19750925 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA (nc) CIVIL APPEAL NC. 182 OF 1975 (From the decision of the district Court of Shinyanqa at Shinyango in Civil Appeal No. 44 of 1975 - Before N.K. MABONDO, Esq., D.M.) (Original Isungang'holo Primary Court Civil Case No., 19 of 1974) KUiAiANZELE 0 0 000 00000000000000 .APPELLANT Versus NSEi'JGI NKINGA 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 RESPONDENT J U 1) G N E N T IvI".3A34GA 9 AG. J.: The respondent filed a suit at Isungang'holo Primary court for trespass on to his shamba and destroying crops0 He claimed Shs.500/= as compensation for his destroyed crops. The suit was dismissed and he appealed to the District court where his appeal was partly aUowed. with full costs. The district Court awarded him Shs. 250/=. The respondent is oppealling against the district court decision. The record of this case discloses several serious irregularities at the trial 0 It shows that right from the time the trial of the case began the trial magistrate set with only one assessor and this continued to the conclusion of the trial0 The one assessor found that the respondent had established his claim while the tria]. magistrate held otherwise and dismissed the sit. The procedure adopted in hearing this case clearly contravened the provisions of section 8 of the :iagistrates courts Act, 1963 as amended by the Magistrates Courts (Amendment Act), 1969 which makes it mandatory for a primary court to sit with not less than two assessors in every proceedings Subsection (1) of section 8 of the Act provides:.- "In every proceeding in a primary court the court shall sit with two assessors (or such greater number as an appropriate judicial authority may direct)." Since the court was constituted of only the magistrate and one assessor, it means that it was improperly constituted. Thus all the proceedings were a nullity and they must be so declared. The proceedings are theretore quashed and the orders thereto set aside. A new trial is ordered and the trial should be before another ragistrato and a new set of assessors., Nor further fees should be paid. It is also discloed by the record that the appellant's 8 heads of cattle have been attached in execution of the decree against him. Tat decree was for Shs.2001= which the respondent was awarded when he succeeded on appeal. It is therefore not clear to me why 8 of the appellant's cattle had to be attached as their value was far in excess f of the amount on the decree. As the proceedings have been quashed, it is further ordered that the attached cattle should be handed back to the appellant. Delivered at Shinyanga this 25th day of September, 1975.. irccr' ri'