MOHAMED S. AMIRI v SAIDI NGAPWELA 1992 TLR 342 (HC)

 MOHAMED S. AMIRI v SAIDI NGAPWELA 1992 TLR 342 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Mkude JA

18 November, 1992 F

Flynote

Civil Practice and Procedure - Assessors - Magistrate summing up to assessors -

Judgment signed by magistrate but not by assessors - Magistrates' Courts (Primary

Courts) (Judgment of Court) Rules 1987, G.N. 2 of 1988. G

-Headnote

After hearing a case the Primary Court magistrate summed up to assessors. Each

assessor signed after giving his opinions. After writing the judgment the magistrate

signed it. No assessor signed the judgment. On appeal counsel for the appellant

attacked the H magistrates failure to comply with the rules.

Held: The trial magistrate erred when he purported to sum up to the assessors in what

he called Hukumu and also erred when he failed to record the unanimous decision of

I the court and call upon the assessors to sign it with him.

1992 TLR p343

MKUDE J

Case Information

Trial a nullity. A

Mdamo/Marando, for the appellant

[zJDz]Judgment

Mkude, J.: This is a second appeal. The appellant Mohamed Saidi Amiri had sued the

respondent, Said Ngapwela, in the Primary Court of Temeke in Temeke District. The

B suit was dismissed by the Primary Court and so the appellant appealed to the

District Court of Temeke where the appeal was also dismissed. He is now appealing to

this court. The case involves rival claims to a piece of land. C

Mr. Marando, learned counsel for the appellant cited the Magistrates' Courts (Primary

Courts) Judgment of Court) Rules, 1987 contained in GN 2/88 and submitted that the

presiding magistrate in the Primary Court had summed up to the assessors and the

said assessors did not sign the judgment of the court as required by rule 4(1) of the

said D Rules. He submitted therefore that the trial was a nullity and urged the court

to order a new trial.

These two points were raised on appeal to the District Court of Temeke but the

learned District Magistrate who heard the appeal dismissed them. As regards the

point relating to summing up, this is how the first appellate court dealt with it: E

Having made a sober sorting through the contents of the so called summing up

to assessors which the trial Magistrate titled them "Hukumu" which means judgment,

I have F come to the view that the portion is not really summing up to asessessors

but it is actually the judgment itself because it contains the summary of the evidence

of both sides of the case, the issues of the case and the reasoning of the magistrate. In

that form I take the same to be the judgment of the court because the gist in it is what

the court has found G in the case.

I have examined the original record of proceedings in the Primary Court and found

that what the presiding magistrate titled Hukumu comes immediately after the last

defence witness, one Zaina Mlola. The order of the court appear in immediately

before H Hukumu reads:

Amri: Shauri hadi tarehe 21/12/90 kwa kwenda kukagua sehemu ya tukio

gharama zitagharamiwa na wote wawili. I

1992 TLR p344

MKUDE J

It is true that the said "Hukumu" contains the summary of the evidence of both sides

A of the case, the issues of the case and the reasoning of the magistrate but it cannot

be said that the magistrate had intended this to be the judgment of the court. Reading

through it one gets the impression quite clearly that it was intended to be a summing

up to the assessors. He starts with a summary of the facts and the case for the plaintiff,

B then the case for the defendant, after which he frames the issues for determination.

Then the next paragraph reads:

C Kwa hiyo waheshimiwa Wazee wa Baraza tuangalie matukio yaliyothibitishwa

na kukanushwa tukianzia na tukio la kwanza kuwa (l) Je Kiwanja anachodai mdai ni

halali kukidai? Kwa kweli ushahidi uliotolewa na mdai ni kuwa Kiwanja hicho

aliuziwa 1985 ... D

This shows that he was addressing the assessors after hearing the evidence of both

sides and visiting the land in dispute. In fact this point is put beyond doubt in the last

two sentences in which he says:

E Kwa hiyo waheshimiwa wazee wa baraza nafikiri matukio mmeyaelewa jinsi

yalivyothibitishwa na kukanushwa. Kwa hiyo ni juu yenu kunipa maoni yenu kama

mdai amethibitisha dai lake. F

After this follows "Maoni ya Washauri" under which there is the opinion of the first

assessor, Rashidi Abdara Lamani followed by the opinion of the second assessor,

Salum. Below the opinion of each assessor there is the signature of the assessor

concerned. Then follows the following: G

Hakimu: Kutokana na matukio jinsi yalivyothibitishwa na kukanushwa

naungana na washauri wangu kuwa mdai ameshindwa kumleta shahidi aliyemuuzia

kuja kuthibitisha H kuwa kweli mali aliyouza ni halali kwake na vile vile hata

mashahidi walioshuhudia mauziano hayo pia ameshindwa kuwaleta ....

Mahakama: Kwa kauli moja mahakama inaamua kuwa mdai ameshindwa

kuthibitisha I dai lake mdaiwa ameshinda. Mdai amepoteza gharama za shauri.

1992 TLR p345

MKUDE J

Below this there is only the signature of the magistrate. Thus the assessors have their

A signatures appearing only once each, below their respective opinions.

Nowhere in the record of proceedings can you find the two signatures and that of the

magistrate together.

In dealing with the question whether the two assessors had jointly signed the

judgment B of the court or not the learned District Magistrate who sat on appeal

said:

With reference to the lower court's records, I should not, at this juncture,

hesitate to dismiss the appellant's second ground of appeal that the trial court

assessors did not C sign the judgment, as the records show clearly that there are

signatures of the two assessors namely Rashid and Salum, which they had signed after

their respective opinions. D

In my considered view those signatures are enough to serve the purpose

intended by the rules cited by the learned, Advocate for the appellant.

With due respect to the learned District Magistrate, those signatures are not enough

E for the purpose intended by the rules. Rule 3 provides as follows:

3 (1) Where in any proceedings the court has heard all the evidence or matters

pertaining to the issue to be determined by the court, the magistrate shall proceed to

consult with F the assessors present, with the view of reaching a decision of the

court.

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

the other H members of the court. (Emphasis supplied)

These are mandatory provisions intended to emphasize the role of assessors in

Primary Courts as members of the court and not just simple assessors assisting the

court. The I magistrate has to consult

1992 TLR p346

the assessors and if there is a unanimous decision his duty is to reduce the decision to

A writing and call upon the assessors to sign it with him so that it then becomes the

decision or judgment of the court. Where there is a dissent then the majority must

sign the majority judgment, which becomes the judgment of the court, and the

magistrate must record the dissent and have it signed by the dissenting member. In

the present B case as all the members of the court had agreed on dismissing the suit

then they ought to have signed one decision jointly.

In the final result I agree with Mr. Marando, learned counsel for the appellant, that

the C trial magistrate erred when he purported to sum up to the assessors in what he

called "Hukumu" and also erred when he failed to record the unanimous decision of

the court and call upon the assessors to sign it with him, for these reasons I declare

the trial a nullity and order that the case be tried de novo before another magistrate

sitting with D different assessors. Costs will abide the outcome of the said new trial.

Trial nullity.

1992 TLR p346

E