LAND APPEAL NO

IN THE HIGH COURT OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA LAND APPEAL NO. 9302 OF 2024 REFERENCE NO. 202404291000009302 (Arising from the decision of the District Land and Housing Tribunal for Mara at Musoma in Land Case No. 78 of2023) BETWEEN RUKIA UMMY M KANGARA................................................. APPELLANT VERSUS KARUMBA M. SHABAN ............ RESPONDENT JUDGMENT 02nd &U01 July, 2024 M, L. KO MBA, J.: This is an appeal against the decision of District Land and Housing Tribunal for Mara at Musoma (the DLHT) in Land Case No. 78 of 2023 where the DLHT dismissed appellant's application. A brief background giving rise to this appeal can be summarized as follows; The appellant herein instituted the Land Suit against the respondent before the DLHT. She claimed to be the owner of the house situated in plot 385 Block "D" which was inherited from Shaban Ibrahim who was her father. From pleadings, Shaban Ibrahim bought the said house from Waziri Mohamed, unfortunately both are deceased and the Page 1 of 11 house was not administered in the probate of Shaban Ibrahim. Respondent too ciaim to inherit the disputed property from his father Shaban Ibrahim in 1976 and it was handled to him when he reached the age of majority. He transferred the ownership in 1983 and he keep on renovating the said house in different years in order to make it up to date. After a scrutiny on parties' submission and evidences, the DLHT dismissed the matter. Aggrieved by the decision of the DLHT in Land Case No. 78 of 2023, the appellant has now knocked the door of this court, armed with five grounds of appeal of which I wish not to reproduce them for the reasons I will endeavor to explain later. During the hearing of this appeal, the appellant was represented by Mr. Emmanuel Werema, the learned advocate while the respondent had a legal service of Mr. Baraka Makowe. Mr. Werema submitted on a day when Makowe did not show up in court. When the matter was scheduled for ruling Mr. Makowe prayed to be allowed to address this court on the legal issue as pointed by counsel for the appellant, prayer was granted. In his submission, Mr. Werema informed this court that when he filed this appeal, he had no proceedings but when he was availed with the Page 2 of 11 copy he noted some irregularities which he prayed to address this court. When given the floor he submitted that he noted the tribunal was not properly constituted as there was some days assessors did not participate in hearing. He mentioned the names appeared in the proceedings to be Mr. Matiko and Mr. Swagarya. He proceeded that as the hearing proceed the Chairman was silent on the disappearance of assessors. It was his opinion that what was done was contrary to section 23 (2) of the Land Disputes Courts Act Cap 216. Instead of presenting and discuss the appeal on merit he prayed this court under section 43 (1) of Cap 216 to revise the matter and nullify the proceedings of the DLHT and order trial denovo before another chairman. He registered his concerned with costs. Mr. Makowe rejected the submission by counsel Werema. He was of the position that court record should be read as a whole and not in isolation. He the invited this court to read proceedings when appellant testified there were assessors and the record show that but the Isolated incidence is found on 05/03/2024 when the respondent was testifying, no record as to assessors. However, he paused that at page 8 of the judgment there is an answer to an issue that assessors were retired. He supported his submission by Abubakar Hamis vs DPP, Criminal Page 3 of 11 Application No. 6 of 2008 at page 4 and Samwel Sichone vs Bulebe Hamisi, Civil Application No. 8 of 2015 CAT Mbeya about general idea in the application and the principle of complementarity. He finally said apart from the shortcomings in the coram, taking in board the principles of isolation and the principle of complementarity he finds the massage in the judgment are enough to correct what is seen in the corarin and prayed this court to consider other issues as the judgment has been delivered, who has been prejudiced by that shortfall? He prayed this court to consider rule of law and equity as was in Jafari Lazima Binamu (Administrator of the estate of the late Lazima Bunamu) vs Hassan Chionda 2016 vol 1 TLR page 377, He further prayed me apply overriding objective to cure what happened during trial as no party was affected by the absence of assessors. Mr. Makowe did not end there with prayers, he prayed further this court to find the issue lacks merit and the appeal be heard on merit. In alternative if the issue raised will be found meritorious, he prayed it be decided without costs as it was not the respondent who cause all those to happen. During rejoinder Counsel Werema submitted that principle of whole or isolation cannot be applicable. It was his position that Chairman noted the shortcoming in the proceedings and decided to cure Page 4 of 11 it in judgment, that was not right, he complained. He went on submitting that proceedings supposed to show when assessors stop to appear and participate in the hearing. It is not only on 05/03/2024 that they did not appear rather he said the whole proceedings don't show presence of assessors except 03/10/2023 when it was shown in coram that they form part of Tribunal. Counsel distinguished the case of Abubakar Hamis vs DPP (supra) that it was about notice of motion and affidavit which are proceedings but the case at hand is about court record. It is the position of the law that proceedings have to be correct. He also distinguished case of Samwel Sichone vs Bulebe Hamisi (supra) that case is about differences of annextures while the case at hand is about proceedings which are silent when assessors stop attending the tribunal but chairman come at the end with reservation on assessors' opinion. Mr. Werema registered his awareness that the tribunal can conduct its affairs without assessors but the record should be kept on reasons to that status. About equity and law Mr. Werema found it is impossible as the omission prejudices his client as she lost in trial. He finally prayed for costs because he makes second submission on the same thing which Page 5 of 11 was obvious and prayed for the order of trial denovo before another chairman. Having heard the submissions of both parties, I would like to put it clear that assessors are part and parcel of the trial tribunal. The trial tribunal is said to be duly constituted when composed by a chairman and two assessors to form part of the coram and their involvement must be richly reflected in the entire proceedings. The non-involvement of assessors is fatal and renders the entire trial tribunal proceedings a nullity. The governing law that requires the involvement of assessors is Land Dispute Courts Act, Cap 216 R.E 2019 of which section 23 of the Act provides that: '(1) The District Land and Housing Tribunal established under section 22 shall be composed of at least a chairman and not less than two assessors. (2) The District Land and Housing Tribunal shall be duty constituted when held by a Chairman and two assessors who shall be required to give out their opinion before the Chairman reaches the judgement. (3) Notwithstanding the provisions of subsection (2), if in the course of any proceedings before the Tribunal, either or both members of the Tribunal who were present at the commencement of the proceedings is or are absent, the Chairman and the Page 6 of 11 remaining member, if any, may continue and conclude the proceedings notwithstanding such absence.z Having carefully scrutinize the available record, I have realized that assessors were not present throughout the hearing of the respondent case during trial as it is required by the above cited provision of law. The records shows that when the matter was heard on the applicant case, that is on 03/10/2Q23, two assessors were present namely; Mr. Swagarya and Mr. Matiko who duly constituted the trial tribunal together with the chairman. There after the record is silent on their presence till 05/03/2024 when respondent case was heard. Just as submitted by Mr. Werema, coram picked nothing about assessors. There is no names of assessors and there is no remarks by the Chairman on whereabouts of assessors. Mr. Makowe was of the view that record should be read as a whole because in the judgment it was revealed the assessors retired before judgment day so the judgment delivered lacks assessors opinion. Am not in position to accept any principle as submitted rather I direct my analysis on the judgment and proceedings. Chairman declared retirement of assessors because judgment had no assessors' opinion. Unanswered issue is when did they retired? Tribunal is well constituted Page 7 of 11 when there are two assessors not when there is assessors' opinion, although opinion is one of the legal requirement. For the aforesaid shortcomings, I entirely agree with the appellant’s counsel that the proceedings of the trial tribunal is tainted with grave procedural irregularity which was occasioned by the failure of the chairman of the trial tribunal to comply with the mandatory provisions of section 23(2) and (3) which requires him (Chairman) to sit with assessors through out of hearing of the case or to continues with the remaining one depending on circumstances. Furthermore, Regulation 19(2) of the Land Disputes Courts (The District Land and Housing Tribunal Regulations, GN No. 174 of 2003 provides that: "Notwithstanding subsection (1), the Chairman shall before making hisjudgement, require every assessors present at the 8 conclusion of hearing to give his opinion in writing and the assessors may give his opinion in Kiswahi/i.' Upon thorough perusal of the record of the trial tribunal. I have found that when the chairman closed the case for the defence on 05/03/2024, he did not require the assessors to give their opinion. I say so because the records are silent if the chairman require the assessors to give their opinion in writing and he instead provided a judgment date. If what was Page 8 of 11 written at page 8 of the judgment is correct, the same was supposed to feature when he close the respondent case. But that was not. It is hard ♦ for this court to believe that both assessors retired at the same time. As far as Regulation 19(2) of the cited Regulations is concerned, the assessors must give their opinion in writing and that opinion must be availed in the presence of the parties so as to know the opinion of assessors and whether the chairman considered that opinion or not. In the case of Tubone Mwambeta vs Mbeya City Council, Civil Appeal No 287 of 2007 the court held that; Tn view of the settled position of the iawf where the trial has been conducted with the aid of assessors... they must actively and effectively participate In the proceedings so as to make meaningful their role of giving their opinion before the judgement is composed. We are increasingly of the considered view that, since Regulation 19(2) of the Regulations requires every assessors present at the trial at the conclusion of hearing to give his opinion in writing, such opinion must be availed in the presence ofparties so as to enable them to know the nature of the opinion and whether or not such opinion has been considered by the Chairman in the final verdict.' Page 9 of 11 In the case at hand, assessors did not participated actively as was expected because the tribunal record is silent. As indicated in judgment they was no opinion. In view of the above analysis and authority, that was fatal irregularity and vitiated the proceedings. I am also mindful to the provision of section 45 of the Land Disputes Act, Cap 216 that no decision of the trial tribunal will be reversed or altered on account of any error, omission or irregularity in the proceedings, unless such error, omission or irregularity has in fact occasioned a failure of justice. Mr. Werema complained of the trial decision vis as vis his client. However, this being a court of record it has the duty of making sure all lower courts and tribunals adhere to the law. See Marwa Mahende vs Republic [1998] T.L.R 249, Adinardi Iddy Salim & Another vs Republic (Criminal Appeal No. 298 of 2018) [2022] TZCA 9 (11th February, 2022) and Adelina Koku Anifa and Another vs Byarugaba Alex, Civil Appeal No. 46 of 2019. My mind is settled that the omission of the chairman to fully involve assessors is grave and occasioned miscarriage of justice to both parties. See Donath Mrema and Another vs Mbogora Wilbert Nyambarya, Land Appeal No. 18 of 2019. Page 10 of 11 I therefore, proceed to exercise revisional powers bestowed under section 43(2) of the Land Dispute Courts Act, Cap 216 R.E 2019, by nullifying and setting aside the entire proceedings and judgement of the trial tribunal in Land Case No. 78 of 2023. As to the way forward for justice to be done I order a retrial of the case at the Tribunal with competent jurisdiction. Since the omission was not caused by any parties, I make no order as to costs. It is so ordered. DATED at MUSOMA this 11th day of July, 2024 Page 11 of 11