zamana ally mama bushiri vs omary chipanta and 2 others 2021 tzhclandd 464 30 august 2021

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPEAL NO.3 OF 2021 (Arising from the Judgment and the Decree of District Land and Housing Tribunal for Mkuranga at Mkuranga in Land Appeal No.43 of 2016 which was originated from Judgment and Decree of Vikindu Ward Tribunal in Land Case No. 14 of 2009) ZAMANA ALLY (MAMA BUSHIRI)..................................... APPELLANT VERSUS 1. OMARY CHIPANTA 2. JUMA BIN JUMA ........................... RESPONDENTS 3. SERIKALI YA KI JI JI VIANZI JUDGMENT Date of Last order: 25.08.2021 Date of Judgment: 30.08.2021 A.Z.MGEYEKWA, J This is a second appeal, it stems from the decision of the Land Application No.26 of 2016 of Vikindu Ward Tribunal. The trial tribunal decided the matter in favour of the respondents. i Aggrieved, the appellant lodged the instant appeal before this court through Land Appeal No. 43 of 216 on five grounds of grievance, namely:- 1. That the Honourable Chairperson erred in law and facts to give ownership of the disputed land to the Respondents basing on the assumption of abandonment of the disputed land without the proof of the said fifteen years abandonment. 2. That the Honourable Chairperson grossly erred in law and in facts in holding that the Respondents are the rightful owners of the disputed land without considering strong, prudent and reasonable reasons raised by the Appellant thereof. 3. That the Honourable Chairperson erred in law and in facts when she upheld the decision ofthe Vikindu Ward Tribunal knowing that the said Vikindu Ward Tribunal had no pecuniary jurisdiction to entertain the matter. 4. That the Honourable Chairperson erred in law and in facts when she dismissed the LandAppeal No. 43 of2016 without reasonable reasons resulting deprivation of the Appellant's right to own land. 2 5. That the Honourable Chairperson erred in law and in facts when she upheld the decision of the Vikindu Ward Tribunal knowing that the said Tribunal had wrongly evaluated the evidence adduced thereof. When the appeal was called for hearing on for hearing on 28th July, 2021. The applicant enjoyed the legal service of Ms. Suzana Barnabas, learned counsel, and the 1st, 2nd, and 4th Respondents appeared in person, unrepresented. This court issued an order to the parties to argue the appeal by way of written submissions. The appellant filed his submission in chief on 09th August, 2021 and the respondent's Advocate filed a reply on 18th August, 2021 and the appellant’s Advocate filed a rejoinder on 24th August, 2021. In his submission, Mr. Maliki, learned counsel opted to combine and argue all grounds together because they are intertwined. He argued that the appellate tribunal erred in law and in facts to give ownership of the disputed land to the respondents. The appellant’s Advocate complained that the appellate tribunal decided in favour the respondents with the assumption of abandonment of the disputed land without considering that the proof of the said fifteen years of abandonment. He argued that the appellant and his husband build a small house and planted crops in the 3 disputed land thus, the assumption was not correct. He claimed that the 3rd respondent illegally and procedurally decided to confiscate the suit land without giving notice to the appellant as per section 45 (4) of the Village Land Act, Cap. 114 [R.E 2019], The learned counsel for the appellant continued to argue that the Village Land Council approved the appellant's husband's application and he was allocated the piece of land measured twenty acres in 1994. He added that the appellant after being appointed as an administratrix of the estate of her late husband in 1998 raised his complaints therefore he claimed that the appellate tribunal erred in law to rule out that the appellant had no locus standi to institute any claim that connects with the estate of the deceased. The learned counsel for the appellant further complained that the appellate tribunal erred in law to state that the respondents acquired the disputed land on the ground of adverse possession without considering the evidence presented by the appellant. Fortifying his position the learned counsel for the appellant cited the cases of Attorney General v Mwehezi Mohamed & Others, Civil Appeal No. 391 of 2019 CAT (unreported) and Registered Trustees of Holy Spirit Sisters Tanzania 4 v January Kamili Shayo and 136 Others, Civil Appeal No. 193 of 2019 (unreported). The learned counsel continued to argue that the Chairperson of the appellate tribunal failed to adduce reasons for not granting the appellant’s right over the disputed land. He complained that the Chairperson forget that the appellant and the family of the deceased were in process of appointing the administrator of the deceased estate. The learned counsel for the appellant stated that the appellant timely after being appointed as an administrator of the estate of her late husband approached the Village Land Council concerning the issue of the disputed land. Thus, it was his view that the appellant was not negligent. He further complained that the trial tribunal determined the case beyond its pecuniary jurisdiction which is below Tshs. 3,000,000/= he claimed that the issue of jurisdiction can be raised at any stage. To buttress his position he cited the case of Mwannchi Communication Limited & Another v Josua K Kajula & Others, Civil Appeal No^ 126/-1 of 2016 CAT (unreported). In conclusion, the learned counsel for the appellant urged this court to allow the appeal by declaring the appellant as a lawful owner of the 5 disputed land. He also urged this court to quash and set aside the Judgement and Decree of both tribunals. In reply, the first and second respondents’ confutation was strenuous. The respondents came out forcefully and defended both trial tribunals decision as sound and reasoned. Subsisting on the first and second grounds, they complained that appellant’s husband was not given a title of ownership. They added that there was no any signed agreement of the Vianzi Village. Thus, the claimed that the appellant’s late husband never signed any agreement with Vianzi Village Council. They were certain that the appellant’s husband did not met the conditions of ownership of the suit land contrary to section 22 of the Village Land Act Cap. 114. They claimed that the Village Council allocated bush land and they were required to develop their plots. Insisting, the respondents argued that they were declared lawful owner of the suit land. Submitting on the third ground, the respondents argued that the Vianzi Village allocated bused land which were not developed and thus Vikindu Ward Tribunal had jurisdiction to entertain the matter. In conclusion, they beckoned upon this court to dismiss the appeal with costs and uphold the decisions of both tribunals. 6 The 4th respondent combined the first, second, and fifth grounds and stated that the appellant was the one who alleged thus she had the burden to prove her case. He complained that the appellant at the trial tribunal did not prove that the disputed land was abandoned. To fortify his submission he cited the case of Barelia Karangirangi v Asteria Nyalwambwa, Civil Case No. 237, CAT at Mwanza (unreported). The fourth respondent went on to state that the appellant did not own the disputed land under customary right of occupancy thus it was his view that the notice stipulated under section 45 (4) of the Village Land Act, Cap. 114 [R.E 2019] is inapplicable. Regarding the issue of jurisdiction, the fourth respondent valiantly argued that the appellant did not avail any document to prove that the disputed land valued Tshs. 3,000,000/= which is the pecuniary jurisdiction of the Ward Tribunal. He added that this issue did not prove as the appellant only mentioned the acres of the suit land. To support his argumentation he cited the case of Sospeter Kahindi v Mbeshi Mashini, Civil Appeal No.56 of 2017. He went on to complain that the appellant did not raise the issue of jurisdiction at the trial tribunal therefore the same is an afterthought. He urged this court to disregard this ground of appeal. Fortifying his submission he cited the case of Maigu E.M Magenda v 7 Arbogast Maugo Magenda, Civil Appeal No. 218 of 2017 CAT (unreported). In conclusion, the fourth respondent beckoned upon this court to dismiss the appeal with costs. In her brief rejoinder, the appellant’s Advocate maintained his submission in chief. He insisted that the disputed land was not abandoned since the appellant build a small house and planted different crops. The learned counsel for the appellant claimed that the issue of jurisdiction can be raised at any stage. On the strength of the above argumentation, the appellant beckoned upon this court to allow the appeal, quash and set aside both tribunals decisions with costs. I have considered the rival arguments by the parties to this appeal. Before I start to determine the grounds of appeal, I called upon the parties to address the court on the point of law that the assessors' opinions were not recorded and the same were not read over to the parties. The learned counsel for the appellant submitted that the assessors' opinions are not reflected in the judgment. She added that failure to record and read the 8 assessors' opinion is fatal and the same vitiates the whole judgment of the tribunal. The respondent briefly submitted that the assessors were not given the opportunity to state their opinions. In addressing the point of law, whether the assessors' opinions were reflected in the tribunal proceedings. I will be guided by the Court of Appeal of Tanzania authorities. In the case of Mohsin v Taningra Contractor Land Appeal No. 133 of 2009 where the Chairman did not indicate what was opinioned, the judgment was null and void and in the case of Edina Adam Kibona v Absolom Swebe (Sheli), Civil Appeal No. 286 of 2017 it was held that:- "... the opinion of assessors must be given in writing and be reflected in the proceedings before a final verdict is issued”. Equally, the Court of Appeal of Tanzania in the case of Ameir Mbarak and Azania Bank Corp Ltd v Edgar Kahwili, (supra) held that:- “Therefore in our considered view, it is unsafe to assume the opinion of assessors which is not on the record by merely reading the acknowledgment of the Chairman in the judgment. In the circumstances, we are of a considered view that assessors did not give any opinion for consideration in the preparation of the 9 Tribunal's judgment and this was a serious irregularity." [Emphasis added]. Similarly, in the case of Tubone Mwambeta v Mbeya City Council, (supra) the Court of Appeal of Tanzania stated that:- “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 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 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 Page 4 of 6 or not such opinion has been considered by the Chairman in the final verdict." Applying the above authorities in the instant case, it is clear that the original record have not 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 view of the fact that the records do not show that the assessors were required to give their opinions, I fail to io understand how and at what stage assessors; one F. Mkullia and Mr. M. Katundu opinions found their way into the Tribunal’s judgment. The chairman ordered the parties to argue by way of written submission and then he proceeded to set a judgment date. Moreover, assessors' opinions cited by the Chairman in his judgment were not read in the presence of the parties before the judgment was composed, therefore, the same has no useful purpose. Under the circumstances, the judgment of the District Land and Housing Tribunal for Mkuranga in Land Appeal No. 43 of 2016 is found to be improper. Inspired by the incisive decisions quoted above, applying the same in the instant appeal, it is evident that a fundamental irregularity was committed by the tribunal Chairman. Thus, there is no proper judgment before this Court for it to entertain in appeal. I shall not consider the remaining grounds of appeal as the same shall academic exercise. I shall not consider the remaining two grounds of appeal as the same shall be an academic exercise after the findings I have made herein. Following the above findings and analysis, I invoke the provision of section 43 (1), (b) of the Land Dispute Courts Act, Cap. 216 which vests revisional powers to this court and proceed to revise the proceedings of li the District Land and Housing Tribunal for Mkuranga in Land Appeal No.43 of 2016 in the following manner:- (i) The proceedings in Land Appeal No.43 of 2016 and the orders made thereof are hereby quashed. (ii) I remit the case file to the District Land and Housing Tribunal for Mkuranga, before a different Chairperson and the same set of assessors. (iii) The Chairperson to compose a new Judgment within 6 months from today. (iv) No order as to costs. Order accordingly. this date 30th August, 2021. A.Z.MG^EKWA JUDGE 30.08.2021 Judgment delivered 30th August, 2021 via audio teleconference whereas Ms. Suzana Barnabas, learned counsel for the appellant and the first respondent were remotely present. 12 A.Z.MG KWA JUDGE 30.08.2021 13