CIV

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: LILA. 3.A.. KENTE, J.A.. And MGONYA. J.A.) CIVIL APPEAL NO. 158 OF 2022 WAMBURA MWIKWABE........................................................... APPELLANT VERSUS JUMA NYAMHANGA.................................... ..........................RESPONDENT (Appeal from the decision of the High Court of Tanzania, at Musoma) (Kisanva, J.) dated the 17th day of May, 2021 in Land Appeal No. 68 of 2020 JUDGMENT OF THE COURT 8th & 15th July, 2024 MGONYA, 3.A.: This is a second appeal originating from the District Land and Housing Tribunal (the DLHT) for Mara at Musoma in the Land Application No. 204 of 2018, where the respondent instituted a land dispute against the appellant. Among other reliefs, the respondent sought to be declared a lawful owner of land situated at Mesaga village within Serengeti District. It was the respondent's allegations that, in August, 2018 the appellant trespassed into the disputed land and built a house thereon. Before the DLHT, the respondent's case was to the effect that, he acquired the suit land by clearing a virgin land in 2000, and built a house thereon. One witness was summoned to substantiate his case. On the other side, the appellant herein before the DLHT, testified that, he legally owned the suit land from 2012. As to how he acquired the same, he told the DLHT that, he was haunted with a dream that the suit land belonged to his grandparents. Three witnesses were summoned to support the appellant who all testified to the effect that, the appellant acquired the suit land by clearing a virgin land in 2012. Upon hearing of the parties, the DLHT was satisfied that the respondent proved his case on the balance of probabilities, hence the judgment was entered in his favour and he was declared the lawful owner of the suit land. The appellant was condemned to pay costs. Being aggrieved, the appellant unsuccessfully preferred an appeal before the High Court of Tanzania at Musoma vide Land Appeal No. 68 of 2020 (Kisanya, J.). Among other complaints, the appellant faulted the High Court decision to uphold the DLHT's decision while the assessors' opinions were not read out in the presence of the parties; and that the learned trial Chairman failed to evaluate the evidence adduced by the appellant and his witnesses. The first appellate court, having scrutinized the record, found that, the opinions of two assessors were read out in the presence of the parties. Further, the court found that, the appellant's evidence was not sufficient to disprove the respondent's evidence. Consequently, the court upheld the trial tribunal's decision and the appeal was dismissed in its entirety with costs. Still aggrieved by the decision of the High Court, this appeal has been preferred. The appellant's Memorandum of Appeal challenging the first appellate court's decision, contained four grounds of complaint as follows: 1. That the High Court erred in iaw and fact by not ruling in favour o f the appellant despite of the variance between the pleadings and the evidence; 2. That the first appellate court erred in iaw by failure to rule out that the trial tribunal erred in law by failure to involve the assessors on trial as required by iaw; 3. That the trial court had no jurisdiction to entertain the dispute before it\ and 4. That the whole decision was against the iaw and evidence on record. When the appeal was placed for hearing before us, the appellant who was present in person had the services of Mr. Masoud Mwanaupanga, learned counsel, whereas, the respondent who also appeared in person, enjoyed the services of Mr. Daud John Mahemba, learned counsel. When invited to submit in support of the appeal, Mr. Mwanaupanga successfully prayed to argue only the 2nd ground of appeal and abandoned the rest. Arguing on that ground; initially Mr. Mwanaupanga submitted that, there was no opinions of the assessors and the same were not read out before the parties contrary to section 23 (2) of the Land Disputes Courts Act (herein to be referred as Cap. 216) and Regulation 19 (2) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2003 (the Regulations), respectively. However, being availed with the original file which, contained the assessors' opinions which, according to the record, were read out in the presence of the parties, the learned counsel departed from his earlier complaint and came up with a fresh grievance. The same was to the effect that, although in pages 39 and 43 of the record, it is indicated that the assessors' opinions were read over in the presence of both parties, the same are not reflected in the judgement To reinforce his submission, the case of Zubeda Hussein Tayagali v. Oliver Gaston Lovakule & Another, Civil Appeal No. 312 of 2017 and Edina Adam Kibona v. Absolom Swebe, Civil Appeal No. 286 of 2017 (both unreported) where this Court discussed at length the applicability of section 23 (2) of Cap. 216 and its Regulation 19 (2), were relied on. Mr. Mwanaupanga without citing any legal provision to support his assertion, contended that, failure to incorporate the opinions of the assessors in the judgment is a fatal irregularity, which vitiates the proceedings as well as the decision of the trial tribunal, as the said legal shortcoming goes to the root of the case and cannot be cured. In reply, Mr. Mahemba submitted that, this ground was also among the grounds of complaint which were unsuccessfully raised and determined by the High Court. He went further to submit that; the assessors' opinions were duly read out before the tribunal in the presence of both parties. It was Mr. Mahemba's argument that, the case of Edina Adam Kibona (supra) referred by Mr. Mwanaupanga insists the opinion of the assessors to be in writing and they have to be read out before the parties and finally form part of the tribunal's proceedings. He further contended that, unlike the witnesses' testimonies, reproduction of the assessors' opinions in the judgment is not the requirement of the law. It was Mr. Mahemba's stance that, section 23 (2) of Cap. 216 and Regulation 19(2) of the Regulations were adhered to. Hence, he prayed the Court to dismiss this appeal with costs. In his rejoinder, Mr. Mwanaupanga reiterated what he had submitted earlier in his submission in chief. Having thoroughly gone through the submissions by the counsel from both parties, the main issue for determination is whether the appellant's sole ground of complaint has merit. Essentially, both counsel in this appeal are at one that, it is the legal requirement that the DLHT shall be constituted when held by a Chairman and not less than two assessors. They further agreed that, the role of the assessors is to give out their opinions prior to the Chairman composing a judgment. The only taxing issue is whether the assessors' opinions must be reproduced in the judgment. As rightly submitted by Mr. Mwanaupanga, involvement of assessors in the DLHT's proceedings is a mandatory legal requirement provided 6 under section 23 and 24 of Cap. 216 and regulation 19 (1) and (2) of the Regulations. Sections 23 and 24 of Cap. 216 provides thus: "23. - (1) The District Land and Housing Tribunal established under section 22 shall be composed o f at least a Chairman and not less than two assessors. (2) The 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. (3) Notwithstanding the provisions o f subsection (2), if in the course o f any proceedings before the Tribunal either or both members o f the Tribunal who were present at the commencement o f proceedings is or are absent, the Chairman and the remaining member if any, may continue and conclude the proceedings notwithstanding such absence. 24. In reaching decisions, the Chairman shall take into account the opinion o f the assessors but shall not be bound by it, except that the Chairman shall in the judgment give reasons for differing with such opinion." From the wordings of the provisions above, we have underscored that; one, the assessors must give their opinions before the Chairman reaches the judgment and he is legally bound to take into account the opinions of the assessors in the judgment. Two, the Chairman is required to assign reasons for departure in case he departs from the assessors' opinions. From the wording of the above provisions, we find the choice of words used are quite clear and there is nowhere where it is provided that the assessors' opinions should be reproduced in the judgment. Therefore, being guided by the provisions of the law regarding the role of the assessors in the DLHT, we find the argument by Mr. Mwanaupanga that the assessors' opinions were supposed to be reproduced in the judgement, is both not supported by the law and misconceived. In the instant appeal, it is undisputed that, the Chairman throughout the hearing before the tribunal sat with two assessors, namely, Mr. Babere and Mr. Swagarya. Also, it is revealed at page 39 of the record of this appeal that on 17/07/2020, the assessors' opinions were read over in the presence of both parties. More so, it is on record at page 43 of the record of appeal that, the Chairman took into account the assessors' opinions and expressly declared that he concurred with their opinions. Therefore, we find no reason to fault the High Court Judge in his decision that the assessors were fully involved in accordance with the law. Premising our position on the above findings, we find no merit in the appellant's appeal, henceforth we dismiss it with costs. DATED at MUSOMA this 13thday of July, 2024. S. A. LILA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered this 15th day of July, 2024 in the presence of Mr. Leonard Elias Magwayega learned counsel holding brief for Mr. Daud Mahemba for the Respondent, and is absence of the Appellant, is hereby certified as a true copy of the original.