LAND APPEAL CASE NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (KIGOMA SUB-REGISTRY) AT KIGOMA LAND APPEAL CASE NO. 940 OF 2024 REHEMA TIMOTH MKAMA APPELLANT VERSUS EDWARDINA DANIEL BONYO (The Administratrix of the Estate of the Late DANIEL SINYO BONYO) RESPONDENT (Appeal from the Judgment and Decree of the District Land and Housing Tribunal for Kigoma at Kigoma) (F. Chinuku, Chairwoman) Dated 11th day of December 2023 In (Land Application No. 12 of 2021) JUDGMENT Date: 06/06 & 22/07/2024 NKWABI, J.: In the trial tribunal, the respondent sued the appellant for eviction of the appellant from the disputed house and the appellant be ordered to hand over the original copy of the letter of offer of a right of occupancy to the respondent. While the respondent is the administratrix of the estate of the owner of the house in dispute, the appellant claimed that she was handed over the offer letter as the deceased was indebted to her for salaries when she was working as a bar attendant of various bars of the deceased. 1 The trial tribunal entertain the land application. On the conclusion of the trial, it delivered its judgment in the following words: ''Kwa kuwa eneo la mgogoro ni sehemu ya mirathi ya marehemu DANIEL SINYO BONYO inayopaswa kusimamiwa na mleta maombi baraza linaamuru kwamba barua ya toleo ya kiwanja cha mgogoro i/iyokuwa anaishiki/ia mpou maombi isivyo halali irejeshwe kwa m!eta maombi. Mjibu maombi hana uha/ali wowote wa kuende/ea kuishi kwenye nyumba ya mgogoro hivyo aondoke kwenye nyumba hiyo. , ✓ Troubled by the above verdict, the appellant came to this Court blandishing four grounds of appeal. During the hearing of the appeal, her counsel abandoned three grounds of appeal and remained with one which is: That the honourable trial chairman erred on point of law in failing to require the "Assessors=to read in the Tribunal their "Written opmions" before proceeding to write and read her "purported Judgment thereby violating section 23(1) and (2) of the District Land and Housing Tribunal 2 Act Cap. 216 R.E 2019] and Regulation 19(1) and (2) of the Land Disputes (The District and Housing Tribunal) Regulation~ 2003. When the appeal was called on for hearing, both parties appeared in person. The appellant was represented by Mr. Masendeka Ndayanse, learned advocate The Respondent was represented by Mr. Daniel Rumenyela, also learned advocate. I thank them for their submissions. Mr. Ndayanse has a rock-ribbed stance, in submission in chief, that the trial tribunal grossly erred by contravening the provision of the law as stated in the ground of appeal. He explained that, the judgment of the trial tribunal considered the opinion of tribunal assessors which had not been ready over for transparency. Mr. Ndayanse exemplified Sikuzani Magambo & Another, v. Mohamed Roble, Civil Appeal No. 197 of 2018, CAT, and Ayasi Mbisa v. Jamil Twalha Rashid Mbisa, Miscellaneous Land Appeal No. 36 of 2019, HC. Owing to that oddity, Mr. Ndayanse prayed for the appeal be allowed with costs. Mr. Ndayanse also beseeched this Court for the proceedings, judgment and decree be quashed and set aside. He was also minded to plead this Court to order for a retrial before another chairman and a new set of assessors. 3 In response to the submission of his learned friend, Mr. Rumenyela was of a stand view that the sections were observed. He elaborated that the chairperson quoted the findings of the tribunal assessors. He further stated that the proceedings would indicate, and the learned counsel did not say that the counsel for the appellant passed through the proceedings and found as such. Mr. Rumenyela accepted the position of the law is as to the case laws cited, but in this case, pointed Mr. Rumenyela, the case laws are inapplicable as the procedure was followed. So, both case laws cited by the counsel for the appellant are distinguishable as in the present appeal, all procedure were followed and the tribunal assessors gave their opinions according to the law, Mr. Rumenyela stressed. He added that, the counsel for the appellant has not indicated how that ground of appeal has prejudiced the appellant and if any how does it affect the rest of the decision. He implored the appeal be dismissed with costs. He also exhorted that the appellant should not be granted costs if she wins the case because it is not the fault of the appellant. Mr. Ndayanse was not deterred by the address made by the counsel of the respondent. He told this Court, in rejoinder submission, that he went through the record of the trial tribunal. He said that he does not know where the trial chairman got the opinion of assessors while they do not 4 know where they opined. He added that the opinions of the assessors were not given during the proceedings. He stressed that the fault is a fundamental irregularity and that it vitiates the entire proceeding and judgment. He finally prayed the appeal be allowed with costs. I have paid deserving attention to the submissions of both counsel in this appeal. I have also gone through the proceedings of the trial tribunal. In the proceedings it is recorded as follows: Amri:- 1. Ushahidi wa utetezi umefungwa. 2. Wajumbe waandike meon/. 3. Maoni kusomwa 11-12-2023 4. hukumu 11-12-2023 Then, on 11/12/2023 it was recorded thus: Baraza:- Shauri linakuja kwa ajili ya maoni ya wajumbe na hukumu. Maoni yamesomwa /eo na hukumu imetolewa. While in Magambo's case supra it was indicated that: ·~.. when the chairperson of the Tribunal closed the defence case/ he did not require the assessors to give 5 their opinion as required by the law. It is also on record that though, the opinion of the assessors were not solicited and reflected in the Tribunals proceedings, the chairperson purported to refer to them in his Judgment. " Therefore, the cited cases are totally distinguishable. In this case, the chairperson solicited the opinion of the assessors and indeed, the same were read over and indicated in the proceedings. The ground of appeal is, therefore, wanting in merit. It falls to the ground. Since this appeal is premised on only one rationale that has crumbled to the ground, then the appeal is dismissed with cots. The proceedings and decision of the trial tribunal are upheld. It is so ordered. DATED at KIGOMA this 22nd day of July, 2024. ~fk~~, J. F. NKWABI JUDGE 6