juma rajabu majaliwa administrator of the estate of late halima issa migala vs rehema juma mikonzi 2023 tzhc 22622 31 october 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB-REGISTRY) AT MOROGORO LAND APPEAL NO. 105 OF 2022 (Arising from Land Appiication No. 47of2019 before the District Land and Housing Tribunaifor Morogoro, at Morogoro) lU'MA RAJABU MAJALIWA {Administrator ofthe estate ofthe iate HALIMA ISSA MIGALA) APPELLANT VERSUS REHEMA3UMA MIKONZI RESPONDENT JUDGEMENT 31=' October, 2023 CHABA. j. Before the District Land and Housing Tribunal for Morogoro, at Morogoro (the DLHT/trial Tribunai), the respondent herein, REHEMA JUMA MIKONZE successfuiiy sued the appellant, JUMA RAJABU MAJALIWA (Administrator of the estate of the late HALIMA ISSA MIGALA) via Land Application No. 47 of 2019 for trespassing over un-surveyed land farm measuring 3.5 acres located at Ng'alala area in Malali Village within Mvomero District in Morogoro Region. At this juncture, it is important to note that, during the hearing of the case before the trial tribunal, the original respondent, HALIMA ISSA MIGALA passed away. Later on, the appellant herein JUMA RAJABU MAJALIWA applied for and was granted the. letters of administration upon being appointed by kongeni Primary Couri, In the District Court of Mvomero within Morogoro ' . Page 1 of 22 . Region, as an administrator of the estate of the Late HALIMA ISSA MIGALA to discharge his legal obligations including handling the conduct of this matter. Discontented by the decision of the trial DLHT, the appellant appealed to this Court. At the hearing of this appeal, the appellant was represented by Mr. Hassani Nchimbi, learned advocate while the respondent enjoyed the legal services from Mr. Ignas Punge, learned advocate. For the better appreciation of the matter before this Court and for the sake of narrowing and making the issues involved clear, I find it apt to first give a brief factual background of the matter as hereunder. The respondent, REHEMA JUMA MIKONZE who was the applicant at the trial tribunal, instituted a Land Case No. 47 of 2019 before the District Land and Housing Tribunal for Morogoro, at Morogoro against HALIMA ISSA MIGALA (who later passed away before giving her evidence on defence) for trespassing over her suit land measuring 3.5 acres located at Ng'alala, Mlali Village within Mvomero.District. She told the trial tribunal that, she is the lawful owner of the disputed parcel of land as she inherited from her late grandmother one, Mwantumu Ramadhani Mnyune in the year 2008. To prove her statement, she tendered at trial, documentary evidence marked as Exhibit PI and averred that, she was given the said disputed shamba/farm on lO*^*^ April, 2008. To support and back up her statement, respondent called the following witnesses; PW2, Mr. Abdul Azizi Mohamed and PW3, Mr. Abdallah Juma Mikonzi. At the end of the day, her Page 2 of 22 story was believed by the trial tribunal, hence concluded that the said shamba/farm was the property of the late Mwantumu Ramadhani who owned it for almost 57 years without interference. On the other hand, the appellant's version as garnered from his defence testimony shows that, the alleged shamba/farm belongs to the clan of Kitegeta and it has been jointly owned by the whole family of the deceased one Mwanamng'ewele. It is on record that, the appellant applied for and was granted the letters of administration to stand as an administrator of the alleged clan's farm since on November, 2013. However, at the hearing of the matter before the trial .tribunal, the appellant changed his story. His testimony unveils that, the alleged shamba/farm did belong to him and that he has been cultivating it for about 10 years until the respondent herein sued him at the DLHT. He testified further that, he inherited the said shamba/farm from his parents, and later it was cultivated by Mohamed Dizamire, followed by Hamza Rajabu Majaliwa and finally Halima Issa Migala, the deceased. His testimony got support from DW2,one Rajabu Ally; DW3, Ernest Ano and DW4,-one.Hasani Ally. ^ With the above historical background, the trial tribunal believed that respondent's story cast nothing but the truth and finally declared her as a lawful owner of the disputed land. The trial tribunal further granted costs to the respondent and the appellant was issued with perpetual injunction from entering the respondent's shamba/farm. However, as alluded above, the Page 3 of 22 appellant was dissatisfied with the findings and decision of the trial tribunal, hence preferred the present appeal. To challenge that decision, the appellant has filed the following four grounds of appeal as hereunder: - 1. That, the trial Chairperson erred in law and fact for failure to include the testimony of DW4 without any justifiable reason, hence failed to deliver reasonable judgment. 2. That, the trial Chairperson erred in law and fact for changing assessors during the trial without assigning good reason for so doing. 3. That, the trial Chairperson erred in law and facts for entertaining an issue which was not raised during the trial, hence the right to be heard against appellant was denied. 4. That, the trial Chairperson erred in law and facts for failure to including assessors' opinion in the proceedings. With the above grounds of appeal, the appellant invited this Court to allow the appeal, quash the proceedings of the trial tribunal and set aside the impugned judgment and decree issued by the trial tribunal. He further craved to be declared as a lawful owner of the disputed suit land and the respondent be condemned to pay costs on appeal and before the trial tribunal. On her part, the respondent through her reply to the petition of appeal vehemently disputed all grounds of appeal fronted by the appellant. She supported the trial tribunal's decision and prayed the Court to dismiss the appeal with costs, and uphold the decision of the trial tribunal. Moreover, she Page 4 of 22 prayed that, both costs for this appeal and the trial tribunal be paid by the appellant. In addition, both parties through their pleadings, requested this Court to issue any other orders where the interest of justice so demands. When the matter was called on for necessary orders on November, 2022, both parties appeared in persons and their respective advocates. Mr. Hassahi Nchimbl, learned advocate frohi PANACEA ATTORNEYS entered aplDearance forthe ap^ Mr. Ighas Seti Punge,jeafhed couhse from PJC PREMIER ATTORNEY'ajDpeared for the respondent. With the parties' conserisus,. it was agreed that this appeal be argued and disposed of by way of written subrnissions,.In this, regard, the appellant waS:..supposed to file his written :Suipmis,sion iR chief.on.or before 23^^ November, 2022^. respondent had to.file .reply to. written subrnission in chief on 6T December,.2022 and.rejoinder (if any) had .to be filed^by the appejlantpn or before IBT.December, 2022. ' On scrutiny of the parties' pleadings,i noticed that both parties filed their respective submissions in chief and reply thereto as ordered by the Court, serve for the appellant's- rejoinder which according to the record' it was'filed on 17^^ Febfuafy, 2023 beyond the stheduled order, that is 13^^ fjecember; 2023. The appellant^' subrriissidns wefa drawn and filed by Ms. Kahisi'a' Theoford Komba, also learned advocate for and on behalf of PANACEA ATTORNEYS. Before commencing to argue and submit in support of the appeal, Ms. Kdhisia H^mba pfayed the Court to adopt the petition of appear and form part of-the-appellant's submission e -averred further that,'during' submissibn, ■ ; '- r:' ■ '''' "'page 5 of 22 ■ ' grounds 2 and 4 will be argued jointly, and grounds 1 and 3 will be argued separately. Submitting in support of the first ground, Ms. Kanisia Komba faulted the finding and decision of the trial tribunal by stating that it erred in law and fact for failure to include the testimony of DW4 without any justifiable reason, hence failed to deliver a reasonable judgment. She highlighted that, the Chairperson failed to record the testimony of DW4,one Hassan Ally in the judgment because in the proceedings the witness was recorded as DW4, however no evaluation of DW4's testimony was reflected in the judgment and there is no any reason justifying the abandonment of such evidence. On the second and fourth, Ms. Komba contended that, according to the proceedings of the trial tribunal, the same shows that the assessors were changed during trial without assigning any good cause for so doing, hence contravened the governing law. She accentuated that, on 5'^'^ April, 2019 and 7^^ May; 2019 the case was presided over by Hon. 0. Y. Mbega, Chairperson with a set of two assessors namely, Mr. Mpite and Ms. Mngazija. On.22'^^ March, 2021 assessors were Mkama and Nsana and on the 21^*^ July, 2021 accessors were Nsana and Mngazija. According to the counsel for the appellant, it appears that the assessors who sat with the Chairperson kept on changing, and no reasons were assigned by the trial Chairperson. ■ On failure to include the acceSSors' opinion in the proceedings of the trial tribunal, Ms. Komba submitted, that looking at the proceedings of the trial Page 6 of 22 tribunal, it is evident that the judgment contained the opinion of the Chairperson himself and the assessors' opinion was abandoned without assigning any reason(s). To buttress her argument, Ms. Komba referred this Court to the provision of the law under section 23 (1), (2) and (3) of the Land Disputes Courts Act, [CAP. 216 R.E, 2019] and submitted that, the failure by the,trial Chairperson .to comply with the above provision of the law, renders the proceedings and judgcnent a .nullity-.To cement hep-iargurnent, the learned counsel cited the decision of the . Court of Appeal, ..of Tanzania .in .Erica Chrisotom Vs. Chrisotpm Fabian and Justinian John,Civil Appeal No. 137 of.2020,,(CAT)sitting at Bukoba (unreportedj and tfiecase of.Ameir Nbaraka and Azania. Bank Corp.,Ltd Vs. Edgar Kahwin,.Civil Appeal,No. 154 of 2015 (CAT)..sitting at.Iringa (unreported). She averred that, in the^afore-rrientioned two, cases," the -CAT nullified the judgments -of ,the,trial tribunal tor failure to comply with section 23., of the Land Disputes Courts Act,[CAP. 216 R-E, 2019]. ^ As regards to the third ground, Ms. Komba asserted 'that, the trial Chairpefsbrr drred Im'laW and facte Ibr'd new issue of adverse possession raised during the trial without affording the'appellant the rights to be'heard. She argued that, the effect of not affording the parties with the rights to be heard rendered the whole proceedirigs,-judgment and'orders efnanating therefrom a.nullity. To fortify, her contention, she cited the.case of Ramadhani MgonyanlVs, Eustaks. i^gpnyana. Misc. Land Appeal No,..15 pf,.2D18,(HCT) -"Land .Division, at .Dar Es .Saiaam -(unreported)- She underlined .that,, even Page 7 of 22 thougb the Hon. trial .Chairperson was entitled to raise.the. point of law 5^0 motu, yet had to summon both parties to address the tribunal on such point before delivery of judgment, In view of the above submission, Ms. Komba prayed the Court to uphold the third ground and further craved the Court to allow the appellant's appeal with costs. Responding to the appellant's submission, Mr. Punge, learned advocate for the respondent vividly submitted shortly on each ground as follows. He began his submission by praying the Court to adopt his reply to petition of appeal and form part of the respondent's submission. He proceeded to argue on ground one that, the trial tribunal considered and evaluated the evidence tendered by all witnesses, including the evidence of DW4, Mr. Hassani Ally. He went on highlighting that, this being the first Appellate Court is entitled to re- evaluate the entire evidences on record and come up with its own decision as it was stated in the case of Selle and Another Vs. Associated i^otor Boat Company Ltd and Another,[1968] 1. EA. 123. As to the 2"^ and 4^^ grounds, Mr. Punge accentuated that, the trial tribunal was lawfully constituted for purposes of determining the matter before it. He averred that, the assertion by the appellant's counsel that the assessors were changed during trial and failure to include assessors' opinions are unsubstantiated as this requires keen scrutiny in respect of participation and involvement of assessors at the trial before the trial tribunal. He further Page 8 of 22 conceded the fact that, the counsel for the appellant correctly cited the provision of section 23 of the Land Disputes Courts Act [CAP. 215 R. E. 2019] and stressed that, that is the requirement of the law regarding composition of the trial DLHT when determining the disputes brought before it. He argued that, section 23 of the Land Disputes Courts Act (supra) is by RegM (1) and (2) of the Land Disputes Courts (The District Land and Housihg Tdbunial)" Reg0latiohs,^'GOvernm Notice^No/'T74' Of 2003 which provides'that: ■ . v - . ■. (1) "The tribunal may, after receiving evidence and submissions under '' 'Reguiatibn:14, pronounce'judgmenton the spotor revbrse'thejudgment to be pronounced later; -r ■ ■ - Notvyithstanding sub-reguiation,(1) the chairman,shaii,:before making : . hisjudgment, require every assessors present at the conclusion of the hearing to give his opinion in writing and the assessor may give opinion in Swahiii". Mr. Puhge underlined that,' one pertinent point of law to be noted at this juncture-is about the difference between composition add quorum. Section 23 (1) and (2) of the land Disputes Courts Act (supra), just provides for the general composition of the trial tribunal. On the other hand, section 23 (3) provides for the quorum. He submitted that/ the clear meaning of this provision is that.The ^GhairpersQri/ls,;to;be present throughout the triaj,.In. the:course,of the Thai,, the., trial, tribunal can continue and; cqndude.:the,'proceedings ; ' ■'xy \ X) ■ ■ -page'9"of22-" '. ' notwithstanding the absence of the original assessors. Where an assessor(s) is/are present at the commencement of any proceedings and is/are subsequently, for any reason, unable to continue to attend, the trial Chairman is allov\/ed to continue hearing and determine the case on merits to its finality. From the above submission, Mr. Punge asserted that, in the matter under consideration, only one assessor (Jane Mngazija) gave her opinion as the other assessor's contract (Nsana) expired before the conclusion of the trial. He however argued that, Jane Mngazija was present from the commencement of the hearing to the end. In his opinion, this course is proper as per section 23 (3) of the Land Disputes Courts Act (supra),which provides that: ■ "Notwithstanding the provisions ofsubsection (2), ifin the course of any proceedings before the Tribunal either or both members Of the Tribunai who were present at the commencementofprdceedings is or are ■ absent/the Chairman and the remaining member, if apYj may continue and conciude the proceedings notwithstanding such absence. In respect of the 4'^ ground, Mr. Punge submitted that, the Chairperson did not raise new issue as alleged by the appellant. He stated that, two issues were framed by the Tribunal, namely, one; Who is the rightful owner of the disputed land, and Two; To what reliefs are the parties entitled to. According Page 10 of 22 to' hii^, both- issues were determined by the trial Chairperson'. He stated that, adverse possession was pot a complete new issue, but an integral part of the first issue which centers on ownership. To reinforce and strengthen his argument, Mr. Punge cited the case of Jasson Samson Rweikiza Vs. Movatus Rwechyngyra f^kwama, Civil Appeal No. 305 of 2020 (unreported), where.the,CAT at pages 8 & 9 observed that:: . ; .. . each'issue'frarned should.be definitelyto resolved and that ' ajudge is obliged to decide,on each andgvery.issueframed ■; . .' ..v' -fu^eespiye, the. dispute, However,, weiWish to state, ..t . ., , , .. . that,, the aboye.principle is not a. rule of the thumb which apply generally to eveiy situation regardless of the circumstances obtaining. In our considered firm position, we are of the view that, the above principle applies where issues framed are independent from each other and not where issues are interdependent like in the instant appeal where the rest of the issues were dependent upon the determination of the first issue in the affirmative. Finally, the -couhsel for the respondent submitted Tliat, -based on the authorities cited herein aboVe, his arguments, reasons and cumulative effect of all the above, prayed the'Couit to dismiss the appeal in its entirety with costs on the ground the same is totally without merits. ^age 11 of 27. = ■ By way'of rejdm^^^^ Msf Komba reiterated what she submitted in chief. However, as alluded to above, this part of submission I accorded no weight for a reason that it was lodged in this Court beyond the time scheduled by the Court and without obtaining the requisite permission for extension of time to file the same. Having suifimarized the parties' submissions and dispassionately considered the rival arguments from both sides, I find that the issue calling fdr consideration, determination and decision thereon is, whether this appeal has merits'or otherwise. But before I dwell on the grounds of appeals and sdbrfiTssibhs advanced by the parties for and against the instant appeal, I am mindful that this being a first appellate Court, I am duty bound to re-evaluate the entire evidences on record and come,up with my own decision. 3ee.the case.Qf Siza Patrice Vs.. Republic, Criminal Appeal No. 19 of 2010,.CAT sitting at Mwanza where the Court held: r: "We understand thatit is settlediaw that a firstappealis in ' the form ofa rehearing. As such, the first appeiiate court hasa duty to re-evaiuate the entire evidence in an objective ■ ■ \ - rhahner a^^ ^ i Similar principle was uttered by this Court in the case of Fred Samwel @ Kindumba Vs. Republic; Criminal Appeal No. 68 of 2021, HCT at Sumbawanga, where the Court held among other things that: - Page 12 of22 "This court being the first appeiiate court, I am in the position ofre-evaiuating the evidence ofthe triai court and make my own determination ofthe same". Secondly; it is settled law that, Court records are a serious document and it is presumed that Court records accurately represents the truth of what actually happened or transpired at trial. Hence, it should not be lightly impeached. See the case of Halfan Sydi Vs. AbSeza CbichnB [1998]T. L. R S27f wherein the Court of Appeal of Tanzania held: - "We entirety agree with ouriearned brother, MNZA VAS, JA, and the authorities he feifed on which are ioud and dear What; "A Court record is a serious docurhent r; -. bbdightiydrdpeach^W: there is'aiWays%&Wresum ;:• yWz-.tdafadourtfecdrdaccurateiy represents what happened." Having revisited the' principles of law^' which I believe' will'guide me to land safely toTinal-Verdict'of this cds^ T will com'rhence rhy'determination of this appeal orl the first groUn'd of appeal. The cO'uhseiTof the appellant, claimed that, the trial Chairper'sdn erred in law and fact for fairure to include the testimony of DW4 Vi/ithout any justifiable reason, hence failed to deliver reasonabje judgment.: She submitted that, the trial Chairperson,.did,-nqt properly eyaluatpJn hlsgudgnient tf\e ev^dencevadduced,. by, one JHassan APy- She lamented:further:,that;; the..consequences,of.suph omission jendertthe.whole Page 13 of 11 judgment a nullity! Oh his part/the counsel for the respondent'vehemently opposed this allegation and averred that the evidence adduced by DW4 (Hassani Ally) in particular, was properly considered analyzed and evaluated the trial Chairperson. On my part, to resolve this first ground, I take trouble to revisit the proceedings of the trial tribunal (hand written proceedings) and also managed to go tilrough the impugndd judgment of the trial tribunal dated oh 18^^ July, 2022. Having perused the entire pleadings of the trial tribunal and hand Written proceedings;, r found that on April, 2022, DW4 testified as Hassani Ally. However, the judgment of the trial tribunal which had 9 pages had no evidences adduced by DW4. Despite , the truth that the evidence of DW4 was not highlighted and evaluated in the impugned judgment,,the appellant did not pei:suad,e,this Court how such piece pf evidence was so important-tp .his client case,,Even the.counsel for the appellant did not tell the-Court how the said omission to. evaluate the evidence of DW4 , in the judgment did occasion a miscarriagenl'justice.to her client, the appellant. In addition, the counsel for the appellant did. not explain as to what exactly DW4 testified before the trial Court, For ease of referencp and better understanding, I find it apt to,quote what DW4 testified befpre^thetrial.tribunal., ^ ■-■ ■"1:2/047 2^22 'VW4:Jina:-: ' / : C■ y-HsSsaniAlly; ■ /• " ■u- .. : Page 14 of 22 Umri: 40; Dini: Islam; Amethibitisha kutoa ushahidi wa kweii. "Minavyojua, shamba bishaniwa pamoja na mengine ni ya ukoo wa Kitegeta. Mtawala wa kwanza aSikuwa mzee Mntgoo alitawaSa miaka mingi, baadae aiifuata Mohamed Dizamile^ babu yangu, alitawalBf baadae akafa,akaja Hamza Rajabu MajaSiwa^ alitawala baadae akafa^ baada ya kifo akaja HaUma Issa Migolo katawaia baadae akafa, tukamchagua Juma Rajabu Majaliwa, ndiye tunaye mpaka sasa hivi. Mimipia mimwasia ukoo",[Boldis mine]. above jjfece eviderite did contradict With theappeiiaht's testimdhy (DWl/juida Rajab NajalWa) as transpires in the record ofthe trial tribunal who on 14'^ March/ 2022 testified that he was (is) the lawful owner of the disputed farm. To cut the story short, the evidence of the appellant as garnered from the record of the trial Court shows that: "i;4/63/2Q22 ■ ■ ■ 'f : d .■■7,-. 7 .7■ ■ . 7.77 7-- 7.; . 7^ /:Jina:}JumaRajab^P1pjdl(wa;^: ^ :, ;7 7,, ;■ 7:7 7,.,vv- IJmrk:70- y-r . <■■ ■ --, ,7; . ; -,7 . , ■•--7 ^ 77- 7 •^■'■■.7. : . ,Qlnl:Islam; , / : Amethibitisha kutoa ushahidi wa kweH. "Mmasema hivi. Hie mi sbamba iangu. Naiima kiia siku toka karne tumieshazoea. Katika shamba niHenda kwa wazazi wamgp, wajomba zangu^ Page 15 of 22 Mohamed Dizamile, akaja Hamza Rajabu Majab'wa halafu Halima Issa Migala, nikaja mimi. Halima ni mpwa wangu mama yake alifariki. Eneo Una ukubwa wa ekan mbiU kasoro. Kwenye shamba kuna migomba mashimo mawUir mtl wa miombo/ miembe mitatu. Mipaka eneo llle hupakana na Kasimu Dageia Shabani, juu yuko Ika na Omary NdevUj^ Barabara ya Mongwe. HUo ndUo shamba letu la ukoo wa Kitegeta. Mpaka sasa tunalima hUo shamba, na tunaendelea kulilima. Klukoo ndiyo hivyo hakuna wa kusema shamba la kwake, yeyote anayekuja lazima anione mimi. Akiiima akipata mazao ananiietea. Nimemaiiza..... [Emphasis added]. '%vi^\A/iacf ^nd 'evatU^ed' the"' eVidehce 6f DWl respdetively, it Is obvious that the evidence of bW4, Hasani Ally which the counsel for the appellant alleged to have been left without being assessed by the trial Chairperson In the Impugned judgment, does not support the testimony adduced by DWl, Juma Rajab Majailwa, appellant herein. In the circumstance, I find that the omission tg;evaluate the evidence of pW4 (Hassanl Ally) saves no purppses In as much as^ the appeiiarjt's case Is concerned. Hence,tfiisground pf appeal must fall. ; . ^ ^ Coming to the 2"^ and 4^^ grounds of appeal, Ms. Komba strongly attacked the triafCharrherson that he erred In law and fact for changIhg assessdreclUrlhg tine trial'Without assigning good reason and for failure to Include the opinions Of the Assessors in the proceedings: On these two pdihts> the Counsei stressed that^'faliure by the trial Chairperson to comply with the legal requirement and 'Page 16 of,22 : the , authprjties . she cited a bid to support his argument, rendered the proceedings and judgment a nullity; On his part, Mr. Punge resisted the contention advanced by the counsel for the appellant by accentuating that, no changes of accessors were made for the purposes of determining the case and dispensing justice. He said, the dates complained of by the appellant's advocates, were 5^ Apri!,.2019 and 7*^'^ May, 2.019 where the.qase was presided pyejv,by;.llpn. Q^Y.;Mbega,;iC who sat with two,assessors.namely, Mp. Mpite,and-,Msj,, ,Mngazija. However,:pn 22^^ apd 21^1 July, 2021 the Ghairperson,presided oyepthe.case with different accessors name|y, Mr. Mkama and.Nsar)a, and.Nsana.:and,,Ms.^Mngazija, respectiyely; .y /, ,• ■ 'I'havd fe~vb 'tribr tribunal procsedirigs pdftidulariy Pid't^ edhipfdiried■by the apjjeilanta(idYdvealdd'that,^^d 'thbse-^daysthe■ matter, was balled tiri 'fdr^dhtioh^ 'My fihding^^ oh this fabet disddveredthat the^counsel 'for feapdellahtddiied to sijbstandatea convince'the Court hovl/ his client was pi-ejudieed by' havihg'differ accessors when the matter was scheduled for mention.vJnthis.]-egard,;iLhave found no inju^ice^pccasjoned; the. ^appelianj- whenthe.,tria| tpibunalsatrWith; di^rent accessprsvop .22'?|^;March,r202.1. (Mr. M.fepia,and;.Nsane):vand: pn,21rd.ul^ (Nsana,and;vMs. MngazijcQ, while the meltdCMSffiCheduled Qnly:,fpr,.mendpm ;:-v appellant' aisd'^ccDlTipiaihed' that ^ the 'accessbds 'dpinidh- wds not recorded in the'pitreeedings.df thdtrial tribunal^ Ms;- 'k^^ was^of thewiew that;' such tailura^^ did pccasidh ^miscarriage of justice on the 'appeiIaiHi:%- -case. Page 17 of 22 She added that, the said irregularities were contrary to the dictates of ^t^ provision of section 23 of the Land Disputes Courts Act [CAP. 216 R. E. 2019]. She also cited the decisions of the CAT and this Court to fortify her argument. On this allegation, Mr. Punge once again resisted the contention and argued that, the trial tribunal accordingly, recorded the opinion of the accessor. As to the question whether or; not the provision of section 23 the Land Disputes Courts Act (supra.) was complied with by, the trial tribunal^ Mr. Punge was straight to argue that such provision of the.law was fully adhered to. 'Having considered the above rival argurrient regarding-the 2"^ and 4^'^ grounds of appdal, and upon'a-thofoughly examination and re-assessment of thd proceedings of the triartribunal,T noticed that the opinion of the assessor was Clearly recorded in the proceedings, included in the impugned judgment and read it during delivery of the impugned judgment. This piece of evidence is reflected in the proceedings of the trial tribunal that,was recorded on tjne May,.^22. Itreads asfollows;,-^ - r .: r ^ -^ V' MIeta MaombL'.Yupp; Mjibu Maomhi: Yupg;. ; : ■, . ■ ■ ,,.v, ^ / Baraza: Maoni ya Jane PJngazija ni kwamba mleta maombi ana uthibitisho wa kupewa ardhi na mashahidi wapo lakini mjibu maombi hana uthibitisho wa kupewa shamba na wazazi wake".[Emphasis added]. Page 18 of 22 " Frorri the above extract of the thai tribunal's proceedings, no doubt that the said assessor one Ms. Jane Mngazija gave her opinion and the same was recorded in the proceedings. Why the second assessor one Nsana did not give her opinion, the answer is far-fetched. According to the record, the Hon. trial Chairperson stated and assigned the reason through the impugned judgment at page ,9. of.the typed judgement by stating that, I quote: ^ . , .. . ' ^ ' \wakatishaurrlinaendelea^hivyo^-^ - ; ya2l6:ya/S/iem/^ilitumika^f7he:Land.Pisf;>utes^CoiJi-tsA^ r :. L . , .j^aaning that, .whqn the mattei: proceeded;for .hearing, the assessor's tenure's contract expired. Therefore, the provision of section 23(3) of the Land Disputes Courts Act [CAP. 216 R.E. 2019] was invoked. For ease of reference, section 23 (1),(2).and.(3) the Land Disputes Courts Act Gsupra) provides that: (1) The District Land and Housing Tribunal established /: •- ■ under 5ectidn 22'^shalide"composed dfatleasta :Ghairm'an:. ■^ ^ :::mnd\notless than :tvvG.assessors,. : o.. ^ ^ The DiS-ict Land and Housing ■ Tribunal Shak^^ -:r i,;..- 'constituted when heid'by. a Chairman . and'tWonssessors- who shaii be reguired.to give out their ppinign before the Chairrnan reach.es thejpdgment ■ Fageaaof??. ■ ■ ■ (3) Notwithstanding the provisions of subsection (2), ifin the course ofany proceedings before the Tribunaij, either or both members of the Tribunal who were present at the commencement of proceedings is or are absent^ the Chairman and the remaining member^ if any/ may continue and conclude the proceedings notwithstanding such absence". From the above sub-section (3) of section 23 of the Land Disputes Courts Act, it is apparent that, the controlling provision of the law is dear that, if in the course of any proceedings before the tribunal, either or both miember(s) of the tribyna! who were present at the commencement of proceedings is or are absent, the Chairman and the remaining member, if any, may continue and conckide the proceedings notwithstanding such absence,. In my. considered view, the trial Chairperson was ,right.to continue and eonclude the.present impugned prpceedings and judgment In..a.bsence pf the said-as^sspr pne Nsana, Aga^ this ground^pf appeal .is^devpid.pf merit,, ' " ■ In fespett of the 3^^ ground, the counsel for the'appellant faulted the Hdh/ trial Chaffperson-thdi: he erfed in law'dhd'facts fot^enterta issue dFadvefSe possOsdon which'Was not raised during the trial- hence the right to be heard against appellant', was denied. She was of the view that, the cohseq'uefiee of nof affording the parties with an opportunity to be heard " ' ' Page 20 of 22' renders the whole proceedings, judgment and orders sprang therefrom a, nuility. She referred this Court to the decision in the case of Ramadhani f^goB-syasni ¥s. Eustaki JSSgonyaoi (supra) to reinforce her contention. On reviewing the entire proceedings of the trial tribunal, I found that there is no any order in the case file concerning the issue of adverse possession and the counsel for the'appellant did hot eiaborate;how his olient was affected, andheft-a jot to'be desired by the Couft. This ground also lacks merit.'' •' ■ ' ' :■ V : f. : From what I have endeavoured to deliberate herein above, I tend to agree with'the'cdunsei for the fespdndent thait, the instant'appeal 'has ■ no ifieritS;- ' ■Cohseqdehtly,' t' 'uph6ld th^ decision of E/istrict: llahd-and'Hdnsing 11^ibuiiai%r Mbrdgord, afiMordgorb ahd^pi'oceed to disrhissfhe'-dppeailri' its entirety With CdstS. ItdsSd ordered. ' " '" ' ' ■bMEi^'ab-N6ll^St>R0this31^''day'6fdCfbber^^^ ■2: '■D X Chaba VlJ. JUDGE 31/10/2023 POmnOilO 'TUT::.' a; Court; Judgement delivered under my Hand and Seal of this Court in Chamber's this day of October, 2023 in the presence of the Appellant who appeared in person, and unrepresented and in absence of the Respondent. ana mi DEPUTY REGISTRAR .31/10/2023 Court; Rights of the parties to^appe^tovthe C^rfuliy.explained. L. B. L ana UJ EPUTY REGISTRAR 31/10/2023 A hJ J' U i • -V' > i-''K;.i A 3;,t;'i.J - J ii Page 22 of 22