musa ngimbudzi vs emmanuel wilson makao 2023 tzhc 19322 28 july 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IRINGA SUB REGISTRY) ATIRINGA LAND APPEAL NO. 45 OF 2022 (Original Application No. 87/2018 of the District Land and Housing Tribunal of Njombe before Hon. M. Musa, Chairperson) MUSA NGIMBUDZI ....................................... APPELLANT VERSUS EMMANUEL WILSON MAKAO .................................. RESPONDENT JUDGMENT ldh May & 2dh July, 2023 I.C. MUGETA, J: The respondent as the administrator of the estate of the late Willison Makao sued the respondent together with 3 others for recovery of 80 acres of land located at Ibumila Village in Njombe region. According to the record, the late Willison Makao assigned the respondent to take care of the suit land. Between 2015 to 2017, the appellant invaded the deceased's farm by cutting trees and burning charcoal. In 2017, the appellant sold trees planted on the suit land to Born Mkuye, Edson Mfumbilwa and Laston Ngoda. The said trees were planted by the deceased. In the end, the tribunal declared the respondent as the legal owner of the suit land. The appellant is aggrieved by the said decision. He has appealed to this court on six grounds of appeal as follows: 1. That the learned Chairman erred in law and fact by delivering judgment without the opinion of assessors as required by law. 2. That the learned Chairman erred in law and fact by delivering a judgment without indicating his/her name. 3. That the learned Chairman erred in law and fact by delivering a judgment without explaining to the parties the right to appeal. 4. That without prejudice to the first ground of appeal the learned Chairman erred in law and fact by conducting a case without the aid of assessors. 5. That the learned Chairman erred in law and fact by delivering judgment without considering the evidence tendered by the appellant. The appeal was argued by way of filing written submissions. The appellant abandoned the 2nd, 3rd and 5th grounds of appeal. Then, he argued the 1st and 4th grounds jointly. He submitted that upon closure of the defence case the chairman fixed the date of judgment instead of fixing Page 2 of 6 a date for assessors' opinion, thus, the chairman composed judgment without the opinion of assessors. In his view, this is contrary to section 23(2) of the Land Disputes Courts Act [Cap. 216 R.E 2019] (the Act) and Regulation 19(2) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, GN No. 174 of 2003 (the Regulations) which require assessors to give their opinion before the chairman composes judgment. To buttress his submission, he cited the case of Edna Kibona v. Absolom Swebe (Sheli), Civil Appeal No. 286/2017, Court of Appeal - Mbeya (unreported) and Tubone Mwambeta v. Mbeya City Council, Civil Appeal No. 287/2017, Court of Appeal - Mbeya (unreported) to support his submission that the assessors must give their opinion before judgment and the same must be reflected in the proceedings. The respondent supported the appeal. He conceded that the chairman erred in law by failing to fix a date for assessors' opinion as required by section 23(2) of the Act and regulation 19(2) of the Regulations. Thus, the judgment was a nullity and ought to be set aside. I have considered the record and submissions by both sides. The record shows that upon closure of defence case, the matter was fixed for Page 3 of 6 ’* .J judgment on 31/5/2019. However, on the day fixed for judgment the judgment was not ready. Subsequently, it was delivered to the parties on 02/06/2020. Regulation 19(2) of the Regulations requires every assessor to give his opinion in writing. Such opinion is on record and was considered at page 4 of the judgment. In Tubone Mwambete case (supra) the Court encountered a similar situation and held as follows:- "Since Regulation 19(2) of the Regulation 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 know the nature of the opinion and whether or not such opinion has been considered by the Chairman in the final verdict." After the above observation, the Court of Appeal quashed the judgment and the proceedings on account of the said irregularity. In this case, indeed, the record of the tribunal do not show that the chairman required the assessors to give their opinion or that the opinion was read in the presence of the parties. However, the hand written opinion of both assessors who sat with the chairman from the beginning to the end of trial appears on record. The only irregularity is that the record does not show Page 4 of 6 that the opinion was read to the parties. It is my view that, this irregularity is curable under section 45 of the Act which provides:- "Alo decision or order of the Ward Tribunal or District Land and Housing Tribunal shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the proceedings before or during the hearing or in such decision or order or on account of the improper admission or rejection of any evidence unless such error, omission or irregularity or improper admission or rejection of evidence has in fact occasioned a failure ofjustice." Since the assessors duly gave their opinion in writing which the trial chairperson considered, failure to read the opinion did not prejudice any party or occasioned failure of justice. Both parties adduced their respective evidence which were considered by the chairman and the assessors in reaching a decision. In Tubone Mwambete and Edna Kibona cases (supra) the Court of Appeal nullified the proceedings for failure to read the assessors' opinion to the parties. However, in reaching the decisions, the court did not consider the effect of section 45 of the Act which makes those cases distinguishable. In this case neither the appellant nor the Page 5 of 6 respondent has stated how they have been prejudiced by the omission. They have also not stated the failure of justice that has been occasioned by the omission. I have held that I also see none. In the upshot, I find the appeal without merits and'I dismiss it. I make no order as to costs as the respondent conceded to the appeal. I.C. MUGETA JUDGE 28/7/2023 Court: Judgment delivered in the presence of both the appellant and respondent in person. Sgd. I.C. MUGETA JUDGE 28/7/2023 Page 6 of 6