AGNES MALODA v RICHARD MHANDO 1995 TLR 137 (HC)

 AGNES MALODA v RICHARD MHANDO 1995 TLR 137 (HC)

Court High Court of Tanzania - Dodoma

Judge Msoffe J

(PC) Civil Appeal No 11 of 1994 B

April 13, 1995

Flynote

Civil Practice and Procedure - Role of Assessors in Primary Courts - Assessors to be

consulted by Magistrate and there is no summing up to assessors - Magistrates Courts

(Primary Courts) (Judgment of Court) Rule 1987, GN No 2 of 1988. C

-Headnote

The High Court, on appeal, considered the procedure adopted by a Trial Court in

summing up to assessors in contravention to the Magistrates Courts (Primary Courts)

(Judgment of Court) Rules 1987 and its consequences. D

Held:

(i) Since assessors are part of the Court the magistrate has to consult with

them and when a unanimous decision is reached he prepares a judgment which all of

them have to sign or where the decision is not unanimous the majority have to sign;

E

(ii) In the instant case the magistrate summed up to the assessors contrary

to the express provisions of Rule 3(3) of GN No 2 of 1988.

Case Infomation

Order accordingly.

No case referred to. F

Rweyongeza for the appellant.

[zJDz]Judgment

Msoffe, J:

This is a second appeal. It is common ground that way back in 1987 the G

respondent's son eloped with the appellant's daughter. The son was prosecuted,

convicted and sentenced to three months imprisonment. Further to that, the

respondent is said to have agreed to pay the 'costs' of that case on behalf of his son

and actually paid part of it. When he failed to pay all the costs the appellant H

attached the respondent's head of cattle. This prompted the respondent to file the case

the subject of this appeal. The two lower courts were of the view that there was

nothing to be paid by the respondent as he could not pay for his son. In other words

he was not, legally speaking, liable to pay for the misdeeds of his son; and so whatever

was I

1995 TLR p138

MSOFFE J

A taken by the appellant in execution of the warrant of attachment should be

returned to him. The appellant thinks the respondent is still liable and hence this

appeal.

In the memorandum of appeal there are three grounds which were presented and

argued by Mr Rweyongeza learned advocate for the appellant. In my judgment

though, the 1st ground is enough to dispose off the appeal, it reads: B

'1.

C THAT, The learned Senior District Magistrate erred in law in upholding a

judgment in which the Primary Court Magistrate made a summing up to the

assessors.'

D A look at the record will show that in summing up to the assessors the Trial

Magistrate said somewhere as follows:

'Kwa ufupi napenda kuwajulisha kwamba mzazi halazimiki kumlipia mtoto

wake deni lolote analodaiwa au faini yoyote anayetakiwa kuilipa mbele ya Mahakama

ila kwa hiari yake.'

E After that summing up both assessors were unanimous that the respondent was

not duty bound to pay for his son. In saying so the 1st assessor in particular said as

follows:

F 'Iwapori kweli kwamba mzazi, au ndugu yoyote hana lazima ya kumlipia

mtoto wake, au ndugu yake, mdai naona anayohaki ya kurudishiwa ng'ombe wake

mnoja tu (1) na shs 5,000/= alizolazimishwa kumlipia mtoto wake deni katika madai

kati ya huyo mtoto na mdaiwa.' (Emphasis added).

G A close look at the above opinion will show that the assessor was heavily

influenced or prejudiced by the summing up in issue. In the same way the 2nd

assessor was prejudiced. Perhaps both the two lower Courts should have appreciated

that the law with regard to the role of assessors in Primary Courts has undergone a

fundamental change with the publication of The Magistrates' Courts H (Primary

Courts) (Judgment of Court) Rules 1987 contained in GN no. 2 of 1988. For case of

reference I reproduce below the relevant parts of the rules:

'3 (1) Where in any proceedings the Court has heard all the evidence or

matters pertaining to the issue to be determined by I

1995 TLR p139

MSOFFE J

the Court, the magistrate shall proceed to consult with the assessors present

with the view of reaching a decision of the Court, A

(2) If all the members of the Court agree on one decision, the magistrate shall

proceed to record the decision or judgment of the court which shall be signed by all

the members.

(3) For the avoidance of doubt a magistrate shall not, in lieu of or in addition

to, the B consultations referred to in sub-rule (1) of this Rule, be entitled to sum up

to the other members of the court.

4 (1) Where after consultations in accordance 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 majority which shall be signed by the assenting members

of the court. C

(2) The dissenting member of the court shall give a brief statement specifying

findings of fact and the law, his decision on the issue and the reasons for it.

(3) The brief statement referred to in sub rule (2) of this Rule shall be recorded

by the magistrate immediately below the decision or judgment of the majority and

shall be signed by the dissanting member.' D

It is clear from the above mandatory provisions that since assessors are part of the

Court the magistrate has to consult with them and when a decision is reached he

prepares a judgment which all of them have to sign in case of unanimous E decision,

or the majority sign where the decision is not unanimous. In the instant case the

magistrate summed up to assessors contrary to the express provisions of Rule 3(3). As

if that was not enough, in the summing up he prejudiced them after which they gave

their opinions similar to the ones he owned. The error F unfortunately escaped the

attention of the senior (now Principal) District Magistrate who sat on appeal,

otherwise he should have revised the proceedings and ordered a new trial.

In the result I hereby quash all the proceedings in the Court below and order that the

case be heard de novo in the Primary Court of Mwitikira before another magistrate

sitting with different assessors. Costs in this appeal and in the courts below will abide

the outcome of the new trial. G

1995 TLR p140

A