20161025 TZHC Mwanza3

..·, r. ,. 1 ~;11/ IN THE HIGH COURT OF TANZANIA. (MWANZA REGISTRY) ATMWANZA LAND APPEAL NO. 16 OF 2014 (Arising from the decision of Mwanza District Land and Housing Tribunal Application No, 92 of 2015 as per Hon. Masao, Chairperson) NATIONAL MICROFINANCE BANK PLC ....... .. APPELLANT VERSUS ANGELINA EMMANUEL ........................... RESPONDENT JUDGEMENT BEFORE: MAIGE, J. Tribunal for Mwanza nulli ated on the suit Property in favour of the appellant for w The appeal is premised did not consent to the mortgage. Two, the trial court w wrong in not taking into account the fact that the respondent had admitted about the use of different signatures. Three, that the trial chairman did not properly addressed Page 2 of 4 •1,im§elf about the burden of proof as to the authenticity of the· respondent's signature. Four, that the trial tribunal wrong applied a dead law in deciding the case. On the date of hearing, the appellant appeared through Dr. George, learned advocate whereas the respondent appeared through Lenin Njau, learned advocates. Upon examining the judgment of the trial tribunal, I discovered that while the trial chairman departed from ·the opinions of one of the assessors, he did not assign reasons for departure. I requested the advocates to address me on that issue. The submissions of Dr. George which was fully supported by Mr. Lenin Njau was that in terms of section of the Land Disputes Courts Act, Cap. 216, R.E. 2002 the trial chairman is obliged in deciding disputes to assign reasons in the event of departure from the opinions of assessors . .In his humble opinion, the requirement under section 24 of the Land Disputes Court Act is . mandatory non-compliance f which vitiates the judgment and proceedings thereof. Page 3 of4 \.~ I entirely agree with the advocates from both sides that the requirement for assigning reasons for departure from the opinion of assessors is an essential element of the decision of the District Land and Housing Tribunal. In not assigning the reasons therefore, the trial chairman improperly exercised his jurisdiction. As a result therefore, the judgment was a nullity and so were the proceedings. The appeal is hence allowed. Having established that the judgment was a nullity, I find it not proper to proceed with other grounds of appeal as that will operate prejudicially to the DLHT in redetermination of the application. The file should be remitted to the DLHT and assigned to another chairperson for retrial. Since the issue has been raised by the court on its own motion I will not give order as to costs. Date: 25/10/2016 Coram: Hon. I. Maige, J Appellant: Dr. George Respondent: Mr. Njari B/C: M. Said Judgment delivered in the presence of Dr. George for appellant and Mr. njari