19920826 TZHC Dar es Salaam2

' . IN THE HIGH COURT OF TAN.6ANIA ·.... . t,l',.,.:•M . AT DAR ES SALA.AM 1,.,t,. ~;1 . .•s;.:.,, _._ . ...... .a.-.a.- 1. •c. . .s;• .t·-.c:• •~ " (Pc)· CIVIL APPEAL NO. 25 OF 1992 (From the decision of the District Court of Mo~ogoro at Morogoro in Civil Appe t-L No. 61 of 1991 PILI Mvuw:: I • •· • • • • • • • 0 ••••• APPELLAN·J ....... ,, versus NINA JUSTINE MB.Af.1-A •••••••• RESPONDENT JUDGMENT ~-- • •' r ~..,_.__,,.,·...,_-~ KY.ANDO J •· ~-.~_... ...... ~-~ ...... . This is a second appeal and the parties are r. dispu~t Distric. ~ over a piece of land at Turiani, Morogoro Lmeasur11s apout two acres. G~ing through the original record of the proc3~dirigs of the Primary Court, I find that I cannot determ:ne the appeal on its merits. This is because there is an incurrable irregularity in those proceedinps. Under s. 7 (1) of the Nagistrates' Courts AcJ0: 1984, in all proceedings in the primary court including a 'fi.nding, the CO ur t 11 .~1t~11, §..i,t" ,\'l.t~)'l....I!.P..:t,...?-~~~~-- ..tAieJ1w1~-- ?g.~~.s ~·p r.s . .~~ Then under the M.aeistrate I s Court (Primary Courts) (Judgment of Court) Rules, 1987 1 (FN No. 2 of 1988) it is prnvide<i!J. a~ follows:j. "3-(1) Where in any proceedings the court (Primary Court) has heard all the evidence or matters pert~ini~ to the issue to be determined by the court the macistrate 9 shall proceed to consult with the assessors present, with the view· of reaching·· 'a.' ··a.ec:i.::.' . ' sion of the court. (2) If all the members of the court agree on one decision, · the magistrate shaJ.l proce-ed to record the decision or judgment of the court JJ'!:l.~.CP... ~sp.a2:1~)~ ...s.ign.esl. by...?-:J.-t. :t.:ri..e. 111,e!D}?~.r.s • 0 r. ----/2 ft ,. i ....4__..... · ~ 2 4- (l') Where after oonsultations in aooordance with Rule 3 the issue is determined. by the vote of the majority, the magistrate shall proceed to record the decision or judgment of the ~;~~~t;:.o;~:i~~~~~~~~i~ E.e~ .E3 iGA~d. PY~.J ~ ~~a§.$ !3At.iBt (2) The dissenting member of th! ~ourt shall give a brief statement specifying f, .dings of fact and the law. his decision on ti ,r) issue and the reasons for ito (3) The brief statement referred ~, in sub- rule (2) of this Rule shall be recorde1.. by the· maeistrate immediately below the dflr::ds:i c n or judgment of the majority .§P.<1. §.._h~l1.J2..e _f.) :3:.~~~dLJ?.l ~'?~~2l£l~~~E.~~P.E, !P~E:P..b.~£11_ ( my underliH ing) • By "Member of tha Court" in the ab11 11e 1 u .es it is meant "an assessor of the court and includes E 1 12.gistrate," In the instant cnse two assessors sat, 11:ith the maristrate during the he~ring of the case. (TlEse were Juma Geuza Mbwali andLMaslahi),, But whe,n it came tc signing the judt:ment of the court the proc~edinr_rs in t1 E Primary Court case file show tha.t only Geuza Mbwali SJfned it. (The typed proceedin,c:s show that Juma· Maslahi Eli-s.ned as well but this is incor-rec t as the h:-:i.ndwri tten JWJ-ceedinrrs as recorded by the Pri1:rn,ry Court l1iacistrate shoiv a blank against Assessor No,, 2),, There is no indic 8 _tion in the proceedinps either that assessor Maslahi (;ave a dissent- ing decd.sion .. So, how many nembers of the· ~ourt parti- cipated in the making of the decision in this case? Obviously, in so far 2..s the record of the case reveals, only two of them participatedo This,~ ·•~~was irregular as it was contrary t1 the clear provisions of the law - which require the participation of at least ·-·-"•"'•--'•.L·.•-~ _tyvp_ ,a.~!~AS§QF.B.1-.. a.::la.: the ns_~ istrate so that toe: ether th•Y ~houM:- te-----a-t· =!::-e-as-t· ~r-ee·,,-, · · · · · · ~-- · As I stated at the c;imm.encement of this juc~rrment, this irrerulari ty is incurrable 11s it c-:mtravenes tr.e law. In the result therefore, the proceedings ns held in the Primary Court 3,rel~til~"Weaqe~~~l~tY ·bWP are District Cov.rt (Awnsi R()N) based on them is nlso qu..qshed and set aside. I order that n trial~~- g2y9 be held - by .... /3 ~ 3 a ma(~istre.te di:Eferent :from the one whose pro ieedinga I have just quashed. The parties are to pay nQ fees for the retrial, up to the stage of this Court if it will \: be necessary t"or ei the·r of the1;1 to app.eal up 1 (, this Court.·• No order ns to costs • .~ L. A. A. JIYA1'TDO JUDGE 26/8/92 Order: l. ■~'4 This judgment is to be sent to the Distr.~t Court at Morogoro and the Resident Maris ·Jat e inch2.rge of that court is to call the p2.1~ies and deliver the judr,nent ~o them. L. A. A. KY t~_ND0 JUDGE 26/8/92