Charles J.K. Temba & Others vs Calista J. Msaki (Civil Appeal No. 244 of 2022) [2024] TZCA 770 (20 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI f CO RAM: 3UMA. C.3., LEVIRA, 3.A. And ISMAIL, J.A/1 CIVIL APPEAL NO. 244 OF 2022 CHARLES J.K. TEMBA 1 st APPELLANT PAULIN P. MASAWE 2N DAPPELLANT STEVEN A. CHAMI 3 rd APPELLANT VERSUS CALISTA J. MSAKI RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Moshi) JUDGMENT OF THE COURT 13th & 20thAugust, 2024 ISMAIL. J.A.: The appellants in this case are successive losers in a dispute over a piece of land located at Mijongweni Village, Kahe Ward in Moshi Rural District, within Kilimanjaro Region. The piece of land (the disputed land) belonged to Kalama Kibanga Temba (the deceased) who died in 2014, (deceased) and was the 1s t appellant's father. The record of appeal informs that in 2012, the deceased sold the disputed land to the respondent for a (Mwenempazi. 3.Y dated 17th day of November, 2020 in Land Appeal No. 17 of 2019 l

consideration of TZS. 8,000,000.00 The sale was witnessed by Gasper Mwanga, PW2, and Constancia Mosha, PW4. A sale agreement, exhibit PI, was prepared and executed by the parties to the said disposition. PW2, PW4 and Ms. Amina Michael Mushi, the then hamlet chairperson who featured in trial proceedings as PW3, appended their signatures on the agreement as witnesses to the said disposition. Constantine Temba, the deceased's son and Marieta Kibanga, the deceased's wife, were also present to witness the sale. It is gathered that, no sooner had the deceased passed on than the dispute over ownership arose, pitting the appellants against the respondent. The appellants set their feet into the disputed land, claiming ownership thereof and denouncing the sale agreement that the deceased and the respondent executed. At some point, in 2014, part of the disputed land was hived off and sold to a certain Ms. Delvina Monji. The 1s t appellant contended that he was an administrator of his late father's estate and that the disputed land was considered to be part of the said estate as the alleged sale did not involve any of the family members. However, no letters of administration were tendered in that respect. When the dispute was referred to the village authority it was resolved that the appellants should be given vacant possession of the disputed land much to the respondent's chagrin. Feeling hard done by the decision, the

respondent instituted Land Application No, 20 of 2016, praying for assorted orders, one of which was a declaration that the disputed land lawfully belongs to her. This prayer was acceded to by the District Land and Housing Tribunal (DLHT) for Moshi at Moshi. The respondent was declared the lawful owner of the disputed land. The DLHT's decision rattled the appellants, hence their decision to institute an appeal to the High Court, vide Land Appeal No. 17 of 2019. Their attempt fell through when the High Court dismissed the appeal for want of merit and upheld the decision of the DHLT. The decision on the first appeal was a bitter pill to swallow. It followed that an appeal was launched by the appellants, raising two grounds of appeal. One of the two grounds was abandoned in the course of the hearing of the appeal, narrowing the focus to only one ground of appeal. The remaining ground of appeal reads as follows:

1. That the first appellate court erred in iaw and fact by not considering illegalities in the proceedings in Land Application No, 20 of 2016 which were conducted in the absence o f the assessors. It is noteworthy that, prior to the hearing of the appeal, the counsel for the parties preferred written submissions, consistent with rule 106 of the Court of Appeal Rules, 2009.

At the hearing of the appeal, the appellants were represented by Mr. Gabriel Shayo, learned counsel, whereas the respondent enjoyed the services of Mr. Martin Kilasara, learned advocate. Mr. Shayo began his onslaught by taking us to page 9 of the record of appeal at which the predecessor chairperson, G. Kagaruki, heard the matter With the aid of assessors, Present on the day were, J. Mmasi and T. Temu who, together with the chairperson, took the evidence of PW1 and PW2. Mr. Shayo contended that subsequent thereto, the said chairperson left the duty station and that the matter was taken over by T.J. Wagine, the successor chairperson who proceeded with the matter to the end, without the involvement of the assessors, who he understands were available but not invited. Mr. Shayo further submitted that even the impugned judgment was composed and delivered without involvement of the assessors. In none of the situations did the successor chairperson assign reasons for proceeding in the exclusion of the assessors, he argued. The learned counsel contended that the DLHT's conduct was an infraction of section 23 (1) and (2) of the Land Disputes Courts Act, Cap. 216 (the Act) which guides on the composition of the DLHT and involvement of the assessors in the conduct of proceedings. Regarding the consequence of the alleged infraction, Mr. Shayo invited us to order a nullification of the proceedings of the DLHT and the High Court,

and order a retrial. He argued that his position stems from our previous decision in Sikuzani Saidi Magambo & Another v. Mohamed Roble, Civil Appeal No. 197 of 2018 [2019] TZCA 322 (1 October 2019, TANZLII). In rebuttal, Mr. Kilasara strongly opposed the contention held by his counterpart. He argued that the assessors were involved by the predecessor chairperson and that such involvement was consistent with section 23 of the Act. Referring us to page 21 of the record of appeal, the learned counsel submitted that the successor chairperson recorded the reasons for choosing to proceed without the assessors. This, he argued, is found at pages 25 and 73 of the record of appeal. In his contention, this was quite in order and consistent with section 23 (3) of the Act. Mr. Kilasara further argued that the assessors were not reinstated at any stage of the proceedings and that there was no order seeking their opinion, The learned counsel was of the contention that the provisions of section 23 of the Act were duly complied with. Drawing a distinction between the instant matter and the decision in Sikuzani Magambo (supra), Mr. Kilasara argued that the latter is distinguishable because, unlike in the instant matter where involvement of the assessors was truncated, in the cited case the assessors were present to the end but their views were neither solicited nor given, yet the chairperson factored in the assessors' opinion amidst a mystery on how such opinion

reached him. The learned counsel implored us to find that this appeal is unmeritorious and dismiss it with costs. In his brief rejoinder, Mr. Shayo was insistent that the law was flouted when the DLHT dispensed with the requirement of sitting with assessors. He argued that the chairperson had the option of sitting with a new set of assessors. He maintained that this was a violation with a fatal effect. We have scrupulously reviewed the record of appeal and the counsel's brief but splendid submissions. In our view, the narrow issue for our consideration is whether the law was violated when the DLHT proceeded without the aid of the assessors after the successor chairperson's takeover of the matter. As Mr. Shayo correctly alluded to, section 23 (1) and (2) imposes a requirement for trial proceedings in the DLHT to be conducted with the aid of assessors. This imperative requirement is what defines the composition of the DLHT and the culmination of all this is the giving and consideration of the opinion of the said assessors. True, as well, is the fact that, at the commencement of the proceedings, the assessors sat with the predecessor chairperson, and it is during that time that the two witnesses testified. Their participation was dispensed with by the successor chairperson who, in so doing, he stated as follows:

"'Order: Assessors who heard this matter Teddy Temu and Julia Mmasi are absent today but since the matter was heard for the first time and today are absent, I hereby proceed in their absence vide section 23 (3) o f Cap 216 R.E. 2002." Mr. Kilasala found nothing flawed in the DLHT's decision, arguing that this is a permissible conduct under section 23 (3) of the Act. To be able to make sense of the parties' contending positions, it behooves us to reproduce the substance of section 23 (3) of the Act. It states as follows: "(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/% Emphasis is added] Our reading and interpretation of this provision brings the impression to us that, the chairperson of the DLHT is permitted to proceed with the hearing and conclusion of the proceedings in the DLHT where, in the course of the hearing, one or both assessors who were present at the commencement of the proceedings is absent. Thus, while the provisions of sub-sections (1) and (2) require that proceedings must commence in the presence of the assessors, we venture to think that the law envisioned that 7

there may be situations where, owing to myriad of reasons, one or both of the assessors may be unable to field an attendance and participate in the said proceedings. Such possibility is what has been taken care of by sub section (3). We are in agreement with Mr. Kilasara that the chairperson of the DLHT operated within the confines of the law when he proceeded with the hearing which commenced with the aid of the assessors but, for some reasons, the said assessors could not see out their tenure in the matter. Mr. Shayo has urged us to stick to the position that we pronounced ourselves on in Sikuzani Saidi Magambo (supra) and fault the trial proceedings. With profound respect to the learned counsel, we decline that invitation as we find the reasoning in the said decision was bred out of starkly a different set of facts that make it distinguishable. Unlike in this case where participation of assessors came to a halt midway through the trial proceedings, in Sikuzani Said Magambo (supra), the assessors took part in the entirety of the proceedings but their views were neither solicited nor given, but the trial chairperson purported to factor them in the impugned decision. This is what led to our decision to consider the decision as a travesty of justice. The same cannot be said to be the ease in the instant matter. 8

In sum, we find nothing blemished in the conduct of the DLHT and the finding of the High Court on this aspect. We, in consequence, hold that this appeal is devoid of any merit. Accordingly, we dismiss it with costs. DATED at MOSHI this 19th day of August, 2024. I. H. JUMA CHIEF JUSTICE M. C. LEVIRA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 20th day of August, 2024 in the presence of Mr. Emmanuel Shayo, learned Counsel holding brief for Mr. Gabriel Shayo, learned Counsel for the Appellants and Mr. Martin Kilasara, learned Counsel for the Respondent is hereby certified as a true copy of the original. COURT OF APPEAL D. F 10 DEPUTY REGISTRAR 9