20170227 TZHC Mwanza

l .' IN THE HIGH COURT Of TANZANIA ATMWANZA LAND APPEAL NO. 82 OF 2015 (Arising from Application No. 107 of 2012 of the· District Land and Housing Tribunal for Mwanza at Mwanza} DOTTO KOYAGE ................................... ..APPELi.ANT VERSUS Pill SHIKIMAYI .......................... 1sr RESPONDENT MARCO JACKSON ............................... 2No RESPONDENT JUDGMENT 08/02/2017 & 27/02/2017 GWAE,J The 1st respondent successfully lodged a dispute over a land used for farming against the appellant (purchaser) and 2nd respondent, a seller (1 st respondent's blood brother). The dispute involving the parties centered on the alleged sale of the suit land, measuring about fifteen (15) acres to the. appellant by the 2 nd respondent without consent of the owner (2nd ~ respondent). 1 According to the evidence, it is not in dispute that the 2nd respondent was entrusted by his sister (1 st respondent) to take care of the suit land since 1995 however the 2nd respondent sold the·same to the appellant in 1999 .1. for four herds of cattle and Tshs. 115,000/= The 1st respondent, a resident of Nyakato was eventually furnished with information by his son who she sent to cultivate her farm that the 2nd respondent had sold the suit land and that it had been cultivated by the purchaser and that immediately after such information, the 1st respondent initially instituted the dispute to Lyoma Ward Tribunal in 2010 vide Land Case No. 3 of 2010, she was aggrieved by the decision of Lyoma Ward i .,; Tribunal, she thus appealed to District Land and Housing Tribunal for Mwanza at Mwanza-DLHT vide Land Appeal No. 4 of 2011 where the DLHT found that the Ward Tribunal was not properly constituted and that it had no pecuniary jurisdiction to entertain. Hence the proceedings and decision of the ward tribunal were consequently nullified.· After the order of DLHT {Hon. Kapinga -Esq) dated 18th May 2012, the 1st · respondent re-instituted the dispute to the competent jurisdiction that is Mwanza District Land and Housing Tribunal (Trial Tribunal). 2 :·.~1·,.·11 ... ·, .1 Upon hearing of applicant's side and respondents' side, the trial tribunal ·~, ·c entered judgment dated 26th June 2015 by declaring the applicant (1 st V respondent) a lawful owner and ordering demolition of an building in the suit land, refund of 4 herds of cattle to the appellant and no order as to costs was made. Feeling aggrieved by the DLHT's decision, the appellant advanced five grounds of appeal these are: 1. That, the trial tribunal erred in law for delivering a judgment with no issues framed and finding on the issues thereto 2. That, the trial tribunal erred in law for delivering judgment with no reasons for the decisions thereto 3. That, the trial tribunal erred in law and fact for declaring the applicant now the 1st respondent a lawful owner of the suit land while the appellant had stayed in the suit land more than 12 years. 4. That, the trial tribunal erred in law and fact for delivering a judgment which does not contain and reflect the opinions of ~ the assessors.· 3 5. That, the District Land and Housing Tribunal erred in law ·,, and fact for not taking into consideration of the evidence .. ·1 \JJ .-! ,J adduced by the appellant instead it took Into consideration ,;i on weak evidence adduced by the applicant now the 1st respondent. Before me, the appellant and respondents were represented by the learned advocates, namely Mr. Kweka and Mr. Mak<NVe respectively. This appeal was then argued by way of written submissions following the fact that the parties' advocates opined to so doing and leave to that effect was granted on 7th December 2016, the parties' respective written submissions were filed pursuant to the court schedule. Before I start determining grounds of appeal, I should like to give my sincere thanks to the learned advocates for parties for their fruitful contributions towards preparation of this judgment, with due respect, the counsel's written submissions shall be depicted in the course of determination of appellant's grounds of appeal and be considered accordingly while determining one ground after another. ~ 4 . r,, Regarding the 1st and 2nd ground of appeal, as collectively argued by the .l ·\I parties' counsel submission, the record amply demonstrates that on 5 May th ·") v 2014 when the parties appeared before the trial tribunal, the tribunal was presided over by Hon. Silas however it was wrongly indicated in the corum 'Lung'wecha-c:haiperson' and it was on that day when three issues were framed (see page 8 of the typed proceedings, these were: 1. Who owned the suit land before the sale 2. Whether the sale between the respondents was lawful . 3. To what reliefs are the parties entitled The applicant's case was heard on 5.5.2014 when the issues were framed and her case was closed on the same date and the applicant now 1st respondent was represented by one Masao, the learned advocate now Chairperson of the DLHT at Mwanza. The requirement of framing issues, brief statement of facts, finding on issues framed, a decision and reasons for such decision is provided for under Regulation 20 (1) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2003, which, for sake of clarity, is reproduced herein below: "20 ( 1) The judgment of th_e Tribunal shall always be short written i ~ simple language· and shall consists of ~ 5 (a) A brief statement of facts, (b) Finding on the issues (c) A decision and ( d) Reasons for the decision" With that plainly observation from the trial tribunal record, proceedings in particular, the appellant's 1st ground of appeal that issues for determination vvere not framed is unfounded and an indication of lack of diligence on the part of the appellant or his agent as to the proceedings conducted in the trial tribunal. However it is observed as rightly complained of by the appellant that trial tribunal merely entered the judgment in favour of the respondent without giving reason as to its finding /decision that the 1st respondent was a lawful owner of the suit, this was wrong on the part of the trial tribunal as it is bound to give reasons for it~ decision pursuant to the Regµlation 20 (1) cited above and as rightly stressed in a court decision in the case of Tabu Waruku vs. rv,wangwa Nyancheri, Civil Appeal No. 11 Of 2003 (unreported) High Court at Mwanza where reasons for decision was judicially emphasized, I am however of the view that a decision emanating from manifest irregularities/ defects, cannot entitle a party, appellant in ~ 6 particular a right, this is legally unfounded, the only remedy for a judgment with incurable defects is an order of retrial (trial denovo) and not to declare u a successful appe~lant a lawful owner of the suit land as wrongly prayed for I in the appellant's memorandum of appeal as well as in his written i I ·1 .t submission . Regarding the 3 rd ground of appeal on limitation of time to recover land, according to item 22 of part 111 of the first schedule of the Law of Limitation Act, Cap 89 R. 2002, the prescribed period to recover land is 12 years, it is clearly established from the record, particularly evidence adduced before the trial tribunal that the _appellant purchased the suit land in 1999. The 1st respondent's suit aimed at recovering land cannot instantly be said to have been time barred. I say so simply because there f~cts in the case which ought to be established, for instance when exactly the 1st respondent came to be aware of the purported sale .or if the invitee/ care _ taker can pass title to any person This ground is therefore not meritoriously ~ . . . .. c::::: advanced by the appellant. 7 As· to the 4th ground of appeal, it is trite law that whenever a judge or magistrate or chairperson of a tribunal sits with a set of assessor are required in a specific piece of legislation during trial, that adjudicator ought lI i ! to take into consideration of the opinion of assessors who he sat with and i II that assessors must give their opinion, this requirement of law is also provided for under section 23-24 of the Land Disputes Courts' Act, Cap216 R. E, 2002 as rightly submitted by the parties' advocates, it is however unambiguously provided under section 24 of the Act that the trial tribunal chairperson is not bound by the assessors' opinion. . In our instant dispute, the trial tribunal chairperson, without qualification, stated in his judgment at page 4 of the typed judgment that he was in agreement with his two wise tribunal assessors who opined in favour of the applicant now 1st respondent. I have made my endeavours to trace if truly the assessors opined or not, be it verbally or orally but my efforts ended up in vain. The record reveals that nowhere the tribunal assessors gave their respective opinion pursuant to section 23 (2) of the Cap 216 (supra) which provides and I quote: 8 "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 ( emphasis supplied)". The trial tribunal chairperson was, to my opinion, duty bound to have the opinion of the a~sessors whom he sat with reflected in his respectful judgment, even in brief provided that opinions in written form are attached for easy of reference and transparence and above all in order that justice cannot only be done but also to be seen to be done, of course by doing so it will also prevent litigants or their advocates from raising unnecessary grounds of appeal and therefore precious time of the court and that of litigants will not be easily wasted. This omission to have entertained the assessors to give their respective opinion goes to the root of the case as the _legal requirement as to composition and giving opinion by assessors is mandatory, therefore incurable irregularity occasioned by the trial tribunal. Moreover I have looked at the trial tribunal record, particularly Coram th dated 14 August 2014, nowhere the names of assessors were inserted, meaning, this is an irregularity since the composition of the DLHT is ~· 9 '.\ " l Chairperson and at least two assessors (see section 23 (1) of the Act), this legal issue was, in one occasion, judicially discussed in John Maswetav General Manager MIC (T) LTD, Civil Appeal No. 113 of 2015 (Unreported) where the Court of Appeal held among other things that: . "The record of proceedings before the District Land and Housing Tribunal does not show that the Chairman sat with assessors. For example when the complainant testified, the record does not show that the Chairman sat with assessors. We \ are of the considered opinion that was a clear violation of ! .. .,, prov1s1on ... Due to the observed anomalies, namely conspicuous failure to give reason for his finding/decision on framed issues on the part of the trial tribunal chairperson in his respectful judgment which amounts to contravention of Regulation 20 (1) of G. N 174 of 2003 and failure by either assessor to give opinion or trial tribunal to have the opinion of assessors recorded in the judgment _or to have" their opinion in written form attac_hed and therefore forming part of the trial tribunal judgment or to record reasons for assessors' failure to give opinion,· this court has nothing to do except to declare the judgment of the trial tribunal a nullity. 10 Had it been only an error on failure to give reason, I would obviously step into shoes of the trial tribunal as preferred by the 1st respondent's counsel for the purpose of examining afresh the evidence adduced before the trial tribunal and making objective evaluation of the same as was the case in lames Siagi Mathayo vs. Republic, Criminal Appeal No. 123 of 2011 ( unreported-CAT) at Mwanza, a precedent cited by the 1st respondent's advocate. In the final result, the appellant's appeal is without merit, the trial tribunal· impugned judgment is hereby nullified, the assessors who sat with trial tribunal are ordered to give their opiniqn before another DLHT Chairperson. As I am aware that Hon. Silas is now stationed in Moshi, hence expeditious delivery of justice of this matter requires matter to proceed where it ended on 14/04/2015 but should _not be presided over by current sitting chairperson, Hon. Masao as he had a conduct of the matter a an advocate for the 1st respondent. In the circumstances of this dispute, each party shall bear its costs ~ It is so ordered~ 11 ) M~ :·., I '•i1- w Judge ! 27/2/'2JJ17 ·1 , 0 i Right of appeal to the Court of Appeal and its requisite processes prior to filing of an appeal fully explained, ~ M.fi"~ Judge 27/02/2017 12