JUDGMENT Bisanga Ahmed v Zaituni Mseti

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MWANZA SUB-REGISTRY AT MWANZA LAND APPEAL NO. 7511 OF 2024 (Arising from the judgment of the District Land and Housing Tribunal for Mwanza at Mwanza in Application No. 210 of 2020 dated on 23rd day of February, 2024 before Hon. Kato C. Chairman) BISANGA AHMED BISANGA………………………………………………………..APPELLANT VERSUS ZAITUNI MSETI NG’ARIBA……………………………………………..RESPONDENT JUDGMENT 2nd & 5th July, 2024 ITEMBA, J. The appellant above, challenges the decision of the District Land and Housing Tribunal for Mwanza (the Tribunal) in Application No. 219 of 2020. The appeal is based on three grounds of appeal that: 1. That, the trial district land and housing tribunal erred in law and fact for failure to properly record and taking into account the opinions of the Assessors in delivering its judgment. 2. The trial District Land and Housing Tribunal erred in law and in fact by failure to evaluate and analyze material evidence of the appellant, instead relying on week evidence of the respondent thus arriving into a wrong decision. 3. That, the trial district land and housing tribunal erred in law and fact by not stating specifically the reliefs granted to the appellant in its judgment and decree. 1 4. That, the trial District Land and Housing Tribunal erred both in law and fact in delivering its judgment in favor of the respondent while the respondent had failed to prove her case at the balance of probability. The appellant was present at the hearing and he was legally represented by Ms. Hidaya Haruna learned counsel. The respondent had the services of Mr. Gilla learned advocate. At the outset, Mr. Gilla informed the court that they intend to concede to the appeal based on the first ground. He expounded that, records reveal that in his judgment, the chairman of the trial tribunal, hereinafter refered to as the chairman, did not incorporate the assessor’s opinion. That, on 25/1/2024 they were present in court and the assessor’s opinion were read in court by ‘Mzee Lubasha’ and ‘Mzee Tineko’. He added that the tribunal’s proceedings are correct except to the stage where the assessor’s opinion was read but not taken into account. That, because that is the legal irregularity, he agrees with the ground of appeal that the judgment is a nullity. Finaly, he prayed for the proceedings to be nullified for not incorporating the assessor’s opinion and the file be returned to the tribunal before the same chair for rewriting the judgment in considering the opinion 2 of assessors. He also prayed for no costs because the omission was done by the court. The counsel for the appellant, Ms. Haruna obviously agreed with the respondent’s counsel. She reiterated that she finds the proceedings to be correct except for the judgment and that this first ground suffices to dispose the appeal. In assessing the merit of this appeal, I will consider whether the chairman took into account the assessor’s opinion and if he did not what are the legal remedies. The law is settled regarding composition of the Tribunal, it requires the Chairman of the Tribunal to sit with not less than two assessors who shall be required to give their opinion before the judgment. See section 23 (1) & (2) of the Land Disputes Courts Act herein the Act. Also, Regulation 19(2) of the Land Disputes Courts (the District Land and Housing Tribunal Regulations, G. N. No. 174 f 2003 requires assessors to give their opinion before the composition of the judgment by the chairman. Further to that, under section 24 of The Land Disputes Court’s Act it is provided as follows: 3 ‘In reaching decisions, the Chairman shall take into account the opinion of the assessors but shall not be bound by it, except that the Chairman shall in the judgment give reasons for differing with such opinion.’ (emphasis supplied). Therefore, the chairman is not bound by the assessors’ opinion. Yet, he is supposed to take into account of their opinion and if he differs, he is to give reasons thereof. In the case of Ameir Mbarak and Another v. Edgar Kahwili, Civil Appeal No. 154 of 2015 (unreported) the assessor’s opinion were not given at all and that was considered a fatal irregularity. Although the situation is different from the present case, the Court of Appeal decision thereof still entails the importance of considering assessors’ opinion before the tribunal reach its decision. The Court held inter alia that:- "... it is highly unsafe to assume the opinions of the assessors which is not on the record regardless of the chairman's acknowledgement in the Judgment Thus, it is our considered view that, in the event the assessors did not give opinions for consideration in composing the judgment of the DLHT, this is a fatal irregularity. In the circumstances, as correctly submitted 4 by Mr. Mbura, the judgments of the two courts below are a nullity and cannot be spared. We are fortified in that account because the proceedings before the High Court and the resulting impugned judgment both stem on null proceedings and judgment of the DLHT.” See also: Sebastian Kudike v. Mamlaka ya Maji Safi na Maji Taka, Civil Appeal No. 274 of 2018 (unreported) I have examined the records and noted that, indeed the quorum of the trial tribunal consisted of two assessors namely; ‘Mzee Lubasa’ and ‘Mzee Cheneko’. At the close of defence case both were availed an opportunity to give their opinion which they did. See pages 48 to 50 of the typed proceedings. I have also gone through the judgment and noted that there is nowhere the chairman is referring to the said opinion either in agreement or disagreement. Thus, he did not take into account these opinions. This omission therefore, offended the provisions of section 24 of the Act, instructing the trial chairman in mandatory terms to take into account opinion of assessors in his decision. For the foregoing, I hold such irregularity to be fatal and vitiate the judgment. In consequence thereof, this appeal is allowed. I hereby nullify the judgment of the trial Tribunal. 5 On the way forward, since the opinions were properly given but they were not taken into account, I order that the file be remitted to the trial tribunal, before a different chairperson for a fresh composition of judgment which will comply with section 24 of the Act. It is so ordered. Dated at MWANZA this 5th day of July, 2024 L. J. ITEMBA JUDGE Judgment delivered in the presence of the Appellant and his counsel Ms. Hidaya Haruna, Mr. Kassim Gilla Counsel for Respondent and Ms. G. Mnjari. L. J. ITEMBA JUDGE 6