20190910 TZHC Mbeya

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA INTHEDISTRICTREGISTRYOFMBEyA AT MBEYA LAND APPEAL NO. 67 OF 2016 (From District Land and Housing Tribunal of MBEYA District at MBEYA in Land Case No. 85 of 2012) HADIJA SAID HAMOUD The representative of SAID HAMOUD .......... ....... ... ...APPELLANT VERSUS MWANAIDI ALLY GWAU The Administratrix of I - JUMANNEJUMA MLELWASI ' . ... RESPONDENTS ANNA RAYMOND AKILIJ JUDGMENT Date of last order: 2310812019 Date of Judgment: 1010912019 NDUNGURUIJ.: 'The appellant one Hadija Said Hamoud as the representative of the applicant one Said Hamoud is appealing against the decision of the District Land and Housing Tribunal of Mbeya at Mbeya dated 5th August, 2016 in the Land Application No. 85 of 2012. 1 Briefly, the facts which gave rise to this appeal are as follows: That on 22 nd day of October, 2003 one Rahabu Mwamondo sold the disputed house to Said Hamoud (who was the applicant before the tribunal) and the second respondent who became joint owners of the suit house. That sometimes in 2012 the 2td respondent sold the suit house to the 1st respondent without consent of the applicant who was"a co-owner. As a result of the sale the appellant's right over the suit house was alienated. Before trial tribunal, the appellant sought a declaration that the sale of the suit house between the 2nd respondent and the 1st respondent was illegal, dedaation that the apellant is still a lawful joint owner of the house in dispute, vacant possession of the house in dispute \ , by the 1st respondent, costs of the suit and any other relief the tribunal deemed just and fit to grant.. The trial tribunal having received and evaluated the evidence of the 'parties fourd the application was non meritorious thus dismissed it with costs. In her memorandum of appeal, the appellant raised four grounds of appeal. The same can be clustered into one ground that, the trial tribunal failed to critically and properly evaluate the evidence thus reached into wrong decision - The records shows that the respondents have never appeared in court to prosecute their appeal ever since the appeal was filed. The counsel for the appellant prayed for the substituted service by affixation the same was granted and effected, but still the respondents never turned up the court thus ordered the appeal to proceed ex parte against the respondents Mr. Kyando counsel for the appellant prayed the appeal be disposed by way of written submissions The same was granted The counsel having filed his subrnision, in the course of composing judgment the court faced a legal ithue that is the involvement of the assessors during the conduct of the trial. The court suo motu required the counsel for the appellant to address it on the propriety of the trial pertaining the involvement'of the assessors and their role in the conduct of the trial in question Addressing on the involvement and the role of the assessors, Mr. Kyando learnédcounsel submitted that during the trial, the defence case was closed on 16/12/2015 the Hon Chairman proceeded to fix judgment date. The record does not show that the assessors were required to or invited to give their opinion. He said the last page of the judgment at the conclusion the trial Chairman concluded saying "the sale of the 3 house as opined by the assessors was valid and so the house belongs to the respondent. The suit is thus d/smissed' Mr. Kyando submitted further saying neither in the proceedings nor in the judgment the said opinion of the assessors portrayed. He said such defect as it has been held by the Court of Appeavitiates the whole proceedings and judgment, the consequence of which is the nulflfiçation of both judgment and proceedings. He prayed the judgment and proceedings of the trial tribunal be nullified and the order for retrial be given. 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 requfred to give out tliefr opinion before the chafrman reaches the judgment" [Emphasis added] 4 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 they actively, effectively and fully involve in the proceedings before opining at the conclusion of the trial and before judgment is composed. Regulation 19 (2) of the Land Disputes Court (The District Land and Housing Tribunal) Reg'ulations, G N No 174 of 2003 provides 'Wotwithstanding sub-regulation (1) the chairman shall, before making judgment, require every assessor present at the conclusion of the hearing to give his opinion in writing and the assessor may give his opinion in Kiswahili The record indicates that two assessors aided the trial throughout of the case. These assessors were A. Kangele and Sarah Ntabangale. From the records of the trial tribunal, there is no where the two assessors cross e'xamined witnesses. The records of the trial tribunal / reveal that the. assessors were given opportunity to ask questions for clarification this can be seen at page 26 of the proceedings when PW1 testified, page 30 when PW2 testified, page 35 when DW1 testified and at page 40 when DW2 testified, page 43 when DW3 testified and page 48 when the last defence witness testified. 61 As rightly submitted by Mr. Kyando learned counsel for the appellant, the record of the proceedings at page 48 speaks: ORDER Defence case dosed Judgment on 0510412016 Sgd C.Hatson Chafrman / 1611212015 The record does not reveal if the assessors were given opportunity to give their opinion as required by law. The record of the proceedings / show that the defence case was closed on 16/12/2015 but it is silent as N 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 22/01/2016 and another on 29/01/2016. 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 flied 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 (Shell), Civil Appeal No. 286 of 2017 Court of 6 Appeal of Tanzania (unreported), Tubone Mwambete v Mbeya City Council, Civil Appeal No. 287 of 2017 Court of Appeal of Tanzania (unreported). 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 par-ties are still interested on the matter. I will not labor on the grounds of appeal as the above discussed irregularity hàssufflced to dispose of the appeal. I make no order as to the costs on the ground that the parties had no hands towards such misdeed committed by the tribunal. it is so ordered. ~~ kLW"A- D. B. NDUNGURU JUDGE 10/09/2019 7 * Date: 10/09/2019 Coram: D. B. Ndunguru, J Appellant: Absent For the Appellant: Absent 11 Respondent: Absent 2nd Respondent: Absent B/C M. Mihayo Court: The matter is coming for judgment, but the parties are absent. Judgment has beèndeIivered today in the absence of both parties. D. B. NDUGURU JUDGE 10/09/2019 I explained. n.