20190906 TZHC Mbeya 2

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF MBEYA AT MBEYA LAND APPEAL NO.54 OF 2017 (Ar/sing from App//cat/on No. 111 of 2015 of the District Land and Housing Thbuna/ of MBEYA at MBEYA) GEORGE GIDION MWASUNGA1 PARTISON G. MWAKILEMBE VERSUS 1 CRDB BANK PLC (MWAN)ELWABRANCH)1 2. KIMBEMBE AUCTION MART LTD. '.....RESPONDENTS TEDDY JASSION SANGA t JUDGMENT Date of last Order: 0710612019 Date of Judment 06109/2019 I NDUNGURU,J. • the appellants in this appeal, George Gidion Mwasunga and Partison G. Mwakilembe are appealing against the decision of the District Land and Housing Tribunal of Mbeya at Mbeya in the Land Application No. 111 of 2015 by Hon Munzerere Chairman, delivered on 30th October, 2017. 1 4.' 1st Briefly, the fact which gave rise to this appeal is that: the appellant secured loan to the first respondent to the tune of 25,000,000/=while the second appellant being the father of the 1 st appellant guaranteed the repayment of the said loan by mortgaging the suit house to the 1st respondent (the Bank). From the facts, the appellants alleged that they paid the whole loan plus interest to the tune I /• of 27,000,000/= but still the 1st respondent seized the suit house as a security through the service of the second respondent sold the said house to the 3rd respondent That following the sale of the sid house, the appellants filed Land Application No. 111 of 2015 to the DistrictLand and Housing Tribunal to challenge the said sale of the house. In their application before the tribunal the applicants prayed for judgment and decree against the respondents on the following: the declaration that the 2 nd appellant was entitled to exclusive and unimpeded right of possession and the ownership of the suit premises, declaration that the purported sale is illegal for failure to follow legal procedures, payment of general damages for trespass at the tune of 50,000,000/=, costs of the suit and any other relief the tribunal deemed fit and just to grant. 2 Upon hearing, the trial tribunal evaluated the evidence adduced and was satisfied that the 1 respondent legally attached and sold the suit property thus dismissed the application with costs. Dissatisfied, the appellants filed this appeal. In their memorandum of appeal the appellants have raised eight (8) groundsof appeal namely: 1 That the trial tribunal grossly erred in law and fact by holding that the suit premises was legally attached and sold despite the fact that the purchase pricewas belowthérnarket value and the loan facility had notexpired. That, the trial tribunal erred in law and fact by finding that the procedures for sale by public auction had been complied with while the 2 nd respondent never appeared to adduce evidence to that effect That the trial tribunal immensely misdirected itself in finding that the Vt and 2rd appellants had breached the terms of the loan Agreement. That the chairman erred in law by not availing the assessors with an opportunity to give their opinions after the conclusion of the hearing and did not give reason to that effect. 3 ¼ That, the trial tribunal erred in law and fact by not considering that the suit premises belonged to the 2nd appellant who was a mere guarantor and not the beneficiary of the said loan. That, the chairman erred in law and fact by declaring that the 3rd Respondent had purchased the suit land on public auction while the said public auction never istedat - - - - / •/ T That, the trial chairman erred in and 'fact by rêlviria on the borrower's bank account No:'O prove that the money on 15th June,2015 ; had no access to withdraw ch was in direct control of the 8. That:t &Jal-tribUnál grossly failed to evaluate the evidence addUc6ç1 bthe appellants and their witnesses thus culminated into the erroneous decision. When the appeal was due for hearing the appellants enjoyed the service of Mr. Rwekaza learned advocate while the respondents were represented by Mr. Mbise learned counsel. The counsels opted to dispose the appeal by way of written submissions. Both the counsels 4 flied their submissions timely as per court schedule. The counsels have submitted at length on all the grounds of appeal set forth in the memorandum of appeal. Having gone through the grounds of appeal and the submissions of the counsel of both parties, I have found that all the grounds raised are matters of facts which depend on evidence except the fourth (4th) ground which is a appoint of la'vhch suffices to dispose of this appeal Therefore I find it impant to deal with this ground alone. The 4th ground of appeal isbn th propriètyOf the trial pertaining the involvement of the assessors and their role -in the conduct of a trial in question In his submission on the question of the involvement and / the role of assessors Mr Rwekaza-adciocate said it is a statutory law that the opinion of the assessors sh6uld be shown in the judgment and if the Chairn-iandepai-tsfror the opinion should give reason as to why he is depäjting from'the opinion. He cited Section 23 (1) and (2) of the Land Disputourt:Act, Cap 216 R.E 2002. He further submitted that in the trial tribunal's judgment the opinion of the assessors is not included therein nor reasons given to that effect, he said that is fatal and it is incurable irregularity that renders the whole proceedings and judgment null and void ab in/tb. 5 Replying to the above contention, Mr. Mbise senior learned counsel submitted to the effect that the tribunal was properly constituted it had a chairman and two assessors. The law does not demand the opinion of the assessors be made in the presence of the parties or at their hearing. It merely says the assessors shall give their opinion before the chairman reaches the judgment The counsel further stated where theopinioh of the assessors are V' similar to the mind of the chairman, it is not a requirement of law that such opinion should be stated in the judgment Section 24 of the Land Disputes Court Act, Cap 216 R E 2002 requires the chairman to give reasons where he differs with the.opinion of the assessors. He submitted further that there is no evidence whatsoever that assessors or any of them gave•opinion different to the decision made. In such a situation the chairman was not bound to state the opinion given to him by the assessors He thus prayed the ground be dismissed N At the outset, I wish to restate that, composition of the tribunal and the role of assessors is the creature of the law. Section 23 (1) and (2) of the Land Disputes Court Act, Cap 216 provides for composition of the District Land and Housing Tribunal and the role of the assessors. The said section provides as follows: "(1) The District Land and Housing Tribunal established under section 22 shall be composed of one chafrman ) and not less than two assessors. (2) The District Land and Housing Tribunal shall duly be constituted when held by a chairman and two assessors who shall be required to give out their opinion before the chafrman reaches the judgmen(" [Emphas/s added] / Therefore, it is the law which gives the assessors mandate to give opinion on the verdict before the chairman composes the decision. Their presence becomes valuable if thej activey, effectively and fully involve in the proceedings before opining atthe conclusion of the trial and before judgment is composed. Regulation 19 (2) of the Land Disputes Court (The District Land and Housing Tribunal) Regulations, G.N No. 174 of 2003 provides: 'Wotwithstanding sub-regulation (1) the chairman shall, before making judgment, require evety assessor present at the cOnclusion of the hearing to give his opinion in writing and the assessor may give his opinion in K/swahili" The record indicates that two assessors aided the trial throughout of the case. These assessors were A. Kalongole and Sarah Ntabangale. From the records of the trial tribunal, there is no where the two assessors asked questions for clarifications to witnesses of neither the 7 prosecution nor defence side. The record of the trial tribunal is silent on whether the assessors were given opportunity to ask questions for clarification this can be seen at page 20 of the proceedings when PW1 testified, page 23 when PW2 testified and page 26 when PW3 testified and at page 32 when DW1 testified, at page 39 when DW2 testified and at page 45 when the last defence witness testified. Further it is discernible from the typed'proceedings that the assessors were not availed with the opportuni'ty to ask questions If they would have been given such opportunity the record could have shown their names and mark" NIL" if they had no questions, else it cannot be concluded that they were offered the opportunity In the absence of the evidence on record that the assessors were given such an opportunity, it follows therefOre that their participation in the conduct of the trial was \/ not active and effective. See the case of Tubone Mwambete v Mbeya CityCOuncil, 'Civil Appeal No. 287 of 2017 Court of Appeal of Tanzania (unrepàrted). As rightly contended by Mr. Rwekaza learned counsel for the appellant, the record of the proceedings at page 46 speaks: 8 ORDER -Judgment on 3011012017 -Part/es to attend T Munzerere Chairman 0411012017 The record does not reveal if the assessors were given opportunity to give their opinion as required by law The record of theproceedings show that the defence case was closed on 04/10/2017 but it is silent as to whether the Chairman invited the assessors to give their opinion as required by law. What is in the record is their written opinion The written opinions were filed on 18/10/2017 and another on 16/10/2017 However, the fact that the record does not reveal that the assessors were invited to opine, it is doubtful as to how and when they found the way in the court record they are to be taken circumspectly. In my opinion, the same being filed in the absence of the parties, therefore the parties were not aware of them and were not able to know the nature of the opinion and whether such opinion has been considered by the chairman in his judgment. See the case of Edina Adam Kibona v Absolom Swebe (Sheli), Civil Appeal No. 286 of 2017 Court of Appeal of Tanzania (unreported) and Tubone Mwambete v Mbeya City Council (supra). In my view the omission goes to the root of the matter and occasioned a failure of justice and there was no fair trial because the parties have the right to know the opinion of the assessors at the conclusion of the trial before judgment. In the premises, I hold that the irregularity is incurable as it goes to the root of the matter. Consequently, I hereby nullify the proceedings and judgment of the trial tribunal. I further order ,expedited retrial before Tribunal presided over by another Chairman and the new set of the assessors if the parties are still interested on the matter. I will not labour on the rest of the grounds of appeal as the above discussed ground has sufficed to dispose of the appeal I make no order as to the costs on the ground that the parties had no hands towards such irregularity committed by the tribunal. It is so ordered D. B. NDUNGURU JUDGE 06/09/2019 10 1. Date: 06/09/2019 Coram: D. B. Ndunguru, J 1st Appellant: Appellant: Ms. Silvia Mwalwisi Advocate also holds brief For the Appellants:J of Mr. Mbise Advocate for the Respondents 1st Respondent: 2 n d Respondent 3rd Respondent For the Respondent B/C: M. Mihayo Ms. Silvia Mwalwisi - Advocate: The case is for judgment, we are ready. Court 3udgment delivered today this 06th day of September, 2019 in the presence of Ms. Mwalwisi Advocate for applicants who also holds brief of Mr. Mbise for the Respondents. () X3RF ok~ t~44,VLLL C D. B. NDUGURU JUDGE 06/09/20 19 ve ~~ O fAppeal explained. 11