Mbarak and Another v Kahwili (Civil Appeal No. 154 of 2015) [2016] TZCA 154; (27 July 2016)

IN THE COURT OF APPEAL OF TANZANIA

AT IRINGA

(CORAM: MJASIRI,J.A.,JUMA, J.A., And MUGASHA, J.A.)

CIVIL APPEAL NO. 154 OF 2015

1. AMEIR MBARAK

2. AZANIA BANK CORP LTD ......................................APPELLANTS

VERSUS

EDGAR KAHWILI .......................................................RESPONDENT

(Appeal from the Ruling of the High Court of Tanzania at Iringa)

(Mkuye, J.)

Dated the 28th day of May, 2012

in

Civil Application No. 1 of 2012

JUDGMENT OF THE COURT

26th & 29th July, 2016

MUGASHA, J.A.:

In the District Land and Housing Tribunal of Iringa (the Tribunal), EDGAR KAHWILI the respondent, instituted a land dispute against AMEIR MBARAK and AZANIA BANCORP, the 1st and 2nd appellants respectively and MFIMA AUCTION MART & GENERAL TRADE LTD (the auctioneer) who is not a party in this appeal.

Brief facts constituting the claim were to the effect that, the auctioneer who was the agent of the 2nd appellant conducted a public auction of a House at Plot 85, Zone II held under the Certificate of Title No 215002138 located in Gangilonga Area within the Municipality of Iringa. The said house belonged to one Thomas Kolimba who defaulted to pay the loan acquired from the 2nd appellant. The respondent who did bid at a sum of Tshs. 2,600, 000/ =, was declared a successful bidder. He paid the said sum to the auctioneer and demanded to be given the respective Certificate of Title. However, he was informed that, the suit premises had fetched a low price and the auctioneer was directed by 2nd appellant not to hand over the suit premises to the respondent.

Subsequently, on 9/6/2004 the house was re-auctioned and re-sold to the 1st appellant. The respondent was not happy and as earlier .stated he instituted a claim in the Tribunal which was decided in his favour as he was declared as a successful bidder of the suit premises. Dissatisfied, the appellants unsuccessfully appealed to the High Court where, initially the appeal was dismissed because it was time barred. Upon the appellants seeking extension of time to have the appeal re-filed, the appeal was struck out.

Aggrieved, the appellants have lodged the present appeal. In the Memorandum of Appeal, they have raised two grounds of appeal basically challenging the dismissal of the application for extension of time to refile the appeal in the High Court.

When the appeal was called on for hearing, the appellants were represented by Mr. Bernard Shirima learned counsel whereas Mr. Justinian Mushokorwa represented the respondent. The Court suo motu required parties to address it on the propriety of the trial whereby, the assessors were changed in between the trial and the opinion of assessors is lacking.

Mr. Shirima learned counsel submitted that, section 23 of the Land Disputes Courts Act [CAP 216 RE. 2002], requires the assessors to be involved throughout the conduct of the trial and to give their opinion before reachin·g the final Judgment. He argued that, in the present matter, the opinion of the assessors is not reflected on the record and worse still, each of the two sets of assessors were in attendance at different stages of the trial. In this regard, Mr. Shirima argued that, the omission vitiated the trial and the only remedy is to nullify the proceedings and the judgments of both the trial Tribunal and the High Court and whoever so wishes may recommence the case afresh.

On the other hand, Mr. Mushokorwa challenged the submission by the appellant's counsel. He submitted that, since the chairman acknowledges to have agreed with view of the assessors, their involvement can as such, be assumed because the law does not require the assessors' opinion to be on the record save where the Chairman does not follow their opinion. He was of the view that, the Chairman could as well proceed with the trial without any assessor which makes the change of assessors not fatal because the omission if any, is curable under section 45 of the Land Disputes Courts Act (supra). As such, Mr. Mushokorwa urged the Court to ignore the initial set of assessors and consider the trial to have been properly conducted involving the subsequent set of new assessors. In the alternative, he argued, instead of nullifying the decision of the Tribunal, assessors can still be requested to give their opinion.

In his brief rejoinder, Mr. Shirima, learned counsel submitted that, the omission is not curable under section 45 of the Land Disputes Courts Act (supra). He so argued because the Chairman is not permitted to change assessors as he wishes and besides, opinion of assessors is also lacking. He added that, it is absurd at this stage to seek for the opinion of assessors.

The issue for our determination is the propriety of the trial which was a subject of appeal before the High Court and before the Court.

The composition of the Tribunal is stated under section 23 (1) and (2) of the Land Disputes Courts Act (supra) which provides:

"(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 supplied].

The underlined expression significantly shows that, a duly constituted Tribunal is that which is composed by the Chairman and a minimum of two assessors. The Chairman alone does not constitute the Tribunal. The involvement of assessors as required under the law also gives them mandate to give opinion before the Chairman composes the decision of the Tribunal. In case of absence of the assessors, the law gives following direction as specified under section 23(3) of the Land Disputes Courts Act [CAP 216 RE.2002] which states:

"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 Of any) may continue and conclude the proceedings notwithstanding such absence'

[Emphasis supplied].

The cited provision clearly indicates that, at least one of the assessors must be among the assessors who must be in attendance throughout the trial so as to enable the assessors to make an informed and rational opinion. The consequences of unclear involvement of assessors in the trial renders such trial a nullity. (SEE AWINIEL MTUI AND 3 OTHERS vs STANLEY EPHATA KIMAMBO AND ANOTHER, CIVIL APPEAL NO. 97 OF 2015 AND SAMSON NJARAI AND ANOTHER VS JACOB MESOVIRO, and CIVIL APPEAL NO. 98 OF 2015 (all unreported).

Moreover, the consequences of allowing the assessor to avail opinion while he has not heard all the evidence were articulated in JOSEPH KABUL vs REGINAM [1954-55[EACA Vol. XXI-2 where the Court said:

"Where an assessor who has not heard all the evidence is allowed to give an opinion on the case, the trial is a nullity'

In the present matter, the judgment of the Tribunal at pg 84 of the record of appeal reflects as follows:

"For those reasons therefore, I agree with the wise assessors that, legally, the first auction had already been completed and the first respondent was bound to sell the suit premises to the applicant'

The judgment was signed by two assessors namely: Paulina Tagalile and Joseph Vahaye. Mr. Mushokorwa argued that, it is not necessary for the record to reflect the opinion of assessors since they did not differ with the Chairman. However, on record the opinion of the assessors is missing.

In this regard we are not in agreement with Mr. Mushokorwa, because the law mandatorily require assessors to give their opinion which in our view must be on record so as to ascertain if the Chairman did consider such opinion in preparing the Judgment. Besides, where the Chairman differs with the opinion of the assessors he must record reasons. Therefore in our considered view, it is unsafe to assume the opinion of the assessor which is not on the record by merely reading the acknowledgement 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 Tribunal's judgment and this was a serious irregularity.

Another irregularity which is apparent on the record is the change of assessors which offends section 23 (3) of the Land Dispute Courts Act (supra) which does not envisage a complete change of all assessors who were in attendance at the commencement of the trial. However, at the trial the following transpired:

When the trial commenced on 25/8/2005, from pg. 28 to 47 the present assessors were P. Tagalile and J. Vahaye. On 30/5/2006 the assessor present were M. Magohagasenga and A. Mgulunde. On 15/8/2006, at the hearing of the defence case, none of the assessors was present. Subsequently, on 6/9/2009 Judgment was pronounced and it was also signed by Tagalile and Vahaye the assessors who were present at the beginning of the trial.

Since neither of the two sets of assessors were involved throughout the entire trial, the trial was not conducted by a duly constituted Tribunal as required by section 23 (1) and (2) of the Land Disputes Courts Act (supra).

We have carefully considered if the omission is curable as suggested by Mr. Mushokorwa under section 45 of the Land Disputes Courts Act which provides:

"No decision or order of a Ward Tribunal or District Land and Housing Tribunal shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the proceedings before or during the hearing or in such decision or order or on account of the improper admission or reje ction of any evidence unless such error, omission or irregularity or improper admission or rejection of evidence has in fact occasioned a failure of justice."

With respect, we are not in agreement with Mr. Mushokorwa because the omission goes to the root of the matter and it occasioned a failure of justice and there was no fair trial. We say so because the law was contravened as the Tribunal was not properly constituted which cannot be validated by the Chairman as he alone does not constitute a Tribunal. Moreover, the lack of the opinion of assessors rendered the decision a nullity and it cannot be resuscitated by seeking fresh opinion of assessors as suggested by Mr. Mushokorwa.

In view of the aforesaid incurable irregularities, the trial was vitiated. As to the way forward, we accordingly exercise our revision power under section 4(3) of the Appellate Jurisdiction Act [CAP 141 RE, 20021. We hereby nullify proceedings and judgments of the Tribunal and the High Court in Land Appeal Case No 16 of 2010 and the proceedings and Ruling in Misc Civil Application No 1 of 2012 because they all stemmed from a nullity. If any of the parties so wish, he/she may recommence the action in the court of competent jurisdiction subject to the law of limitation. We make no order as to costs since the anomaly was raised suo motu by the Court.