sele rashid

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB REGISTRY ATTABORA LAND APPEAL NO. 17 OF 2023 (Arising from the decision of the District Land and Housing Tribunal for Tabora Land Application No. 22 of 2019) SELEMANI RASHID (Administrator of the estate of the late Ashura Selemani)............................ ...........APPLICANT VERSUS MASUDI MOHAMED @ SELEMANI....... ................1st RESPONDENT MIHAMBO ATHUMANI............ .........2nd RESPONDENT JUDGEMENT Date of Last Order: 22/08/2024 Date of Delivery: 29/08/2024 MANGO, J. Selemani Rashid filed this appeal against the judgement of the District Land and Housing Tribunal of Tabora in Land Application No. 22 of 2019. In the impugned judgement the District Land and Housing Tribunal for Tabora, declared the 2nd Respondent as the lawful owner of the suit house as he purchased the same from the 1st Respondent. Briefly, the background of this dispute goes that, the suit house was initially occupied in common by Saada Selemani and Ashura Selemani the latter being a mother to the Appellant. In 1983 Saada died leaving behind no child while Ashura died in 2010. Records show that, the Appellant and the isfc i Respondent at different times and in different courts, petitioned for letters of administration of the estate of the fate Ashura and Saada respectively which were granted. Later, the 1st Respondent sued the Appellant before the District Land and Housing Tribunal for Tabora and sought for orders that the Appellant be evicted from the suit house and the house be sold. The Appellant was duly evicted and the house was sold by the 1st Respondent to the 2nd Respondent. Dissatisfied with the orders of the District Land and Housing Tribunal the Appellant appealed to this court which upon scrutiny, nullified the proceedings of the trial tribunal and set aside judgement thereof. Still desirous in pursuit of his rights, the Appellant filed Land Application No. 22 of 2019 for declaration that, he is the lawful owner of the suit house and that the transfer between the 1st and the 2nd Respondents is void. The District Land and Housing Tribunal ruled in favour of the 2nd Respondent. Aggrieved with the findings of the District Land and Housing Tribunal, the Appellant approached this court on the following grounds: - 1. The honorable chairman of the District Land and Housing Tribunal erred in law and facts without any documentary evidence supporting the purported sale in holding that the sale of disputed house no. 62B Mwanza road between the 1st and 2nd respondents was lawful without consent of the Appellant as an administrator of the estate of the late Ashura Selemani. 2. The honorable chairman of the District Land and Housing Tribunal erred in law and facts in holding that the 2nd Respondent was a 2 bonafide purchaser in view of the contradicting evidence of the 2nd Respondent evidence that he purchased the disputed house for Tshs. 5,000,000/= whereas DW3 Mohamed Mihambo Athuman that the disputed house was purchased at Tshs 15,000.000/= and not Tshs 5,000,000/= as faked by the 2nd Respondent. 3. The honorable chairman of the District Land and Housing Tribunal erred in law and facts in not giving reasons for differing with the unanimous opinion of the assessors that the sale of the disputed house was not lawful. During hearing of this appeal the Appellant was represented by Mr. Kelvin Kayaga, learned advocate whereas the 2nd Respondent appeared in person. The appeal was argued by way of written submission and both parties filed their respective submission timely. Supporting the appeal, the counsel for the appellant submitted in respect of the first ground that during trial, there was no documentary evidence to prove that the 2nd Respondent purchased the disputed land at a price of 5,000,000/= rather the alleged sale agreement was annexed to the written statement of defence and it was not tendered and admitted in evidence. To bolster his argument he cited the case of Godbless Jonathan Lerna vs Mussa Ham is Mkanga & 2 Others Civil Appeal No. 47 of 2012 Court of Appeal of Tanzania at Arusha. The second ground of appeal, the attorney argued that, defence evidence was contradictory therefore the 2nd Respondent could not be treated as a bonafide purchaser. He stated that, while DW1 claimed the purchase price 3 to be 5,000,000/=, DW2 testified that the purchase price was 15,000,000/=. Therefore it was his contention that, the trial tribunal failed to consider the contradiction hence arrived at wrong decision. On the third ground of appeal, Mr. Kelvin asserted that at the trial tribunal assessors gave their opinions unanimously that, the sale between the 1st and 2nd Respondents was unlawful, the chairman differed from assessors opinion without assigning any reasons. He prayed the appeal be allowed with costs. On the contrary, the 2nd Respondent although opposed the appeal, he conceded to the fact that the sale agreement was only attached to the written statement Of defence. He proceeded to argue that, the allegation lacks legal base thus, it is liable to dismissal. Oh the second ground of appeal he submitted that, the sale price is on the sale agreement attached to the WSD which is part of court records. He stated that, the 2 nd Respondent is a bonafide purchaser as there is no criminal allegations against him in relation to the sale agreement. On the third ground on appeal, the 2nd Respondent argued that, the chairman is not legally bound by assessors7 opinions, he referred this Court to section 24 of the Courts (Land Disputes Settlements) Act [Cap 216 R.E 2019]. The counsel for the Appellant had nothing to rejoin. I have gone through Court record and submission filed by both parties. Court record indicates that, the land in dispute was owned by two persons Saada bint Seleman and Ashura bint Seleman. According to the certificate of title which was tendered during trial and admitted as Exhibit Pl the two owners 4 have equal share that is 50% each. Unless there exists evidence to the contrary, there is no evidence on record that establishes that; the two ladies had changed the nature and percentage of ownership over the disputed land before their deaths. This means that until their deaths, they owned the land by 50% each. Parties to this appeal being administrators of the estate of the two ladies, can only collect as part of the estate of each deceased, 50% of the land in dispute and distribute the same to the heirs. With such findings I find the first ground of appeal to be meritorious as far as the issue of Appellant's consent is concerned. I hold so on the reason that, the Second Respondent as the administrator of the estate of the late Saada Seleman has capacity to deal with only 50% of the land in dispute and not the entire land. The remaining 50% of the land being part of the estate of the late Ashura Seleman can only be dealt upon by the administrator of the estate of the late Ashura Selemani, the Appellant in this appeal. However, before I venture much in determining the remaining part of the first ground of appeal, I find it necessary to determine the third ground of appeal which concerns competence of the decision subject to this appeal. As correctly submitted by the advocate for the Appellant, Hon. Trial chairman differed with the opinion of the two assessors without giving reasons. The law, section 24 of the Land Disputes Courts Act [Cap 216 R.E 2019] requires that, in determining disputes before the tribunal, the Chairman should take into account the opinion of the assessors but shall not be bound by it, except that the Chairman shall in the judgment give reasons for differing with such opinion. The relevant section reads: s "In reaching decisions, the Chairman shall take into account the opinion of assessors but shall not be bound by It, except that the Chairman shall in the judgement give reasons for differing with such opinion." The essence of requiring the Chairman to give reasons in case of differing with the opinion of assessors is to make assessors involvement meaningful. Without such mandatory requirement, the entire requirement of sitting with assessors will be valueless. It is well established that, where a trial should be conducted with the aid of assessors their involvement in decision making should be clearly seen in the proceedings and the decision of the Court. The Court of Appeal of Tanzania has in several cases insisted that in a trial conducted with the aid of assessors their participation in decision making must be active. In the case of Edina Adam Kibona versus Absolom Swebe (Sheli), Civil Appeal No. 286 of 2017, the Court of appeal expressly stated that, among the reasons that necessitate assessors' opinion to be recorded in the presence of parties, is to enable them understand the nature of the opinion and whether such opinion has been considered by the chairman in the final verdict. In the appeal at hand, Hon. Trial Chairman merely reproduced the opinion of assessors as it appears at page 4 of the judgement. According to the reproduced opinion by assessors, the two assessors, Erasto Shenkalwa and Joyce Kuzoleka were of the view that, the sale of the disputed house was not legally proper. Erasto Shenkalwa based his opinion on the failure of the second Respondent to involve the administrator of the estate of the late 6 Ashura Seleman while Joyce Kuzoleka merely stated that the sale didn't comply with appropriate legal procedure. Unfortunately, Hon. Trial Chairman did not anyhow consider assessors opinion. He proceeded to determine issues raised by the tribunal for proper determination of the dispute and at the end reached into a decision which differed with the opinion of the two assessors without giving reasons. With due respect to Hon. Trial Chairman such a decision contravenes the requirement of section 24 of the Land Disputes Courts Act, [Cap. 216 R.E 2019]. The remedy for a decision made contrary to legal provision(s), is to have the same nullified for being illegal. For that reason I hereby nullify the proceedings and set aside the decision of the trial tribunal for contravening section 24 of the Land Disputes Courts Act. The matter should be retried afresh before the trial tribunal by a different Chairperson. Given the fact that the matter involves relatives and that, neither party had a hand in the irregularity found in the decision of the trial tribunal, I award no costs. Dated at Tabora this 29th day of August 2024 JUDGE 7