sokoine university of agriculture vs steven kilasi and others 2021 tzhclandd 162 8 april 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE APPEAL NO. 281 OF 2019 SOKOINE UNIVERSITY OF AGRICULTURE......................... APPELLANT VERSUS STEVEN KILASI & OTHERS......................................CORESPONDENTS (Appeal from the decision of the District tand and Housing Tribunal for Morogoro District at Mcjrogoro) * Dated the 08thday of June, 2018 S.M. KALUNDE. 3.:f This appeal arises^fronftlie decision of the District Land and Housing Tribunai|| for Iiala^ District at Mwalimu House ("the TribunalfflJaSl&^SS^OS11' day of June, 2018. The brief facts leaditpg to tffi^ap^eal are that, in July 2015, the Appellants filed o. 75 of 2015 before the tribunal against the Application Na Appella^^^^^spass into their piece of land located in Mikoroshini Area, Lukobe Juu in Morogoro ("the suit property"). In accordance with the application, the appellants prayed for inter alia the following reliefs; (a) A declaration that they were lawful owners of the suit property; (b) An order of vacant possession; (c) General damages to the tune of Tshs. 12,000,000; and (d) costs and any other reliefs. Upon hearing the parties, the Tribunal dismissed the applicant's claims against the respondents and ordered a resurvey of the area and exclusion of the disputed area from the a^llantsUand. Aggrieved by that decision the appellant filed2the present^pDpeal in which they challenged the decision of the^tribi^^^|^§iLpetition of appeal the appellant advance six (6) grounds of appeal.^However, for convenience and brevity I will no^r^r&dui^an tie grounds in this appeal. On 3rd December, §020, when th”e|matter came for hearing the appellants were rejDresented by Ms? Lunyamadzo Gillah, learned advocate and the respo^d^^^i^ represented by Mr. Nyabinyiri Jahu, learnef advocate. Dicing hearing I brought to the attention of the pai^ies>the<deferts5in the proceedings before the tribunal. The defects relatedlto thMact that: One assessor who had not heard all the evidence was allowed to opine; and (ii). Assessors were not given an opportunity to readout their opinions. In view of the above issues raised by the Court suo motu, I asked partied to address the Court on the consequences of the said defects. The defects were raised in view of the provisions of section 23 (1) and (2) of the Land Disputes Courts [Cap. 216, R.E. 2019] read together with regulation 19 (1) and (2) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2002, G.N. 174 of 2003. In the first place, the section requires the tribunal to be constituted by at least two assessors and the Chairman. Further to that, the section requires assessors to readout their opinion before conclusion of the case. Submitting for the appellant, Lunyamadzo argued thgt in accordance with s. 23 (1) of Cap. 216, the trilDjjrDaIJs constituted by the Chairman and two assessors. The counsel went^ofr'tMirgue that, X % ' on 13rd September, 2017 and ^2221 March, 2018 the tribunal proceeded with hearing whilst^being^assisted^by one assessor, Mr. Leonard Njovu. It was.also submitted^that in its judgment the Chairman made reference to the^opinipX of two assessors , that is Mr. Njovu and Mr^Rasmd Mpitcf whilst one of the assessor, Mr. Mpite, had notheard albthe evidence. Further^to Ihe^aboye, the counsel argued that Mr. Mpite's opinion included^facts which were presented on 13rd September, 2017§|nd 2 2 '^ a n lf 2018 when he did not attend the hearing. To support^_he_argument the counsel cited the case of Edina Adam Kibona vs. Absolom Swebe, Civil Appeal No. 286 of 2017 CAT (Unreported) where it was inter alia held that when a trial is conducted with the aid of assessors, assessors should be actively and effectively involved in the proceedings so as to make a meaningful opinion. 3 As to whether assessors were given an opportunity to readout their opinions, Lunyamadzo submitted that the records of the tribunal show that after the visit to the locus in quo parties were invited to file their written submissions and the date of judgment was fixed. The counsel observed that there were no records to show that at any point in time the assessors were called to provide their opinion. According to Lunyamadzo, that contradicted the provisions of s. 23 (2) of Cap. 216 as read together with regulation 19 (1)^G.N. 174 of 2003. To bolster his argument he cited the^case of EaincyAdam Kibona (supra), Tubone Mwambeta^vs. Mbepi^p/^oundl, Civil Appeal No.287 of 2017 (unrepoEj^d) arid Dora Twisa Mwakikosa vs Anamary Appeal No. 129 of 2019) [2020] TZCA 1874;i^teyemBer 2020). Based on the abovjit position^of tneHaw, the counsel invited the Court to nullify the-eptirJproceedings and judgment of the tribunal in Application No^TS of 2015 At thel)%tsel^r.JJyabinyiri/ admitted that, in accordance with s. 2 3 f f f i r o ^ i i P ' ^ t h e composition of the tribunal is made of the Chailman andTSvo assessors; and that the assessors shall be required ^ I to give%ut>tbeir opinion before the Chairman reaches the judgment. On whether it was appropriate for an assessor who had not heard all the evidence to opine Mr. Nyabinyiri argued that Mr. Mpite who did not hear all the evidence was present, in his own words, "on such important dates"tiufmq the testimony of PW1, PW2, PW3, and DW3. Further to that, the counsel reasoned that Mr. Mpite validly gave his opinion because "he had all the evidential facts at his fingertips"from 4 the final written submissions; and therefore his written opinion did not offend the mandatory provisions of section s. 23 (1) and (2) of Cap. 216. Mr. Nyabinyiri added that the failure of the assessors to readout their opinion in the presence of the parties before delivery of judgment did not occasion any failure of justice on the parties. He implored that the proceedings before the tribunal ^ei|! in compliance with the requirements of s. 23 (1) and (2) of Cap. 216? Having considered the submissions, madelby |h;eBparties, I will embark on the determination of the issues^by stating that in terms of ’X the provisions of s. 23 (1) and the district land and housing tribunal is composed^af%^Cha1iiQian and not less than two assessors. The section rerios: "23-(lj Thd§hDistrict§ Land and Housing Tribunal-established \Tvx under section 22 shalkbe composed of at least a Chairman and not less than two y 'assessors. (2^ he District Land and Housing Tribunal shall be duly constituted when held by a Chairman and two assessors who shall be required to give out their opinion before the Chairman reaches the judgment" [Emphasis added] The takeaway from wording of .23 (1) of Cap. 216 is that, throughout the proceedings before the tribunal the two assessors must, at all times, be present, and they must be actively and effectively involved so that they can have a meaningful contribution in advising the Court. If all or one assessor misses a hearing session, that assessors should not be allowed to rejoin the case in the next hearing. In such circumstances the law, 23 (3) of Cap. 216, allows the Chairman to proceed with one assessor or no assessor at all. Unfortunately that is not what happened in this case. The tribunal records show that hearing commenced on 08th / February, 2017, on that day the assessors preser^were Mr. Mpite and Mr. Njovu. On that day the applicants' case^ ^ ^ nc^ and the Court heard the testimonies of AW1 and^!>^ T h e mp&er was adjourned to 21st June, 2017. Again <<^the 2^^un^2017, the assessors present were Mr. Mpit^a^^^^Njwu^pn the respective date the tribunal heard the e v in ce withess, AW3 in the end the matter was adjourned.^After that, the\matter came for the next jf- jr hearing on 21st July, 2017, on%hat day' only Mr. Njovu attended, y fk ^ how< ......... ' 1 am for the day read: Sikalumba Adv. '7 R/A:Joyce Mr. Sikalumba, Adv: The matter is for further hearing. I have one witness today. Tribunai: The matter is hereby heard as scheduled. Sgd. P.J. MAKWANDI 6 CHAIRMAN 21/7/2017 The Tribunal proceeded in absence of one assessor Mr. Mpite and in the end the applicants' case was marked as closed and the defence case was scheduled for 13th September, 2017. When parties appeared on 13th September, 2017, the tribunal noted that "There is no quorum today. Hg on 27/10/2017" Hearing proceeded on 27th October, 2017, |ie dc& the tribunal heard the evidence of RW1 and subsequently hearing was adjourned to 08th and 09th January, 2pi(8. October, 2017, part of the records of the tribunal reackas follows: " 27/10/2017 Coram: Mr. P0.~Makwandi Members: Njovu ApplicantiPresent/ Mr. Sikaiumba Adv. XRespondent; Present all fA:Joy& DEFENCE CASE STARTS" fthe above records it is clear that Mr. Mpite was not present o rP fi* July, 2017 and 27th October, 2017, and hearing proceeded in his absence. Therefore, he never heard the testimonies of AW4 and RW1, neither did he participate in any form whatsoever. However, on 09th January, 2018, when the tribunal heard the testimony of RW2, Mr. Mpite appeared and was allowed to take part in the proceedings of the tribunal. The records, partly, read: 7 " 9/1/2018 Coram: Mr. PJ. Makwandi Members: 1. Njovu 2. Mpite Applicant: Present/ Mr. Sikalumba Adv. Respondent: Present except 5th representative. R/A: Joyce 1st representative: We have one^vitness^. We are ready to proceed. T r j .-i' Mr. Sikalumba, Adv: We are ready to proceed. DEFENCE CONTINUES" On top of that the records^oflhe~tribunal,shbw that Mr. Mpite was also not present on 22ni March, 201?§j/vhen the tribunal made a site visit to the suit property. Despite notr<being^present opf 21st July, 2017; 27th October, 2017 and 2^ ^ ch,^ 2^ yW lrfM pite was allowed to prepare his opinion andChe tribunal. Hlsfopinion went on to be quoted by the ChairDePSOMt page ffirthe typed proceeding. The quoted portion of M|, Mpite oplnioipfs reflected in the judgment of the tribunal read: ZUshahidi wa PW4 ulitambua uwepo wa Mikoroshini Village na Tanganyika Village lakini ameona Kijiji cha Tanganyika kiliondolewa katika mipaka ya SUA kwa sababu wakati wa upimaji wanatanganyika walishirikishwa.... Nashauri mipaka ya SUA na Kijiji cha Lukobe irekebishwe. 8 Mipaka mipya izingatie uwepo wa Mitaa ya Kambi tano na Lukobe Juu.... The question now is whether it was appropriate for the tribunal to proceed in the manner it did in the present case. The answer to that is in the negative. I say so because, in terms of section 23 (1), the law is clear that the tribunal shall be composed of the Chairperson and two assessors. Further to that the requirement of the law is that, the two assessors must partfeWte from the beginning of the trial to the end; and theyymjst be%^vel^and effectively involved. This position was stated Appeal in Enosi v Republic (Criminal Appeal lw^35 of#915pf?016] TZCA 135; (21 October 2015 TANZLII>wtgie|^|^Court^(Mugasha, 3.A) stated: the assessors£shS/^be required to "... attend <at\the adjourned sitting and at any Asubsiquent ^sitting until the conc/usion^df^thjsptrial. The rationale of ttiMiihfontinued presence throughout the ^kvai is to enable them to hear the whole eviclenMm/hich will enable them to make ■informed^ or rational opinions." [Emphasis mine) A^lllgc^bove, Mr. Mpite was present at the start of the trial and he heard the evidence of AW1, AW2 and AW3. However, he was not present when the case was subsequently called in for hearing of the testimonies of AW4 and RW1. He therefore did not hear the evidence of the said witnesses. He was also not present when the site visit was conducted. Having absented himself from subsequent hearing sessions, Mr. Mpite should not have been allowed to rejoin 9 the sessions on 09th January, 2018, when the tribunal heard the testimony of RW2. Having absented himself, he should not have been allowed to give his opinion at the conclusion of the trial. In the circumstances, the tribunal should have proceeded with one assessor as allowed under section 23 (3) of Cap. 216. In terms of section 23 (1) of Cap. 216, allowing Mr. Mpite to resume participation and prepare his .opinion jtijas fundamental irregularity which was fatal to the proceedings of the tribunal. Itlwent to the root of the case, as it affected the juris'dfction of tfetribunal. The consequence of such irregularity was!Jstated'ir^Josepfi Kabul vs Reginam [1954-55] EACA Vol. XX%2,^he^the ( W said: "Where an assessor^Whjo has^not heard all the evidence is allowed anpopinion on the case, the tri§! is a In view of th^Fof^aid, Ijp ree with Lunyamadzo that the tribunal proceedings were flawed with fatally incurable procedural irregularitiesCoccasiOning ^miscarriage of justice as that Assessor's u / opinion-which was refiedlby the tribunal in its decision was based not on t|fe full evilfence^nd influenced the decision of the Chairman. The irregularity vitiated the trial at the tribunal and rendered it a nullity. This above alone was sufficient to dispose of the matter, however, I should also add that, after going through the records of the tribunal, I am satisfied that, at no point did the tribunal require assessors to read out their opinion as required by s. 23 (1) of Cap. 216. The records show that, the defence case was closed on 08th January, 2018 and the tribunal ordered a site visit on 10th February, 10 2018 which was adjourned to 22nd March, 2018. After the site visit on to 22nd March, 2018 the matter was fixed for Judgement on 11th May, 2018. Subsequently, on 11th May, 2018 the tribunal observed that one of the assessors had not recorded their opinion, judgement was thus adjourned to, and delivered on 08th June, 2018. From the above analysis it is clear that the assessors were not given an opportunity to readout their opinion in thgfpresence of the parties and required under s. 23 (2) of Cap. 216 as^ead together & with regulation 19 (2) of G.N. 174 of 2003. I^|aqi:^upported^in this view by the Court of Appeal decision ^if^din^Ada^Klbona vs. Absolom Swebe, Civil Appeal No.&286 cK2017\^T and Tubone Mwambeta vs. Mbeya CityJ^ iniS ^ ^ il^ ^ eaI No. 287 of 2017 all unreported and Dora Jlwisa Mwakikosa vs Anamary Twisa r Mwakikosa (Civil Appeal No.l29^of 2019) [2020] TZCA 1874; (25 November 2020 In Dora^nwisa Mwakikosa (supra), the Court of Appeal, (Mwarija, 1A? iheWease at hand, as shown above, the record" does not reflect that the assessors were required to give their opinion in the presence of the parties after the closure o f defence case. The written opinions o f the assessors did, however, find their way into the record in an unexplained way. Nevertheless, in his judgment, the Chairman stated that he considered those opinions. In our considered view, since the parties were not aware o f existence of the assessors' opinions, we agree with the counsel for the parties that in li essence, the provisions of Regulation 19 (2) of the Regulations were flouted. The failure by the Chairman to require the assessors to state the contents of their written opinions in the presence of the parties rendered the proceedings a nullity because it was tantamount to hearing the application without the aid of assessors. "[Emphasis mine] In line with the above findings the Court of Appeal quashed the proceedings before the tribunal and High Court and set aside the judgments thereof. j That said, and in terms of section 43 of Cap. 216, I revise and quash the entire proceedings before the tribunal and the judgment is the appeal, before another Chairperson with a new set assessors. Having raised the issues, I make no orders as to costs. # /• It is so ordered. ^ DATED at DAR ES SALAAM this 08th day of APRIL, 2021. 12