Gabriel Sassi v Onesmo Mahenda and 4 others Judgment

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB-REGISTRY)

AT SHINYANGA CIVIL APPEAL NO. 25657 OF 2023 (Arising from the Judgment of Land Case No. 09 of 2021 of Land and Housing Tribunal of Shinyanga District) GABRIEL SASSI ……………….………………………………………..… APPELLANT

VERSUS 1. ONESMO MAHENDA 2. GEORGE NYOLOBI 3. JOSEPH DONALD ….……………………………. RESPONDENTS 4. EVA ELIAS 5. SHABAN SELEMAN

JUDGMENT Date of Last Order 16.07.2024 Date of Judgment: 09.08.2024 MWAKAHESYA, J.: This is an appeal from the decision of the District Land and Housing Tribunal of Shinyanga at Shinyanga (the DLHT) in Land Case No. 09 of 2021 where the appellant had sued the respondents for encroaching his piece of land measuring 66x42 paces located in Ndembezi Hamlet, Ndembezi Ward within Shinyanga District – Shinyanga Region. The appellant alleged that he bought the parcel of land in the year 2010 and developed it by planting a variety of trees. However, to his surprise, in the year 2012 the respondents encroached 1 his land and left him with only a plot measuring 29x20 paces, this encroachment was spearheaded by a survey done by the responsible government authorities, a survey that did not involve the appellant. In the aftermath of the alleged illegal survey and subsequent encroachment, the appellant’s trees and fence were destroyed. At the end of the case the DLHT dismissed the appellant’s case holding that the appellant was thoroughly involved in the survey of his and neighbouring plots, done by the Shinyanga Municipal Authority, and thus could not come to the DLHT and complain of encroachment. Aggrieved with the decision of the DLHT the appellant has lodged the present appeal which is predicated on the following grounds: 1. That, the tribunal erred in fact and law by failing to prove the first issue which was raised by the chairman himself during the hearing of the case as to whether the survey on the dispute land was done legally.

2. That, the tribunal erred in fact and law by misleading itself and reaching the decisions and write the judgment basing on false testimony which was testified by the respondents.

3. That, the tribunal erred in fact and law by proceeding with hearing several times without the presence of assessors. 2 4. That, the tribunal erred in fact and law by ignoring to do site visit which led to failure of the tribunal to see the boundaries in dispute and the damage done by the respondents.

5. That, the tribunal erred in fact and law by ignoring the request made by the appellant of making an order of calling the land expert (officer) from the land office so that he/she could go to the land in dispute to determine the boundaries and to determine the genuineness and the legality of the map which was tendered by the respondent and admitted by the tribunal. The respondents, having been duly served failed to enter appearance and defend the appeal, thus I ordered the appeal to proceed ex parte against them. When the same was ready for hearing, the appellant, a lay person, requested to proceed by way of written submission, a request I allowed. Submitting on the first and second grounds of appeal, the appellant was of the view that, the tribunal chairperson considered the testimony of the respondents that the appellant alongside his wife participated in the survey of the disputed plot and managed to get two plots out of the survey. The appellant submitted further that, during the hearing in the DLHT, minutes of a village meeting was used to prove that the survey 3 was legal. However, in the said minutes his name and that of his wife are absent which is proof that he did not have knowledge about the said survey. The appellant also submitted that, the said survey did not have the blessings and permission of the Municipal authorities. The appellant referred to the case of

Peoples Bank of Zanzibar v. Suleiman Haji Suleiman [2000] TLR 347 where the court stated that parties were required to be given an opportunity to address the raised issues, and the case of Deemay Daati & two others v. Republic [2005] TLR 132, and called upon this court to re-evaluate the evidence adduced at the DLHT and make its own findings. On the third ground of appeal, the appellant submitted that, during hearing of Land Case No.9 of 2021 the Honorable chairman on several occasions conducted hearing without the presence of the assessors which is contrary to law. He submitted that, the chairperson should have adjourned the proceedings in the absence of the assessors. On the fourth ground of appeal, the appellant submitted that, during the hearing he requested the DLHT’s chairperson to visit the disputed land to see the actual boundaries together with the damage which was done by the respondents but the chairperson refused. It is 4 the appellant’s contention that, the refusal to visit the locus in quo lead to a poor judgment and injustice. Submitting on the fifth and last ground of appeal, the appellant submitted that, the tribunal erred in fact and law by ignoring the request made by him of making an order of calling an expert from the land office so that he could go to the land in dispute to determine the boundaries and to determine the genuineness and the legality of a

map which was tendered by the respondents and admitted by the tribunal and also to prove as to whether the land office was involved in the survey of the disputed plot. The effect of this, the appellant submitted, was injustice. Having gone through the record of the trial court, the memorandum of appeal as well as the submission by the appellant, I shall now proceed to determine the appeal. However, having gleaned at the five grounds of appeal, I find that this appeal can be disposed through the third ground of appeal which has raised an important matter of law. In the said ground of appeal, the appellant seeks to vitiate the entire proceedings and judgment of Land Case No. 9 of 2021 because on several times the hearing proceeded in the absence of assessors. 5 Section 23 of the Land Disputes Courts Act (the LDCA) provides for the composition of the District Land and Housing Tribunal. It reads: ”23.-(1) The District Land and Housing Tribunal established under section 22 shall be composed of at least a Chairman and not less than two assessors. (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. (3) Notwithstanding the provisions of subsection (2), if in the course of any proceedings 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.” The provision makes it mandatory for the DLHT to sit with at least two assessors. Not only that, but also the assessors must give their opinion before the chairman of the DLHT reaches a judgment. Lastly, an exception is provided, where the DLHT is allowed to continue functioning with a truncated quorum of assessors. The pertinent question facing us in the instant appeal is whether section 23 of the LDCA was followed to the letter. During trial a total of three witnesses testified for the applicant, while seven witnesses testified for the respondents’ side. On 22.03.2023 6 when SM1 (the appellant, erstwhile applicant) testified, both assessors, namely Stima and Lopa, were present at the DLHT. However, SM1 did not finish giving evidence on that particular day, and on 01.03.2023 when he finished his testimony both assessors were absent. On 08.03.2023 when Sospiter Gabriel (SM2) and Ogala Gabriel Sassi (SM3) testified, the record does not show presence of assessors. Likewise, for the testimonies of George Nyolobi (SU1) on 11.04.2023, Joseph Donald (SU2), Shabani Selemani Saidi (SU3), Eva Elias (SU4) on 30.05.2023. Also, Venance George (SU5) on 27.06.2023, Mbasa Lugenji (SU6) on

02.08.2023 and lastly Masisa Bundala (SU7) on 15.08.2023. Moreover, the DLHT’s proceedings do not show that the assessors gave opinions before the chairman reached his judgment and there is no mention of their opinions in the judgment itself. It is therefore safe to conclude that section 23 of the LDCA was not adhered to. The effect of having found that the DLHT flouted section 23 of the LDCA is that the entire trial becomes a nullity. See Jasmine Ayoub Ally Mosha v. Ramadhani Ally Mosha, Civil Appeal No. 197 of 2020, CAT – Moshi (unreported). Having found so, I find it superfluous to deal with the remaining grounds of appeal, lest they affect any subsequent orders. 7 In light of the foregoing, this appeal has merit and I accordingly allow it, and consequently the judgment, decree and proceedings of the DLHT are hereby quashed. DATED at SHINYANGA this 09th Day of August, 2024. N.L. MWAKAHESYA

JUDGE 8