19970225 TZHC Dar es Salaam

) ' PCo ID:VIL APIJJ.,L NO., 67 OF 1995 HAIJi'MU NOHJ',.K~:D., ••• .,., • ., o • • .,AFF8Ll.d.NT V".t:"'Jl.SUS ANI:aI I BRl'i.EIM ., ~ •••••••••• .,R}BSFGNDENT,. The appell,,nt Halifani Vt0harnod was aggrieved by th2 decision of t:te District Court cf Ilala which on 30/3/95 dismissed the. appeal by 1 ,..- the appclla.nt then plaintiff and grn.nted the r:icce of land in dispute to the r0spundent.original defendant. There are thr(}0 m:::tin grounds of appeal fili:'id by the appellant: thd the District Cuurt did not properly analyse and evalute the evidence. that the District Court erred tc stnte that the witness Musa ifaclogela never appeared in Court v:hile in fact he did SC 0 that the District Court erred to notice fundamental' error in record of 'the proceedings . of the , Primary Court in•lu- ding being contrary to provis:iiiims of Rules 3 (3), 3 (1) 3 (2), 4 (1) and 4 (3) of Eagistratcs Geurts (Primnry Courts) (Judgement of c, urt) Rules 1987 - GN No 2 ya 1988. The appellant therefore prayGd that sinco the Judgement Gf tho 1 Primary Court was net a juclgem(:)nt acccrding to law, the District Courts decision. 1,ras also not apropcr one. The apr,,::llant urged · b~h this Ccurt to allow the ar.1peal c\l•d set/aside low0r cc,urts, · . · decisions arid order a. retrial before ,:mother. cPurt of cornp0tcnt Jurisdictic:n with costs. lfhe :h.:s_pondent who appeared in perscn had

_nothing to say but left •the matter with the Court. .. - 'I'. ' J /: This being a second appeal, this' court 0lll1 only valuate the I I evidence afresh if t}1ure strong reasons for sd doing. The nppellD.nt 1:· 1 , - has compl.3:ined that the trial magistrate omityedjto consider the evidence Jiven by SM 5 Musss. Mbego l'isologoleo:;J His eyidence was to · · 1 •, i dfect that in 1966 he scld a piece of land --jth±ee acres - tb the t1el/ court thr:i.t. ~e knew ' 11 plaintiff appellant for Shs 500/..:.-. SM 5 .told well the boundaries in tonncction with that l~nd, The gucshion- I . ., .l I: . c::.sk myself why cl.id the trialco~t omit to cohsi&.er this evidence. I I And if the pi_ ece of evb.ence was consicler,ed cbulcl ,, ' the court have 1 arrived at the same conclusion as it did"l ~- a. - th·is comp l ain I !l.in: . t tc have merit and \•1ould sD.pport it. Again I have perused the reccrd of the Prim!:·,::ry Court; it is flawed - it. ~,as signed by the trial magistrat~ a:J.one contrary to lj , Rule 3 (2) oi' GI'i'. 2 of 1988. Further .I agree /~itb the app0llant 1 ' I I that the provisions of Rules 3 (3) 3 (1) ,• 4 (2.) !and 4 (3) were 11 : n0t complied with . and I quote the reJ!levdnt provisions for ,I ease of reference~ '• . ,t:.- 11 3 (Ji) - where in any proceedings the courti!has heard all the I ii •.. '."t ~-~ ,ll I; or matters pertaining to the issue to be dHermined by

the 00 . court, t l1e mo.gistr€t i Ii lt wi. t l1 t 1.10 t 2 s l1 all_ procee d t o c:onsu 1 i: lq 11 I assessors present, with the view of reading I' a decision of ,, the 00urto 1 ! I ·, I I ._:e ··~· :i . (2) If all thE: members of the court agrJe t::n one decision, I ,,1 • . • tb.'e me.gistrate shall proceed to recor d the ! decision or· 1 : 1, . j 1J.dgement of the court v1hich shall be· signed by all the rnamb~:rs. :1 1: _ II 11 ' I i, . 11 I (3) F or the avo1d ance of d oubt a magistrates h a 11 nol,, J.. in • ,1.ieu , • ,, I , . of or in addition to, the consultation ,referred to in sub rule :1 1 (1) of this Rule be entitled to sum'up :~o ~he other members of the court. 1 / i 'I :1 1: i 1! Ii I: 4 [1) where after consul tc"'tions in accordance v1i th Rule 3 the i 1 . . Ge ' t ermine . d .1JVV t h 0 vol,e . t ral,e -'- 1 issue is . l- . t'',y, t.11.0 magis ,._ OJ."' maJo.r1 1 I :;' - .,, II . ·, ':·-. :·::shall proceed to record th0 · e,;ision o J1dgernent of the 1 [, ' ·. majority v1hich shall be signed by the ssentins members of court~ 1 I ! - 3 (2) The dissenting member of the cc:urt shall given brief statement specifying findings of :~&ct and the law, hiG decision on the issue and the reasons fer it. (3) The briof statement referred to in sub rule 2 of this Rule shall be recorded by tho m2.gistrate irrnnediat0ly below the decision er Judgement of th,:: majority and

shall be sigrn,d by i the dissenting m~ber. n One observation I wculd like to make before I sign off this Judgernento I think it is prudent, in such cases 1·1here tho main issue is th2.t of boundarius, for the trial C(•urt to visit the area in dispute wherE:ver possible. Such visits would, in my view, help to clarify the positions better. In the final end I allow the appeal and order that a.."lci set I direct that . aside the lower courts decisionsjthe case be hecU'd de nc:vo before a different magistrde sitting with a different pair of assessors without payment of fo0s. I order no costs at this state. Each party tc- bear costs of this appeal.

JUDGB 25/2/97. ) t