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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MANYARA

AT BABATI LAND APPEAL NO. 5698 OF 2024 (Originating from Land Application No. 89 of 2017, District Land and Housing Tribunal for Babati) ELIZABETH TLAGHAT TSEAMA...........................................APPELLANT

VERSUS FIDELIS KIMERI.......................................................1st RESPONDENT AXWESSO TLAGHAT..................................................2nd RESPONDENT

JUDGMENT 27thJune & 19th July, 2024 D. C. KAMUZORA, J. The appellant sued the respondents before the District Land and Housing Tribunal for Babati (hereinafter referred to as the trial tribunal), for recovery of a piece of land measuring about 33A acres situated at Measkron village within Hanang district (hereinafter referred to as the suit land). According to the appellant, the suit land was previously owned by Tlaghat Tseama who passed away sometimes in 1994. The appellant claimed that in 2014 the 1st respondent invaded the suit land claiming to be his property. The appellant claimed further that, Page 1 of 11 she later discovered that it was the 2nd respondent who sold the suit land to the 1st respondent. It is on record that, only the 1st respondent filed a written statement of defence and disputed the appellant's claims. After hearing the parties, the trial tribunal dismissed the appellant's application for lack of merits and proceeded to declare the 1st respondent as the lawful owner of the suit land. The appellant was aggrieved with the trial tribunal's decision and preferred the instant appeal with four grounds of appeal which I will not reproduce for the reasons that will be apparent shortly. It is on record that this court ordered the appeal to be disposed of by way of written submissions and parties complied with the submissions schedule. In the course of composing the judgment, I came across three important legal issues as follows; 1. There was an order made by the tribunal chairman for the proceedings to start afresh after he had taken over the proceedings from another chairperson but that order was neither complied with nor vacated by the successor chairman.

2. The tribunal chairman who took over the proceedings did not state the reason for taking over the proceedings.

3. The judgment shows that the hearing proceeded and decision was made in the absence o f assessors for their time lapsed before concluding the proceedings. However, the proceedings show that the hearing o f the matter was aided by two assessors Page 2 of 11 namely; Barie and Su/ie and they gave their opinion which was read to parties on 22/11/2023 as shown at page 43 o f the typed proceedings. The written copies o f the opinion are on record but the same were not considered in the decision by the tribunal chairman. Since the above issues were not addressed in the grounds of appeal, this court invited the parties to address them. In addressing the court, the appellant agreed that there was an order to start afresh but she was not asked to testify again. She explained that, when the successor chairman took over the proceedings, he only asked her to present her witnesses in which she called two witnesses but only one witness was heard. She added that, she was not informed the reasons for taking over the proceedings by the successor chairman. The appellant also agreed that the matter was conducted in the presence of two assessors but she did not remember their names. That, the opinion of assessors was read to the parties and they opined in her favour. Responding to the above issues, Mr. Maige, learned advocate for the respondents submitted that the proceedings by Hon. Mdachi

on 23/3/2021 indicate the reason for taking over the proceedings and an order to start afresh the hearing of the case with new set of assessors. That, the proceedings show that the chairman who made that order did not proceed with the hearing and after several adjournments, the new Page 3 of 11 chairperson took over the proceedings without vacating the order to start afresh and without hearing the witness whose evidence was vacated by the order to start afresh. Mr. Maige was of the view that, the tribunal chairman was functus officio to proceed with the other witnesses without starting afresh by recording the evidence of the witness who had already testified. On the reason for taking over the proceedings, the learned advocate submitted that when a chairman/magistrate/judge is unable to complete the proceedings for reason stated under Order XVII Rule 10 (1) of the Civil Procedure Code [CAP 33 RE 2019], (hereinafter referred to as the CPC), another person can take over the proceedings. He argued that although the above provision does not impose the requirement to assign reasons for taking over the proceedings, this court and the Court of Appeal have set principle that requires judicial officer taking over the proceedings to assign reason. He referred the case of Deudeth Silvery v Juvenary Katembo and another Land Appeal No. 7 of 2022 in which reference was made to the case of M/S

Georges Centers Limited v Attorney General and another Civil Appeal No. 29 of 2016. Basing on the above decisions, the respondent's counsel was of the view that, it was necessary for the successor chairperson (Hon. Mwihava) to assign reasons for taking over the proceedings from his predecessor Page 4 of 11 (Hon. Mdachi). He was of the view that, where no reason is assigned for taking over the proceedings, the chairman lacks jurisdiction to take over the proceedings. He thus, urged this court to remit back the matter to the trial tribunal to start afresh. As to the issue on whether the assessors were involved in the hearing of the case, the respondent's counsel submitted that, the trial tribunal complied with section 23 (1) of the Land Disputes Courts Act [CAP 216 RE 2019], (hereinafter referred to as the LDCA) and Regulation 19 of the Land Disputes Courts (the District Land and Housing Tribunal) Regulations GN No. 174 of 2003, (hereinafter referred to as the Regulations. He pointed out that two assessors were involved namely Ms. Sulle and Mr. Barie and they both gave their opinion which was also read to the parties as seen at page 43 of the typed proceedings. He however argued that, the chairman misdirected himself in his judgment by stating that the case was heard without assessors. To him, such omission renders the judgment a nullity and can be cured by directing the chairman

to rewrite the judgment and consider the opinion of the assessors. Having gone through the record and parties' argument over the issues raised above, this court will deliberate on each issue separately. Starting with the first issue, the record shows that on 23/3/2021 when the matter was called before Hon. Mdachi he made an order for the matter Page 5 of 11 to start afresh. On that date one witness (the appellant) had already testified before Hon. Mahelele who could not complete the proceedings. It is on record that, after making that order Hon. Mdachi did not proceed with the matter rather adjourned it in several occasions before Hon. Mwihava took over the proceedings. The successor chairman neither vacated the order to start the matter afresh nor started afresh as ordered before. He proceeded on receiving evidence of other witnesses and composed the judgment. It is my considered view that, since the predecessor chairman ordered the matter to start afresh and since that order was never vacated by the successor chairperson, it means that the evidence by the appellant was not part of the record. There was no evidence of the appellant upon which the successor chairperson could refer in his decision. I therefore find such omission to be fatal and it vitiated the entire trial. Regarding the 2nd issue on assigning reason for taking over the proceedings, it is on record that hearing

of the matter before the trial tribunal commenced before Hon. Mahelele who recorded the evidence of AW1. He was unable not finalize the matter for the reason stated at page 18 of the typed proceedings. The matter was subsequently taken over by Hon. Mdachi who made an order for the matter to start afresh. After he had made that order, he did not proceed with hearing for the matter was Page 6 of 11 adjourned and later, Hon. Mwihava took over the proceedings. The record is silent as to why Hon. Mwihava took over the matter which was partly heard. Since the successor chairperson did not assign reasons for such taking over, it was a clear violation of Order XVIII Rule 10(1) of the CPC which reads; "(1) Where a judge or magistrate is prevented by death, transfer or other cause from concluding the trial of a suit, his successor may deal with any evidence or memorandum taken down or made under foregoing rules as if such evidence or memorandum has been taken down or made by him or under his direction under the said rules and may proceed with the suit from the stage at which the predecessor left i t " Undoubtedly, the above provision allows a successor judge or magistrate or chairperson to take over and proceed to hear the matter to its conclusion where another judge or magistrate or chairperson is prevented from concluding the matter either by death, transfer or any other cause. As

opposed to Mr. Maige's argument that the law does not impose a requirement to assign reason for taking over the proceedings, the above provision clearly points out the reason which may force a partly heard case to be presided over by another judicial officer. Death, transfer or other cause may be the reason preventing a trial judge or magistrate/chairperson from concluding the trial of a suit. Case laws Page 7 of 11 embrace the provision of the law by insisting on the requirement of a successor judge or magistrate or chairperson to record the reasons for taking over the proceedings. See for instance the decisions of M/S Georges Centre Limited vs Attorney General and Another, (supra) and Salma Mohamed Abdallah vs Joyce Hume, Civil Appeal No. 149 of 2015 (both unreported). It is therefore without doubt that failure to assign reason was fatal and renders the subsequent proceedings a nullity. On the 3rd issue regarding the involvement of assessors, the law under section 23(1) of the LDCA requires the trial tribunal to sit with not less than two assessors. In terms of section 23(2) of the LDCA, the assessors are required to give their opinion before the judgment is delivered. The form of giving the assessors' opinion has been stated under Regulation 19 (2) of the Regulations which reads; "Notwithstanding sub-regulation (1) the chairman shall, before making his judgment require every

assessor present at the conclusion o f hearing to give his opinion in writing and the assessor m ay give his opinion in KiswahiH. In the instant matter, the learned trial chairperson observed at page 2 of the typed judgment that the trial was conducted without the aid of assessors but, the proceedings show the contrary. It is on record that two assessors by the names of Barie and Sulle sat with Hon. Mwihava during Page 8 of 11 trial and they gave their opinion. The same was also read to the parties as captured in the proceedings and conceded to by the appellant. However, in his judgment, the trial chairman claimed that the hearing was without the aid of assessors for their time had lapsed. Thus, it is without doubt the opinion of the assessors was not considered. Going through assessors' opinion, they had different view as opposed to the decision of the tribunal chairman. In other words, the decision departed from the assessors' opinion thus, the chairman was bound to consider such opinion and assign reason for departing from the opinion of the assessors. In short, there was non-compliance with the requirements regarding assessors' opinion which renders the judgment invalid. The effect of failure to consider assessors' opinion was stated in the case of Peter Makuri v. Michael Magwega, Civil Appeal No. 107 of 2019 (unreported) in the following terms: "Failing to request/receive,

read out to parties, and consider the assessors1opinion in the Tribunal decision as is the case in the instant case, regardless whether the chairman agreed or not with the opinion; is a fatal omission that goes to the root o f the matter, consequently vitiating the proceeding. "[Emphasis added] In Tubone Mwambeta v Mbeya City Council, Civil Appeal No. 287 of 2017(unreported), cited in Edina Adam Kibona v Absolom Page 9 of 11 Swebe (Sheli), Civil Appeal No. 286 of 2017 (unreported), the Court of Appeal of Tanzania while dealing with an akin situation had this to say: In view o f the settled position o f the law, where the trial has to be conducted with the aid o f the assessors, ... they must actively and effectively participate in the proceedings so as to make meaningful their role o fgiving their opinion before thejudgment is composed... since Regulation 19 (2) o f the Regulations requires every assessor present at the trial at the conclusion o f the hearing to give his opinion in writing, such opinion must be availed in the presence o f the parties so as to enable them to know the nature o f the opinion and whether or not such opinion has been considered by the Chairman in the finai verdict”[Emphasis added]. The similar position was also underscored by the Court of Appeal in Emmanuel Oshoseni Munuo v Ndemaeli Rumishaeli Massawe, Civil Appeal No. 272 of 2018 Court of Appeal of

Tanzania at Arusha (unreported). The learned advocate for the respondent was of the view that, the matter could be remitted to the trial tribunal for the chairperson to comply with the legal requirement regarding assessors' opinion. However, taking into account other two issues discussed above, the invitation by the learned advocate is untenable. The above discussed issues render the whole proceedings, judgement and subsequent orders thereto, a nullity. Page 10 of 11 I therefore quash and set aside the proceedings, judgment and orders made thereon by the trial tribunal. The case file be remitted back to the trial tribunal for retrial before another chairperson and new set of assessors. Since this decision was based on the issues raised suo motuby this court, I will not make an order as to costs. DATED at BABATI this 19th Day of July, 2024. D. C ZORA

JUDGE Page 11 of 11