coletha john ngido as legal representative of john ngido vs tabu erasmo 2023 tzhc 23795 12 december 2023

IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY HIGH COURT OF TANZANIA MOSHI DISTRICT REGISTRY AT MOSHI LAND CASE APPEAL NO. 33 OF 2022 (C/F Application No. 88 of 2017 in the District Land and Housing Tribunal for Moshi at Moshi) COLETHA JOHN NGIDO ( As Legal Representative of John Ngido) ……………………………… APPELLANT VERSUS TABU ERASMO………………………………………………… RESPONDENT JUDGMENT Date of Last Order : 31.10.2023 Date of Judgement: 12.12.2023 MONGELLA, J. The appellant in this case filed Land Application No. 88 of 2017 in the District Land and Housing Tribunal of Moshi at Moshi (the trial Tribunal, hereinafter) against the respondent claiming two pieces of land: one, a acre located at Kiyungi, Mijongweni village within Hai district. The land is bordered by Tindiga in the East, the appellant in south, Edward Michal Chazuka in the West and Marijani Abdallah in the North and; two. ¾ acre of land with a house located at Kiyungi, Mijongweni village within Hai District bordered on the North by Swalehe Mmbaga, the south by the appellant, the West by Barabara ya Kitongoji and on the East by a Pathway, which the respondent allegedly trespassed. Page 1 of 24 The appellant sought for the following orders: a declaration that the suit lands are her properties after being appointed to administer the estate of her late husband; eviction of the respondent from the suit land; perpetual injunction restraining the respondent, her agents or any other person acting on her instructions from using and occupying the suit lands; costs of the suit land and any relief the trial Tribunal deemed fit to grant. Brief facts of the case are to the effect that: the appellant had acquired the suit lands with her husband, the late John Ngido in 1953. She claimed to have purchased the lands from one Misunga. The late John Ngido had four wives and allocated lands to each of them in which they resided with their children. Sometime in 2000, the late Willington John Ngido, son of the late John Ngido mothered by one Odilia, one of the four wives of the late John Ngido, was retrenched from work and fell ill. He asked his father to allow him to stay on the suit property within the ¾ acre piece of land. He was thus given two rooms in the said house in which he lived with his wife one, Aziza Rajabu Fujo. In 2002 the late John Ngido demised and left all properties under administration of his wife. In 2004 prior to the demise of the late Willington Ngido, the respondent rented two rooms in the suit premises in which she resided with her two children. She continued to stay in the premises after the death of the late Willington. In 2012, the appellant noticed that the respondent no longer paid rent and she attempted to have her vacate the premises, but she claimed Page 2 of 24 she was the wife of the late Willington Ngido thus rightfully the owner of the suit lands. The appellant claimed that the suit lands belonged to the late John Ngido and the respondent was unknown trespasser. On the other hand, the respondent refuted the claims averring that the suit lands were part of the estate of the late Willington John Ngido who was her husband. She claimed to have gotten married to the late Willington Ngindo in 1994 vide Chagga customary rites. She also claimed that her husband received the suit land from the late John Ngido who bequeathed the same to him in 1992. That, her husband enjoyed quiet occupation, possession and usage of the lands from 1992 until his demise in 2004 and was buried therein. She added that no one claimed the suit land after his demise until 2012 when the appellant trespassed the same claiming she was the owner. The respondent prayed for the suit to be dismissed and for her to be declared the absolute owner of the suit lands. She also prayed for a permanent injunction to be issued against the appellant. In the hearing before the trial court, the appellant gave her testimony as PW1 and had one witness, PW2, one Jonathan John Ngido. On the other hand, for her defence, the respondent testified as DW1 and had no other witness. After hearing both parties the trial Tribunal found in favour of the respondent and subsequently dismissed the application with costs. Aggrieved, the appellant preferred the appeal at hand on the following grounds: Page 3 of 24 1. That, the trial tribunal chairman erred in both law and fact for failure to evaluate properly the evidence in records that late John Ngido had four wives and each had her land separate from another including the mother-in-law of the respondent one Odilia. (sic) 2. That, the trial tribunal chairman erred in both law and fact for relying upon the assessors’ opinions in which one assessors’ opinion had been copied from the opinion of the other assessor’s contrary to the law. (sic) 3. That, trial tribunal chairman erred in both law and fact for failure to address properly the first issue to the standard required and in turn he came up with his own word that the respondent statement showed that she has been moving endless on the court corridors defending her rights while such statement had never been stated by the respondent throughout the entire proceedings. (sic) 4. That, the trial chairman erred in both law and fact for founding that the appellant's claim have no merit without considering the fact that the evidence of the appellant and her witness was much heavier than that of the respondent alone. (sic) 5. That, the trial tribunal chairman erred in law and fact for not considering the fact that the said late Willington Ngido Page 4 of 24 (purported to be the husband of the respondent without any proof) was just an invitee to the disputed properties who cannot superseded the right of the owner to whatever length of time he stayed and occupying the disputed land. (sic) 6. That, the trial tribunal chairman erred in law and fact for failure to answer properly the second issue as farmed taking into account that there was no any proof of existed marriage between the respondent and late Willington Ngido. (sic) The appeal was argued in writing whereby the appellant was represented by Mr. Musa Mziray, while the respondent was represented by Mr. Martin Kilasara, both learned advocates. Submitting on the 1st ground of appeal, Mr. Mziray averred that the trial Tribunal chairman failed to evaluate the evidence on record, thus failed to note that the late John Ngido had four wives whereby each had her own land, including the respondent’s mother-in-law, one Odilia. That, the appellant did state that Eliaki and Magreth, her co-wives are deceased. That, Willington Ngido, the respondent’s husband, is mothered by Odilia who had her residence separate from the suit land and her husband never distributed the land to the late Willington as he only gave each of his wives, pieces of land to live with their children. That, the said Willington lived and worked at Dar es Salaam Harbour and when Page 5 of 24 he got sick, he came back to Moshi whereby the late John Ngido let him reside at the suit land until his death something which led him to be buried there. He said that the appellant also testified that she knows the wife of the late Willington who is one Aziza Rajabu Fujo and not the respondent. Arguing further, Mr. Mziray averred that if the trial chairman had properly evaluated the evidence before him, he would have found that the appellant’s claim was credible. He argued that the records show clearly that the appellant owned the suit land together with her husband as they had been occupying the same before independence. Addressing the 2nd ground, Mr. Mziray averred that the law requires the trial Tribunal to have two assessors who should give their opinion before the chairman composes the judgement and such requirement is found under section 23(2) of the Land Disputes Courts Act [Cap 216 RE 2019]. He averred that while the requirement to sit with assessors was met and that they gave their opinions, one of the assessors, Teddy Temu, had copied word by word, the opinion of the other assessor, one Julia Mmasy. In the premises, he had the considered view that the copying of another assessor’s opinion defeats the meaning behind presence of assessors and it was thus wrong for the Tribunal chairman to rely on the opinion of the said assessors. Page 6 of 24 With regard to the 3rd ground, he averred that the trial chairman failed to address properly the first issue which led him into coming up with his own words that the respondent’s testimony showed that she had been moving endlessly in court corridors defending her rights. He challenged that such statement was never stated by the respondent. That, the respondent also alleged she had in possession multiple decisions of the court, but never tendered any. He further averred that the respondent stated that she is the wife of the late Willington Ngido, but did not furnish any evidence to that effect. He further challenged the respondent’s testimony that the marriage between her and the late Willington was customary on the ground that the late Willington was Pare while she was Chagga. On the 4th ground, Mr. Mziray contended that the appellant’s evidence was heavier than that of the respondent. He had such argument on the ground that the appellant testified on how she acquired the suit lands with her late husband and how the late Willington Ngido was accommodated to the suit property. That, the appellant also stated how each wife was given her land by her husband. Further that, PW2 stated that the respondent was a trespasser to the ¾ acre of land with a five roomed house that was built to be used by all sons of the late John Ngido. That, PW2 further stated that he did not know if the respondent was allocated the land by his late father. Basing on these testimonies, he challenged the respondent arguing that she only testified that she was the wife of the late Willington, but did not furnish any proof to justify her Page 7 of 24 assertion. He added that the respondent also never stated how she came into possession of the suit land. As to the 5th ground, Mr. Mziray averred that the trial Tribunal erred in not considering that the late Willington Ngido was a mere invitee to the suit land and his right cannot supersede that of the owner whatever the length of time he stayed in occupation of the suit land. He had the stance that it does not matter if the invitee made improvements to the suit land to which he was invited. He cemented his argument with the case of Magoiga Nyankorongo Mriri vs. Chacha Mroso Saire (Civil Appeal 464 of 2020) [2022] TZCA 343 TANZLII, and that of Musa Hassani vs. Barnabas Yohanna Shedafa (Civil Appeal 101 of 2018) [2020] TZCA 34 TANZLII. Arguing further, he averred that the late Willington was an invitee to the suit land following him falling ill. That, his father, the late John Ngido and the appellant allowed him to stay on the suit land until he met his demise there. In that regard, he maintained his stance that the late Willington was a mere invitee and the respondent is a trespasser even if she was married to the late Willington while was residing in the suit land. Addressing the possibility of application of the principle adverse possession, he contended that the principle does not operate in the circumstances of this case. Concerning the 6th ground, Mr. Mziray held the view that the trial chairman failed to answer the 2nd issue on whether the respondent and the late Willington John Ngido had the right of ownership over Page 8 of 24 the suit land. He contended that the trial chairman misdirected himself in finding that the appellant’s evidence and that of her witness was incredible in proving the appellant’s claim instead of evaluating how the respondent and the late Willington came into possession of the suit land while there was also no proof furnished as to the marriage between the two. He finalized his submission by stating that the trial chairman did not answer the issues framed to the required standard, but instead only determined the dispute pertaining one piece of land while the application involved two pieces of land. He held the view that the appeal is with merit and prayed for it to be allowed with costs, and for the entire judgement and decree to be quashed and set aside. He also prayed for this court to issue necessary orders. The appeal was opposed by the respondent. In his reply submission, Mr. Kilasara consolidated the 1st, 3rd, 4th, 5th and 6th grounds of appeal as he found them interrelated. He averred that it is a matter of law and practice that this court being the 1st appellate court should re-evaluate the evidence on record. He supported his argument with the case of Deemay Daati and 2 Others vs. Republic [2005] TLR 13. He further averred that while Mr. Mziray submitted that the late Willington was not allocated land by his father, the late John Ngido, for reason that his mother had another homestead elsewhere, the appellant admiteed that the late Willington was given the suit land by his father since 1992 whereby he resided therein until his demise and was buried in the same land. He added Page 9 of 24 that the allocation was made prior to the demise of the Late John Ngido and even after the death of both, no one objected or claimed the land. Mr. Kilasara further contended that the respondent, in her testimony, gave a detailed account on when and how she and her late husband acquired the suit land. He said that the respondent’s testimony on the allocation, possession and usage of the suit land was never contested or traversed by the appellant at trial. He considered referred to the Tribunal record which he considered being self-explanatory on the issue. He added that the appellant never cross examined the respondent on all those important details, which amounted to admission on the truthfulness of the assertions and accredits credibility of the respondent’s assertions. He supported his averment with the case of Paul Yustus Nchia vs. National Executive Secretary Chama cha Mapinduzi and Another, (Civil Appeal 85 of 2005) [2006] TZCA 90 TANZLII and Martin Misara vs. Republic (Criminal Appeal 428 of 2016) [2018] TZCA 318 TANZLII. Mr. Kilasara held the view that the trial chairman properly evaluated the evidence before him. That, the trial chairman reached a fair and just conclusion to the effect that the appellant’s claim is devoid of merit. He contended that even if this court evaluates the evidence on record, it would come up with the same conclusion. Citing the case of Hemedi Saidi vs. Mohamed Mbilu [1984] TLR 113, he averred that the evidence of the respondent was heavier than that of the appellant and that she proved that the Page 10 of 24 late John Ngido being the lawful owner, allocated the suit land to the late Willington before his demise. In that respect, he had the stance that the late Willington and the respondents are not trespassers to the suit land nor invitees as insinuated by the appellant. Addressing the argument that the late Willington was a mere invitee, he had the stance that he was not and the allegation was not sufficiently proved by the appellant. He added that PW2 never testified as to witness the purported invitation to the suit land, thus the appellant’s allegations remain frivolous, unfounded and grossly misconceived. In that context he found the case of Magoiga Nyankorongo Mriri (supra) distinguishable and inapplicable in circumstances of the case at hand. As to the allegation that the respondent and the late Willington were never married, he refuted the claims averring that even on cross examination the appellant admitted that the respondent and the late Willington had contracted a customary marriage. Further that, while PW2 acknowledged that he was not present when the marriage was contracted nor did he know when the same was contracted, he still did not deny the existence of the marriage. He added that the respondent also testified that she was married by the late Willington in 1994 and her testimony stood unchallenged at trial. Page 11 of 24 He averred that the late Willinton was given the suit land in 1992 and he possessed the same with the respondent from 1994 as their matrimonial property. That, at no point in any time did the appellants or the late John Ngido challenged the occupation, possession and or usage thereof, and the suit land was never subject of any court case. He added that even at the demise of Willington, the respondent continued to peacefully possess the and until when this dispute arose. He thus was of the view that the claim was time barred. He supported his stance with the case of Yusuf Same and Another vs. Hadija Yusuf [1996] TLR 347. Addressing the 2nd ground, Mr. Kilasara averred that the trial chairman did not err in considering the opinion of both assessors. That, the assessors gave their opinion as required by the law and the same had been read to the parties prior to delivery of the judgment. In that respect, he considered the appellant’s claim devoid of merit and ought to be dismissed. He averred that the trial chairman found no reason to depart from them and the opinion by the assessors were taken in consideration of the requirement under section 23 (2) and 24 of the Land Disputes Courts Act. Mr. Kilasara prayed for the appeal to be dismissed and for each party to bear his/her costs given the preexisting relationship between the parties. Rejoining on the consolidated grounds, Mr. Mziray reiterated that the late Willington was not allocated the suit land by the late John Ngido. He averred that the appellant never admitted that the late Willington was allocated land in 1992. He maintained his argument Page 12 of 24 that the appellant stated that each of the wives of the late John Ngido was allocated land and had her homestead. That, none of the children was allocated land prior and after the demise of the ate John Ngido. That, the late Willington only stayed in the suit land after being retrenched from work and falling ill, thus he was only invited to stay in the suit land. As to the appellant not cross examining the respondent, he replied that while the parties were represented by advocates, on the material day, the chairman let the parties proceed without their advocates and thus the 80-year-old appellant was denied the right to cross examine the respondent. That, in fact, the trial chairman never assigned reasons as to why he allowed the defence to proceed without the advocates who had been present throughout the trial. He was thus of view that the cited cases of Paul Nchia and Martin Misara (supra) are distinguished to the case at hand, as on this case, the appellants have been infringed by the trial chairman. He maintained his argument that the trial chairman failed to evaluate the evidence before him, hence reached a wrong conclusion. As to who’s evidence held more weight, he contended that the appellant’s evidence was heavier than that of the respondent. He further contended that the respondent never provided proof that she was the wife of the late Willington John Ngido. Referring against the case of Magoiga Nyankongoro Mriri (supra) and Mussa Hassan (supra), he insisted that the late Page 13 of 24 Willington was only an invitee, thus incapable of owning the suit land. As to the claim that the suit was time barred, he averred that the suit against the appellant was well within time as the husband to the respondent was not allocated land, but was allowed to stay there rendering him an invitee, thus the suit unaffected by time limitation. Rejoining on the 2nd ground, Mr. Mziray invited the court to observe the opinion of the assessors to see how one was copied word to word, which is legally wrong to do even if the conclusion might have been the same. He maintained that the appeal has merit and prayed for the same to be allowed with costs and the tribunal judgement and decree be quashed and set aside, and for this court to issue necessary orders. Considering the grounds of appeal and submissions of both parties, I find it convenient to collectively resolve the 1st, 3rd, 4th, 5th and 6th grounds of appeal under which the appellant challenges the trial tribunal’s evaluation of evidence on record and on whether the framed issues were properly answered. As well stated by Mr. Kilasara, this being the first appellate court, it has the powers to evaluate the evidence of the trial Tribunal and make its own findings. This was well stated in Registered Trustees of Page 14 of 24 Joy in The Harvest vs. Hamza K. Sungura (Civil Appeal 149 of 2017) [2021] TZCA 139 TANZLII that: “On our part, we are in agreement with both learned advocates that it is part of our jurisprudence that a first appellate court is entitled to re-evaluate the entire evidence adduced at the trial and subject it to critical scrutiny and arrive at its independent decision.” However, prior to resolving the question of evaluation, in consideration of the fact that there is an allegation that the issues framed were not answered, I find it pertinent to reproduce hereunder the issues raised at the trial Tribunal, for ease of reference: 1. Who is the lawful owner of the suit land. 2. Whether the respondent and the late Willington John Ngido had mere usufructuary rights over the suit land. 3. Whether the respondent and the late Willington Ngido enjoyed continuous occupation, possession and usage of the land over 12 years. 4. To what reliefs are the parties entitled to? I have gone through the trial Tribunal decision and found that the issues were addressed in a very light and insufficient manner. Nevertheless, the trial court made its findings in all the issues framed. However, since in this matter what is aimed at being resolved is to find out the rightful owner of the suit land and property, I am of the Page 15 of 24 view that in determining this appeal, all the concerns in the issues framed at the trial court shall be addressed within the grounds of appeal. I therefore proceed to deliberate on the grounds of appeal. Going to the evidence on record, it is clear that the appellant testified to have been appointed to administer the estate of the late John Ngido. She tendered her letters of administration which were admitted as exhibit P1. In her case, she averred that the respondent trespassed the suit premises and the suit lands measuring 1 acre and ¾ acre, respectively, both lands located at Kiyungi area within Hai Disrtrict. The appellant further contended that the late John Ngido had four wives being; herself, Eliaki who resided at Upareni, Magret who resided at Kiyungi and Odilia who resides at Kiyungi. That, Eliaki and Magret are deceased. She said that Willington, who is the son of Odilia, is also deceased and he lived with one Aziza Rajabu Fujo, who had a daughter named Vicky. She was however unsure if they were married, but the said Aziza is also deceased. The appellant further testified that the late Willington worked at the harbour in Dar es Salaam, fell sick and died. That, she and her husband accommodated him at their residence and buried him there upon his death. She averred that the respondent came with her two children that were not Willington’s . She testified that she and her husband bought the suit lands before independence and claimed that the late Willington was not given any property. Page 16 of 24 On cross examination, the appellant stated that Willington lived at Kiyungi until he got a job in Dar es Salaam and he returned very sick. She added that her husband died first and there was no any clan meeting convened thereafter. She also admitted that the respondent and the late Willington contracted a customary marriage. PW2, the appellant’s son, testified that the respondent was a trespasser to the suit lands. That, Willington was his brother mothered by Odilia, one of his father’s wives. He alleged that his father had built the five roomed suit premises for his sons to live because he did not like his sons to cohabit with his daughters. Just like the appellant, PW2 also testified that Willington died and was buried at the suit premises. On cross examination, he contended that he was not present on the date the marriage was contracted, that he cannot recall when the same was contracted and that he does not know if their father allocated the respondent the suit lands. When questioned by Ms. Mmasi, one of the assessors, he averred that the appellant had been cultivating rice paddy. Further, he alleged that there were crops on the land allegedly harvested by the respondent. On the other hand, the respondent testified that she contracted a customary marriage with the late Willington in 1994. That, in 2004 they were blessed with an issue and Willington demised in the same year. That, in 2013 she was sued by the appellant at the trial Tribunal Page 17 of 24 and the Tribunal ordered the matter to be tried at the ward Tribunal whereby the appellant lost. Eventually, the appellant appealed to the trial Tribunal in which she again lost and finally went to the High Court where she again lost the claim. That, after losing in the High Court, the appellant filed the application before the trial Tribunal (related to the appeal at hand). She averred that she had decisions made by the respective courts and that she was the legal owner of the suit land and the house and she resides in the suit premises. The record indicates no cross examination of the respondent’s testimony. To start with, Mr. Mziray claimed that the trial chairman engaged extraneous matters in the judgement by stating that the respondent has gone through court corridors seeking her rights. However, to the contrary, as clearly seen on her defence as summarized above, she clearly stated how she was sued by the appellant in the Tribunal and this court since 2013. This clearly shows that the trial chairman drew his arguments from her narration on the assertions. His argument is found to lack merit. Upon considering the evidence on record, I hold the view that the appellant failed to establish her claim over the suit land. I hold this view on the grounds that: one, while she alleged that the late Willington was a mere invitee, apart from her claim in the application that the late Willington was invited to the suit land in 2000, neither she nor PW2 asserted that fact when giving their testimony. They also never supplied any evidence substantiating Page 18 of 24 their claim that the late Willington was just an invitee. Further, while the application stated that the late Willington was given two rooms to reside within the suit property located at the ¾ acre suit land, it was still unclear as to how the one acre of land came into the late Willington’s possession and why she claims the same to have been part of the invite made by her late husband. Two, the evidence on record clearly shows that upon the death of the appellant’s late husband, the late Willington was never removed from the suit land. This fact is found in both testimonies of the appellant and PW2. There seems to have never been any efforts to remove the respondent and the late Willington from the suit land until he demised. Three, in the record, it is clearly shown that, the late Willington resided in the suit premises and used the one-acre suit of land that allegedly once belonged to the late John Ngido and was duly buried in the suit land in which the premises are located. The premises were never the residence of the appellant as she claimed. Further, the appellant contradicted with her witness (PW2) whereby while PW2 alleged that the rooms were built for the sons of the late John Ngido to live, the appellant alleged that the rooms were rented to the respondent at a certain point. It is well settled that in civil cases, the standard of proof is on balance of probabilities. It is also well settled that he who alleges must prove. See, section 110 and 111 of the Evidence Act [Cap 6 Page 19 of 24 R.E. 2022]. The burden to prove the claimant’s allegations does not shift until exhausted. See, Paulina Samson Ndawavya vs. Theresia Thomasi Madaha (Civil Appeal 45 of 2017) [2019] TZCA 453 TANZLII; Crescent Impex (T) Limited vs. Mtibwa Sugar Estates Limited (Civil Appeal No.455 of 2020) [2023] TZCA 17501 TANZLII. In the later, the Court of Appeal stated: "It is also elementary that the standard of proof, in civil cases, is on a balance of probabilities which means that the court will sustain such evidence which is more credible than the other on a particular fact to be proved. Likewise, it is the law that the burden of proof never shifts to the adverse party until the party on whom the onus lies discharges his/her burden to prove and the said burden is not discharged or diluted on account of the weakness of the opposite party's case.” In my considered view, the appellant failed to exhaust her burden of proof. Her evidence was also incredible and contradictory. While marking the respondent as a stranger to their family and not married to the late Willington, she, on the other hand, admitted that there was a customary marriage between the late Willington and the respondent. This fact is drawn from her own reply when being cross examined by the respondent’s counsel. Her own answers show that the respondent was indeed married to the late Willington and resided in the suit land since 1994. The respondent even testified to have an issue with the late Willington. This fact was never challenged by the appellant. In fact, in her application, the Page 20 of 24 appellant admitted to such fact. This is vivid under paragraph ix of her application whereby she stated: ix. That, before the demise of Willington Ngido in the year 2004 the respondent came and rented two rooms within the suit house as a tenant. The respondent came with her two children and later on she gets another child while there. (sic) In that regard, I find it being proved that the respondent is the rightful owner of the suit land and that she came into possession after being married to the late Willington in 1994. I also find that the suit land was rightfully given to the late Willington by the late John Ngido, who was his father. The respondent’s possession was clearly undisturbed until 2012 when the appellant randomly and unlawfully started demanding rent from the respondent. The respondent and her husband, the late Willington John Ngido are thus lawful owners of the suit land. Further, as argued by Mr. Kilasara, the claim was well overtaken by the period of limitation to recover land, which is 12 years, as well set under item 22 of the Schedule to the Law of Limitation Act [ Cap 89 RE. 2019). See also, Salim Lakhani & Others vs. Ishfaque Shabir Yusufali (Civil Appeal 237 of 2019) [2022] TZCA 504 (11 August 2022) TANZLII. In the foregoing, I find the consolidated grounds of appeal without merit. Page 21 of 24 On the 2nd ground, Mr. Mziray lamented that the trial assessors copied each other’s opinion, thus frustrating the requirement of each of them to give their opinion. On the other hand, Mr. Kilasara seems to have evaded discussing this issue by simply stating that their opinions had been read before the Tribunal, hence the trial chairman complied with the law. I have gone through the record and keenly observed the opinions of the two assessors. With due respect, I do not agree with Mr. Mziray that the assessors copied word to word from each other. What I have observed is that both assessors shared the same views regarding the matter, but each presented the views in her own style. To this point, I find it imperative to reproduce part of the assessors’ opinion as hereunder: Part of extract from assessor named Julia T. Mmasi reads: “… Nimesikiliza maombi haya pande zote mbili, lakini nimepitia vielelezo vilivyowasilishwa kwa makini sana. Nimejiridhisha kwamba maombi haya yasikubaliwe kwa sababu:- - Hakuna ubishi kwamba ardhi na nyumba ya mgogoro ni mali ya mdai na marehemu mumewe John Ngido Mzava kwa kununua mwaka 1953. - Hakuna ubishi kwamba mtoto wao Wellington John Ngido alipewa ruhusa kuishi katika mali za mgogoro…” Part of the extract from assessor named Theddy Temu reads: Page 22 of 24 “… Baada ya kusikiliza shauri hili pande zote mbili Pamoja na vielelezo vyote vilivyowakilishwa hapa, nimejiridhisha kwamba maombi haya yakataliwe kwa sababu:- -Ardhi na Nyumba ya daawa ni mali ya mdai na marehemu mumewe John Ngido Mzava kwa kununua mwaka 1953. -Nakwamba mtoto wao Wellington John Ngido alipewa ridhaa ya kuishi katika mali za mgogoro. Hata hivyo Wellington John Ngido aliishi na mdaiwa kama mume na mke tangu mwaka 1994 hadi 2004 alipofariki alimwacha ndani yae neo na nyumba ya mgogoro …” As seen above, there is no copying of word to word, but presentation of same ideas in different style of reporting. I thus find Mr. Mziray’s argument aimed at misleading the court. For an officer of the court like him, this practice is highly condemned. Further, in my considered view, it is not prohibited under any provision of the law for assessors to share the same views in the matter. The fact that Mr. Mziray failed to state any provision of the law that was infringed by the assessors who shared the same views, vindicates my observation. In that respect, I find the ground of appeal lacking merit. In the upshot, the appeal is found without merit and hereby dismissed. Considering the prayer by the respondent, that there Page 23 of 24 should be no cost due to the parties’ relationship, I make no orders as to costs. Dated and delivered at Moshi on this 12th Day of December, 2023. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 24 of 24