20191016 TZHC Mbeya

J . THE UNITED REPUBLIC OF TANZANIA ) JUDICIARY IN THE HIGH COURT OF TANZANIA (DISTRICT REGISTRY OF MBEYA) ATMBEYA LAND APPEAL NO 10 OF 201 (From the District Land and Housing Tribunal for Kyela at Kyela in Land Case Application No.2/ of 2016) TUNGWILEGE KITALIMA ............................................................. APPELLANT VERSUS MPELIGWA MOYO MWAKYAMBIKI..................................... 1ST RESPONDENT BUPE MWAMBOLA .......................................................... 2ND RESPONDENT JUDGEMENT Date of Last Order : 31/07/201 9 Date of Judgement: 16/10/2019 MONGELLA, J. Dissatisfied with the decision of the District Land and Housing Tribunal for Kyela (DLHT), the Appellant has come to this Court for further redress. In her memorandum of appeal, the Appellant who was represented by Ms. Rose Kayumbo, learned Advocate raised three grounds of appeal. Parties were ordered to argue the appeal by written submissions and they complied with the scheduled orders for filing their submissions. LN Page 1 of 5 In her written submissions Ms. Kayumbo apart from submitting on the grounds of appeal, she also raised a point of law to the effect that the assessors were not fully involved in the determination of the case in the DLHT. She quoted what the Hon. Chairman oTribunal stated at page 2 of his judgment as follows: "On those reasons, / agree on the advice by both tribunal assessors, the applicant is declared as a lawful owner of the suit house. The 2nd respondent is ordered to vacate, costs granted to the 2nd respondent." M6 Kayumbo argued that the Hon. Chairman never invited the assessors ) to give their opinion before reaching to his judgment. She was of the considered view that the said opinion of assessors ought to have been reflected in the judgment and the proceedings. It does not suffice for the Hon. Chairman to say that he is in agreement with the opinion of both tribunal assessors without showing what exactly the said assessors opined. fr support of her arguments she referred to section 19(2) of the Districi Land and Housing Tribunal Regulations of 2003 which provides infer alia that: "Notwithstanding sub regulation (1) the chairman shall before making his judgment, require every assessor present at the conclusion of hearing to give his opinion in writing as the assessor may give his opinion in Kiswahili" J n addition she cited the case of Tubone Mwambeta v. Mbeya City Appeal No. 287 of 2017 in which the CAT (Mugasha, J.A.) Council, Civil quoting its own decision in Ameir Mbarak and Azania Bank Corp Ltd v. Edgar Kahwili, Civil Appeal No. 154 of 2015 held that: Page 2 of 5 U rM "Therefore in our considered view, it is unsafe to assume the opinion of the assessors which is not on the record by merely reading the acknowledgment of the chairman in the judgment. In the circumstance we are of the considered view that, assessors did not give any opinion for consideration in the preparation of the Tribunals judgment and it was a serious irregularity." Responding to Ms. Kayumbo's submissions, Mr. Thomas Msuta, learned Advocate for the Respondents first of all urged the Court to dismiss the argument regarding assessors as it was not listed in the grounds of appeal and has been brought up without seeking for leave to file additional grounds. He added that the same is time barred as the judgement was issued on 23rd December 2016 while this ground of appeal was filed on 4th June 2019 at the time of filing the submissions in arguing the appeal, that being almost three years. However, despite raising these concerns he went ahead and argued on the same. He submitted that the Hon. Chairman clearly obtained the opinion of assessors as he clearly stated at page 2 of the typed judgment and there is no reason to disbelieve or fault the Hon. Chairman. He added that the Appellant was not prejudiced in any manner as her admission before the trial Tribunal that she consented for the sale of the house was enough to end the matter against her. In The active involvement of assessors in the DLHT is a mandatory legal requirement. The failure to do so has the effect of rendering the proceedings and judgment of the DLHT a nullity. A point of law having C such an effect is therefore crucial and the appellate court can entertain such a point of law at any stage in determination of the appeal either by raising if suo mottu or by being raised by the parties,. The Respondent Page3ofs c\ 1 (t( Cv' herein got the chance to reply on the arguments raised by the Appellant on this legal issue and therefore no injustice was occasioned. I have gone through the judgment and proceedings, both handwritten and typed, of the DLHT and found that no opinion of assessors was recorded. The Hon. Chairman at page 2 of his decision purports to consider the opinion of assessors but does not fell what exactly did the assessors opine for him to be in agreement with. I in fact agree with Ms. Kayumbo's argument that it does not suffice for Chairman to just state that he is in agreement with the opinion of assessors. The said opinion must be reflected in the judgment and in the proceedings as well. The CAT and Oc) this Court haven insisted on this requirement of the law on multiple occasions. See: Edina Adam Kibona v. Absolom Swebe (Shell), Civil Appeal No. 286 of 2017, General Manager Kiwengwa Stand Hotel v. Abda!lah Said Musa, Civil Appeal No. 13 of 2012, Ameir Mbarak (supra), Tubone Mwambeta (supra), Niga Mwakajumba v. Justine Àbas Sanga, Land Appeal No. 15 of 2018 (HC Mbeya), Emmanuel Mwangomola v. Ibrahim Mwakitengo & Another, Misc. Land Appeal No. 44 of 2017 (HC Mbeya)(all unreported). In the circumstances, I find there is no proper judgment placed before this Court for it to scrutinize in determining the rights of the parties on merits. I therefore nullify the proceedings and judgment of the DLHT in this matter It- 'Jt ,Z. and order the matter to be tried de novo with assessors being fully involved as required under the law. Appeal allowed and costs awarded to the Applicant. Page 4 of 5 It is so ordered. Dated at Mbeya this 16th day of October 2019 L. MGELLA JUDGE 16/10/20 19 Right of appeal to the Court of Appeal has been duly explained. L. M. MONGELLA JUDGE 16/10/2019 Court: Judgement delivered in Mbeya in Chambers on this 1-6 1 h day of --- October 2019 in the pres jceéf Ms Rse-1(ayumbo, Learned Advocate for theAppellant and Msuta, learned Advocate for tfe Respondents. L. M. MONGELLA JUDGE 16/10/2019 Page 5of5