20161114 TZHC Dodoma

IN THE HIGH COURT OF- TANZANIA AT DODOMA [, f t- f LAND APPEAL NO. 6 OF 2016 f f- (From the Decision of the District Land and Housing Tribunal of f::: Dodoma District at Dodoma in Land.Case No.8 of 2013) 1. GODFREY HAROLD MSAGACH UMA ........ .1 st APPELLANT rr· 2. ~GLA HAROLD MSAGACHUMA ........ :... 2 nd APPELLANT · .. .3. EZELEDA-HAROLD MS.AGACHUMA .. : .... . 3 rd APPELLANT · 4. MEtEA HARQ:lJ.lMSAGACHUMA .. ·:·...... . 4th APPELLANT 5. MESHA.K! HAROLD MSAGACHUMA . ..... . . . 5th APP.EllANT 6. CHARLES HAROLD MSAGACHUMA,, .... - 6th APPELLANT VERSUS . BENITOD D. MWAKITOSI RESPONDENT JUDGMENT f • 'I r 03/11/2016 & 14/1 l /2016 SeheL J. . · The present appeal originates from the decision of lhe. District Land and Housing Tribunal of Dodoma District at Dodoma ·in Lan~ Case No. 08 of 2 0 1 ~ 1 ,. The· op.plication· at the District Land c;:md Housing Tribunal was filed by the respondent. The respondent· sought agafnst the . ' appellants for the following orders; 1. That the! respondent . to be declared lawful owner of the di°sputed land; 2.: That the appellants to be evicted from. the land in dispute forthwith and hand over the same to the respondent; 3. Demolition order; 4. Permanent ·injunction against the appellants; and 5. Costs of the_ suit. . Having heard the application, the .friol .. Tribunal,' amongst other things, decl_ared the respondent as the :lawful owner of the .

. five acres land in dispute. Aggri"eved by the ;decision of .the trial ! - . ' Tribuhal, the appellants, through the servi·c:es· of· Kidumage & Associates (Advocates), ··preferred the presenf appe9I with seven · grounds. At the hearing of the- appeal, this Court· invited parties to . . address it on ·ground number six raised by the appellants for simple reason that will be revealed. herein. ML Kidumage, learned counsel from Kidumc:ige & Associates (Advocates) argued that . . . the Honourable Chairman failed to take the opinion of assessors because the decision reflects so. He therefore contended that such a failure rendered the whole proceedings to be a nullity: In support of his submission,· he cited the c_ase of Rashid Twalib . . Makonyora and 2 Others Vs. Salimu Twalib Makonyorwa, ·Civi1 . · Appeal No. 94 of 2016 (Unreported (CAT)). Ms. Maniche, learned advocate representing the ' . respondent replied that- at page 5 of the judgment that reads: "I therefore join hands with Assessors and the judgment is hereby~ 2 . entered as follows ... " proves that the Honourable Chairman did take into C:)~count the opinion of assessors. She therefore· prayed for the appeal to be dismissed with c:osts and the decision given by the District Land and Housing Tribunal be upheld. Counsel Kidumage rejoin~d by· stating that .. the words "I therefore join hands ,Vyith assessors .. " do not

comply with the law since the Honou,r.qb.le .· '·.. , C.hairman .. . ,., ought to have · stated the . ' . . assessors opinions in his decision. He said it is important to state ' . them because the 'opinions· are g_iven in writing and they are only accessible by the. Honourable. Chairman. He· said the failure to incorporate the . _Of?ir,iio17s, denied parties their right to know assessors opinions. . it is the lavv that after the conclusion of the trial and before ihe Choirrnan delive·red"•His:judgment, Hie Chairman shall require every assessor to. . give . ·.• . his ppinion . . -. .-: ' . . _. in ..writing ~ ' . (See Regulation 19 (2) .: ··' of the Land Disputes Courts (The District Land and Housing · Tribunal) Regula/ions, 2003 (the RegulatiOns)). Further,_ ,tbe District . Land and H_ousing Jribundl is duly constituted when ~:eld by a Chairman and two assessors who shall be required to give out their opinion before the Chairman reaches the judgment (Section 23 (2) of the Land Disputes Courts Act, Cap. 216 (the Act)). Under . Section 24 of the Act, the Chairman is required to take into account the opinion of assessors in. his decision but he is .not bound by it. However, if he has a contrary view of that of the . oss_essors then the Chairman shall. provide reasons for doing s o ~ 3 In the presen( matter, dt pdge 5 of the ·decision the Honourable Chairman. -stated · "I .·

therefore join- hands· with - 11 assesso~s .. • Ms. Maniche argued that this proves. the Honourable Chairman took into. ·account the, opinion of·· assessors. Mr. Kidumage is on ·the contrary view. He said since. the opinions are only.accessib.le by the Honourqble. Chairman then _he is required. to include the opinion of assessors in his judgment of which I fully concur with him. I have gone through the trial Tribunai's record __ . . and found that the. hearing of this case was throughout with Chairman and two asses_sors, namely P. Pahali and M. Mackbel. - The only .time t-here>wd.s ·a different assessor .was at mention date. . ~ . . . As .for the oss-e.ssors opinions it is on r$cord toot there is one opinion - of p .. PahaiL Th~ opi'nion of M·. Mockbel is n~t in .the trial Tribunal's records .. This · means · that cinly_ .Orie assessor . gave. his opinion.. - Therefore, _the ·sta+~nie.nf rn~de by Jhe· Hqn9~rable C~1airman in hls. - .. decision that "I therefore join hands with as·sessors .. '' does not hold any truth and it is _contrary to Section 23 (2) of the Act and ·· ~ Regulation 19 (2) · of the Regulations. Failure to compl'yi with the - requirement of Regulation 19 (2) of the Regulations and Section 23 · . . . 1: (2.) of the Act renders the trial proceedings a nullity (See the case of Rashid Twalib. Makonyora (Supra)). Since the whole tr.ial · proceedings are nullity

then it will be futil~ t_o cc,nsider and hear other grounds of appeal. I therefore qua'sh the proceedings and - . set aside the judgment of the District Land. and Housing TribunaJ for nbn-cornpliance with Regulation 19 (2) of the Regulations and Section 23 (2) of the Act. I consequently order a. trial de novo before another Chairman and another sef of as~essors with n--- 4 · order to costs as the. mistake was occasioned by the Tribunal anq not by the parties.. It is. so qrdered. . . DATED at Dodoma this 14th day of November, 20 l 6. II- , I c f·~ ' .. JUDGE t Judgroent delivered. in open and seal of the court this· 14th day of November, 201 6 in t ~ presence of Ms. Maniche, learned Counsel .for respondent a j· holding brief · for Mr: Kidumage, learned advocate for t e appellants. · ,1(;;::2·_•. "'•.:, { ~_~t~:\·~.-.

JUDGE 14/11/2016 5