Tindwa Medical & Health Service Ltd vs Cabla Investment Company Ltd and Another (Land Appeal No. 31476 of 2026) [2026] TZHC 2993 (5 June 2026)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DODOMA SUB REGISTRY AT DODOMA LAND APPEAL NO. 31476 OF 2026 (Originating from Dodoma District Land and Housing Tribunal in Land Application No. 69 of 2021) TINDWA MEDICAL & HEALTH SERVICE LTD ............................... APPELLANT VERSUS CABLA INVESTMENT COMPANY LTD.................................. 1 st RESPONDENT MOHAMED SALUM JUMA ................................................ 2 nd RESPONDENT JUDGMENT 29/04/2026 & 05/06/2026 MASABO, J.:- This appeal emanates from the judgment and decree of the District Land and Housing Tribunal for Dodoma at Dodoma in Application No. 69 of 2021 (herein to be referred to as the "trial tribunal"). In that application, the 1 st Respondent sued the appellant and the 2 nd respondent for a declaration that he lawfully owns the suit land identified as Plot Nos. 2 and 3 Block "R" Miyuji North, within the City of Dodoma (hereafter referred to as the suit land or suit plots). He alleged that the suit plot originally belonged to the second respondent, who was allocated the same by the Capital Development Authority ("the CDA") vide the letter of offer with Ref. No. CDA/ED/La-15/13076 & 13077. On 4 th June 2014, the 2 nd respondent sold the suit land to the 1 st respondent for a consideration of TZS 20,000,000/=. Upon completion of the sale transaction and execution of the deed of transfer, the first respondent started to process certificates of title in respect of the suit land. After paying all relevant fees, including land rent, she discovered that there was already a draft certificate of title issued in favour of the appellant. Thus, she instituted the suit in the trial Page 1 of 9

tribunal, suing the 2 nd respondent herein and the appellant as first and second respondents, respectively. The appellant ardently disputed and claimed that the suit land is hers. She claimed to have purchased the suit land from Livingstone Hezron on 4 th August 2016, who was allocated a draft certificate of title by the Dodoma Municipal Council dated 1 st June 1986. And, by way of counter claim, the appellant claimed against the respondent, a declaration that he owns the suit land, an order compelling the relevant authorities to proceed with issuance of certificate of title in her name and payment of TZS 200,000,000 being damages for the interference with his peaceful use of the suit land, and other costs incurred during the procurement of the draft certificate of tittle, survey and other disposition processes. Proving her case, the 1 st respondent paraded 3 witnesses. John William Kida (PW1), a shareholder of the 1 st respondent's company, narrated how the 1 st respondent acquired the suit land by purchasing it from the 2 nd respondent for a consideration of TZS 20,000,000/=. He also tendered several documentary evidence, including the sale agreement (Exhibit P2) between the 1 st and the 2 nd respondents, two letters of offer issued to the 2 nd respondent by the CDA in respect of a ground lease for the suit plots, along with receipts acknowledging payment of land rent by the 2 nd respondent, all admitted as Exhibits P6 and P7. The second witness, Baraka David Manyama (PW2), a Land officer at Dodoma City Council, recognised Exhibits P6 and P7 as valid documents from his office and acknowledged the 1 st respondent as the lawful owner of the suit plot, having owned the same from 2014 when he was granted letters of offer. Page 2 of 9

The third and last witness, Godfrey Sabatho Wasonga testified to having witnessed the land disposition agreement between the first and second respondent. The appellant had two witnesses. Her manager, Joseph Seleman Ng'hambi testified as DW1. He stated that the appellant purchased the suit land from Livingstone Hezron, who has been owning the suit land since 1 st June 1986, when he obtained a letter of offer from the CDA. The letter of offer was admitted as Exhibit DI, along with the land rent receipts admitted as Exhibit D2. Further, he tendered a land disposition agreement between the appellant and the said Livingstone Hezron (Exhibit D3) and a serial of documents, including the land transfer forms and receipts of capital gain paid to the Tanzania Revenue Authority. The second witness, Victoria Wilbrod (DW2) offered a corroboration. The 2 nd respondent defaulted appearance and, in consequences, the hearing proceeded ex parte him. The trial tribunal, having analysed this evidence, entered a judgment in the favour of the first respondent. It declared her the lawful owner of the suit plots. The appellant was ordered to enter vacant possession, condemned for the costs and permanently restrained from entering or doing anything in suit plots. Disgruntled, she has brought this appeal based on the following four grounds: - one, the trial tribunal erred in law and fact in deciding the case in favour of the 1 st respondent while disregarding heavier evidence of the appellant and exhibit DI which was issued in 1986 and illegally considered Page 3 of 9

exhibit D7 of 2014. Two, that the trial tribunal erred in deciding the case in favour of the 1 st respondent whose evidence was weak and did not manage to tender the sale agreement to prove its case. Three, the trial tribunal erred in deciding the case in favour of the 1 st respondent, while the allocating authority was a necessary party but was not joined to the suit. Four, that the trial tribunal erred in deciding the matter in favour of the 1 st respondent while the proceedings is tainted with procedural irregularities to wit: PW1 did not take oaths, the case proceeded with a single assessor in evidence of DW2 and only opinion of a single assessor was read. When the appeal came for hearing which proceeded by way of written submission, the appellant was represented by Mr. Ayub David Suday, learned advocate, while the 1 st respondent was represented by Mr. Robert Wilson, learned advocate. The 2 nd respondent did not enter appearance and the appeal proceeded ex parte him. I thank the counsels for their thorough submissions which I have duly considered alongside the trial tribunal's record. As I embark on determining the four grounds of appeal, I prefer to start with the fourth ground of appeal in which the trial tribunal's record is faulted for being marred by multiple fatal irregularities which vitiated the proceedings and the resultant judgment and decree. Expounding the irregularities, Mr. Suday abandoned the complaint that the PWl's evidence was unsworn. He concentrated on the noncompliance with the rules regulating the participation of assessors in trials before the districts land and housing tribunals. He submitted that at the commencement of Page 4 of 9

the trial, the trial tribunal was originally composed of the chairman and two duly appointed assessors, namely E.N. Kabohola and J. Magembe. Citing section 23(1) and (2) of the Land Disputes Courts Act [Cap. 216 R.E. 2023] and Regulation 19(2) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2003 G.N No. 174/2003, he submitted that these assessors were legally required to fully and actively participate in the trial and provide their written opinions before composition of the judgment by the trial chairman. He argued further that, the above provision is couched in mandatory terms and should therefore be complied with. To support this construction, he cited the case of Ledger Hotel and Resorts (plaza Bahari Beach) vs Zebediya W. Chikoya (Revision 270 of 2022) [2023] TZHCLD 1250 TANZLII. He submitted that in contravention of the mandatory legal requirement, when the trial tribunal was taking the evidence of DW2, it proceeded with a single assessor namely E.N. Kabohol. The second assessor namely J. Magembe was inexplicably absent. This was a fatal irregularity as held in Ally Amiri and Another vs Bilius Omary Kakai (Land Appeal No. 24286 of 2025) [2025] TZHC 7328 TANZLII. Also, on 16 th July 2025, the trial chairman ordered the assessors to submit their written opinion but the proceedings for 13 th October 2025 shows that only the opinion of one assessor, E.N. Kabohola, was read and recorded in the proceedings. This was similarly wrong as held in Elilumba Elezel vs John Jaja (Civil Appeal 30 of 2020) [2022] TZCA 232 TANZLII. Summing up on this point, Mr. Suday argued that the irregularities above were fatal and vitiated the proceedings. Page 5 of 9

In his rebuttal to this point, Mr. Wilson did not dispute the mandatory requirement of the law but submitted that both assessors actively participated in the trial. Regarding Jane Magembe, he submitted that this assessor actively participated throughout the hearing and the evidence was, therefore, recorded in her presence but she suddenly passed away shortly before the formal recording of the final opinions. The tribunal, in total compliance with sections 23(2) and (3) of the Land Disputes Courts Act and the authority in Azili Dalili vs Shakur Khalid (Civil Appeal No. 339 of 2020) [2023] TZCA 17943 TANZLII and Charles J.K. Temba & Others vs Calista J. Msaki (Civil Appeal No. 244 of 2022) [2024] TZCA 770 TANZLII, proceeded with the surviving assessor. Distinguishing the present case from Elilumba Elezel vs John Jaja (supra) Mr. Wilson argued that the circumstances of the present case are distinguishable as the original (hand written) proceedings shows that both assessors actively participated in the trial. Section 23(1) and (2) of the Land Disputes Courts Act, states that: "(1) The District Land and Housing Tribunal established under section 22 shall be composed of one 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 the judgment", [emphasis added] Page 6 of 9

And, regulation 19 (2) of the Land Disputes Counts (The District Land and Housing Tribunal) Regulations, 2003 provides thus: "Notwithstanding sub-regulation (1) the Chairman shall, before making his judgment, require every assessor present at the conclusion of the hearing to give his opinion in writing and the assessor may give his opinion in Kiswahili." As rightly submitted by Mr. Suday and admitted by Mr. Wilson, read conjointly, these provisions impose a mandatory requirement for fully participation of the assessors in trials conducted the district land and housing tribunals. The requirement being mandatory, must be strictly adhered to. The question for determination by this court, therefore, is whether there was noncompliance with this mandatory rule. Upon perusal of the handwritten and typed proceedings of the trial tribunal to ascertain what transpired, the following were noted, that, on 24/08/2023 when the evidence of Baraka David Manyama (PW2) was being taken, the trial tribunal did not sit with any of the assessors. And, when the testimony Victor Wilbord (DW2) was being taken on 24/06/2025, the trial tribunal sat with only one assessor namely E.N. Kabohola who fully participated and asked questions. On 16/07/2025, the assessors were both present and participated in hearing the testimony of DW3 after which the defence closed and the assessor were ordered to prepare written opinion. The matter was then adjourned to 4/8/2025. On that day only one assessor appeared and the matter was adjourned to 18/8/2025 and adjourned further to 10/9/2025 and further to 13/10/2025. Page 7 of 9

On that day only one assessor, E.N. Kabohola, read his opinion and it appears to have been filed. The record is conspicuously silent on the whereabouts of the second assessor. It does not show why this assessor was absent when the testimony of PW2 and DW2 were being record. It also does not show why the 2 nd assessor did not file and read her opinion on the rescheduled date. The explanation was belatedly provided in page 12 where it was stated that the second assessor, Jane Magembe passed away and as a result the tribunal proceeded with the surviving assessor. I entirely agree with Mr. Wilson that the demise of one of the assessors inevitably entitles the chairman to proceed with the surviving assessor. The argument aligns well with the position of the law as postulated under section 23(3) of the Land Dispute Courts Act, which provides that: "Notwithstanding the provisions of subsection (2) if in the course of any proceedings before the Tribunal, either or both members of the Tribunal who were present at the commencement of proceedings is or are absent, the Chairman and the remaining member, if any, may continue and conclude the proceedings notwithstanding such absence." Also see Azili Dalili vs Shakur Khalid (supra) and Charles J.K. Temba & Others vs Calista J. Msaki (supra). In the present case, the circumstances of the participation of the assessors as above narrated, do not support the application of the above Page 8 of 9

principle as the demise of the second assessor was not reflected in the proceedings hence unknown to the parties. Besides and even if I were to hold this as an curable anomaly, the proceedings cannot be saved by the above rule owing to the inexplicable inconsistencies of the appearance of the assessors throughout the trial. As alluded to earlier, there were instances where the chairman proceeded with the trial in the absence of both assessors. The classic example being on 24/08/2023 when the evidence of Baraka David Manyama (PW2) was being taken and on 24/06/2025 when Victor Wilbord (DW2) testified before the tribunal. In both dates, the chairman sat without assessors. This was a fatal anomaly and vitiated the proceedings as it offended mandatory legal provisions. The fourth ground of appeal is therefore with merit. As the finding above sufficiently disposes of the appeal, I see no need to proceed to the remaining grounds of appeal. Accordingly, I allow the appeal, quash and set aside the proceedings, judgment and decree of the trial tribunal. I further direct that the case file be remitted to the trial tribunal for a afresh trial compliant with the law. As the anomaly was wholly occasioned by the trial tribunal and the parties are still litigating for their rights, there will no costs. Let them be shared by each of the parties bearing its respective costs. DATED and DELIVERED at DODOMA, this 5 th day of June 2026. Page 9 of 9