20070330 TZHC Mwanza

IN THE HIGH .... ~ COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY · ATMWANZA [PC] CIVIL APPEAL NO. 33 OF 1997 •· (From the decision of the District Court of - Tarime District at Tarime in Civil Appeal No. 114 of 1996. Original Tarime Urban PrimaryCourt Civil Case No.171 of 1995. Before: D.D. Malamsha, Esq. OM} . MAGAN CHA MAH ENDE ......... I·'· I •• ~ •••••••••••• APPELLANT VERSUS· I ; ., , l ! . 1· . . MNYORO MGOYE ....................... ~ ......... RESPONDENT · . . .. JUDGME IT • - ._ MACKANJA, J.. .· ( The appellant having been a· grieVed by.the decision of . the appellate District Court institut d this appeal in which he challenges the soundness of that· ecision on· six grounds of appeal. Before I delve into thes · grou·nds of appeal, and befor~ I consider the judgment w ·ich .is being impugned, I ... • I 1 • : ' . •( 1 ' have found it necessary to revisit the proceedings of the trial primary court. At page nine of the typed copy of the proceedings the record shows that the learned trial primary court magistrate solicited and recorded opinions of the .two gentlemen assessors with whom he tried the case. It was after • recqrding these ,opinions that he wrote and delivered the judgment. No doubt that in doing so he contravened the • procedure as laid down under Rules 3 and 4 of the Magistrates Courts .(Primary Courts) (Judgment of Court) · Rules, G.N. 2 of 1988. Rules 3 and 4 !provides as follows:- 3i (1) Where in any proceedings the ·court has heard all the evidence of matters pertai ing to .· the issue to be deter ·ined . by the court, the magistrate· · shall • p,roceed to c · nsult · with .. . ·assessors pre~nt ith .the view . of reaching a deCision . of the · court. . I 2 • (2) If all the members of the i. • court agree on one decision, 1! the magistrate shall proceed . to record the decision or · judgment of the court which 1 shall be signed by all the 1 members. (3) For the avoidance of doubt a : magistrate shall· not, ·in lieu • .. 1 of or· in· additi.on 'to, . the : consultatioos·· referred to in ~ ! ~ubrule (1) of tris Rule, be · entitled to sum! up to the I other members df the court. 4. (1) · Where after co sultation in accordance with Rule 3 the issue is determ ned by the .. vote. .of the ajority, the · • . • ·magistrate. shall prbceed · to record the or . · • judgment ... of ··t :e ·· majority ..... • I .i ·,/· • • which shall be signed by the assenting members of the court. · (2) The descenting member of The court shall give a brief . ~tatement specifying findings , of fact and t~e law, his decision on the issue and the ' .·reasons for it. I (3) • The brief statement referred to in subrul~ (2) of this Rule ~hall be recorded by the I magistrate imm~diately below the deci~io_n o~ judgment of the maJonty and ~ shall .. be ·.signed by thl descenting · member". ·. : . . .•. the proyision~· of Rul~s 3 and 4 are mandatory; they must be co111p1ied with strictly. Failure to do so renders the : : .. ,·. . -: . . : . ·, .. ·,. . . pro,ceedings before the trial primary court and those of the ·' .appellate distric~ court a total nullity. .herefore, by reason of 4 • . ' ' ",. 1 • I , ··1r- ( I\<-.- ., the failure of the trial court to comply with the provisions I f .,... . have hereinabove consid.ered leaves m with no option but to I .. I 'I quash, as· I hereby do, the proceedings of the two lower ,, . • courts, the judgments .and all orders that where made • thereunder. It is directed that the suit be heard de novo before another magistrates with competent jurisdiction. There shall ·be no i order as to costs because none of the . litig_ating parti_es is privy to the fatal errors I have · considered. Judgment shall be delivered by the District Registrar. Sgd: Joseyfiat M.. M.ackanja . ., • " JUDGE • Mwanza. · 28th February 2007. . C • Date : 30/3/2007 ·Coram .i · J.R. Kahyoza ~ PR . . . _··App ,i • Absent Resp •' .. · Present ·•- c/c .. •• Bosco "' .,,,-,. it I 5 • ·, . ! . ' ... • Court:- Judgment delivered. . . ; i < • S9cf: ·. J.7l. Xaliyoza • . DISTRICT REGISTRAR. MWANZA . ' '•i. . . I certifythat tHis is I true copy qf the original. .. , . . ' . • I: . . i •, . \ i . yoza ) .··. DISTRICT' REGISTRAR- ! MWANzA i. :. . i.,, /· : . ·•·.. ·.·. · .; . . .· . I ·., ·. ·.,