ESTA GIDAWADIN 222 edited J kamuzora

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

AT BABATI LAND APPEAL NO. 18128 OF 2024 (Originating from Land Application No. 13 of 2020, District Land and Housing Tribunal for Babati at Babati) ESTA GIDAWADIN........................................................................APPELLANT

VERSUS DABASANGDA GIDUWA............................................................................. 1stRESPONDEN GITIGE BURA............................................................................................. 2ndRESPONDEN PIUS STEPHANO....................................................................................... 3rdRESPONDEN FESTO STEPHANO..................................................................................... 4thRESPONDEN

JUDGMENT 6h November & 12th December 2024 KAMUZORA, J. The appellant sued the respondents for recovery of piece of land measuring 41/2 acres situated at Dumbeta ward in Gishaji street within Hanang'. According to the appellant, she was in peaceful occupation of the suit land since 1990 until 2013 when the 1st, 3rd and 4th respondents trespassed claiming to have purchased it from the 2nd respondent. The 1st, 3rd and 4th respondents claimed that, they have been in occupation of Page 1 of 9 the suit land since 1993 after purchasing it from the 2nd respondent but the 2nd respondent denied such fact and stated that he had never owned or sold the suit land to anyone. The District Land and Housing Tribunal for Babati found in favour of the 1st respondent and his family as lawful owners of the suit land and dismissed the appellant's application. The appellant preferred this appeal on the following grounds: - 1. That, the whole judgment and decree in Land Application No. 13 of 2020 involves serious irregularities and painted with illegalities and gross abuse of court process.

2. That, the trial tribunal failed to properly evaluate the evidence hence arrived into the wrong decision. On the 1st ground the appellant submitted that, the proceedings of the trial tribunal were tainted with irregularities referring; the change of chairman without assigning reason, improper change of assessors during trial and irregular proceedings during visitation of the locus in quo. On the change of chairman, she pointed out that the matter passed through Hon. Mahelele, Hon. F. Mdachi and Hon. H. Mwihava but no reason was advanced for such change. She argued that, the change contravened Order XVII Rule 10(1) of the Civil Procedure Code [Cap 33 R.E 2019], (the CPC) which requires reasons to be advanced where there is a change of presiding chairperson. She referred the case of Masoud @ Iboma & others vs Republic Criminal Appeal No. 116 of 2015 [2015] Page 2 of 9 TZCA 7 and Omary Fundi Kondo Humbwaga vs Said Mwinjuma Humbwaga & another Land Appeal No. Z1 of 2019 [2019] 6687, in which it was emphasized that, failure to give reason for transfer of case file from one chairman to another renders the proceedings and decision, a nullity. On the change of assessors, the appellant submitted that there was constant change of assessors during trial meaning that they were not fully involved throughout the trial before the tribunal. He added that, the tribunal's decision was made

without taking into account of assessors' opinion. She argued that, failure to receive and consider the opinion of assessors contravened Regulation 19 (1) and (2) of the Land Disputes Courts (District Land and Housing Tribunal) Regulations, GN No. 174 of 2003 (the Regulations). She referred the case of Elilumba Eliezel vs John Jaja Civil Appeal No. 30 of 2020 [2020]. She was of the view that, the change of assessors vitiated the trial. She referred the case of B. R. Shindika t/a Stella Secondary School vs Kihonda Pistsa Makaroni Industries Ltd Civil Appeal No. 128 of 2017 Emmanuel Christopher Lukumay vs Juma Omary Mrisho Civil Appeal No 21 of 2013 and Chawalla & Co. Ltd vs Dr Abbas Teherali Civil Appeal No. 70 of 2017 (all unreported). Page 3 of 9 On the irregularities during the visitation of the locus in quo, the appellant submitted that the visit on the locus in quo was contrary to the law. She referred the case of Salum Mayombya & another vs Lucas Ndahuzi Civil Appeal No. 97 of 2021 Court of Appeal of Tanzania at Mwanza (unreported) to cement on the holding that visiting the locus in quo must be done in the presence of parties and witnesses and the findings of the visit be recorded in the proceedings. In their reply, the respondents argue that there are no any irregularities on the proceedings of the trial tribunal. On the complaint that there was improper change of

chairman, the respondents submitted that, the change was at the mention stage but the hearing of all witnesses was done before Hon. Mwihava. They added that, even if there was change of chairman, the appellant was required to state if there was failure of justice occasioned by such change. To buttress their argument, the respondents referred the case of Nishati Plus Limited vs Nice Catering Co. Ltd Civil Appeal No. 282 of 2020 (unreported). On the complaint regarding assessors, the respondents submitted that, the assessors duly gave their opinion before the delivery of the judgment. That, the assessors' opinions were read to the parties and considered by the tribunal save that, the chairperson departed from the assessors' opinion for he was not so bound. Page 4 of 9 On the complaint regarding the visiting of the locus in quo, the respondents submitted that, the visit of the locus in quo was conducted as required by the law and subject to the decision in the case of Salum Mayombya (supra). In rejoinder, the appellant added that the reasons for change of the chairperson was necessary to be advanced even at mention stage thus, stating that there was no such need, is misleading. She insisted that failure to state the reason even at mention stage rendered the proceedings a nullity for the preceding chairman had no jurisdiction over the matter. She also added that, the assessors'

opinion must be recorded but the proceedings do not show if the assessors' opinion were recorded and read to parties. Starting with the complaint regarding the change of preceding chairman, it is on record that the case file passed through different chairmen. It started with Hon. Mahelele, then Hon. F. Mdachi and finally Hon. H. Mwihava. The two first chairmen handled the proceedings at mention stage before hearing had commenced. As well pointed out by the respondents, hearing of the matter commenced and finalized before Hon. Mwihava. As opposed to the argument by the appellant, the requirement for assigning reason for the change is relevant in a partly heard matter meaning that, where hearing of the witnesses had commenced and not Page 5 of 9 otherwise. The provision of Order XVIII Rule 10 (1) of the CPC which the appellant claim to be violated read; "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 the 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 his predecessor left it." In the matter at hand, there were two changes before hearing of witnesses commenced and no reason was advanced. The above

provision refers change where the evidence or memorandum is already taken down thus, unless the appellant demonstrates that there was evidence or memorandum recorded before the successor chairman took over the proceedings, the omission in this matter did not offend the law. As regard to the complaint on the change of assessors, I have carefully gone through the record and discovered that, hearing of the matter commenced on 13/05/2022 with assessors; Mr. Hyera and Ms. Hamida and the trial tribunal received the evidence of SMI and SM2. Hearing resumed on 25/05/2022 with the same assessors in which the evidence of SM3 was received. Then, the matter was fixed for defence on 17/06/2022 but on that day, there was a new set of assessors; Mr. Barie Page 6 of 9 and Ms. Sulle in which, the evidence of RW1 was partly received. Hearing resumed on 8/09/2022 for continuation of evidence of RW1 and the record shows that, the assessors present were Mr. Hyera and Ms. Hamida. RW1 completed his evidence and RW2-RW4 testified on that date. After several adjournments, hearing resumed on 14/08/2023 in which the assessors present were Mr. Barie and Ms. Sulle in which the evidence of RW5 and RW6 was received. After several other adjournments, the matter was fixed for visiting of the locus in quo on 28/3/2024. The record does not disclose the names of assessors who were present during visitation of the

locus in quo. After the visit of the locus in quo, the matter was fixed to another date for assessors to give their opinion. The record also shows that the assessors' opinions were read to parties but the written opinion captured from the record was that of Mr. Joseph P. Hyera and Mr. Maulid R. Barie. From the record captured above, I agree with the appellant that there was change of assessors during hearing of the witnesses. The assessors who gave their opinion never heard the matter to its finality as well captured above. The question is whether such error is incurable as suggested by the appellant. In terms of section 23(1) of the Land Disputes Courts Act [Cap 216 R.E 2019], (the LDCA), the district land and housing tribunal is properly Page 7 of 9 composed where a chairman sits with at least two assessors. In the case of Tubone Mwambeta v Mbeya City Council, Civil Appeal No. 287 of 2017(unreported), cited in Edina Adam Kibona v. Absolom Swebe 7 (Sheli), Civil Appeal No. 286 of 2017 (unreported), the Court of Appeal of Tanzania observed that: '7/7 view of the sett/ed position of the law, where the trial has to be conducted with the aid of the assessors, ... they must actively and effectively participate in the proceedings so as to make meaningful their role of giving their opinion before the judgment is composed..." [Emphasis added]. The law requires where there is no

exceptional circumstance for the assessors to participate fully in the hearing and determination of the matter by giving their opinion although, not binding. It is also settled that unclear involvement of assessors renders the trial a nullity. See the court of appeal decision in the case of Ameir Mbarak and Another v Edgar Kahwili, Civil Appeal No. 154 of 2015 (unreported). In the instant matter, the assessors who participated during the hearing of the appellant and her witnesses were Mr. Hyera and Ms. Hamida but at the commencement of defence there was a different set of assessors namely Mr. Barie and Ms. Sulle who partly heard the evidence of RW1 but when RW1 resumed to proceed with his evidence there was Page 8 of 9 a different set of assessors namely Mr. Hyera and Ms. Hamida but Mr. Hyera and Mr. Barie gave their opinion. Again, at the time of visiting of the locus in quo, the record does not reveal the names of assessors who were in attendance. This was contrary to the requirement that assessors must actively and effectively participate in the proceedings so as to make meaningful their role of giving their opinion before the judgment is composed as it was proposed in Tubone Mwambeta v Mbeya City Council, (supra) and in Edina Adam Kibona (supra). Guided by the above decisions, I find that since there was unclear involvement of assessors in the matter at hand, the whole

trial is a nullity. This result to the determination of the matter conclusively thus, I see no reason to discuss the remained points/ground. I therefore proceed to quash the proceedings, judgment and decree of the trial tribunal. I order the matter be remitted back to the trial tribunal for re-trial before another chairperson and new set of assessors. In the circumstance, I will not make an order as to costs. DATED at BABATI this 12th day of December, 2024. D. C. KAMUZORA

JUDGE Page 9 of 9