IN THE COURT OF APPEAL OF TANZANIA

AT MWANZA

CIVIL APPEAL NO. 212 OF 2021

CORAM: MWANDAMBO. 3.A.. MASHAKA. J.A. And MDEMU. J.A.1)

MKAMA M AGESA...................................................... .......... ..........APPELLANT

VERSUS
RICHARD M CHELE............................ ........................................RESPONDENT
(Appeal from the decision of the High Court of Tanzania at Mwanza)

(Sumave. SRM Ext. Jurist

dated the 27th day of December, 2019

in

HC Land Appeal Case No. 22 of 2019

JUDGMENT OF THE COURT

15th & 23rdJuly, 2024

MASHAKA, J.A.:

The appellant, Mkama Magesa was aggrieved with the decision of

the Resident Magistrate's Court of Mwanza sitting at Mwanza in HC Land

Appeal Case No. 22 of 2019 which upheld the decision of the District Land

and Housing Tribunal of Geita at Geita (the DLHT) which declared the

respondent, Richard Mchele the lawful owner of the landed property

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situated at Plot No. 40, Block U, Bukala, Sengerema Urban area (the suit

property).

Briefly, on 4th September, 2014 Regina Francis Petro, wife of Henry

Exavery Mwambopo, the 1st and 2nd respondents respectively before the

DLHT sold the suit property to the applicant for consideration of TZS.

30,000,000.00. The terms of payment were in two instalments that is the

respondent will pay in cash TZS. 15,000,000.00 to Regina Francis Petro

and the remaining TZS 15,000,000.00 to be payable to Tanzania Postal

Bank where Henry Exavery Mwambopo had taken a loan. It was alleged

that, upon the completion of the payment of the loan, the transfer will be

made. The applicant (now the respondent) was handed with the

certificate of title waiting for the transfer of the same.

In 2015 while the 2nd respondent was still servicing the loan as

agreed, the 3rd respondent emerged and claimed ownership of the suit

property that it was sold to him by Henry Exavery Mwambopo. At that

stage, the appellant could not effectively complete transfer of the suit

property as Regina Francis Petro had registered a caveat to block any

transfer of the same. The matter was reported to the Police Force, in
which interrogation and investigation was conducted and at the end, the

1st and 2nd respondents were prosecuted for the offence of forgery as they

had in existence two certificates of occupancy for same plot. At the end,

Henry Exavery Mwambopo was convicted as charged.

The appellant instituted a suit before the DLHT claiming for,

declaration that there was a proper and lawful sale of the suit property

between him and Regina; and an order that Regina Francis Petro should

facilitate the official transfer of the suit property to the appellant among

others. During hearing before the DLHT, the 1st and 2nd respondents

admitted all the claims in their written statement of defence while Mkama

Magesa (3rd respondent) denied the allegations and averred that, there

was no sale agreement between the applicant and Regina Francis Petro

as she was not the lawful owner of the suit property and that Henry was

the owner. Likewise, the title deed which the applicant possessed was a

forged document.

At the hearing, the matter was presided over by A. M. Kapinga,

Chairman who recorded the testimonies of PW1, DW1 and DW2. While

the trial was in progress, complaints were made before the Minister

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responsible for Land which compelled the presiding Chairperson to recuse

himself from the conduct of the trial and E. Kitungulu, Chairman took over

and continued with hearing the testimonies of DW3 and DW4.

Thereafter, determined the application in favour of the applicant holding

that there was proper and lawful sale between him and Regina Francis

Petro. It was ordered further that Henry Exavery Mwambopo to facilitate

the official transfer of the suit property.

Dissatisfied, the appellant unsuccessfully preferred his first appeal to

the High Court at Mwanza which subsequently transferred it to Hon. G. K.

Sumaye, RM - extended jurisdiction before the Resident Magistrate's

Court at Mwanza.

The appellant is before us challenging the decision of the first

appellate court fronting the following paraphrased four grounds of appeal:

1. That, the 1st appellate court erred in law for

m isdirecting the evidence available in record
that there was an operative, enforceable and
law ful agreem ent for disposition o f Plot No. 40
Block U Bukara Sengerema between the 1st and
2nd respondents matters.
2 . That, the 1st appellate court erred in law for
Illegally relying on the agreem ent dated
8/12/2014, the valuation report dated
16.01.2014, and the issue o f taking loan from
the Equity Bank (T) Ltd which did not form part
o f the record; thus, relying on extraneous
evidence.
3. That, the 1st appellate court erred in law for not
finding that there were no reasons assigned by
E. Kitungulu, Chairman taking over from A.
Kapinga, Chairman on one hand, and not
addressing the party's rights to either proceed
with su it from the stage at which the
predecessor ended, on the other hand and the
assessors giving their opinion in absence o f the
parties to the suit at the same time.
4. That the first appellate court erred in law for
not finding that the chairperson's act o f
ordering the dosing o f the 1st respondent's
defence while preparing to disqualify herself
and regarding the 5th defence witness "Mr.
Edwin A io n "a s the court's while the same had
been proposed and summoned by the counsel
fo r the applicant

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 At the hearing of this appeal, Mr. Julius Mushobozi, learned counsel

appeared for the appellant whereas the respondent enjoyed the services

of Mr. Andrew Luhigo, learned advocate. In compliance with rule 106 (1)

of the Tanzania Court of Appeal Rules, 2009 (the Rules), the learned

counsel for the appellant had earlier on filed written submission in support

of the appeal, which he stood by and prayed to highlight on a few aspects

in oral submission.

Upon reflection, Mr. Mushobozi opted to amplify on ground three

only as it was based on the irregularity of the procedure before the DLHT.

He contended that, when hearing commenced as gleaned from page 145

of the record of appeal, it was presided over by A. M. Kapinga, the

Chairperson and two assessors; that is Salome and Mabula. He argued

that later, the successor; Chairman E. Kitungulu presided over with only

one assessor Mabula while assessor Salome is not reflected and no reason

was accounted for her non - participation. It was Mr. Mushobozi's

contention that when the matter was scheduled for judgment, it was

when the reason for non-attendance of one assessor was given to the

parties that she had retired. That was a fatal procedural irregularity as the

reason ought to be reflected in the proceedings, he submitted.

 In addition to that, he argued that, the opinion of the remaining

assessor was not reflected on the record although it was referred by the

Tribunal Chairman in the judgment. He urged that there was a fatal

irregularity vitiating the proceedings. He bolstered his argument with the

case of Sikuzani Saidi Magambo and Another v. Mohamed Roble,

Civil Appeal No. 197 of 2018 [2019] TZCA 322 (1 October 2019) TANZLII

in which the Court held that, the chairperson is obliged to invite the

assessors to air out their opinions and that opinion has to be reflected in

the record pursuant to regulation 19 (2) of the Land Disputes Courts (The

District Land and Housing Tribunal) Regulations, 2003 (the Regulations).

On the second part of ground three, Mr. Mushobozi argued that the

taking over of the successor Chairman Kitungulu was not proper as he did

not account the reasons for his taking over. In addition, he contended

that the predecessor Chairperson advanced reasons for his recusal and

stated that the suit was to proceed where it ended hence pre-empting the

successor Chairperson to decide according to the procedure. He therefore

prayed to the Court to allow the appeal due to the invalidity of the

proceedings and order the Tribunal Chairman to compose a fresh

judgment composing of the written opinion of the remaining assessor.

Also, each party to bear own costs.

Mr. Luhigo resisted the appeal and argued that, the ground raised

by the learned counsel for the appellant is a new ground which was not

canvassed before the first appellate court. However, on second thoughts,

he admitted that the same involves a point of law and is likely to affect

the parties who were not made party to this appeal and given an

opportunity to be heard. He further contended that, the assessors were

present throughout the hearing and assisted the Chairperson as required

by the law. However, he argued that the essence of the tribunal assessors

is to help the chairman in complex cases, unlike in the present appeal,

involving legal issues which did not require the assistance of the

assessors. In that regard, he maintained that, the proceedings were

properly conducted, and if there was any irregularity they were minor and

cannot vitiate the proceedings.

Regarding the recusal of the predecessor chairman, he argued that

there was no any fatality on the successor chairman's failure to account

for the reasons of his takeover, as they were already explained. He thus,

prayed the appeal to be dismissed with costs.

 In a short rejoinder, Mr. Mushobozi emphasized that, the

composition of a tribunal goes hand in hand with its jurisdiction. The laws

governing the procedure in a Tribunal is that the chairman will sit with the

assessors and involve them in the determination of the matter before it.

We have scanned the record of appeal and considered the

submissions for and against this appeal. The issues for our determination

relate to, one, whether the assessors gave out their opinion after the

closure of the hearing of both parties; and two, whether after the

successor Chairman took over the case did explain the reasons for his

take over.

The composition of the District Land and Housing Tribunal, is

governed by section 23 (1) and (2) of the Land Disputes Court Act, which

provides that:

"(1) The D istrict Land and Housing Tribunai

established under section 22 shaii be
composed o f one Chairman and not iess than
two assessors.
(2) The D istrict Land and Housing Tribunal shaii
be duly constituted when held by a Chairman
and two assessors who shaii be required to
 give out their opinion before the Chairman
reaches the Judgm ent"

According to the above provision, the Chairman aione does not

constitute a Tribunal. A duly constituted Tribunal is composed of a

chairman and a minimum of two assessors. Section 23 (1) and (2) of Cap

216 has been a subject of numerous decisions of the Court including;

Emmanuel Christopher Lukumai v. Juma Omari Mrisho (Civil

Appeal No. 21 of 2013) [2017] TZCA 404 (13 February 2017) TANZLII

and Sikuzani Saidi Magambo and Another v. Mohamed Roble

{supra).

In case of absence of one or more assessors, section 23 (1) of Cap

216 stipulates:

"Notwithstanding the provision o f sub-section (2), if in

the course o f any proceedings before the Tribunal
either or both members o f the Tribunai who were
present a t the commencement o f the proceedings is or
are absent) the Chairman and the rem aining member if
any may continue and conclude the proceedings
notwithstanding such absence."
In the light of the above provision, we are not in agreement with

Mr. Luhigo that the role of the Tribunal assessors is to assist the chairman
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in complex cases and not participate in the determination of cases

generally. The law does not set any criteria on which cases the Chairman

will sit with the assessors and which ones will not sit with them. In

addition, there is no provision under Cap 216 classifying complex cases to

require the extensive assistance of assessors. Therefore, his argument,

with due respect, is unfounded.

As for the second argument by Mr. Mushobozi, that the record

reflected only one assessor and the record does not contain the reason,

we find no merit in it as that is not a legal requirement. It is permissible

under section 23 (1) of Cap 216 that at least one of the assessors must

be among the assessors in attendance throughout the trial. The rationale

is to enable the assessor to make an informed opinion or rational opinion

of the matter before them. In the present case, there is no dispute that

when the trial began, the trial Tribunal was composed of A. M. Kapinga,

Chairperson and two assessors; Mr. Mabula Batiho and Ms. Salome as

correctly argued by Mr. Mushobozi. Later, the trial proceeded with only

one assessor, Mr. Mabula Batiho. In the light of the elaborated

provisions, that was not fatal, as the trial could, as it did proceed with

only one assessor.

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 Next for our consideration is on the opinion of the remaining

assessor referred to in the DLHT's decision. Mr. Mushobozi submitted

that, on 15th February, 2019 the hearing of the suit before the Tribunal

was concluded and a date of judgment reserved to 1st March, 2019. On

that date, the judgment was pronounced, containing the remaining

assessor's opinion which was not read out in the presence of the parties

before composing the judgment. He further contended that, regulation 19

(2) of the Regulations imposes a duty to the chairman to require each

assessor to present at the conclusion of the hearing his opinion in writing

before making his decision, failure of which renders the whole

proceedings a nullity. He bolstered his position with the case of Dora

Twisa Mwakikosa v. Anamary Twisa Mwakikosa (Civil Appeal 129 of

2019) [2020] TZCA 1874 (25 November 2020) TANZLII.

Considering the submissions in the light of the proceedings on

record, it is dear that there was non-compliance with section 23 (2) of

Cap 216 and regulation 19 (2) of the Regulations. The law requires the

Chairman to sit with assessors, and comply conjunctively with the four

conditions; one, that the assessors must actively participate in the

proceedings; two, at the end of the hearing, each of the assessors is

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required to file a written opinion; three, the written opinion so filed must

be read over to parties before the judgment is composed; and four, the

written opinions must be part of the record. See: Elibariki Malley v.

Salimu H. Karata, Civil Appeal 67 of 2022 [2023] TZCA 226 (3 May

2023) TANZLII.

Upon our perusal, we have no flicker of doubt that the remaining

assessor was not asked to give his opinion in writing before scheduling of

the judgment date. Neither was a date set for the assessor's opinion to be

read over to parties. There was no proof that the assessor's opinion was

read over to the parties as required by the law. All the same, the trial

Tribunal Chairman referred to the purported opinion at page 224 of the

record of appeal. These irregularities were fundamental to his decision.

In Sikuzani Saidi Magambo and Another v. Mohamed Roble

(supra) which was referred to us by Mr. Mushobozi, we held that:

"On the strength o f our previous decisions cited above,

we are satisfied that the pointed om issions and
irreguiarities amounted to a fundam entai procedural
error that have occasioned a m iscarriage o f justice to
the parties and had vitiated the proceedings and entire
 tria l before the Tribunal, as w ell as those o f the first
appellate co u rt"

See also: Zubeda Hussein Kayagali v. Oliva Gaston Luvakule

and Another, Civil Appeal 312 of 2017 [2021] TZCA 162 (3 May 2021)

TANZLII. The effect is that the proceedings were vitiated.

On the propriety of the taking over of the successor Chairman, it is

the submission of the learned counsel for the appellant that, when the

successor Chairman on 29th August, 2018 after the recusai of the

predecessor Chairman he proceeded from where the predecessor left but

did not inform the parties of their rights whether to start afresh or

continue with the hearing, hence, that was contrary to the dictates of

Order XVIII rule 10 (1) of the Civil Procedure Code, Cap 33 R.E 2019.

With respect, we find no merit in Mr. Mushobozi's complaint having been

satisfied that the takeover was sufficiently explained.

In the light of the above, this appeal has merit to the extent

explained in the second limb of ground 3. In view of the irregularity in

relation to the assessor, we quash and set aside the judgment of the

Tribunal, the proceedings and judgment of the first appellate court. Going

forward, we direct that the record of the DLHT be remitted expeditiously

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 with a view to composition of a judgment afresh upon the remaining

assessor filing his written opinion to be read to the parties in accordance

with the law.

No order as to costs.

DATED at MWANZA this 19th day of July, 2024.

L. J. S. MWANDAMBO
JUSTICE OF APPEAL

L. L. MASHAKA
JUSTICE OF APPEAL

G. J. MDEMU
JUSTICE OF APPEAL
Judgment delivered this 23rd day of July, 2024 in the presence of

Mr. Adrew Luhigo, learned counsel for the Appellant and Mr. Kasimu Gilla,

learned counsel for the Respondent both via video conference from High

Court at Mwanza, is hereby certified as a true copy of the original.

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