IN THE COURT OF APPEAL OF TANZANIA

AT MUSOMA

(CORAM: LILA. 3.A.. KENTE, J.A.. And MGONYA. J.A.)

CIVIL APPEAL NO. 158 OF 2022

WAMBURA MWIKWABE........................................................... APPELLANT
VERSUS
JUMA NYAMHANGA.................................... ..........................RESPONDENT

(Appeal from the decision of the High Court of Tanzania,

at Musoma)
(Kisanva, J.)

dated the 17th day of May, 2021

in

Land Appeal No. 68 of 2020

JUDGMENT OF THE COURT

8th & 15th July, 2024

MGONYA, 3.A.:

This is a second appeal originating from the District Land and

Housing Tribunal (the DLHT) for Mara at Musoma in the Land Application

No. 204 of 2018, where the respondent instituted a land dispute against

the appellant. Among other reliefs, the respondent sought to be declared

a lawful owner of land situated at Mesaga village within Serengeti District.

It was the respondent's allegations that, in August, 2018 the appellant

trespassed into the disputed land and built a house thereon.

 Before the DLHT, the respondent's case was to the effect that, he

acquired the suit land by clearing a virgin land in 2000, and built a house

thereon. One witness was summoned to substantiate his case. On the

other side, the appellant herein before the DLHT, testified that, he legally

owned the suit land from 2012. As to how he acquired the same, he told

the DLHT that, he was haunted with a dream that the suit land belonged

to his grandparents. Three witnesses were summoned to support the

appellant who all testified to the effect that, the appellant acquired the

suit land by clearing a virgin land in 2012.

Upon hearing of the parties, the DLHT was satisfied that the

respondent proved his case on the balance of probabilities, hence the

judgment was entered in his favour and he was declared the lawful owner

of the suit land. The appellant was condemned to pay costs.

Being aggrieved, the appellant unsuccessfully preferred an appeal

before the High Court of Tanzania at Musoma vide Land Appeal No. 68 of

2020 (Kisanya, J.). Among other complaints, the appellant faulted the

High Court decision to uphold the DLHT's decision while the assessors'

opinions were not read out in the presence of the parties; and that the
learned trial Chairman failed to evaluate the evidence adduced by the

appellant and his witnesses.

The first appellate court, having scrutinized the record, found that,

the opinions of two assessors were read out in the presence of the parties.

Further, the court found that, the appellant's evidence was not sufficient

to disprove the respondent's evidence. Consequently, the court upheld

the trial tribunal's decision and the appeal was dismissed in its entirety

with costs.

Still aggrieved by the decision of the High Court, this appeal has

been preferred. The appellant's Memorandum of Appeal challenging the

first appellate court's decision, contained four grounds of complaint as

follows:

1. That the High Court erred in iaw and fact by not ruling in favour
o f the appellant despite of the variance between the pleadings
and the evidence;
2. That the first appellate court erred in iaw by failure to rule out
that the trial tribunal erred in law by failure to involve the
assessors on trial as required by iaw;
3. That the trial court had no jurisdiction to entertain the dispute
before it\ and
 4. That the whole decision was against the iaw and evidence on
record.

When the appeal was placed for hearing before us, the appellant

who was present in person had the services of Mr. Masoud Mwanaupanga,

learned counsel, whereas, the respondent who also appeared in person,

enjoyed the services of Mr. Daud John Mahemba, learned counsel.

When invited to submit in support of the appeal, Mr. Mwanaupanga

successfully prayed to argue only the 2nd ground of appeal and abandoned

the rest.

Arguing on that ground; initially Mr. Mwanaupanga submitted that,

there was no opinions of the assessors and the same were not read out

before the parties contrary to section 23 (2) of the Land Disputes Courts

Act (herein to be referred as Cap. 216) and Regulation 19 (2) of the Land

Disputes Courts (The District Land and Housing Tribunal) Regulations,

2003 (the Regulations), respectively. However, being availed with the

original file which, contained the assessors' opinions which, according to

the record, were read out in the presence of the parties, the learned

counsel departed from his earlier complaint and came up with a fresh

grievance. The same was to the effect that, although in pages 39 and 43

of the record, it is indicated that the assessors' opinions were read over
in the presence of both parties, the same are not reflected in the

judgement To reinforce his submission, the case of Zubeda Hussein

Tayagali v. Oliver Gaston Lovakule & Another, Civil Appeal No. 312

of 2017 and Edina Adam Kibona v. Absolom Swebe, Civil Appeal No.

286 of 2017 (both unreported) where this Court discussed at length the

applicability of section 23 (2) of Cap. 216 and its Regulation 19 (2), were

relied on.

Mr. Mwanaupanga without citing any legal provision to support his

assertion, contended that, failure to incorporate the opinions of the

assessors in the judgment is a fatal irregularity, which vitiates the

proceedings as well as the decision of the trial tribunal, as the said legal

shortcoming goes to the root of the case and cannot be cured.

In reply, Mr. Mahemba submitted that, this ground was also among

the grounds of complaint which were unsuccessfully raised and

determined by the High Court. He went further to submit that; the

assessors' opinions were duly read out before the tribunal in the presence

of both parties. It was Mr. Mahemba's argument that, the case of Edina

Adam Kibona (supra) referred by Mr. Mwanaupanga insists the opinion

of the assessors to be in writing and they have to be read out before the
parties and finally form part of the tribunal's proceedings. He further

contended that, unlike the witnesses' testimonies, reproduction of the

assessors' opinions in the judgment is not the requirement of the law. It

was Mr. Mahemba's stance that, section 23 (2) of Cap. 216 and Regulation

19(2) of the Regulations were adhered to. Hence, he prayed the Court to

dismiss this appeal with costs.

In his rejoinder, Mr. Mwanaupanga reiterated what he had

submitted earlier in his submission in chief.

Having thoroughly gone through the submissions by the counsel

from both parties, the main issue for determination is whether the

appellant's sole ground of complaint has merit.

Essentially, both counsel in this appeal are at one that, it is the legal

requirement that the DLHT shall be constituted when held by a Chairman

and not less than two assessors. They further agreed that, the role of the

assessors is to give out their opinions prior to the Chairman composing a

judgment. The only taxing issue is whether the assessors' opinions must

be reproduced in the judgment.

As rightly submitted by Mr. Mwanaupanga, involvement of assessors

in the DLHT's proceedings is a mandatory legal requirement provided

6
under section 23 and 24 of Cap. 216 and regulation 19 (1) and (2) of the

Regulations. Sections 23 and 24 of Cap. 216 provides thus:

"23. - (1) The District Land and Housing Tribunal

established under section 22 shall be composed o f
at least a 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.
(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.
24. In reaching decisions, the Chairman shall take into
account the opinion o f the assessors but shall not
be bound by it, except that the Chairman shall in
the judgment give reasons for differing with such
opinion."
 From the wordings of the provisions above, we have underscored

that; one, the assessors must give their opinions before the Chairman

reaches the judgment and he is legally bound to take into account the

opinions of the assessors in the judgment. Two, the Chairman is required

to assign reasons for departure in case he departs from the assessors'

opinions.

From the wording of the above provisions, we find the choice of

words used are quite clear and there is nowhere where it is provided that

the assessors' opinions should be reproduced in the judgment. Therefore,

being guided by the provisions of the law regarding the role of the

assessors in the DLHT, we find the argument by Mr. Mwanaupanga that

the assessors' opinions were supposed to be reproduced in the

judgement, is both not supported by the law and misconceived.

In the instant appeal, it is undisputed that, the Chairman throughout

the hearing before the tribunal sat with two assessors, namely, Mr. Babere

and Mr. Swagarya. Also, it is revealed at page 39 of the record of this

appeal that on 17/07/2020, the assessors' opinions were read over in the

presence of both parties. More so, it is on record at page 43 of the record

of appeal that, the Chairman took into account the assessors' opinions
and expressly declared that he concurred with their opinions. Therefore,

we find no reason to fault the High Court Judge in his decision that the

assessors were fully involved in accordance with the law.

Premising our position on the above findings, we find no merit in

the appellant's appeal, henceforth we dismiss it with costs.

DATED at MUSOMA this 13thday of July, 2024.

S. A. LILA
JUSTICE OF APPEAL

P. M. KENTE
JUSTICE OF APPEAL

L. E. MGONYA
JUSTICE OF APPEAL

The Judgment delivered this 15th day of July, 2024 in the presence

of Mr. Leonard Elias Magwayega learned counsel holding brief for Mr.

Daud Mahemba for the Respondent, and is absence of the Appellant, is

hereby certified as a true copy of the original.