20180730 TZHC Mbeya

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF MBEYA ) AT MBEYA LAND APPEAL NO.56 OF 2016 (Original from District Land and Housing Tribunal, Land Application No.61 of 2009) LUPAKISYO MWAKIBINGA ................................... 1 ST APPELLANT THE REGISTERED TRUSTEES OF NEW APOSTOLIC CHURCH ................................ 2ND APPELLANT VERSUS THE REGISTERED TRUSTEES OF TANZANIA ASSEMBLIES OF GOD..................... 1ST RESPONDENT ALPHONCE KASONGWA .................................. ND RESPONDENT KIBETI 1WANJOI{A.......................................... 31.D RESPONDEN'.I' JUDGMENT Date of last Order: 2710612018 Date of Judgment. 3010712018 NGWALA, J: In this appeal, the appellants contend that the trial tribunal disregarded the documentary evidence. There was misconception of the court's Ruling by his Lordship Lukeleiwa, J, in Application No.116 of 1992. The appellants also aver that the trial tribunals' decision is bad in law. liPage 4- To start with the third complaint that the decision which this appeal is sought is bad in law as it contravened the provisions of section 23 of the Land Disputes Courts Act, 2002, let me quote Section 23 of the cited Act. It reads:- "23- (1) The District Land and Housing Tribunal established under section 22 shall be composed of one Chairman and not less than two assessors. The District Land and Housing Tribunal shall be duly constituted when held by a Chairman and two assessors who shall be required to give out their opinion before the Chairman reaches the judgment. Notwithstanding the provisions of sub- section (2) if in the course of any proceedings before the Tribunal 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 not withstanding such absence.)" The provision of the law above is couched with the word 'shall'. Section 53 (2) of the Interpretation of Laws Act, [Cap. 1 .R.E 2002] is to the effect that:- "(2) Where in a written law the word "shall" is used in conferring a function, such word shall 21 P a g e 4- be interpreted to mean that the frnction so conferred must be performed." Subsection (2) of section 23 mandatorily requires the Chairman of the Tribunal in any proceedings to sit with two assessors who shall give their opinions at the conclusion of the proceedings. The sub- section is couched in the sense that in every decision of the District Land and Housing Tribunal must be accompanied with the opinion of the assessors, failure of which renders the said judgment to be unsafe in terms of section 24 of Cap 216 (supra). In a clear interpretation under section 53 (2) of Cap 1, the lack of opinion from the assessors in the Judgment of a District Land and Housing Tribunal is as if such judgment is not in existence. The learned advocate for the respondent argued that the learned Chairman is allowed to proceed in the absence of the assessors by virtue of subsection (3) of section 23 of Cap 216 (supra). Upon studying the cited sub - section, it clearly indicates that in the absence of the assessors who were present at the commencement of the proceedings may continue and conclude the proceedings. It is on record however that the learned trial Chairman on the 19th day of May, 2016 when the impugned judgment was delivered, the assessors by the names of Kangele and Sara appeared in the Coram. For the sake of clarity, the said Kangele and Sara appeared in the proceedings during the hearing of the suit. It is strange to see the learned Chairman arguing that the assessors were not seen. It is however in the entire proceedings of the trial tribunal that there 31 P a g e nowhere indicated that assessors had denied or did not appear to continue with this suit. At the conclusion, the learned Chairman stated. I quote:- "I conclude the suit alone because the assessors were not present on subsequent proceedings." The proceedings in the trial tribunal clearly show that the assessors were to appear on the last day of the suit on n the judgment date. Form the Proceedings I am satisfied that the trial Chairman deliberately or with knowledge decided not to comply with the law. In the upshot and for the foregoing reasons I am of the considered view that it is unsafe to hold that the impugned judgment of the District Land and Housing Tribunal deserves to be a judgment of the tribunal. Accordingly the Judgment of the trial tribunal is nullified. A proper Judgment should be constructed by another chairman and the set of previous Assessors who attended in this suit. It is further ordered that this file to be remitted to the District Land and Housing Tribunal so that a Judgment in accordance with the Provisions of Section 24 of the Land Disputes Courts Act, [Cap.216.R.E.2002] is prepared. The Appeal is allowed. Each party to bear its costs. 1.1 * 4 - -, Date: 30/07/2018 Coram: Hon. A.F. Ngwala, J. Appellant: Both present For the Appellants: Absent Respondent: Present For the Respondent: unrepresented. B/C: Patrick Nundwe Court: Judgment delivered in Court in the presence of the parties. Court: Right of Appeal to Court of Appeal of Tanzania explained. A.Fa Judge 30/07/2018 5 1 P a g e,