william geogre mbezi vs tanzania postal bank plc and two others 2022 tzhclandd 12759 13 december 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 104 OF 2021 APPELLANT WILLIAM GEORGE MBEZI 1. TANZANIA POSTAL BANK PLC ^ VERSUS A.,, 2. TULVIN INVESTMENT llllRESPpfiOENTS 3. SHABAN ALLY KIPALILA W V (Being an appeal from the Judgment and Decre^ipf DIstltjrt Land and Housing Tribunal for Morogorp jPistrirt at IVlprogb^O dated thj^isi'^.day oUt|(j||)veJljpf, 2020 Aw ''Ipi''' ^end |llNoJ48Qf2Q17 .."I ''UllUDGMfeNTiOF THE COURT S.M. KALUNpE.J.: ];hi«iij||j||an''^Dea!''iyHi'ilenglng the decision of the District Land and Housjjig Tribul^ forl|lMorogoro District at Morogoro (hereafter "the trial triburlW dated :jll^ day of November, 2020 in Land Application No. 148 of 2017 (heteflftdp'"the application"). The application at the trial tribunal terminated in favour of the respondents. The decision of the trial tribunal infuriated the appellant who has now knocked onto the doors of this Court in an appea^j^ The facts leading to the present appeal are not hard to grasp. They are as follows: the appellant was the lawful owner of house identified as House No. 1836 located at Chamwino within the Region and Municipality of Morogoro with Residence Permit No. 1670 issued on 23.03.2011 (hereafter "the suit property"). In 2014 through a Credit Facility Letter dated 16.07.2014 the suit property was pledged as security,.t!<^||Secure a loan of Tshs. 4,000,000.00 advanced to Ms. Gloria Tulinagwe Mv!l^|[|jbungJ||. The appellant executed the Credit Facility Letter as guJ|^||fljlf to the'^d to Ms. Gloria Tulinagwe Mwambungu. According toill(he facilt|j\f^i'f:h^'ll^0fh was to be repaid within twelve (12) months. SubsequentfVi,,the I'acility was advanced and utilized by the said Ms. Gloria.^ It'wol{{j|lli)l!j^Htll)illi^t'f4s. Gloria defaulted in repaying the loan. By 12.05,|015'li)||j outstanding amount stood at Tshs. 2,214,422.34. In terms of i^fction 127('^l)||andi['2) of the Land Act, Cap. 113 R.E. 2019, the 1^ reljondent I^Wd a Sixty Days' Notice of Default to Ms. Gloria Tulinagw^''ll|jY|amll|i[|||u an(;|l'Lerved a copy to the appellant. The Notice of De^^Ulll|jj was '''ijj^e to""expire on 16.07.2015. However, on 27.05.2015/''!i!l|||a yj|di Gemb|l''who is allegedly the appellants wife filed a suit a nal'liSmst Ms. Gloria Tulinagwe Mwambungu; the 1st resp{| ident; th||| ap^fetfant; and Property Masters. The application was registlfted as Land Application No. 103 of 2015. On the 20.06.2016 Land Appltetiofl'No. 103 of 2015 was dismissed. Following the dismissal of Land Application No. 103 of 2015 the 1^ respondent appointed the 2"^ respond to recover the outstanding amount through auctioning the suit property. On 15.05.2017, through Habari Leo News Paper, the 2"^ respondent advertised an auction of the suit property^ 2 Consequently, on 11.06.2017 the suit property was auctioned to the highest bidder. The 3'" respondent emerged as the highest bidder at the bidding cost of Tshs. 8,000,000.00. After complying with the necessary requirements including payment of the bidding price, on 12.06.2017 the 3^'' respondent was issued with a certificate of sale finalizing the transaction. Sixteen days later, on 28.06.2017, the appellant fite(!|l|and Appl"(cation No. 148 of 2017. In the application at the tri^i tribunal, afj^llant claimed that he was never informed of the default al||^"iiti^|jjthe sil^'property was sold at a throw away price to a pianted''q|dder. I^t'^iso (jlhtended that the auction was not advertised and that^ere 'k[s foJlplay in the auction lllllllllllllllliiii ll, il' process. In view of the above iii^|lities'it;tie appisnt made the following prayers: (a) that the auction^ cJI^jjed i!il|[j|6.20l'i;| b,e declared illegal, null and void;(b) that an order be|sued r^||jj)kingltt|jp,■Auction; (c) a declaration that the appellant remain^ tfluawfui 'dlkief of the suit property; and (d) damages and costs of t(l|^|Suil l|||||||||| i'' The r^tJonl^|ts 'iSil i"" suclil^pjfuiiy challenged the application. The trial I res'oivl i||jthatli|;t]^^U^p(5eliant was fully aware of the default and the tribunal li" auction In''^l!l|j| inc 'ifc.thpt conclusion, the tribunal made a finding that since the apoellants ' ife lhalienged the sale of the suit property and upon dismissai|lfj)fi^th^, Application then the sale proceeded the appellant cannot allege that lie was not aware of the default or let alone the impending sale of the said property. The tribunal was also content that all the procedure for the public auction of the suit property were ccompiied. In the final analysis the trial tribunal concluded that the sale of the suit property was valid. The 3'<> respondent was declared a lawful owner of the suit property and a eviction order was Issued against the appellant. In the end the trial tribunal dismissed the application. It is this decision which Is the subject protest In the present appeal. Before this Court the appellant has preferred nine (9) grounds of appeal which were contained In his Memorandui^||fof Appeal. The memorandum of appeal was later supplemented by addliTlj||^l groujjjds of appeal filed on 26«^ January, 2022 containing t%||Jurther The eleven (11) grounds of appeal may be sumjj[|arized r<|to|fellf|||p<^'ing major complaints: (1). That, the trial tribijj^l erll^^in'fSlliW^lilQ appreciate that the auction was llle^llifpr la^ipf the Notice of Default to the apMllantt .'Ilk K.V' ■ (2). That, ihe jial tribunal'l^pa in holding that a Notice of DefJIlljijj thi||[j||jjellanJiiUas optional; (3)(('"filllt the Jll^antee agreement"TAMKO LA MDHAMINI" li|||i.vva;|i||eqal fQj''contravening the law and principles of li (4). %hat/lThe trial tribunal erred in validating the sale of the it price at a throw away price; (5). That, the trial tribunal failed to properly evaluate evidence on record and decided the case without considering the evidence on record* (6). The proceedings of trial tribunal were illegal as assessors were not given to readout their opinions in front of the parties; and (7). The auction was conducted on a public holiday. By consent of the parties the appeal was arguetjil||j| way of written submissions. Submissions were dully filed in accordance will)(||Court ^(jders. Mr. andrew Jackob Kanonyele, learned a(!l||l!m^te drevPlllprfcl filed submissions of the appellant whilst those of,,|](ie a'!'i|J^|?'"'P^^hdent were prepared and filed by Mr. Innocent MhinalSlearnedj, advocate. On their part, the 3'^ respondent retained t|i^ si^®e'^IIOfiife|j|;. Ignas Seti Punge, .illllllliimm. J|i'' learned advocate in drafting and filin||j^eir i^bmissions. Having thoroughly g|ne thrgijjjh tl^[|fecords, the ground of appeal and submissions of|||^e |!|||jties, anllljll'or the reason that shall become apparent later in this '|ill|j|gmiii)lHi|J||iPi't)pose to first resolve the complaint raised by the to tUfeeffpct that the trial tribunal failed to afford the assessor to presence of the parties as required by la/ffllftaulJItKnt to have assessors read out their opinion is provided for ulder sectio|||23''of the Land Disputes Court Act, Cap. 216. R.E. 2019|||jj|cefo^i1;tl "the LDCA) read together with regulation 19 of the Land Disputes "courts (The District Land and Housing Tribunal) Regulations, 2002, G.N. 174 of 2003 fthe Regulations"). For ease of reference, section 23 is reproduced hereunder: "23-(l) 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 duly constituted when held by a Chairman and two assessors who shall be required to give out their opinion before the Chairman reaches thejudgment" (3) Notwithstanding the provisions of subdeailM (2), if \ in the course of any proceedings beW)!e the k Tribunal, either or both mmbers of^hef Tribunal who were present at thi^^mt^^nceme^ of proceedings is or are absent, and the remaining ihei^ber^ W nnyj may continue and conclude proceedings notwithstanding ll''" •[i||j>hasislsi|mine] ,, ''Ilk \ The position under i Section ^,1^ (^7l||[j)f'''^he LDCA quoted above is ified under reguiation' 19(2) of% Rfeguiations. The regulation 19(2) ampiified ■=- ,i'"""iiiih states that: 'iiiih ^ 4^'Nomhstandmviub-reguia^^^ (1) the chairman ' making his judgment, require every ,iuiiii||||,, afk^sorpr^sent at the conclusion of the hearing ' "llljf-p gimJMs opinion in writing and the assessor may I 2%f hi^opinion in Kiswahiii." [Emphasis mine] ' My understanding of the two above quoted provisions is that a properiy constituted tribunai in terms of the Act is composed of the Chairperson and two (2) assessors. See Ameir Mbarak and Azania Bank Corp. Ltd V. Edgar Kahwili, Civi Appeai No. 154 of 2015, Court of Appea^^ at Iringa (unreported). The other important takeaway from the above section is that the two assessors must, at ali times, be present throughout triai; and be activeiy and effectiveiy invoived in the proceedings so that they can have a meanlngfui contribution in advising the tribunal through their opinion. However, section 23(3) of the LDCA provides a flexibility in that where, for any reasons, one or all the assessor misse9i4 hearing session, the tribunal may proceed with the remaining assessor ol||||Withoy)|» any assessor, as the case may be. However, the lmpott^Vll!||ijj^iJtlon unjjj^lfllned in the above sections is that prior to deiiveryai^f the jil^^^i^enllj^^sessors the presiding chairperson shall, require asses^t^^ presl^nt at the conclusion of the hearing to give their opinion .in'wrlli('il''SHliilitli|^,^skessor(s) so present '' 'llih '''ii may give his/her opinion in Kiswahiii'.i||||, % , V The requirement to Have as?^^6ors their opinion in the presence of the parties has bg^ i arn{|||fied in vl|ious decision of our superior court, the Court of Appeal. illllH^ie lE^anof''kdina Adam Kibona vs Absolom Swebe (Shefiffll^i December 201 lihgilfj^j^^d'its previous decision in Ameir Mbaraka and Azania Barillc Corpl' v. Edgar Kahwili and Tubone Mwambeta vs. I 'nil 'llii'' Mbeya City c^jpuncil, the Court of Appeal (MWAMBEGEIE, J.A.) recapitiil^d th^ll failure to call upon the assessors to give opinion and to let the parties know the contents of the assessors' opinion was a disastrous defect. The Court of Appeal stated: - "Adverting to the case at hand, when the chairman dosed the case for the defence, he did not require the assessors to give their opinion as required by iaw. On the authorities cited above, that was fatai irregularity and vitiated the proceedings. We wish to recap at this stage that the trials before the District Land and Housing Tribunal, as a matter of law, assessors must fully participate and at the conclusion of evidence, in terms of Regulation 19(2) of the Regulations, the Chairma^ of the District Land and Housing Tribunal muM\^^uire every one ofthem to give his opinion in wtlung. ||i It may be in KiswahiiL That opiriim^^^ must the record and must be read before thejudgmentis corppgsed. For the avoidance of doubt, we a^^d^x^warkthat in the instant case the Opinion of assessors in writing^,vmch tiihyf^hairman hf the District Land and Housinq^TribmMpurphf^s to refer to them in his judgment^^fio^^v^r, the fact that the record)does pbtt shovifii^fhat the assessors were req^^i^d to g^vc'^ them, we faii to unde^^^d ^ what stage they found ir wa^\\in thS^^Wurt record. And in further the^ii^ctjthat they were not read in the •'''"l|]ipp5|pce oftiipparties before thejudgment was same have no usefulpurpose." 'l|||||,.' y [Emphasis is mine] cited case, the Court invoked its revisionai powers under section 4(2) of the Appellate Jurisdiction Act, Cap. 141 of the Revised Edition, 2002 (now R.E. 2019) and nuiiified the proceedings and judgment of the tribunai and High Court. It went on to order an expedited hearing with a new Chairman and set of assessors if parties were stiii interested^ See also Sikuzan Saidi Magambo & Another vs Mohamed Roble (Civil Appeal No.197 of 2018) [2019] TZCA 322; (01 October 2019 TANZLII); and Dora Twisa Mwakikosa vs Anamary Twisa Mwakikosa (Civil Appeal No.l29 of 2019) [2020] TZCA 1874; (25 November 2020 TANZLII) all unreported. ..ililj, In Dora Twisa Mwakikosa vs Anamary Mwakikosa (supra) the Court of Appeal,(Mwarija,J.A.) ' "In the case at hand, as shown above, /)|p not reflect that the assessor^' w^e reqhj^ed toi^ive their opinion in the presence of th\^artihs after the ciosure of defence ca^\ of the assessors did, howe\^^.hnd^^fir way into the record in an unexpiaine^^](vay. in hisjudgment, the Chairman '^latei^that hb\^nsiddred those opinions. In our cons, iered lA sin^^''ihe parties were not aware ^exi^ce ofthe^ssessors'opinions, we agree with ifMlljroy/S^ii/br- th^ijarties that in essence, the P^^lifions \^egulMSfi^19(2)ofthe Regulations were '111'' ,«C the Chalrmeh to reouire the state the contents of their written I 'w//7/an57/7 the presence of the parties rendered ij wh proceedings a nuiiity because it was \ll'llllliiin^^e t^tamount to hearing the appiication without aid ofassessors. We are supported in that view by our previous decision in the case of Tubone Mwambeta (supra) cited by the appellant's counsel. When confronted with a similar situation as in this case, we held as follows: "We are increasingly of the considered view that since Regulation 19(2)ofthe^ Regulations requires every assessor present at the thai at the conclusion of the hearing to give his opinion inwriting, such opinion must be availed in the presence of the parties so as to enable them to know the nature of the opinion and whether or not such opinion has been considered by the Chairman final verdict,"[Emphasis added]" 'l|||| Guided by the above position of the law and I sh^rf proceed iill \ ])'' "lllll'''. examine the circumstances in the present ^appeal. Tlibre is no dispute that the present case was heard with the ^'nj||jp^|||sessO|;s. Tnp'records show that hearing of the defence case comi;^[j|ced''^d closllli''6n 08.10.2020. On the day assessors present were an||MNGAl2i||||ft. It is on record that upon conclusion of the defenol' case,ii|jj|e tfl^fjtnal ordered judgment to be delivered on 30.11.^020. || is also'llj|ot'in dispute that on 30.11.2020 judgment was accordirl|l|v the presence of the 3'"'' respondent and absence i)pellat!lilj^|jtcj the 1=^ and 2"" respondents. exSltjjl eiS'"ttHffii'fecords at the conclusion of the defence case and I'efore (Sli||jyerjl|j(iif' judgment and noted that they do not indicate whetn||r or when the assessors were invited to state the contents of their written ol!ilt]iifi/n8''in the presence of the parties. However, the records of appeal forwarded to this Court contains the opinion signed by one assessor, one Mr. Rashid Mpite. In the typed judgment the learned chairperson made the foilowing remarks;^ 10 "On the 31^ March, 2020 when the case was fixed for defence hearing, we proceeded with oniy one assessor as it aiiowed by the iaw as per section 23(3) of the Land Disputes Courts Act No. 2 of 2002 and due to that, this case was opined by that oniy remaining assessor who opines as quoted here under: Having quoted an excerpt from the opinion of th^''ltee assessor the learned chairperson stated: , "lam at one with the assessors opinion the applicant herein failed tdpri^ve hi^\^se to the required standard, the responden^freidks^abii^^^ their case to the to that, they are entitled to reii^lMySs foilowi\.." X V However as pointedj'out ea|f|er, a^pite quoting the same In the judgment, the proceedingJ|Indicate tPlfej)edrned chairperson did not require the wise assessors to^We ll!|^||jj)£i|r]jpn in the presence of the parties as required by law"^S||flcpiainsll([aboye. In view of the fact that the record does not show thailtlne rflnaining assessor was required to give the said opinion In thQ*'ti'/^dy^|jje (!)t|||Darties before the judgment was composed, I fail to undelpnd hollljandjlt what stage the said opinion found its way in the court i^rd ancjleventually in the judgment. As stated in the above cited authorities,''te"failure by the Chairman to require the remaining assessor to state the contents of his written opinion in the presence of the parties rendered the proceedings a nullity because It was tantamount to hearing the application without the aid of assessors^^ 11 In the instant case, it would appear that the appellant Identified the irregularity in the proceedings of the trial tribunal and requested to filed and leave was granted for them to file additional grounds of appeal, on 26.01.2022 they filed an additional grounds of appeal in which they raised two grounds of appeal. In the filed grounds one of the grounds was that "the trial tribunal erred in law and in fact in noti|^ji|ing assessors audience to pronounce their opinions before the parti^ff. J|> It is unfortunate that despite identifying and i in the ,|J( . . A, '|| ||'' additional grounds of appeal parties, inciudin'^,|he ap^eiiant/'did not make submissions relating to the same. would grace,—the irregularity v-a , and —" Rfftl||||ed lljli tii^he 'l|,| merlB''of the case. However, as pointed out earlier, the fajjAjfe.by trlyearn^(|,trail Chairperson to require the assessors)rs to state the i ontent$it|jf the i({|p(tten opinion in the presence of the parties rendered |lljjej |je prljbedings pr||gedings (i|tthe (il[|the trial tribunal a nullity because it was tantamount to hearll)^,th|l!^|||[|#cEi^ion without the aid of assessors. The abandonmen|j'l)r r isai by'ltjl[jp,,parties to submit on the raised ground of appeal tantamSllnteait^^iabdieking their right to be heard. .""""""Illllll 111 in my pkj|t, b|ifi6d on the provisions and previous decisions cited abovijjl am satis lied that the pointed irregularity amounted to fundamental procedura!'ll6itwif*s that have occasioned a miscarriage of justice to the parties and vitiated the proceedings and entire trial before the trial tribunal. This suffices to dispose of the matter. I will therefore not labour into considering the substantive merits of the appeal^ 12 That said and done, I have no alternative other than invoking the revisional powers bestowed to this Court in terms of section 43 of the LDCA and revise the entire proceedings of the trial tribunal in Land Application No. 148 of 2017. Accordingly, I quash ail the proceedings therein and set aside judgment and decree resulting therefrom. hererrom. In the circumstances, in tne circumstances, wnoever whoever isis interested may approach the appropriate forum to ,,|dl||^^ue their ^ rights subject to the laws and rules of limitation. iii.... Should either of tll^|partie||refile the matter before the trial tribunal, I make.1 an cj||lfejf|||hat . thJljlP^' itter be JHlllhii*,....'' retried before another Chairman and with a,.nl^w set cil| asse^^tjjti^. u In the end and for the above explained above. Having determipri|j|the ^jjjeal on /hy individual efforts no nrrior fnr order rnQ^Q is maHp. for costs made. .niiillii It is so ordered^ '\1 ■ DATED at JMithts day of DECEMBER, 2022. l,i Mtm\\ ill S. M. Kalunde JUDGE 13