20191206 TZHC Mbeya

THE UNITED REPUBLIC OF TANZANIA ) JUDICIARY IN THE HIGH COURT OF TANZANIA (DISTRICT REGISTRY OF MBEYA) AT MBEYA LAND APPEAL NO 79 OF 2016 (From the District Land and Housing Tribunal for Mbeya at Mbeya in Land Case Application No. 19 of 2011) YUS IZECK SIKAPONDA (Administratix of the estate of the late REUBEN ADAMSON SIMWAMWA ............................................... APPELLANT VERSUS MBOZI DISTRICT COUNCIL ................................................. 1ST RESPONDENT MANASE MSELEM ............................................................ 2ND RESPONDENT ANDREA SANGA ............................................................. 3RD RESPONDENT CHARLES SANGA ............................................................ 4TH RESPONDENT JUDGEMENT Date of Last Order 04/10/2019 Date of Judgement: 06/12/2019 MONGELLA, J. Aggrieved by the decision of the District Land and Housing Tribunal (hereinafter referred to as Tribunal) the Appellant has appealed to this Court. In the memorandum of appeal the Appellant raised five grog wit: Page 1 of 6 . 11 I. That having satisfied himself that the land in dispute belongs to the Appellant, the Hon. Chairman grossly erred in law and fact for denying the Appellant his land. That having satisfied himself that the Appellant is a lawful owner of the land in dispute, the Chairman grossly erred in law for holding that the certificate of occupancy was issued in compliance with the law. That the whole of the findings of the Hon. Chairman are contradictory in respect of the relevant issues which were framed for determination. That the Hon. Chairman had miserably failed to properly and critically analyse the evidence on records, and thereby departed from the opinion of the gentlemen assessors without giving any reasons as required under the law. S. That having held that the Appellant was denied a right to compensation; the Hon. Chairman erred in law for issuing a judgment which is uncertain, hence denied the Appellant's rights. I shall first deal with ground number four which shall in fact determine whether it shall be necessary to dispose the rest of the grounds. However, before I proceed, I find it important to mention that the I st Respondent never entered appearance or filed his submissions despite summons being dully served upon him. Thus this matter proceeds ex porte against him Page 2of6 Ms. Mary Mgaya, learned Advocate who represented the Appellant argued on this ground by submitting that immediately after the closure of the defense case on 30/09/201 6, the Hon. Chairman gravely omitted to secure the opinion of assessors and thereby proceeded to set a judgment date contrary to the requirement of the law envisaged under Regulation 19(2) of the Land Disputes Courts (the District and Housing Tribunal) Regulation, 2003 and Section 23(1) and (2) of the Land Disputes Courts Act, Cap 216, R.E. 2002. She argued that the above mentioned provisions of the law mandatorily require the Chairman to gather the opinion of assessors immediately after closure of evidence and to integrate the said opinion in the judgment. Ms. Mgaya added that considering them in the judgment is not enough, they have to be integrated into the proceedings and be read to the parties before delivery of the judgment. She submitted that after perusal of the entire proceedings they have failed to grasp if this mandatory requirement was complied with, something which nullifies the whole proceedings as it goes to the roof of the matter. In support of her arguments she referred this Court to the case of Edina Adam Kibona v. Absolom Swebe (Shell), Civil Appeal No. 286 of 2017 in which the CAT citing with approval the case of Tubone Mwambeta v. Mbeya City Council, Civil Appeal No. 287 of 2017 (both unreported) held: "In view of the settled position of the law, where the trial has been conducted with the aid of the assessors,...they must actively and effectively participate in the proceedings so as to make meaningfully their role of giving their opinion before the judgment is composed ... since regulation 19(2) of the Regulations requires every assessor present at the trial at the y Page 3 of6 conclusion of the hearing to give his opinion in writing, 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 in the final verdict. Ms. Mgaya went ahead to quote another holding in the above mentioned case in which the Court held: "For the avoidance of doubt, we are aware that in the instant case the original record has the opinion of assessors in writing which the chairman of the District Land and Housing Tribunal purports to refer to them in his judgment. However, in the view of the fact that the records do not show that the assessors were required to give them, we fail to understand how and at what stage they found their way into the Court record. And in further view of the fact that they were not read in the presence of the parties before the judgment was composed, the some has no useful purpose." With the above submission Ms. Magya prayed for the judgment of the Tribunal to be nullified for having a lot of shortcomings and irregularities. Mr. Mika Mbise who represented the 2nd, 3rd and 4th Respondents did not put much effort in arguing on this point. He only stated that since the proceedings and judgment of the Tribunal are a nullity for non-effective involvement of the assessors and other irregularities pointed out by the Appellant, then this Court should invoke its revisional jurisdiction, quash the proceedings and order re-trial. However, Mr. Mbise added that costs of the case should not be awarded as the irregularity was committed by the Tribunal and not the parties. Page 4 of 6 Since parties are in consensus on the irregularities in the Tribunal in handling the matter before it, I need not dwell much on the issues presented as well. I have also gone through the proceedings and judgment of the Tribunal and found that the situation is similar to the one in Tubone Mwambeta (supra). There have been filed the written opinions of the gentlemen assessors in the case file, but the records do not indicate if the assessors were invited to air their opinion in front of the parties or their written opinion read before the parties. The same were filed after a date for judgment was already fixed. In the judgment as well the Tribunal Chairman did not give reasons for differing with the opinion of assessors. Under the circumstances the judgement of the Tribunal is found to be improper and thus, practically, there is no judgment before this Court for it to entertain in appeal. After observing as above I proceed to quash the proceedings and judgment of the Tribunal and order a re-trial before another Chairman and different set of assessors. Due to the fact that the matter has been disposed only on an irregularity occasioned by the Tribunal and if is to be re-tried, I make no orders as to costs. It is so ordered. Dated at Mbeya on this 06th day of December 2019 T1 7o \\L.M.MOtiGELLA ;\\ JUDGE• 06/12/2019 , * Pages of6 Court: Judgement delivered in Mbeya in Chambers on this 6th day of December 2019 in the presence of Ms. Mary Mgaya, learned Advocate for the Appellant, also holding brief for Mr. Mika Mbise, learned e for the 2nd, 3rd and 4th Respondents. coU RT o, 06/12/2019 Page 6of6