Mary Elly Mwenda v Ephraim Elisante Muro

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA LAND DIVISION AT DAR ES SALAAM LAND APPEAL NO. 000014043 OF 2026 MARY ELLY MWENDA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS EPHRAIM ELISANTE MURO .............................. RESPONDENT / DEFENDANT JUDGMENT LUVANDA, J The suit land subject for litigation herein, is said to be approximately one acre located at Muheza Street, Kibaha Town Council in Pwani Region. The Appellant above mentioned pleaded (in the application) to have acquired it by way of purchasing from Bi. Joyce Bwire on 15/01/2011 for consideration of TZS 1,400,000. In the application, the Appellant did not say as to where, when and how the alleged Bi. Joyce Bwire acquired the suit land. In the testimony in chief, the Appellant who testified as PW1, said nothing regarding as to when, how, where he acquired the suit land, only tendered a document titled mkataba wa kuuza kiwanja dated 24/12/2010 exhibit KM1, which mention Aminiel Mbwambo as the vendor, however does not say who was a purchaser; Page. 1 mkataba wa kurudishiana pesa ya shamba dated 15/01/2011 exhibit KM2, showing that the Appellant refunded a sum of TZS 1,400,000 to Joyce Bwile, being a purchase price for the latter purchasing the suit land from Aminiel Mbwambo. On cross-examination by Mr. Lusajo Mwakasege learned Counsel for Respondent, PW1 stated that he purchased the suit land from Aminiel Mbwambo, and refuted having said to have purchased it from Joyce Bwire. According to PW1, asserted to have purchased for TZS 1,400,00 which he handed over to Aminiel Mbwambo for the latter to refund to Joyce Bwire who was the previous purchaser. PW1 sated that Aminiel Mbwambo acquired the suit land in 1997 by way of purchase, but could not say as to whom he purchased. On the other hand, the Respondent defended to have purchased the suit land (measuring one and half acres) from Dickson Daudi Kadete @ Shigelka Kadete on 14/10/2009 for consideration of TZS 1,250,000, as per hati ya mauziano ya shamba/kiwanja exhibit KU. It was stated that the suit land belonged to Kadete Shigela who is the father to Dickson Daudi Kadete @ Shigelka Kadete, who acquired it from Omary Nauyo, as per hati ya kumiliki eneo dated 15/06/1981 exhibit KU2.l The learned Chairperson dismissed the Appellant’s claim for want of proof. In the memorandum of appeal, the Appellant raised eight grounds of appeal, that: Page. 2 1. The Tribunal Chairman erred in law in adopting Respondent witness statements filed in the Tribunal and served to the Appellant out of time. 2. The trial Chairman erred in law in recording in the proceedings the opinion of assessors was read to the parties while assessors whom alleged to have read their opinion to the parties were recorded absent. 3. The trial Chairman erred in law by failure to refer and consider the opinion of assessors in the judgement hence rendering the judgement a nullity. 4. The Trial Tribunal chairman erred in law and fact for failure to properly evaluate evidence of the Appellant hence reached in a wrong decision. 5. The trial Chairman erred in law and fact by dismissing the Appellant's claim solely on withdraw of one witness (Aminiel Mbwambo), without considering the witness statement of the Appellant and the documentary evidence of sale agreement (exhibit KM1) which was duly admitted. 6. The trial Tribunal failed to make a definitive finding on ownership of the disputed land failure to evaluate documentary evidence holding that the Appellant failed to prove ownership due to absence of a written sale agreement. 7. The trial Tribunal erred in awarding costs against the Appellant despite the existence of a genuine ownership dispute supported by documentary evidence. Page. 3 8. The trial Tribunal erred in law for failure to join the vendors/original owners of the suit land, who are necessary parties to the suit hence occasioned a failure of justice. Mr. Rajabu Mrindoko learned Counsel for the Appellant, arguing ground number three, submitted that the district land and housing tribunal is a statutory body created with a specific structured composition. He submitted that, under section 23 (1) and (2) of The Land Disputes Courts Act, Cap 216 R.E. 2023, the Tribunal is properly constituted only when the Chairman sits together with panel of assessors. He submitted that, the role of assessors is a matter of substantive law, not mere administrative formality. He submitted that, the law mandate that; one, the assessors must hear the evidence alongside the Chairman; two, assessors must tender their independent opinions on the facts of the case; three, the chairman must actively consider those opinion when writing the final judgment. Also, cited regulation 19 (2) of The Land Disputes Courts (District Land and Housing Tribunal) Regulation GN No. 174 of 2003. He submitted that, going at the four corners of the final judgement reveals completely omitted any reference to or consideration of the assessor's opinions. He submitted that, the learned Chairman made absolutely no mention of the assessor’s opinions, argued that, the judgement reads entirely as independent, sole opinion of the Chairman. He submitted that, the Court of Appeal of Tanzania has established in an unbroken line of precedent most notably in that the requirement to seek, record and consider the opinions of Page. 4 assessor is strictly mandatory, cited Peter Makuri vs Michael Magwega, Civil Appeal No. 107 of 2019, CAT. He submitted that, if the Chairman wishes to depart from or disagree with the opinion given by the assessors, argued that, the law gives him discretion to do so, but must explicitly record that disagreement in the judgement and state the legal or factual reasons why is departing from the assessors’ views. He submitted that, by completely ignoring the assessor's inputs, argued that, the Chairman stripped the panel of its statutory power and effectively altered the legal composition of the Tribunal into a single-judge court. He wrapped by saying that, because the final judgement completely lacks any judicial reflection on the assessors’ opinion, argued that, it stands as an illegal piece of adjudication that directly violate section 23 (2) and 24 Cap. 216. He submitted that, a judgement born out of a statutory breach is a nullity and cannot be allowed to remain on the record of the court In reply to ground number three, Mr. Lusajo Watson Mwakasege learned Counsel for the Respondent, submitted that regulation 19 (2) of GN. No. 174 of 2003 relied by the Appellant, has not provided the manner in which the assessors’ opinions should be read and by who, the only requirement is that, they should give their opinions, the requirement which was duly complied. He cited Boniface Mlisi Lyimo vs Mohamed Ahmed Ally, Ahmed Ally Ahmed Page. 5 & Naila Issa Selemani (Administrators of the Estate of the Late Ahmed Ally) and Others, Land Appeal No. 31235 of 2024, [2025] TZHCLandD 601 (25 March 2025), for an argument that the learned Counsel for Appellant herein, defended over the same scenario therein. He submitted that, the elements were duly complied by the Tribunal. The learned Counsel conceded to the argument that the judgment does not explicitly detail the assessors' views. However, he argued that, this is not a fatal irregularity. He submitted that, the record shows that on 18/03/2026, all assessors gave their opinions where they observed that the Appellant failed to prove his case on a balance of probabilities and that the disputed land belongs to the Respondent. He submitted that, the inclusion of these opinions in the written judgment is not a mandatory legal requirement under the Land Disputes Courts Act, provided the Chairman considered them. He submitted that, the Appellant has failed to demonstrate how the omission of these opinions in the written text of the judgment prejudiced him, for reason that the outcome aligned with the consensus of the panel. ON REJOINDER, THE LEARNED COUNSEL FOR SUBMITTED THAT, THE RESPONDENT CONCEDES THAT THE CHAIRMAN DID NOT EXPLICITLY RECORD OR CONSIDER THE ASSESSOR'S OPINIONS IN THE JUDGEMENT. HE SUBMITTED THAT, THIS CONCESSION CONFIRMS THE APPELLANT'S GROUND THAT THE JUDGEMENT IS SILENT ON Page. 6 ASSESSOR'S OPINION. HE SUBMITTED THAT, UNDER SECTION 23 (2) AND 24 CAP. 216, THE CHAIRMAN IS LEGALLY BOUND NOT ONLY TO RECEIVE ASSESSORS’ OPINION BUT ALSO TO ACTIVELY CONSIDER AND REFLECT THEM IN THE JUDGEMENT. HE CITED PETER MAKURI (SUPRA), ARGUING THAT, IT WAS HELD THAT OMISSION TO RECORD AND CONSIDER ASSESSORS’ OPINION RENDER THE JUDGEMENT A NULLITY. HE SUBMITTED THAT, THE RESPONDENT'S ATTEMPT TO MINIMIZE THE OMISSION AS HARMLESS ERROR IGNORES BINDING PRECEDENT. HE SUBMITTED THAT, THE COURT OF APPEAL HAS CONSISTENTLY EMPHASIZED THAT ASSESSOR PARTICIPATION IN A JURISDICTIONAL REQUIREMENT, NOT A MERE FORMALITY. HE SUBMITTED THAT, A JUDGEMENT THAT FAILS TO INCORPORATE ASSESSOR OPINION IS AN ILLEGAL ADJUDICATION AND CANNOT STAND. GOING BY THE TRIBUNAL’S RECORDS, REVEAL THAT THE WISE ASSESSORS WHO PARTICIPATED AT THE TRIAL ON THE CORAM DATED 12/11/2025 WHEN PW1 ADDUCED HIS TESTIMONY; ON THE CORAM DATED 4/12/2026 WHEN DW1 AND DW1 ADDUCED THEIR DEFENCE, TO WIT MAMA KALANDANYA AND MAMA KIHAMPA, THEIR OPINION DATED 26/02/2026 WERE FILED IN THE TRIBUNAL RECORD. HOWEVER, ON THE CORAM DATED 18/03/2026, WHEN THE LEARNED Page. 7 CHAIRPERSON RECORDED THAT THEIR OPINIONS WERE READ ALOUD, THE SAID ASSESSORS ARE NOT REFLECTED IN THE CORAM, AS SUCH IT IS SILENT REGARDING THEIR ATTENDANCE. IN THE JUDGMENT THE LEARNED CHAIRPERSON OVERLOOKED TO INCORPORATE OPINION BY ASSESSORS. ARGUABLY THE LINE OF OPINION BY WISE ASSESSOR’S TALLY WITH THE VERDICT BY THE LEARNED CHAIRPERSON. HOWEVER, IT IS THE REQUIREMENT OF THE LAW THAT, THE OPINION OF THE ASSESSORS MUST BE INCORPORATED IN THE FINAL JUDGMENT DELIVERED TO PARTIES. THE LAW DOES NOT MAKE SUCH AN EXCEPTION THAT, IN THE EVENT THE OPINION BY WISE ASSESSORS MATCH WITH THE VERDICT OF THE LEARNED CHAIRPERSON, SUCH A REQUIREMENT MAY BE RELAXED. IN PETER MAKURI (SUPRA) AT PAGE 7, THE APEX COURT RULED, I QUOTE, ‘FAILING TO REQUEST, RECEIVE, READ OUT TO PARTIES, AND CONSIDER THE ASSESSORS’ OPINION IN THE TRIBUNAL DECISION AS IN THE CASE IN THE INSTANT CASE, REGARDLESS OF WHETHER THE CHAIRMAN AGREED OR NOT WITH THE OPINION, IS A FATAL OMISSION THAT GOES TO THE ROOT OF THE MATTER, CONSEQUENTLY VITIATING THE PROCEEDINGS’ Page. 8 ON THE SAME ANALOGY, THE JUDGMENT OF THE TRIBUNAL IS NULLIFIED AND AWARD SET ASIDE. THE LEARNED CHAIRPERSON IS DIRECTED TO COMPOSE A FRESH JUDGMENT, WHICH WILL INCORPORATE THE OPINION BY THE WISE ASSESSORS. IN SUCH A SITUATION, OTHER GROUNDS OF APPEAL WILL NOT BE CONSIDERED. THE APPEAL IS ALLOWED ON THAT GROUND ALONE. I DECLINE TO MAKE ORDERS FOR COSTS. Dated at DAR ES SALAAM this 8th of September 2026 . E. B LUVANDA JUDGE OF THE HIGH COURT Page. 9