Salvatory Sebastian (Administrator of the Estates of the late Leonidas Gregory Binamungu ) v. Eliki Muganyizi (Misc Land Appeal N0. 17 of 2023) [2023] TZHC 20284 (18 August 2023)

SALVATORY SEBASTIAN suing as the administrator of the estates of LEONIDAS BINAMUNGU V. ERICK MUGANYIZI

FACTS

The appellant one, Leonidas Binamungu was sued by the respondent Elick Muganyizi in the Nyakato ward tribunal for trespassing into his Land, putting a trench and planting trees the case was heard and decided in favour of the respondent. The appellant being dissatisfied by the decision of the ward tribunal he appalled to the Land and Housing tribunal for Kagera at Bukoba in the appeal No 04 of 2020, the appeal was devoid by merits and was dismissed with costs.

Aggrieved by the decision of the decision of the Land and Housing Tribunal for Kagera at Bukoba the appellant has appealed to this court,

ISSUES;

1. Whether the judgement from the District Land and Housing tribunal was delivered without assessor’s opinions?

According to the records from the ward tribunal on 20.07.2020 the tribunal fixed the date for assessors opinion to be on 25.06.2020, On 20.07.2020 the parties never appeared without any notice as the result the chairman fixed judgement date, this is an illegality which makes the proceeding a nullity.

1. See section 24 of the Land Disputes Courts Act Cap 216 re 2019

2. Section 23 (1) and (2) of the Land Disputes Courts Act Cap 216 RE 2019

3. Regulation 19 (2) of the Land Disputes Courts Act (the District Land and Housing Tribunals Regulations 2003

Ameir Mbarak and Azania Bank Corp Ltd v. Edger Kahwili, Civil Appeal No. 154 of 2015 unreported started that;

"Therefore, in our own 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.’’

Also CAT at Mbeya (unreported). The Court of Appeal of Tanzania reiterated the above stance of the law that:

"Such opinion must be availed in the presence of the parties so as to enable them to know the nature of the opinion and whether or not such opinion has been considered by the chairman in the final verdict." The Court of Appeal further stated that: "...the involvement of assessors is crucial in the adjudication of land disputes because apart from constituting the tribunal, it embraces giving their opinions before the determination of the dispute. As such, their opinion must be on record, "(emphasis added).

2. Whether Salvatory Sebastian has locus to sue on behalf of the late LEONIDAS GREGORY BINAMUNGU?

Because he is the administrator, we espect to see probate form in which the appellant is nominated by the probate court to administer the estate of the late LEONIDAS BINAMUNGO.

OPINION

According to the second issue, the appeal lacks locus, so has no merits because the appellant is not the administrator of the estate of the late Leonidas Binamungu, but if he proves to be the administrator, then the appeal will have merits considering the 1^st issue.