julius

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MANYARA

AT BABATI LAND APPEAL NO. 68 OF 2023 (Originating from Land Application No. 29 of 2023, District Land and Housing Tribunal for Hanang) JULIUS MICHAEL (As administrator of the estate of the late YOHANA LOHAY DAGHARO).......................................APPELLANT

VERSUS PAULO BRUNO..................................................................1st RESPONDENT ATANAS MICHAEL...........................................2nd RESPONDENT JOSEPH M ICHAEL...........................................3 rd RESPONDENT

JUDGMENT 22nd May & 17th July, 2024 D. C. KAMUZORA, J. The Appellant sued theRespondents before the District Land and Housing Tribunal for Hanang(hereinafterreferred to as the trial tribunal), for recovery of a piece of land measuring about 33A acres located at Mlimani village within Hanang district in Manyara region (hereinafter referred to as the suit land). According to the Appellant the suit land was previously owned by his late mother one Yohana Lohay Dagharo who Page 1 of 11 passed away sometimes in 2000. The Appellant claimed that the 1st Respondent invaded the suit land in 2009 and was asked to vacate but refused. That, the Appellant instituted a suit before the trial tribunal for reliefs that he be declared as lawful owner of the suit land and the 1st Respondent be ordered to vacate the suit land. It is on record that only the 1st Respondent filed written statement of defence in which he disputed the Appellant's claim. He claimed that the suit land is just 13A acres and not 3% acres. He claimed that he purchased 1 acre from the 2nd Respondent in 2009 for one million and 3A acre from the 3rd Respondent in 2014. After hearing the parties, the trial tribunal dismissed the Appellant's application for want of merits and declared the 1st Respondent as the lawful owner of the suit land. The Appellant was aggrieved with the trial tribunal's decision hence, preferred the instant appeal on five grounds of appeal as follows: - 1. That, the wholejudgment and decree in land application No. 29 o f 2023 involves serious irregularities and is tainted with illegalities andgross abuse o fcourtprocess.

2. That, the trial tribunal failed to properly evaluate the evidence hence, arrived to a wrong verdict.

3. That, the honourable chairman o f the trial tribunal erred in law and fact by deciding in favour o f Respondent while the 2nd and J d Respondents did not file their defence although they were necessary parties. Page 2 of 11 4. That, the honourable chairman o f the trial tribunal erred in law and fact by making the decision basing on the status o f the applicant's family.

5. That, the honourable chairman o f the trial tribunal erred in law and in fact by making decision referring the contested appointment o f the applicant as administrator o f the deceased's estate while such matter was determined by the primary court. When the matter was called for hearing, the Appellant appeared in person while the 1st Respondent was represented by Mr. Pastor Kong'oke, learned advocate. This court ordered the appeal to be disposed by way of written submissions in which, the Appellant and the 1st Respondent complied save for the 2nd and 3rd Respondents. The Appellant argued jointly the 2nd, 3rd, 4th and 5th grounds of appeal while the 1st ground was argued separately. In his submission in support of the 1st ground of appeal, the Appellant argued that the trial tribunal's judgment is tainted with serious irregularities for it referred the opinion of assessors which do not feature in the proceedings of the trial tribunal. He added that, the opinion of assessors was recorded in violation of the dictates of the law and they were not compatible to the mode and format of writing the opinion which were expounded by this court in the cases of Rev. Peter Benjamin Vs. Tumaini Mtazambwa @ Mwema, Page 3 of 11 I I Land Appeal 69 of 2019 and Veneranda Nyamuhanga Vs. Husna Khalid Hussein, Land Appeal No. 4 of 2021 (both unreported). The Appellant argued the opinion should

comply with section 23(1) and (2) of the Land Disputes Courts Act [CAP 216 RE 2019], (hereinafter referred to as the LDCA) and Regulation 19(2) of the Land Disputes Courts (the District Land and Housing Tribunal) Regulations (hereinafter referred to as the Regulations). In his submission to the rest of the grounds, the Appellant faulted the trial tribunal for challenging the appointment of the Appellant as administrator of the deceased's estate. He submitted that, the Appellant complied with all the procedures before his appointment as administrator of the deceased's estate as he tendered letters of administration as an exhibit before the trial tribunal. He argued that, the matter regarding his appointment as administrator of the deceased's estate could only be dealt with by the appointing court (Katesh primary court) and the trial tribunal had no mandate to question his appointment. The Appellant also faulted the trial tribunal for not evaluating the evidence on record. He argued that, while the 1st Respondent claimed that he purchased the suit land from the 2nd and 3rd Respondents who were also made parties to the case, they neither filed defence nor testified before the trial tribunal. He was of the view that the 2nd and 3rd Page 4 of 11 Respondents were key witnesses to prove if they sold the suit land to the 1st Respondent. To buttress his arguments, the Appellant referred

to the case of Juma B. Kadala vs Laurent Mnkande [1983] TLR 103. The Appellant further faulted the trial tribunal for declaring the 1st Respondent as lawful owner of the suit land basing on the principle of adverse possession while there was no proof. He argued that it was wrong for the trial tribunal to invoke the doctrine of adverse possession while none of the parties pleaded it. To buttress his arguments the Appellant referred the case of Halima Wakara & 2 others vs Jeremiaha Mkama Civil Appeal No. 493 of 2020 Court of Appeal of Tanzania at Mwanza (unreported). On further submission, the Appellant faulted the trial tribunal for holding that the Appellant agreed with the family members to dispose the suit land to the 1st Respondent. He submitted that there was no such evidence on record establishing that there was agreement between the Appellant and his young brothers to dispose the suit land to the 1st Respondent. The Appellant argued also that the trial tribunal erred in declaring the 2nd and 3rd Respondents as owners of the suit land while there was no evidence to prove so. The Appellant faulted the trial tribunal for not taking into account the evidence that there was a dispute regarding the Page 5 of 11 size of the suit land. That, while the Appellant claimed for 3% acres, the 1st Respondent claimed for a different size of land thus, it was important for the trial

tribunal to visit the suit land before declaring the 1st Respondent as the lawful owner of the same. To buttress his arguments, the Appellant referred the decision of this court in the case of Said Hassan Shehoza vs The Chairperson CMM Branch & another Land Appeal No. 147 of 2019 and the Court of Appeal decision in Avit Thadeus Massawe v Isdory Assega Civil Appeal No. 6 of 2017 [2018] TZCA 357 (13/12/2018) (unreported). In concluding, the Appellant prayed for this court to allow the appeal with costs. In reply to the 1st ground of appeal, Mr. Kong'oke submitted that the record shows that the assessors' opinions were read on 01/11/2023 and the judgment was delivered on 02/11/2023 thus, the assessors were involved. As regard to the format in reading the opinion, the learned advocate argued that there is no standard format rather what is important is for the opinion to be read. He referred section 45 of the LDCA which requires a decision of the district land and housing tribunal not to be reversed or altered on account of an error, omission or irregularity unless such error, omission or irregularity has in fact occasioned failure of justice. The learned advocate submitted further that the trial chairperson properly analyzed the evidence on record as seen at page 3 and 4 of the Page 6 of 11 judgment. That, it was observed that the Appellant's evidence was weak since he did not

tender any document even the purported letters of administration. That, the evidence by the 1st Respondent was found heavier than that of the Appellant and it was supported by the evidence of RW2, RW4 and RW5 who are the Appellant's relatives. On the argument that the trial tribunal based its decision on principle of adverse possession, the learned advocate for the Respondent submitted that nothing on the trial tribunal's judgment shows that the doctrine of adverse possession was referred. That, the trial chairperson only observed that at the time the Appellant filed the matter the application was time barred since the Appellant himself stated that the 1st Respondent entered into the suit land in 2009 while the matter was filed before the trial tribunal in 2023. The learned advocate for the Respondent further submitted that the 1st Respondent tendered two sale agreements evidencing the purchase of the land from the 2nd and 3rd Respondents. That, no objection over admission of the sale agreements was raised hence, there was no need for the 2nd and 3rd Respondents to testify. As to argument that the trial tribunal failed to visit the suit land, the learned advocate for the 1st Respondent submitted that it was the discretion of the trial tribunal to consider if it was necessary to do so. He Page 7 of 11 argued that, in the circumstance where witnesses testified and documents were

tendered which had clear description of the suit land, there was no need to visit the locus in quo. To buttress his arguments, he referred the case of Kimoniditiri Mantheakis Vs Ally Azim Dewji & 7 others media neutral citation 2021 TZCA 663. The learned advocate therefore prayed for this court to dismiss the appeal with costs. In rejoinder the Appellant essentially reiterated his submission in chief. Having gone through the parties' rival submissions and the record of the trial tribunal, there are two issues for determination. The first issue is whether the trial tribunal complied with the law regarding the involvement of the assessors which essentially is the basis of complaint in the first ground of appeal. The second issue is whether the trial tribunal properly evaluated the evidence on record which essentially is the complaint in the 2nd, 3rd, 4th and 5th grounds of appeal. Starting with the first issue regarding the opinion of assessors, I have considered the law governing that aspect and perused the record. In terms of section 23(1) of the LDCA, the District Land and Housing Tribunal is properly composed if it has at least a chairperson and not less than two assessors. For purposes of clarity, section 23(1) of the LDCA reads that; Page 8 of 11 23. -(1) The District Land and Housing Tribunal established under section 22 shall be composed o f at least a Chairman and not

less than two assessors. [Emphasis added] Going by the trial tribunal's record, it did not clearly reveal the assessors who sat with the chairperson. The coram read the name of the chairperson but the names of the assessors sitting for the case are not indicated. On 11/9/2023 when hearing of the matter commenced, two assessors; Mr. Mduma and Ms. Mkuti were captured posing questions to SMI and on 30/10/2023 Joseph Mduma was also captured posing question to a witness although the coram does not reflect names of members who were in attendance. Throughout the record there is nowhere the names of assessors were captured in the coram to show the number of assessors who attended the trial. However, the record shows three written opinion suggesting that three assessors participated in the trial; Mr. Mduma, Ms. Mkuti and Ms. Ngomuo. While Mr. Mduma and Ms. Mkuti were captured asking question, no record showing Ms. Ngomuo's participation in the trial. In his judgment, the learned trial chairperson considered the opinion of two assessors; Ms. Ngomuo and Ms. Mkuti but the judgment does not reflect if the opinion by Mr. Mduma was also considered. Page 9 of 11 I am of the settled view that since it was not revealed anywhere on the record if Ms. Ngomuo ever participated in the hearing of the matter, there was unclear involvement of assessors in the matter before the trial tribunal. Worse

still, the opinion by Ms. Ngomuo influenced the decision of the trial tribunal. In the case of Ameir Mbarak and Another Vs. Edgar Kahwili, Civil Appeal No. 154 of 2015 (unreported), the Court of Appeal succinctly pointed out the consequences of unclear involvement of assessors in the trial renders such trial, a nullity. In the case of Tubone Mwambeta v Mbeya City Council, Civil Appeal No. 287 of 2017(unreported), cited in Edina Adam Kibona Vs. Absolom Swebe 7 (Sheli), Civil Appeal No. 286 of 2017 (unreported), the Court of Appeal of Tanzania observed that: 7/7 view o f the settled position o f the law, where the trial has to be conducted with the aid o f the assessors,... they must actively and effectively participate in the proceedings so as to make meaningful their role of giving their opinion before the judgment is composed..." [Emphasis added]. Guided by the above decisions, I find that since there was unclear involvement of assessors in the matter at hand, the whole trial is rendered a nullity. It is for that reason I proceed to quash and set aside the proceedings, judgment and decree of the trial tribunal. I order the matter Page 10 of 11 I be remitted back to the trial tribunal for retrial before another chairperson and new set of assessors. I refrain from determining the remained issue touching evidence as that may prejudice the new trial. In the circumstance, I will not make an order as to costs. DATED at BABATI this 17th Day of July, 2024. D. C. ZORA

JUDGE Page 11 of 11 L