HUSSEIN HAMISI MTIU VS YAHAYA RAMADHANI HAMISI

IN THE HIGH COURT OF TANZANIA

DODOMA SUB REGISTRY

AT DODOMA LAND APPEAL NO. 20929 OF 2024 (Arising from the Judgment and Decree in Land Application No. 27 of 2022 in Singida Land and Housing Tribunal)

BETWEEN HUSSEIN HAMIS MTIU ………..….……………APPELLANT VS YAHAYA RAMADHANI HAMISI …………….RESPONDENT

JUDGMENT Date of the last Order: 25/03/ 2025 Date of the Judgment: 09/04/ 2025 LONGOPA, J.: The appellant and respondent were parties at District Land and Housing Tribunal at Singida on dispute over ownership of landed property. The disputed land is situated in Mnang’ana Village in Sepuka Ward, Ikungi District in Singida Region. The Tribunal on 14th June 2024 determined a matter in favour of the respondent herein (The applicant before the trial Tribunal) and declared that the disputed land was part and parcel of the 1|Page estate of late Ramadhan H. Muna hence judgment and decree in favour of the applicant. On 23rd July 2024, the Appellant being dissatisfied and aggrieved by the decision of the District Land and Housing Tribunal for Singida at Singida in Land Case No.27 of 2024 dated on 14th June, 2024 instituted an appeal against the whole decision on the following grounds namely: 1. That, the Honourable Chairman of the District Land and Housing Tribunal erred in law and fact for failure to recognized that Appellant is lawful owner of the said four acres (4) disputed area since memorial time.

2. That, the Honourable Chairman of the District Land and Housing Tribunal erred in law and fact to deciding in favor of the Respondent without considering the fact that the Appellant adduced reliable and strong evidence against the Respondent.

3. That, the whole proceedings of District land and Housing Tribunal marred by procedural irregularities 2|Page which led to un-wanted judgment and order of the Tribunal. On 25th March 2025, the parties appeared before this Court for submission in favour and against the appeal. The appellant enjoyed the legal services of Vanessa Msangi, learned advocate while the respondent appeared in person fending for oneself. The appellant counsel, Ms. Vanessa Msangi, learned advocate submitted that this appeal has three grounds of appeal resulting from the decision of the District Land and Housing Tribunal for Singida which was delivered on 14th June 2024. This appeal was filed on 23rd July 2024. Section 41(1) and (2) of the Land Disputes Courts Act, Cap 216 provides for 45 days of appealing from the District Land and Housing Tribunal to this court against the decision of the Tribunal thus counting from 14th June 2024 to 23rd July 2024 is about 37 days which are within the time of preferring the appeal. As such, it was submitted that the appeal is meritorious. 3|Page Ms. Vanessa Msangi, learned advocate submitted on the third ground of appeal that the whole of the proceedings of the trial Tribunal were marred by irregularities and illegalities that resulted in unwanted judgment. It was submitted that the law requires the assessors to attend and who should give opinion at the end of the

case. There were two assessors namely Kidulu and Kisenga from 30th August 2022 to 14th June 2024 but only one assessor gave the opinion on 17th May 2024. Both assessors were there but only one opined as revealed in the page 32 of the proceedings. According to Regulation 19(2) of the Land Disputes (the District Land and Housing Tribunal) Regulations, GN No. 174/2003, it is mandatory for the District Land and Housing Tribunal Chairman to sit with assessors, the assessors should put their opinion in writing and the same was read before the Tribunal in presence of the parties. The appellant stated further that one of the assessors did not give any opinion. The case of Zubeda Hussein Kayagali vs Oliva Gastorn Luvakule and Another, Civil Appeal No. 312 of 2017, the Court stated that – the Chairman shall take the opinion of the assessors but not bound 4|Page by the opinion. The Court of Appeal of Tanzania in that case quashed the proceedings and set aside the judgment of the District Land and Housing Tribunal for violating the mandatory provisions on the role of assessors. Also, in the case of Elilumba Eliezel vs John Jaja, Civil Appeal No 30 of 2020 at page 12, the Court of Appeal of Tanzania stated that absence of the assessors goes to the root of the case thus vitiating the whole proceedings. It was the appellant’s prayer that the opinion of the assessors was not there. It was only

one assessor who gave opinion and there is nothing indicating that the opinion of the other assessor was not given. As such, absence of the opinion of assessors which is mandatory in law makes it wanting for the proceedings to be illegal and irregular. The assessors got all the time to ask questions to the witnesses but denied the right to opine. It was reiterated that in the case of Mkama Magesa vs Richard Mchele, Civil Appeal No. 212 of 2021 at page 12, the Court of Appeal stated that: (1) assessors must actively participate in the proceedings before the District Land and Housing Tribunal; (2) At the end 5|Page of the hearing each of the assessors must file a written opinion; (3) the written opinion so written must be read over to the parties before the judgment is composed; and (4) the written opinion must be part of the record. In the instant appeal, the assessors attended and actively participated but there was no opinion filed and the same was not read. It is on record that one of the assessors had nothing recorded in the proceedings to have filed nor read the opinion. That makes the case tainted with irregularities and the effect to quash the proceedings of the DLHT. For that reason, it is our submission that the proceedings or whole trial was marred by the irregularities. On the first and 2nd grounds jointly, it was submitted that on evidence of the parties reveal that

the appellant had strong evidence. The defence evidence before the trial Tribunal was not considered while the applicant did not state the boundaries of the land in dispute. At page 8 of the proceedings, the respondent stated about the boundaries. PW 2 Shaban Said Jimbe stated that he knows the land but he never stated the 6|Page boundaries. Also, all other witnesses differed on the boundaries. PW 3 and PW 4 failed to identify boundaries of the disputed land. There are differences on the boundaries. On the appellant’s it is lucid evidence that such testimonies identified the disputed land properly. Pages 17 to 31 of the proceedings reflect all the witnesses were able to properly identify it properly and consistently. That is the reason one of the assessors did propose that visit of the locus in quo was important. It was argued that the burden of proof lies on the party who alleges as reflected in section 110 and 111 of the Evidence Act, Cap 6 R.E.

2022. In the case of RE: B (2008) UKHL 35 Lord Hofmann stated that proof on balance of probabilities means and entails whether a fact happened or has not happened. According to the appellant, failure to prove that a fact exists in a case that happened when there is doubt as to whether it happened or otherwise. The respondent failed to prove that his four (4) acres were trespassed by the appellant. At page 2 and page 4 of the Judgment, the 7|Page District Land and Housing Tribunal stated to have considered the evidence of Ramadhani Mohamed who failed to identify the area and stated that he does not know the size of the land in dispute. It was the appellant’s submission that District Land and Housing Tribunal entered judgment and decree to the party who failed to prove the matter to the required standard by failure to tender strong evidence. It was prayed that the proceedings of the District Land and Housing Tribunal be quashed, judgment and decree set aside. On the other hand, the respondent argued that the assessors were present and both of them had opined before the District Land and Housing Tribunal had entered judgment and decree. Thus, it was argued further that the presence of the assessors or absence of the assessors does not prevent the Judge or Chairman to decide the case by entering the judgment. The Judge or Chairman can enter judgment without any restriction. In

respect of the question of boundaries, the evidence of the respondent at DLHT was consistent as the applicant in that case. There 8|Page were no differences at all. One Ramadhani Mohamed Kitifu stated to have known the boundaries. On ownership, it was submitted by the respondent that such land was inherited from his grandfather who owned it since 1910 and inherited the respondent’s father in 1958 when the respondent’s grandfather died. The ownership of the land was customary ownership right of occupancy namely deemed right of occupancy but the appellant got customary ownership title in 2022 from the Village illegally. According to the respondent, at the trial Tribunal the respondent herein produced a documentary evidence that the appellant obtained land through purchase not deemed right of occupancy which is in form of inheritance of the clan land. Lastly, the respondent submitted that the appeal appears to be time barred as it was filed on 26th August 2024 while the time had lapsed/ expired. It would appear that the same was filed within 72 days while the appellant argued to have filed it only within 37 days of the decision. The respondent called upon this court to consider and scrutinize the appeal to 9|Page ascertain if the appeal being filed within or out of time. Thus, need to ascertain its appropriateness. In brief rejoinder, Ms. Vanessa Msangi argued that in page 32 of

the proceedings, it is revealed that the opinion of the assessors were to be read on 17th May 2024 but no reasons were adduced for one of the assessors denial to read his opinion before the parties. As such, the appeal is meritorious. In course of arguing the appeal, the respondent raised an issue with regard to validity of the appeal as he was of the view that filed out of time on 26th August 2024 which was some 72 days of the decision of the trial Tribunal. On the other hand, the appellant was of the view that appeal was filed within 34 days of the decision which was within the time limitation of 45 days allotted for appeals from the District Land and Housing Tribunal to the High Court of Tanzania as per section 41(2) of the Land Disputes Courts Act, Cap 216 R.E. 2019. 10 | P a g e The Judicature and Application of Laws (Electronic Filing) Rules, 2018, GN No. 148 published on 13/04/2018 caters for date of filing of a matter before the Court. In particular, Rule 21(1) states that: 21.-(1) A document shall be considered to have been filed if it is submitted through the electronic filing system before midnight, East African time, on the date it is submitted, unless a specific time is set by the court or it is rejected. The filing date is the date when the appeal was submitted through an electronic case management system. The respondent stated that date should be reckoned from

26th August 2024 when the fees was paid as that appears to be the date when an appeal was filed thus it was out of time. Upon thorough perusal of the digital file of this appeal, it is lucid that the appeal was submitted vide electronic case management system on 23rd July 2024. The appeal was not rejected for any reasons whatsoever. It remains that in ecms that is the date in which the appeal was instituted. 11 | P a g e Thus, the appeal was filed within time, this Court shall proceed to determine the validity of the appeal in light of the grounds of appeal. The question of assessors is the most prominent ground of appeal in this case. In the case of Elibariki Malley vs Salimu H. Karata (Civil Appeal 67 of 2022) [2023] TZCA 226 (3 May 2023) (TANZLII), at page 10, the Court stated lucidly that: It is noteworthy, to state that in dealing with disputes at the DL & HT the Chairman has to read in tandem the LDCA and the Regulations. Based on the provision of section 23 (2) of the LDCA and regulation 19 (2) of the Regulations, the Chairman who sits with assessors, is undoubtedly required to comply conjunctively with four conditions: (i) that the assessors actively participate, (ii) that at the end of the hearing, each of the assessors files a written opinion, (iii) that the written opinion filed must be read over to parties before the judgment is composed and (iv) that those written

opinions must be part of the record. 12 | P a g e In the case of Badru Issa Badru vs Omary Kilendu (Civil Appeal No. 180 of 2021) [2024] TZCA 50 (15 February 2024) (TANZLII), at pages 11-12, the Court stated that: However, quite unfortunate, assessors' opinions are not part of the record of appeal. Time and again we have emphasized that opinion of assessors must be read to the parties and their opinion must be on record. In the case of Edina Adam Kibona v. Absolom Swebe (SHELI), Civil Appeal No. 286 of 2017 confronted with an akin situation, we cited our earlier decision in the case of Ameir Mbarak and Another (supra) in which we observed that: "Therefore, in our considered view, it is unsafe to assume the opinion of assessors which is not on the record by merely reading the acknowledgment of the Chairman in the judgment. In the circumstances, we are of the considered view that, assessors did not give any opinion 13 | P a g e for consideration in the preparation of the Tribunal's judgment and this was a serious irregularity." On the basis of the above stated reasons, and considering that this aspect went unnoticed by the first appellate court, we agree and hold that the score of the alleged variety of irregularity committed by the Tribunal, the decision of the High Court cannot survive as it resulted from nullity proceedings of the Tribunal. We therefore nullify the proceedings

and judgment of the Tribunal and that of the High Court because they stemmed from a nullity. Going forward, we remit the matter to the Tribunal for Kinondoni for retrial of Land Application No. 19 of 2006 before another Chairman and new set of assessors according to law. It is lucid that the opinion of the assessors must be on record and the same must be pronounced in presence of the parties. In case the opinion is not read before the parties and is not on record that amounts to serious irregularity which vitiates the whole of the proceedings. 14 | P a g e The proceedings before the District Land and Housing Tribunal reveals that on 22nd April 2024, the DLHT ordered that both assessors should give their written opinion and the same should be read on 13/05/ 2025. This is reflected on page 31 of the proceedings. It is on record that it was on 17/05/ 2024 when the opinions were read. The extract of the proceedings reveals that: Tarehe: 17/05/ 2024 Akidi: Mh. B Colex -Mwenyekiti Mleta Maombi: Hayupo Mjibu Maombi: Yupo Karani: Jenipher Wajumbe: Kindulu Kisenge Baraza: Wajumbe wa Baraza kusoma maoni yao leo Mr. Kindulu 15 | P a g e Ni vyema baraza likatembelea eneo la mgogoro kubainisha Mazingira ya nani alikuwa anatumia eneo lenye mgogoro. Amri: Hukumu 14/06/ 2024. The Judgment of the District Land and Housing Tribunal dated 14th June 2024 on page 5, the Chairman of the Tribunal

stated that: Kwa mantiki hiyo, natofautiana na maoni ya wajumbe wote wawili wa baraza hili, maombi haya yana mashiko na yamekubaliwa, eneo lenye mgogoro linatamkwa kuwa ni mali halali ya marehemu Ramadhani Hamisi Muna ambapo kwa sasa liko chini ya msimamizi wake wa mirathi, maombi haya yamekuliwa kwa gharama. Imeariwa hivyo. If the two extracts are seriously interrogated, it is explicit that there is a serious anomaly going to the root of the both proceedings and judgment. The Judgment is referring to the opinion of both assessors while on record it is only one assessor who was allowed to read the opinion. 16 | P a g e Though both assessors were present on 17/05/ 2024, one Kisenge the assessor was not availed opportunity to read the opinion before the parties except only one Kindulu, who was the one recorded. In the instant appeal, a thorough perusal of the proceedings reveals that it is only a single assessor who had opined before the Tribunal in presence of the parties. The second assessor was not recorded at all to have given his opinion. Therefore, the proceedings do not reveal at all if the second assessor was given opportunity to opine on the matter by reading his/her opinion before the parties. Indeed, such failure has violated two mandatory requirements on the active participation of the assessors, namely that the written opinion filed must be read over to parties

before the judgment is composed and that those written opinions must be part of the record. As the proceedings are silent on the question with regard to the opinion of one Kisenge being read, this court is certain that such opinion was not read as the proceedings are silent. As such the whole proceedings was marred by a serious irregularity of non-compliance with mandatory 17 | P a g e conditions on role of assessors. The failure to ensure that it is on record that both assessors have actively participated makes the decision a nullity. In fact, the judgment dated on 14th June 2024 was not based on what is on record regarding the assessors’ opinion as the judgment referred to opinions of both assessors while the record reveals that only one assessor was allowed to opine. It is the settled position of the law in this jurisdiction that court records are considered to be authentic thus should not be impeached easily. In Salehe Omary Ititi vs Nina Hassan Kimaro (Civil Application No 583 of 20210 [2023] TZCA 232 (9 May 2023), at page 9-10, the Court of Appeal of Tanzania stated that: Two, in the absence of the evidence to the contrary, the court record which shows that the applicant appeared by representation when the appeal was heard and determined remains as it is. It is a settled law that, a court record is a serious document that it cannot be impeached lightly. In the decision of

the Court of Halfani Sudi v. Abieza 18 | P a g e Chichili [1998] T.L.R. 527, where the record of the High Court was questioned, it was held as follows: “(i) A court record is a serious document; it should not be lightly impeached; (ii) There is always a presumption that a court record accurately represents what happened.” See also: Hellena Adam Elisha @ Hellen Silas Masui, Civil Application No. 118/01 of 2019 (unreported). The submission by the respondent that both assessors gave their opinion has no place in law given the proceedings are clear that the one of the assessors did not opine at all. The proceedings are explicit, clear and unambiguous thus this court shall consider the available proceedings as reflection of what happened before the trial Tribunal. In the case of Dora Twisa Mwakikosa vs. Anamary Twisa Mwakikosa, Civil Appeal No. 129 of 2019 [2020] TZCA 1874 (25 November 2020), (TANZLII), at pages 10-11, the Court of Appeal stated that: 19 | P a g e In the case at hand, as shown above, the record does not reflect that the assessors were required to give their opinion in the presence of the parties after the closure of defence case. The written opinions of the assessors did however, find their way into the record in an unexplained way. Nevertheless, in his judgment, the Chairman stated that the considered those opinions. In our considered view, since the parties were

not aware of existence of the assessors’ opinions, we agree with the counsel for the parties that in essence, the provisions of regulation 19(2) of the Regulations were flouted. Failure by the chairman to require the assessors to state the contents of their written opinions in the presence of the parties rendered the proceedings a nullity because it was tantamount to hearing the application without the aid of assessors. We are supported in that view by our previous decision in the case of Tubone Mwambeta (supra) cited by the appellant’s counsel. 20 | P a g e This ground of the appeal is a serious ground that is capable of disposing the whole appeal. There is no need to go to the other grounds which touch on merits while there exist nullity proceedings of the trial Tribunal, the District Land and Housing Tribunal for serious failure to adhere to compulsory participation of the assessors. In totality of the events, this appeal has merits on ground of the illegality. Therefore, the proceedings of the District Land and Housing Tribunal is hereby quashed in its entirety and the judgment and decree are set aside. The appeal stands allowed. Each party shall bear its own costs. It is so ordered. DATED at DODOMA this 9th day of April 2025 E.E. LONGOPA

JUDGE 09/04/2025. 21 | P a g e