euphracie mathew rimisho another vs lazaro enaukiro ulomi another 2022 tzhclandd 12501 17 october 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL N0.33 OF 2022 (Arising from Kinondoni District Land and Housing Tribunal at Mwananyamala in Application No 136 of 2020) EUPHRACIE MATHEW RIMISHO 1®^ APPELLANT ANTHONY THOMAS MSANGYA 2"" APPELLANT VERSUS LAZARO ONAUKIRO ULOMI 1®^ RESPONDENT EFC TANZANINIA MICROFINANCE BANK LIMITED 2^° RESPONDENT Date of Last Order: 12.09.2022 Date of Judgment: 17.10.2022 JUDGMENT V-L MAKANI,J. This Is an appeal by EUPHRACIE MATHEW RIMISHO and ANTHONY THOMAS MSANGYA. They are appealing against the decision of Kinondoni District Land and Housing Tribunal (the Tribunal) in Land Application No. 136 of 2020(Hon. LR. Rugarabamu, Chairman). The appellants are dissatisfied with the decision of the Tribunal and thus they have filed this appeal with 9 grounds of appeal and they prayed that the appeal be allowed, the decision of the Tribunal be nullified and costs of the appeal. The appeal proceeded by way of written submissions and the appellant was represented by Mr. Edward Chuwa, Advocate, while Mr. Gabriel Maros, Advocate appeared for the respondent and Mr. Stephen Mayombo, Advocate represented the 2"^ respondent. The appeal was In Kiswahlli but by consent the submissions filed were ail in English. I will at the outset deal with the fifth ground of appeal which was also raised administratively by way of a letter to the Registrar of the High Court Land Division dated 03/06/2022. As for the fifth ground, Mr. Chuwa said the proceedings of the Tribunal are null and void for the reason that the assessors only heard the testimony of the Applicant respondent herein) witnesses, and yet gave their opinion on the whole matter. He said they participated in the whole trial and the assesors were only present at the hearing of the respondent's case. The assessors were Mr. Kinyondo and Mr. Mbakileki. But during the subsequent dates of the hearing of the appellant and the 2"^ respondents cases, that is, during DWl and DW2 testimonies the assessors were absent, and according to the Chairman their contracts had expired. He said the assessors gave opinion in respect of the whole matter as if they participated in the whole trial. He said to be specific they were absent on 19/05/2021, 19/08/2021 and 31/08/2021. He said he is aware of the position of the law that the court's record cannot easily be impeached except on very exceptional circumstances (see the case of Halfan Sudi vs. Abieza Chichili [1998] TLR 526), but In this matter he said the record clearly shows that they were doctored. He said the court has the power to call and take evidence on this matter as it Is a fit case for impeachment. Mr. Chuwa said, in some instances the record of assessors shows only Vapo^or "hawapo"' they only asked questions to PWl and PW2 but not to PW3,DWl,DW2 or DW3. Mr. Chuwa emphasized that during the whole trial in which they also participated, and since they are officers of the court, they assert that the assessors were absent for a good part of the proceedings. He said with this omission the remedy Is to nullify all the proceedings and the order hearing de novo. In answer to this ground Mr. Maros for the respondent said that this ground has the effect of Impeaching the Tribunal's record, but the rule Is that the Tribunal/court records are always presumed as representing the truth and there must be special reasons to depart from this rule (see Halfani Sudi (supra). He said the assessors were right to give their opinion as per section 23(2) of the Land Disputes Court Act, and so the Tribunal's records do not need any interpolation. Mr. Stephen Mayombo for the 2"^ respondent submitting on this ground stated that the concern raised by Mr. Chuwa Counsel for the appellants, is baseless and has no legal justification. He said in the case of Alex Ndendya vs. Republic, Criminal Appeal No. 207 of 2018 (unreported) cited the case of Fumbuka Makuliga vs. Republic, Criminal Appeal No 217 of 2020 it was stated that the record of the court is presumed to be accurate and represent what actually transpired in court and so and the trial records cannot be easily impeached. I have listened to Counsel for the parties herein, while Mr. Chuwa is of the view that the assessors were not present throughout the trial, the records says otherwise and so the record is not telling the truth and it needs impeachment. On the other hand, Mr. Maros and Mr. Mayombo are of the view that the record taken at the trial are presumed to be the truth and they cannot be easily impeached. I have gone through the records. As submitted by Mr. Chuwa, I have noted that the records are not very clear in respect of presence of the assessors as follows: (a) In some Instances, the assessors, Mr Kinyondo and Mr Mbakiiek! are recorded as being present, that Is, on 09/10/2020 and on 14/12/2020. (b) In other Instances, the assessors are recorded as ^'wapo" (present) and this Is on 19/01/2021, 21/01/2021, 19/05/2021, 20/05/2021, 14/06/2012, 19/08/2021, 31/08/2021 and 29/11/2021 (where It Is recorded that the opinion ofthe assessors wasread out. (c) In further other Instances, the record shows that the assessors ^^hawapo" (not present) and that Is on 08/12/2020 and 06/12/2021.i/ (d) While In other Instances nothing Is recorded of their presence at all. Now, It is quite clear that the recording creates a lot of questions. If the records just reads "wa/;i7"meaning present, who were these assessors that were present on that date. The term '"wapo'^ without the names is vague and it can mean anybody. And further, if in the previous record the names of the assessors were recorded by their names why were their names omitted in the subsequent record? Further still, in the quorum where it is recorded that the assessors "wapo^^there is no record that they asked any clarification questions to the parties/witnesses or otherwise. In the circumstances, it is clear on the dates that the record reads "ivapo"these assessors were in essence not present as their names are not recorded and there is no record that they asked any clarification questions to the witnesses. In that regard I hold that the assessors were not present on those dates that were recorded as ^^wapo". And also on the dates which the record is reads "Aaiva/7o"and on those dates which the record is silent about their presence. Now, Section 23(2) and (3) of the Land Disputes Court Act governs the conduct of the assessors. The said section states: "2J(2) The District Land and Housing Tribunal shall be duly constituted when heid by a Chairman and two assessors who shaii be required to give out their opinion before the Chairman reaches theJudgment. (3)Notwithstanding the provisions ofsubsection (2), ifin the course ofanyproceedings before the Tribunal, either or both members of the Tribunal who were present at the commencement of proceedings is or are absent, the Chairman and the remaining member, if any, may continue and conclude the proceedings notwithstanding such absence. From the above provision it is a requirement that there has to be two assessors from the commencement of the matter and if either of them fails to proceed for whatever reasons one can remain but if they both cannot proceed then the Chairman can continue alone. In the present case as established above, the two assessors, Mr. Kinyondo and Mr. Mbakileki were not present from the commencement of the trial to the end. As correctly stated by Mr. Chuwa,they were only present when PWl and PW2 gave their testimonies and the fact that they gave their opinion at end of the trial, it was thus contrary to section 23(2) and (3) of the Land Disputes Court Act CAP 216 RE 2019. In the case of Tubone Mwambeta vs. Mbeya City Council, Civil Appeal No.287 of 2017(CAT-Mbeya)(unreported) it was stated that where the trial has to be conducted with the aid of assessors they must actively and effectively participate in the proceedings and give their opinion before the judgment is composed (see also Edina Adam Kibona vs. Abslom Swebe Shelly, Civil Appeal No. 286 of 2017 (CAT- Mbeya) (unreported)). Since the assessors at the Tribunal were not present throughout the proceedings it means they did not actively participate in the proceedings, and this is contrary to the law resulting to nullity of the proceedings. The judgment mentions two assessors Mr. Kinyondo and Mr. Mbakileki and their opinions are written and on record. But as established above, they were not present throughout the trial. It is thus uncertain as to where they got the mandate to give/write the opinions while they were only part time assessors. The fact that the Chairman refers the opinion in the judgment while knowing that they only featured partiy in the trial makes the proceedings more uncertain and this Is a fatal omission. In the case of B.R Shindika T/A Stella Secondary School vs. Kihonda Pitsa Makaroni Industries Ltd, Civil Appeal No.l28 of 2017 (CAT-DSM)(unreported) the Court stated that: "The consequences of unclear Involvement ofassessors in the trial renders such trial a nullity'" Similarly, the unclear proceedings result to unclear involvement of the assessors rendering the said proceedings a nullity. This ground alone is sufficient to dispose of the whole appeal, so I will not deal with the other grounds of appeal raised. With the irregularity established on the record, the appeal is allowed. The proceedings of the Tribunal are nullified, the judgment and decree of the Tribunal are quashed and set aside. I order the file to be remitted back to the Tribunal for re-trial before another Chairman. Considering that the irregularity is by the Tribunal, there shall be no order as to costs. It is so ordered. o5^ > 4 V.L. MAKANI N JUDGE 17/10/2022 :7. 8