JUDGMENT PETER MADIRISHA LUGALA VS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MWANZA SUB-REGISTRY AT MWANZA LAND APPEAL NO. 22411 OF 2024 (Arising from the decision of the District Land and Housing Tribunal for Mwanza in Appeal No. 69 of 2021, originated from Land Case No. 25 of 2021, decided by Butimba Ward Tribunal) PETER MADIRISHA LUGALA (As an Administrator Of the Estate of the Late SALOME KAIGE) ……………..….……………...... APPELLANT VERSUS MARIA SUKA ……………………………….……………………………...... RESPONDENT JUDGMENT 24th & 28th March 2025 E. L. NGIGWANA, J. This is the second appeal that traces its origins from the Butimba Ward Tribunal, where the respondent instituted Land Case No. 25 of 2021 against Salome Kaige, claiming that Salome Kaige had encroached onto her land, situated at Butimba Ward Kanyerere street within Nyamagana District in Mwanza Region, which she alleged to have inherited in 2018 from her late father Kapera Luhoja. On the other hand, Salome Kaige vehemently denied the respondent’s claim, alleging that the said land belongs to their family. After hearing both parties, the Ward Tribunal was satisfied that the applicant, now respondent, 1 had proved her case and hence decided the matter in her favor on 30/08/2021. Salome Kaige was aggrieved by that decision of the Ward Tribunal; therefore, she knocked on the doors of the District Land and Housing Tribunal (DLHT) for Mwanza by way of the petition of appeal comprising four (4) grounds of appeal. Following the demise of Salome Kaige, Peter Madirisha Lugala stepped into her shoes as an administrator. Upon hearing the parties, the first appellate tribunal found that the appeal was devoid of merit. Consequently, the appeal was dismissed, and the decision of the Ward Tribunal was upheld. Again, the appellant was aggrieved by the decision of the appellate tribunal and, therefore, knocked on the doors of this court armed with three (3) grounds of appeal that were coaches as follows; 1. That, the Honourable appellate tribunal’s chairperson erred in law and fact by holding that the respondent had a locus standi to sue in the Ward Tribunal in her personal capacity. 2. That, the Honourable appellate tribunal’s chairperson erred both in law and facts by declaring the respondent herein a lawful owner of the suit land without any concrete evidence of ownership being adduced on that behalf. 2 3. That, the trial tribunal (sic) erred in law and facts for failure to assess whether the appellant was a correct and proper party to be sued in the Ward Tribunal. At the hearing of this appeal, the appellant was represented by Mr. Salum Ahmed Fundikira, learned advocate, whilst the respondent had the services of Mr. Feran Kweka, learned advocate. However, before the commencement of the hearing, this court, upon reading the record of the lower tribunal, wanted to satisfy itself on whether the appellate tribunal properly involved the assessors in the hearing and determination of Appeal No. 69 of 2021 and hence invited the parties to address the court on that legal issue. This course is permitted by law because the law guides that a point of law, especially the one that goes to the root of the matter, can be raised at any stage of the proceeding by any party or by the court suo motu. Taking the floor, Mr. Fundikira submitted that the record of the appellate tribunal revealed that on 15/2/2024, the chairman sat with two assessors, namely Cheneko and Manyanda, whereas by consensus, parties agreed to argue and dispose of the appeal by way of written submissions. He went on to submit that thereafter, the matter was scheduled to come on 04/04/2024, but the record of the appellate tribunal is silent on what transpired on 04/04/2024 when the matter came for mention. Nothing was 3 recorded in the proceedings on that date. He further explained that on16/05/2024, the Hon. Chairperson recorded that the opinion of the assessors would be given on 20/06/2024, however, the record is silent on what transpired on 20/06/2024. The proceedings of the date are nowhere to be seen. He added that on 9/7/2024, the appellate tribunal set the date for judgment, 11/7/2024, but again, no judgment was delivered as scheduled, and the record is silent on what transpired on that date. He further explained that, finally, the judgment was delivered on 5/08/2024 in the absence of the parties and their advocates. Mr. Fundikira went on to submit that the proceedings and the judgment are silent on whether the assessors who sat with the Hon. Chairman gave their opinions as per the law. He added that the written opinions are also missing in the file of the appellate tribunal, and the proceedings do not reflect that assessors gave their opinions and that opinions were read to the parties. He further elaborated that there was non-compliance with section 23 of the Land Disputes Courts Act, [Cap 216 R.E 2019] read together with Regulation 19(2) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2003, G. N No. 174/2003. It was his further 4 submission that the law requires assessors who sat with the Hon. Chairperson to give their opinions in writing and that the same must be read to the parties, and the proceedings must reflect that the opinions were read to the parties. He went on to elaborate that as per the law, the Hon. Chairperson must consider assessors’ opinions in his judgment, and if he/she does not agree with the assessors’ opinion, he must assign reasons for the departure. He contended that the anomaly committed by the appellate tribunal goes to the root of the case, thus rendering the proceedings, judgment, and orders of the appellate tribunal a nullity. As a way forward, Mr. Fundikira urged the court to be guided by the case of Elilumba Eliezel Vs. John Jaja (Civil Appeal 30 of 2020) [2022] TZCA 232 (5 May 2022) Tanzlii. Having made such submission, Mr. Fundikira refrained from submitting on the grounds of appeal because, according to him, the legal point raised is sufficient to dispose of this appeal On his side, Mr. Feran Kweka entirely conceded to the submission of the appellant’s counsel. He urged the court not to condemn the respondent to pay the costs of this appeal because the anomaly was not caused by the parties. He concluded his submission by urging the court to order an expeditious retrial. 5 Having heard the parties' submissions, I am now in a position to address the legal issue of the involvement of the assessors. It is apparent that, according to section 23 (1) and (2) and section 34 (1) of the Land Disputes Courts Act, [Cap. 216 R.E 2019], the DLHT, when exercising its original jurisdiction or appellate jurisdiction, it is properly constituted when consists of one Chairman and not less than two assessors, who before the Chairman composes the judgment, must be invited to give their opinion in writing. Section 23 (2) of the Land Disputes Courts Act, [Cap. 216 R.E 2019], provides that: - “The District Land and Housing Tribunal shall be constituted when held by a chairman and two assessors who shall be required to give out their opinion before the chairman reaches the judgment.” Regulation 19 (2) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2003 also imposes a duty upon the Chairman to require every assessor present at the conclusion of the hearing, to give his or her opinion in writing. The same provides: - “Notwithstanding subsection (1) the chairman shall, before making his judgment, require every 6 assessor present at the conclusion of the hearing to give his opinion in writing and the assessor may give his opinion in Kiswahili.” Section 34 (1) of the Land Disputes Courts Act, [Cap. 216 R.E.2019 provides that: - “34.-(I) The District Land and Housing Tribunal shall, in hearing an appeal against any decision of the Ward Tribunal, sit with not less than two assessors, and shall- (a) consider the records relevant to the decision; (b) receive such additional evidence, if any; and (c) make such inquiries as it may deem necessary.” The matter at hand originated from the Ward Tribunal and reached the DLHT by way of appeal. As correctly submitted by Mr. Fundikira, on the date when it was by consensus agreed that the appeal be argued by way of written submissions, the appellate tribunal was properly constituted because on 15/02/2024, when it was agreed that the appeal be argued by way of written submissions, the Hon. Chairperson sat with two assessors, Cheneko and Manyanda, likewise on 16/05/2025 when the date was set to; 20/06/2024 for them to give their opinions. However, as pointed out earlier, it is not reflected in the proceedings that on 20/6/2024, the assessors gave their opinion and were read to the parties, but also no copies of the written 7 opinions that were found in file of the appellate tribunal. Let the record speak for itself; “15/02/2024 Akidi: Mhe: Murirya N Mwenyekiti Wajumbe: 1. Cheneko 2. Manyanda Mleta Rufaa- Yupo Mjibu Rufaa. Yupo Molland Advocate kwa niaba ya Madaiwa Fundikira advocate kwa niaba ya Mdai- Hayupo Molland: Mhe naomba tupate tarehe ya kuleta written submission na nitampa tarehe wakili wa upande wa pili. Mahakama Shauri linaendeshwa kwa maandishi Mrufani alete tarehe 29/02/2024 Maelezo ya Baraza rejoinder iletwe 21/03/2024 Kutaja 04/04/2024. Saini: Murirya N Mwenyekiti 15/02/2024 16 /05/2024 Akidi: Mhe Murirya N. Mwenyekiti Wajumbe: 1. Cheneko 2. Manyanda 8 Mleta Rufaa: Yupo Mjibu Rufaa: Yupo Mahakama: Maoni tarehe 20/06/2024 Saini: Murirya N Mwenyekiti 15/02/2024 9/07/2024 Akidi: Mhe. Mrirya N. Mwenyekiti Mleta Rufaa: Yupo Mjibu Rufaa: Yupo Amri: Hukumu 11/07/2024” The record of the appellate tribunal is silent on what transpired in the appellate tribunal on 04/04/2024, 20/06/2024, and 11/07/2024. In absence of the assessors’ written opinions in the case file, and the absence of the proceedings reflecting that the opinion were given and read to the parties, we cannot assume that both assessors who sat with the Chairman were given a chance to consider the record of the ward tribunal, read the written submissions or the same being read and explained to them, and then, were allowed to give their opinion before the judgment is composed. The judgment of the appellate tribunal is completely silent on the involvement of assessors in the hearing of Appeal No. 69 of 2021. 9 I am aware that as per section 23 (3) of the Land Disputes Courts Act, [Cap. 216 R.E 2019] the Chairperson of the DLHT is permitted to proceed with the hearing and conclusion of the proceedings in the DLHT where, in the course of the hearing, one or both assessors who were present at the commencement of the proceedings are absent. Therefore, while the provisions of subsections (1) and (2) require that proceedings must commence in the presence of the assessors, there may be situations where, owing to myriads of reasons, one or both of the assessors may be unable to field an attendance and participate in the said proceedings. Such a possibility is what has been taken care of by subsection (3). In the absence of the reasons for continuing with the matter without assessors, it cannot be assumed that the Hon. Chairman proceeded under section 23 (3 of the Land Disputes Courts Act). The record has to speak for itself. See Charles J.K. Temba & Others Vs. Calista J. Msaki (Civil Appeal No. 244 of 2022) [2024] TZCA 770 (20 August 2024), It is worth noting that the case of Elilumba Eliezel Vs. John Jaja (Supra) guides the effect of improper involvement of assessors in the hearing of the appeal by the DLHT. In that case, the matter originated from the decision of the Ward Tribunal and reached the DLHT by way of appeal. It was during the hearing of the appeal that the Hon. Chairperson did not 10 fully involve the assessors as per the law, and the Court of Appeal had this to say: - “In any case, the fact that the assessors gave no opinion for consideration by the Chairman of the Tribunal before composing the judgment is a fatal omission that goes to the root of the matter at hand to the extent of vitiating the proceedings, as we hereby hold. The omission missed the eye of the High Court, or else it could have been remedied way back when the appeal was before it. The said infraction rendered the judgments and proceedings of the courts below a nullity on account of the non- involvement of assessors because the chairman alone had no jurisdiction to adjudicate and determine the appeal beforehim.” Consequently, the Court of Appeal allowed the appeal by quashing the judgments and proceedings of both the High Court and the Tribunal. In lieu thereof, it ordered a retrial before another Chairman and a different set of assessors. Similarly, in the case of Mwita Nchama Vs. Abudu Hamis Mohamed (Civil Appeal No. 520 of 2021) [2024] TZCA 323 (8 May 2024) Tanzlii, there was complaint that assessors were not properly involved in the hearing of the appeal, the Court found that the complaint was baseless, and 11 hence proceeded to dismiss the appeal for being devoid of merit. Before dismissing the same, the Court had this to say: - “In the present appeal, we have gathered from the original proceedings of the DLHT that the Chairperson of the DLHT sat with two assessors, namely Babere and Swagarya. On 20th February 2020, after the oral hearing of the appeal, the Chairperson adjourned the matter to 13th February 2020 for the assessors to give out their opinions to the parties. On the fixed date, each of the two assessors read over their opinions to the parties, and thereafter, the judgment was delivered on the same date. This means that the assessors read over their opinions to the parties before the Chairperson delivered his judgment as required by the law. ….in terms of regulation 19 (2) of the G.N. No. 174 of 2003, the opinions which are found in the original record were in writing and in Kiswahili language. In that regard, we are satisfied that the assessors were fully involved in the hearing of the appellant's appeal and that the law was fully complied with by the assessors when giving out their opinions to the parties on 13th February 2020 and by the Chairperson of the DLHT when dealing with the appeal.” Guided by the above two authorities of the apex Court of the land, the fact that the assessors gave no opinion for consideration by the Chairman 12 of the Tribunal before composing the Judgment, and in absence of reasons for exclusion of the two assessors; Cheneko and Manyanda, that amounts to a fatal omission that goes to the root of the matter at hand to the extent of vitiating proceedings as I hereby hold. Consequently, I proceed to nullify proceedings, set aside the resultant judgment, and decree of the appellate tribunal. The petition of appeal and reply to the petition of appeal shall remain intact. In lieu thereof, I order an expeditious retrial before another chairperson and a different set of assessors. Considering that neither of the parties is to blame for the cause that has led to the outcome of this appeal, I make no order as to costs. It is so ordered. DATED at MWANZA this 28th day of March, 2025. E. L. NGIGWANA JUDGE 13 Delivered this 28th day of March, 2025 in the presence of both parties in person, and Ms. Jackline Samwel B/C. E. L. NGIGWANA JUDGE 14