19800516 TZHC Mwanza1

IN THE IrII(H COURT OF "P N'N7i (nc) CiVIL iPPL NO. 73 OF 1979 (Fro'n the decision of' the Dsri 3 Court of' Pikob aPukobé in c vi.lppeal No 76 A -I978 PefGre J.S. Mwami, sq riDr sto1o) • - • -••• •. • LA1Jfli'N9TJ •.. ... ... .. . CIAPPLIJNT versus •.. .••.. SUPJ!C:Shamha. JUD' NT i(J I KTITI, Laureliaia Mathayo herein enjoying th status Qf the appel1an, sued the respoth1Ent - rnest Kkwez, - In 1dw'.riJo T rnry Court, o-laiming from h'm a shamba, that, the latter claimed tohave bought 'rcm Corrnan. The action was successful. The rrsoldsrit succe ssf ul ly apalled to the D3.strict Court and hence, this piiil by thc ap 'llant. HaJiig gone into the reod studiously, I find myself barred from going into the issues involved, by the trial Ma'strstes inability to follow the letter and the spirit of tht law - aiistrates Court Act Cap. 537ofth€.Laws. th trial Mistnt, having heard both parties, id the sd prties having clos2d the - r respective' the said Magistrate made - the following order:- Ma.hakam. 'tUshahidi wa pande zote abili kat.ka shaui hill. umefungwa, na shniri linaha"Iridhwt hadj txha I2/I/I78 kwa kutca hukumu'. Indeed, the juc1gert 14as. bbsequently deliverd, on 1/3/1978, and not on 12/1fl978. Pt it aprarCnt on the r ,tcordj that, riO sumi.ng up was dohe by the trial Magistrate, nor were ('$inlond by the assessors ouht andjvexi. It is as though the asscsors were madc to be

passive observers jn the aseS T doktot the read the rl€vant statute - Magistrate C&&rt9 AeCeip 4 5Y, that it 49 the poliCy f U2 law, ncr the intention of th.e Llature, to have ,,ass.ve assessc'r obs e rv e r s accom-aily4np the tr1a3 Magistrate. This does not mean, that the assessor is bO.ind b y lato ask uestlons, even if he does not have any, but when it cornea, tte final vrdict on the case s he or she had to express his or her c134nion. It is perhaps worth ioing tc the relavant - The 1Tagistrates Courts (amendment) Abt 1969 - Cap.

37. Section 8 (i) and 8 (2) read as folows:- Sec. 8 (i) "In every procecding in a Primary Court, the Cot shall sit with two assessors (cr such gracter number as an apprcpi 4 i.ate Judicial authcrity may direct). 8(2) All matters before a Primary Court shal], in the event of difference of cpinion between a cgistrate and his assessors, or any of them he decided y the votes of a majority of the Magjtrate end the assessors prsant, and in the event of an equality of votes, the "lagistrate shall have a casting vote, in addition to his seli'br - :te vcte. -2-- -i If we raad the aove prvi.scis pr r.L n:t enttain the impression, tha± EC cxa. :ieant ta hve tha assessors sit with Iistrates ike ttus T -r rtc r ir t a'airistration of Justice s contempiated hr i1 saci n+(2. :f.. cct - :r. 8, that requires - that all i.attcrs in a nrinrry C3uit,, a cci 'rth ti Taistrate and assessors, the c2 cf tna Caurt . 4 by the majority, ofvOteSts the decision shui 1 th c;n -t]aa has ssn nar.ced into the n.jo'ity, by the castinr 'ots, i,. hici is in T diti i to tic dclihrate vote of the aiatrte. This rneara, te :c a c cf ri'na_t C'urt is arrived in e ith e r of the three ways fist where th sid PriTlary Court had been unanimous, % seccnd, yhere there h'd hch jo y rnii or 'd third, where a cstin vote, in addition to a lirt v :, te bai been cast. Vut whichvr is the cas, th reqd must saw such dcvlcpents, so

that, the Court of ppeal, caet4fy itself as to the .ccrrectness of procedure and outcOme, and so that, justice cOn he seen to have Theen doze.. Ipts Pa ,se, it is claar. the asssscrs were not ,4.i7sn anpoitunity to g've their opinions, and th istr t ac od as havin' sat alone, which rounted to a contravnticn of the ahe r'oiaicns', To allow such transgressiors is to anae in act ye tu1t ficet,or of thc ci'stence of the aovc aentioned law, flout th policj rf th mw, aliC threhy i-'nora the wishes ofthe 'people, that handed'thG statute to a0 1 decmae' therefore, tha.t,..tAa. proce,e.dingB,nruountad to a nullity. It is ordered that a case be startpd ne'ti,. ard th law e follo 1-d. ~ J i- " - - ' jZt . K'TITI 16T1I 9AY,.I986 L J . ..