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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO.13994 OF 2024 (Arising from Land Application No. 08 of2021, of the District Land and Housing Tribunal for Temeke) GLOBAL FINANCE (TANZANIA 2002) LTD.................... APPELLANT VERSUS SIKU RAJABU HAMIS........................................... 1st RESPONDENT JUMA ISSA MAKOLELA......................................... 2nd RESPONDENT JUDGMENT Date of Last Order:25.07.2024 Date of Judgment:25.09.2024 T.N. MWENEGOHA, J: The Appeal originates from the Decision of the Temeke District Land and Housing Tribunal, hereinafter called the Trial Tribunal, vide Land Application No. 08 of 2021. The case was decided in favour of the 1st respondent who is a spouse of the 2nd respondent; hence this Appeal was preferred on the following grounds; - 1. That, the Hon. Chairperson erred both in law and in facts contrary to the requirements of law of assessors who are required to deliver their opinion in public before the parties. 2. That, the. Hon. Chairperson erred both in law and in facts for failure to evaluate the evidence properly. i 3. That, the Judgment is problematic in terms of the pleadings, prayers sought, issues raised and the Decision reached by the Trial Tribunal. 4. That, the Hon. Chairperson erred both in law and in facts by declaring the 1st respondent as a lawful owner of the suit land without any proof. 5. That, the Hon. Chairperson erred both in law and in facts for restraining the appellant from selling the disputed house after the 2nd respondent had failed to pay the amount loan advanced to him. 6. That, the Hon. Chairperson erred both in law and in facts for declaring the appellant's and the 2nd respondent's acts as illegal. The Appeal was heard through written submissions. Advocate Paul Mtui appeared for the appellant, while respondents appeared in person. In dealing with this Appeal, I will start with analyzing and addressing the 1st ground of Appeal before proceeding with the rest. Submitting on the 1st ground, Mr. Mtui argued that, the records from the Trial Tribunal do not show when exactly the assessors were called to give their opinions in front of the parties to this dispute. That, the Chairperson just wrote at page 7 of the Judgment that, the assessors, one Ignasia Makota and Sikunjema Yahaya gave their opinions in favour of the 1st respondent, but that is just an assumption which was not allowed in Azania Bank Corp Ltd versus Edger Kahwili, Civil Appeal No. 154 of 2015 and also in Edina Adam Kibona versus Absalom Swebe Shell, Civil Appeal No. 286 of 2017, Court of Appeal of Tanzania, (unreported). 2 Replying on the 1st ground, the respondents maintained that, the records are clear that, the assessors gave their opinion in front of the parties as reflected at page 4 paragraph 2 of the Judgment. Therefore, the cited cases on this ground should not be regarded as the appellant just cited them without attaching the same to his submissions. Rejoining on the 1st ground, Mr. Mtui reiterated his submission in chief and insisted that, the said ground has merits and it has to be allowed. It is imperative that I begin to resolve the 1st ground of Appeal before proceeding to the other five remaining grounds as it is based on the procedural illegality. On this ground, the appellant has faulted the Trial Tribunal for delivering the Judgment without allowing the assessors to give their opinion in public, before the parties. I went through the records of the Trial Tribunal and this is what I found in relation to what Mr. Mtui has argued on the 1st ground of Appeal; - a) The hearing of the defence case was concluded on the 15/2/2023, followed by the order for the opinion of assessors to be given on 27/2/2023 and Judgment on 8/3/2023. b)On 27/02/2023, the records show that, the assessors did not appear, therefore the opinions were read. c) On the 08th of March, 2023, the records show that instead of delivering the Judgment as scheduled, the assessors' opinions were read to the parties. However, the same records on the quorum show that the members were not present on that particular day. d)Upon further perusal of the records, I came across two documents. One with the name of Sikunjema Y. Shabani 3 dated 3/3/2023 and another document with no name of the writer, dated 2/3/2023. Both documents contain the opinion of assessors. Surprisingly, the records do not show if the Trial Tribunal met or had any business during the two dates appearing on the said documents (the purported opinion of assessors) e) Lastly, the Judgment was delivered on the 10th March 2023, about two days from the date when the opinions of assessors were read to the parties as explained above and 6 to 7 days after documents having the opinions of assessors were filed, as shown in (d) above. On the day of delivery of Judgment, both members of the Tribunal were present. Now, having observed the issues above listed, my settled view is in line with that of the appellant's counsel. The Judgment of the Trial Tribunal was given without considering the opinions of the assessors. On the date which the proceedings show that, the opinions were read to the parties and their advocates (08th of March, 2023), the assessors were not present in the Tribunal. Further, the assessors' opinion were dated for the 2nd and 3rd March, 2023, however, the Tribunal was not on sessions on those dates. That being case, and in reliance of the Tribunal records, I agree that, the Trial Chairperson of the Tribunal failed to comply with the law as far as the conduct of cases with assessors is concerned, under section 23(1) and (2) of the Land Disputes Court's Act, Cap 216, R.E 2019, read together with Regulation 19(2) of Land Disputes Courts (The District Land and Housing Tribunal Regulations), G.N No. 174 of 2003. His failure to observe these mandatory provisions is fatal and 4 cannot pass unchecked in this Court. In the case Edina Adam Kibona versus Absalom Swebe Sheli, (supra) it was observed that;- " We wish to recap at his stage that in Trials before the District Land and Housing Tribunal, as a matter of law, assessors must fully participate and at the conclusion of evidence, in terms of Regulation 19(2) of the Regulations, the Chairman of the District Land and Housing Tribunal must require every one of them to give his opinion in writing. It may be in Kiswahiii. That opinion must be in the record and must be read to the parties before the Judgment is composed'. For the aforegiven reasons, I agree with the appellant on the 1st ground of Appeal as it has merits and therefore, the Decision of the Trial Tribunal is illegal, as stated in Elilumba Eliezel versus John Jaja, Civil Appeal No. 30 of 2020, Court of Appeal of Tanzania, (unreported). The 1st ground of Appeal is allowed. Having allowed the 1st ground of Appeal, I see no need to continue with discussing the remaining five grounds. In my view, I see the findings of the 1st ground are enough to dispose the entire Appeal. Eventually the Appeal is allowed. The Decision of the Trial Tribunal is quashed and its Orders are set aside. Further, I Order a retrial of the case before a new Chairperson with a new set of assessors. No Order as to costs. T.N.MWENEGOHA JUDGE 25/09/2024 5