t2 HASANI NKOSWE VS JAHA OMARY KARINGA ANOTHER

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MBEYA SUB-REGISTRY AT MBEYA LAND APPEAL NO. 5239 OF 2024 (Arising from the District Land and Housing Tribunal for Songwe at Mbozi in Land Application No. 32 of 2022) HASANI N KOSWE..................................................................... APPELLANT Versus JAHA OMARY KARINGA.................................................. 1st RESPONDENT ANDREW EDSON MWILWA................................................ 2nd RESPONDENT RULING 15th & 20th August 2024 TIGANGA, J. Before the District Land and Housing Tribunal for Songwe at Mbozi in Land application No. 32 of 2022, Jaha Omary Karinga (1st respondent) sued Hasani Nkoswe (the appellant) for trespass to land. The suit land was surveyed and baptized as Plot No. 921 and 923 Block "D" Mlowo Urban in Mbozi District and Songwe Region. In his claim, the 1st respondent traced the ownership of the suit land by purchasing it from one Andrew Edson Mwilwa. He alleged that he purchased the suit land which was already surveyed and applied for a certificate of occupancy, and paid for it in February 2020, thus making him the lawful owner of the plot. i In rebuttal, the appellant denied to have trespassed in the suit land. He also claimed to be a lawful owner tracing ownership by purchase from the same Andrew Mwilwa alleging that the purchase contract was concluded by the parties in January 2020. Andrew Edson Mwilwa (2nd respondent) was thus joined in the suit as a necessary party for both, the 1st respondent and the appellant who both alleged to have purchased the suit land from him. Having heard the evidence from the parties, the trial Tribunal vide its judgment dated 9th February 2024 found in favour of the 1st respondent and against the appellant. Disgruntled with the decision, the appellant preferred the instant appeal. He raised 5 (five) grounds of appeal. Ground one of them is that "the Honourable trial tribunal erred in law when failed to involve the assessors to participate fully in the case the act which results in the whole proceedings to be null and void" When the appeal was called for hearing on 15th August 2024, Mr. Bosco Mdoe, Mr. Chingilile, and Mr. Athumani all learned Advocates appeared for the appellant, 1st respondent and 2nd respondent respectively. Mr. Chingilile and Mr. Athumani conceded to the first ground of appeals as reproduced herein above. They, however, prayed for the 2 court to nullify the proceedings and make necessary orders. They moreover prayed for each party to bear his costs. Mr. Mdoe who appeared representing the appellant did not oppose the prayer. It is upon this Court, thus, to decide whether or not the trial Tribunal did not fully involve assessors in the proceedings and whether non-involvement of the assessors is fatal. The issue of assessors and their involvement is regulated by section 23 (2) of the Land Disputes Courts Act, Cap. 216 R.E 2019 and Rule 19 (2) of the Land Disputes Courts (the District Land and Housing Tribunal) Regulations, 2003 G.N. No. 174 of 2003. These two laws mandatorily require the District Land and Housing Tribunal to be composed of a chairman and not less than two assessors. The law makes it mandatory that assessors shall be required to give out their opinion before the chairman reaches the judgement. Regulation 19 (2) of the GN also underlines the need for the chairman to require every assessor present, at the conclusion of the hearing to give his opinion in writing, which said opinion may be in Kiswahi/i. Sections 23 (2) provide that: "23(2) -The District Land and Housing Tribunal 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" 3 Additionally, it has been said now and then by this Court and the Highest Court of this land (the Court of Appeal of Tanzania) that the Chairman alone has no jurisdiction to adjudicate and determine the matter before him as he alone does not constitute a tribunal. See Emmanuel Christopher Lukumai vs Juma Omari Mrisho, Civil Appeal No. 21 of 2013 CAT (unreported), Ameir Mbarak and another vs DGAR Kahwili, Civil Appeal No. 154 of 2015 CAT at Iringa (unreported), Elilumba Elezel vs John Jaja Civil Appeal No. 30 of 2020 [2022] TZCA 232 (TanzLii), Martha A. Mwakinyali and Another vs Hamis Mitogwa Misc. Land Appeal No. 13 of 2013 [2020] TZHC (TanzLii) to cite but few. Furthermore, in Edina Adam Kibona vs Absolom Swebe (SHELI), Civil Appeal No. 286 of 2017 CAT at Mbeya (unreported) and Tubone Mwambeta vs. Mbeya City Council, Civil Appeal No. 287 (unreported) it was held that: "......... since Regulation 19 (2) of the Regulations requires every assessor present at the conclusion of the hearing to give his opinion in writing, such opinion must be availed in the presence of the parties so as to enable them to know the nature of the opinion and whether or not such 4 opinion has been considered by the Chairman in the final verdict." In the matter at hand, the record shows that on 8th December 2023, the trial Tribunal marked the defence case closed and ordered assessors to present their opinion on 15th December 2023. Unfortunately, the record does not bear any other process until 9th February 2024 when the judgment was delivered. The trial Tribunal has, however, on page 12 of the judgment acknowledged the assessors' opinions. When the same opinions were read before the parties have been left mysterious. Thus, making the process before the trial Tribunal a nullity. Not only that the assessors did not give their opinions but also the record does not show them to have been given the chance by the chairman to ask questions for clarification. That proves and justifies the complaint that they were not fully involved in the proceedings the omission which renders the proceedings and the resultant judgment a nullity. As above, the appeal is allowed at the instance of the first ground. Consequently, the proceedings and the judgment dated 9th February 2024 are hereby nullified and set aside. If parties still wish, the suit shall 5 be heard denovo by another Chairman with a new set of assessors. No order as to costs as per the consensus of the parties. It is so ordered. DATED and delivered at MBEYA on this 20th day of August 2024. J.C. TIGANGA JUDGE 6