20001026 TZCA Arusha

T 7 TT CO1JT OF APPEAL O TANNIA .1 m ft..L i' (CORM: CIVIL APPEAL NO0 56 OP 1996 BET1 TEEN WILLIE NR1AO , ••. , APPELLANT

AND

SANSON KIVUYOO RESPONDENT (Appeal from' the judgment/decision and order of the High Court of Tanzania at Arusha) dated the 25th day of July, 1995 in ru .eal_No0 29 of 1994

JUDGMENT LUJOAO: This is a third appeal0 It arises fromthe decision of the High Courtat Arha in (C) Civil Appeal No0 29 of 1994 (Mroso, J0)of 2571995 It all started with a boundary dispute between the appellant and the respondent0 The appellent unsuccessfully filed a suit against the respondent in Arusha Urban Thimary, Court0 He appealed to the DistrictCourt, Arusha, and lost0 He locled a second appeal to the 1-ugh Court where again he was unsuccessful0 After hearing the parties on appeal, the learned judge on secondapeal called, for additional evidence of the trial primary court magistrate to clarify on the assessors who had taken part at the trial0 This was prompted by the fact that it was indicated on record that at some stage 0 0 - 2 - the names of two assessors had been caftcelled and substituted with two others thus giving the impression that two sets of assessors were used in the trial0 The additional evidence was by way of an affidavit by the trial primary court magistrate0 On the evidence on record together with the affidavit, the judge on second appeal dismissed the appeal. The appellant was dissatisfied, he has appealed to this court. The points of law certified in terms of section 5 (2) (c) of the Appellate Jurisdiction Act, 1979 were: first, whether the appellate High Court had power in law to take additional evidence and secondly, the propriety of the. leained

judge's omission to afford the appellant an opportunity to cross examine the deponent of the affidavit, the primary curt magistrate. At the hearing of the appeal the appellant appeared in person while the respondent was represented by Mr. Lundu, learned counsel. In the memorandum of appeal the two points certified by the High Court are raised. The appellant did not have anything of substance to add to the memorandum of appeal apart from his lengthyvaBcilating repetition of matters which are otherwiCe not relevant and proper for the Court to consider in this, a third appeal. With regard to the first ground of complaint,' namely that it was wrong for the High Court to take additional evidence by way of affidavit Mr. Lundu countered that theHigh Court has such bowers under section 29 of the Magistrates' Courts Act, 198 4 . Since the law allows the High Court to take such additional evidence on appeal, Mr. Lundu said, the appellant's complaint -3- in ground one is without merit0 We agree with Mr0 liundu that the High Court has power In appropiate cases to take additional evidence0. Section 29 of the Magistrates' Courts Act, 1984 in part provides:- "In the exercise of its arpellate jurisdiction under this Fart, the High Court shall have power (a) to take or to order some other court to • take and certify additional evidence and, 00000ç In this case, as provided under this section,

the learned judge in exercise of the appellate jurisdiction of the High Court took the additional evidence of the trial primary court magistrate f Or purposes of ascertaining the assesos Who sat with the magistrate at the trial0 The tr'ial magistrate in her affidavit confirmed that she sat throughout the trial with the same set of assessors0 Not only that, the learne,d judge examined the record of the trial and was satisfied that the signatures of the assessors, for the date complained against, are similar to those shown in respect of othe dates for the trial0 We also have had, the opportunity to glance through the ,recOrd, and we are like the learned' judge satisfied that the signatures of the 'assessors for the date /2/1994 are similar to the signatures of the assessors .f or the rest of dates involved in the trial0 If the additional evidence sought by the learned judge•howed that the same set of assessors sat with the trial magistrate throughout the n - L - trial such evidence to our minds was neither prejudicial to the appellant nor was it further evidence in proof of the ase0 It was additional evidence for the purpose of ènabling the learned judge to satisfy himself that the procedure. followed by the trial magistrate was correct0 In the circumstances, we are satisfied that the learned judge properly exercised the powers vested in the Hich Court in exercise of its

appellate jurisdiction in taking the additional evidence of the trial magistrate to ascertain the assessors who sat with the trial ;magistratee Next, we shall deal with ground two,. Here, the appellant's complaint is that he was not given the opportunity to cross examine the tril magistrate in her additional evidence0 That ±± he was given the opportunity, he would 11 be in a position to question the trial magistrate.why the names of the assessors Yusul' Any and Kohole Koreka were initially entered in the coram for 412/1994 but were cancelled in substitution f or Loi Loticia and Bakari Lwavi0 The appellant adamantly maintained that failure to afford him the opportunity to examine the magistrate, occasioned an injustice and prejudice against him0 In re'sponse t this submission Mr0 Lundu took. the view that section 29 of the Magistrates' Courts ct No 0 2 of 1989,does not provide for the right to cross examination However, as a matter of natural justice, Mr0 Lundu conceded and we think correctly so that the learned judge should have given the appellant such an opporunity0 Iven then, Mr0 Lundu concluded, the breach of the rules of natural justice in this case was not - 5 prejudicial to the appellant0 From our reading the provisions of sectio.29 of the Magistrates' Courts Act, 1984, there is no proVision for the right of cross examination of the additional evidence taken., However,

as matter of natural justice, we think it was errone ous on the part of the learned judge not to give the appellant the opportunity to cross examine the. magistrate on the matter. Despite this errOr, we do not think that the appellant as in anyway prejudiced0 From the additional evidence namely, what the mag.istrat.e stated to the judge and her affidavit, the esahlished fact, was that the trial magistrate conducted the trial thrOughout with the aid of the seine assessors. In that situation, we agee with the appellant that it was improper for the learned judge not to accord him the opportunity to be 'heard on the additional evidence, it is nerertheless our settled view that no injustice was occasioned to the appellant0 As a matter of fact, we think in the cirumstnces of the case, the error on the part of the learned judge pomes 1 within thepurviev of rule 108 of the Court Rules. . It was an error which arose in theHigh Court in the course of hearing the. appeal. Rule 1.08 provides to the effect that the decision of the High Court shall not be revised or.substantially varied by tha Court on appeal on account of any errOr or irregularity not affecting the merits of the case0 In this cae, the oniissioi complained of was, we think, an immaterial error which did not affect the merits of the case, and so, rule 108 comes into play0 In the event, for the foregoing reasons, we find no. merit in the appeal. It is dismissed with costs0 - 6, DATED at ARUSEHA this 26th day of October, 2000 • •. R.H. KISANGA. J[TSCE OF.T]EAL kW 5 • K S FO YIG IR. •

JUSTICE OF APPEAL I certify that this isa true copy of the original0 S S 9T f • ( AGJI ARIJA ) • DEPUTY IREGISTWR N I)