matara ibunga matara others vs zena kabatre manyata 2018 tzhc 2961 30 august 2018

IN THE HIGH COURT OF TANZANIA . A T DODQM A Land Appeal No. 4 of 2016 (From the Decision of the District Land and Housing Tribunal < Dodoma District at Dodoma in Land C a se No. 122 of 2014) 1. MATARAIBUNGA MATARA ..................... 1st APPELLANT 2. LUCiA IBUNGA MATARA .................... 2"'i APPELLANT 3. NYANJELA SBUNGA MATARA .................... 3’d APPELLANT 4. KABASA IBUNGA MATARA .................... 4*h APPELLANT 5. NYASATU IBUNGA MATARA ....... ............ 5th APPELLANT

VERSUS ZENA KABAtRE MANYATA ' .......... RESPONDENT - JUDGMENT 2$/07/20H & 30/08/2016 . - ~ •• •’ SEHEL J. The presen i a p p e al originates from the decision of the District Land and Housing Tribunal of Dodom a District at Dodomjb (hereinafter referred to as the trial Tribunal). At the trial Tribunal, the respondent filed an application against the appellants praying for eviction order against the appeliants; paym ent of Tshs.-10,000,000/“ being general dam ages and costs for the application. At the end of the trial the trial tribunal d eclared the respondent as the lawful owner of the suit premise on Riot No. 335 Block “C ” Nkuhungu EasfcjJ^ Dodom a Municipality and the appellants were ordered to yield v a ca n t possession of the suit premise. The appellants w ere also condem ned to p ay costs. Aggrieved by jthat decision, the appellants through the services of Kidumpge & Associates- ! (A dvocates) lodged before this Court a m em orandum of appeal-. comprised of five grounds of a p p e a l nam ely; ■ r~- t 1. T h a t the C h airm an of the Tribunal erre<p in law and fa c t fn holding that FELISTA WILLIAM S.UL.UBA who allegedly sold the I suii house to the respondent w as legdlly recognized, the- Administratix of the estate of the late IBUNGA MATARA KABASA as such the sale. was. proper and that the respondent owns .the house in dispute legally. - i 2. That, The Chairm an of

the Tribunal erred in law and fa c t in i not finding that the sale, if any, had something behind the curtain in respect of appointm ent of FELISTA WILLIAM SULUBA as Administratix of the estate of the d e c e a se d IBUNGA MATARA KABASA since the Primary Court Magistrate, one RHODA KOMBA who dealt with the Administration C ause and appointed FELISTA WILLIAM SULUBA involved herself • even in the sale transaction of the suit h o u s e ^ ^ 2 3. That, the Chairr.r)qr?,..of the. TribOnal'erred in fa c t and law in I disbelieving the fact that Administration of the estates of the late iBUNGA MATARA KABASA b y : FELISTA WILLIAM SULUBA was revoked as it was illegally procured thus reach ed a - wrong d e c isio n .;; v| - . • • 4. Th at the Chairm an o f the-Tribunal erred in fa c t and law in- not holding.jhat the,sujt before it could not b e m aintained irT the a b se n ce 'o f joinder 'of'FELISTA WILLiAM SULUBA, the seller of the suit property .to the respondent herein thus arrived qfc • the im pugned decision; "" ‘ •• P 5 .'That, the Chairm an■oT the Tribunahecred in law in not taking info a c c o u n t... t h e , .opinion of the assessors during the . composition of the judgm ent. At the hearing of the a p p e a l Mr. Kidumage, learned a d v o c a te from Kidumage & Associates ' (A d v o c a te s). ap p eared ' to represent the appellants while Mr. Nyabiri, learned * a d v o c a te

from RK Rweyongeza & C o. A dvo cates a p p e are d on behalf of the respondent. , .. .* ......... In arguing the first and third grounds, Mr. Kidum age told this Court that at the time the dispute was proceeding at the District^ Land and Housing Tribunal there w as a pending a p p e al against the appointm ent of Felista William Suluba as -administrator of the estates of'the. fate Ibunga M atara K ab assa.Th e counsel continued to submit that even M atara Ibunga M atara (DW1) in his testimony notified the District la n d and Housing Tribunal o'n this fa ct. Mr. K idum age’s view was that having being aw a re of the pending a p p e a l then the District Land and Housing Tribunal ought to adjourn the dispute. For the second ground, Mr. Kidum age argued that the magistrate who appointed Felista Bura as the administrator was also . involved in the distribution of the estate. He pointed out that the m agistrate was the one who m ad e an order for sale; she w ent with Felista Bura to Ntui a d v o c a te for purpose of disposing the house; and she supervised the distribution. , In respect of the fourth ground, Mr. Kidum age was of the opinion that it was necessary for the respondent to join Felista Bura jn h er.ap plication at the District Land and Housing Tribunal since th<e appellants disputed on the sale transaction. He also argued that * Felista Bura w as not even sum moned as a witness. For the last com plaint, the a d v o c a te argued that the Chairm an contravened the provisions of Section 24 of the Land a n d ’ Disputes Courts A ct, C a p .

216. He continued to argue that th^g^l Chairm an did not take into acco,uni-the opinion of assessors as ca n be gathered from his ••decision. / , V. Regarding first and third grounds, Mr. Nyabiri responded that the a d v o c a te for the. appellants made* a submission on new ground • of ap p e al and not on the ones raised in his petition of a p p e a l. He, •. however, replied that in the whole proceedings is not indicated that • there was a mention of a pending ap p e al. Mr. Nyabiri pointed that w hat is reflected at- p ag e i 7 of. the proceedings is a cle a r lie from • DW1 who told the Tribunal that the administration of Felista Bura was w aived . He submitted.that since there was no information before the Tribunal about the pending a p p e a l then the Tribunal could not have stayed the p ro c e e d in g s.''' • \\ Regarding ground number- tw o /M r. Nyabiri replied that the Magistrate Rhoda Komba did not force the seller to go to the a d v o c a te and that-the order of sale was consequential following the udisputed fact the seller is the only married wife out of five wives that the d e ce a se d had . • On the com plaint that the seller ought to be m ade a party, Mr. Nyabiri’s replied that since the dispute was for v a c a n t possession . and since the seller was not residing therein then there w as no need of joining the seller. Mr. Nyabiri shifted the obligation to

the a p p e lla nt^,. by arguing that it was the appellants who shouid have filed a third party notice to the seller. It w as responded by Mr. Nyabiri on the last com plaint that Rule 20 (1) of the L a n d . Disputes Courts (The District Land and Housing Tribunal) Regulations, G.N 174 of 2003 does not enlist the opinion of assessors as contents of judgm ent. It was Mr. Nyabiri’s view that since Section 24 of the Land Disputes Courts A ct, C a p . 216 is silent on how the Chairm an should take into a c c o u n t then it be taken that the Chairm an did take into the acco u n t the opinion of assessors. - ! wish to start with ground number five to. which both sides are in agreem ent that the judgm ent does hot reflect, the opinion of assessors. On this ground, Mr. Kidum age indicated to this Court that the decision of- the District Land and Housing Tribunal does not include the opinion of assessors. He said that this was contrary to Section 24 of the Land Disputes Courts A ct, C a p . 216 that requires the Chairm an to iake into acco u n t the opinion of assessors. Mr. Nyabiri ackn o w led g ed that the decision of the Chairm an * does not indicate the opinion of assessors. He, however, submitted that Rule 20 (1) of the Land Disputes Courts (The District-Land and Housing Tribunal) Regulations ON 174 of 2003 enum erates the contents of judgem ent and that opinion of assessors is

not among,; the contents, Mr. Nyabiri further said that the failure to indicate does : not m ake the decision invalid. • f i Mr. Kidumage re-joined by submitting that Rule 20 (1) of GN 17A of 2003 does not preclude the Chairm an from complying with the- law. j . r- As stated earlier both parties are in ; ag reem e n t that t h i" • . • i • , /. . ! decision does not indicate the opinion of assessors. The question that T - r --------- ------------ ' — I— follows is whether it. is necessary to include thejopinion of assessors in- the C h airm an ’s decision. . . | :r ■ Sectior'i 24 of the Land Disputes Courts A c t C a p . 216 reads: ./‘In reaching decisions the Chairman shall take info f . account the opinion of the assessors but shall not be bound by it ex ce p t that the Chairman shall in the judgment give reasons for differing with such j opinion . ” From the ab o ve provision of the taw, the word “shall” which connotes m andatory requirement is used. It is therefore necessary for the Chairm an to take into acco u n t the opinion of assessors in his decision. The Chairm an though is not bound by the assessor’s opinion.but is obliged to take into acco u n t their opinion and he should give reasons in ca se he had divergent V*e 'v! ^ ^ •7 In the matter at hand, the' Chairm an sat 'with assessors in hearing Miscellaneous 'Application No. 122 of 2.014. The assessors who sat with

the Chairm an during the hearing w ere M .'Pahali and M. M ackbell. These two assessors are required by law to ..give their opinion (See Section 23 (2) of the Land Disputes Courts Act, C ap . 216). Their o p in io n‘is the one that the Chairm an has to take into acco u n t. I have carefully perused the original records of Miscellaneous Application No. 122 of 2014 and failed to find the opinion of assessors. This m eans that the Chairm an in giving its decision did not take into a cco u n t the opinion of assessors as the- opinion of assessors are not in the original file. Since the Chairm an did noi com ply with the m andatory provisions of the law then his decision Is illegal and cannot left to stand. Such a failure o ccasio n ed a m iscarriage of justice and cannot be saved by Section 45 of the Land Disputes Courts Act, Cap.

216. I therefore find merit in the. ap p ellan ts’ ground number five of a p p e a l. I, proceed to quash the proceedings and set aside the judgm ent of the District Land and Housing Tribunal. Since this ground disposes the whole a p p e a l then proceeding to determine other grounds of ap p e al will be for a c a d e m ic purposes. As the a p p e a l'is partly allo w ed on legal tech n icality, I m ake no order to costs as the mistake was o ccasio n ed by the District L a n ^ and Housing Tribunal/Either, party is at liberty to start the dispute afresh if so wishes, it is so ordered: • : DAfED'affEtodoma this 30th d ay of August, 2016. . • # ' f-S, i •• t a ' ■• t S ’ & I P ;, ;; i B.M.A Sehel X * '\ ' •/ JUDGE Jud gm enfBSifvered at Dodom a in open Court, under my hand and seal of the court, this 30th d ay of August, 2016 in the presence of Ms. G a b rie l learned a d v o c a te for respondent and also holding brief for Mr. Kidurnage., learned a d v o c a te for; appellant. Right of a p p e a l is fully explained / -:V fg/ i/c&i ? M m .A Sehel if *..... JUDGE V/ >/ 30 /08/2016