of Cap. 216 to nullify the whole proceedings, quash and set aside the judgment and decree of the tribunal in Land Application No. 40 of 2007. Since the appeal is not yet concluded, I order that the appeal be heard afresh, before another Chairman and with a new set of assessors. Having raised the issue, and it being the fault of the tribunal, each party shall bear its own costs. It is ordered accordingly. DATED at DAR ES SALAAM this 11th day of September, 2020. S.M. KALUNDE JUDGE