SUSANA JOSEPH v WAMBURA IHEMBE 1992 TLR 375 (HC)

 

SUSANA JOSEPH v WAMBURA IHEMBE 1992 TLR 375 (HC)

Court High Court of Tanzania - Musoma

Judge Lugakingira J

11 December, 1992

Flynote

Civil Practice and Procedure - Assessors - Summing up to assessors - Magistrates

Courts B (Primary Courts) (Judgment of Court) Rules, G.N. No. 2, 1988 .

-Headnote

The trial Primary Court magistrate summed up the case to assessors. On appeal the

District Magistrate seemed not to be aware of the existence of G.N.No. 2 of 1988 C

which requires Primary Court Magistrates not to sum up to assessors. On a second

appeal to the High Court.

Held: It seems that neither the trial magistrate nor the appellate magistrate is aware of

D the Magistrates Courts (Primary Courts) (Judgment of Court) Rules, Government

Notice No. 2 of 1988. I would particularly draw their attention to Rule 3 thereof

which puts an end to the practice of summing up to the assessors. The assessors are to

be consulted for their opinions after the conclusion of the evidence without

preliminaries. E

Case Information

Appeal allowed.

[zJDz]Judgment

Lugakingira, J.: The appellant brought action in the Primary Court at Zanaki for F

compensation of 16,000/= alleging that the respondent's cattle had destroyed her

shamba of millet and potatoes. The claim was unsuccessful, the court holding that the

evidence did not establish the identity of the offending animals. It reached that view

after observing that neither the respondent nor his ten cell leader was taken to the

shamba to G confirm the destruction and to satisfy themselves on the identity of the

cattle. Additionally, the court criticized the evidence of the field officer in his

estimate of the damage occasioned and said the evidence was vague. There was an

appeal to the District Court H of Musoma which was dismissed on the same grounds,

hence this second appeal.

There might be justification in the lower courts' criticism of the field officer's

evidence but the rest of their remarks were outrageous having regard to the facts of

the case. Apart from the appellant, there was evidence from PW2 Jeremiah

Mwandika, the village I chairman, and PW3 Mussa Kello, a neighbour of the

parties'.

1992 TLR p376

LUGAKINGIRA J

All three knew the respondent's cattle; all three saw the destruction; all three drove

the A cattle to the respondent's home. They called out the respondent but at first he

ignored them. Finally he came out. As the appellant made to explain their mission he

assaulted her so badly that she had to receive medical treatment. She informed me at

the hearing of the appeal that she sustained a permanent incapacity as a result of the

beating and that she B was pursuing that matter separately following the

respondent's conviction for the assault. The respondent admitted the conviction. It is

astonishing, to say the least, that it is this very man whom the lower courts expected

the appellant to take to the shamba and blamed her for not doing so. It is equally

amusing that the two courts would have C preferred evidence from a ten cell leader

but not the village chairman. Furthermore, neither the respondent nor the two courts

below had any word of where the respondent sent the cattle delivered at his premises.

Of course the respondent denied that any cattle D were ever delivered at his home

and in fact denied over seeing the appellant, PW2 or PW3 on the material day. His

"evidence" was nothing but arrogance at its worst, and it is amusing how he carried

the lower courts with him.

The decision of the primary court was also not free from contradictions. Take the

advice E of the first assessor, Nyambiriti Wikama, for instance. He started off by

saying:

Kwa maoni yangu na kufuatana na ushahidi uliotolewa upande wa madai

unaonyesha F kuwa ng'ombe wa mdaiwa walikula shamba la mdai ...,

but ended up saying:

G ... sioni kama kweli mifugo ya mdaiwa ndiyo ilifanya uharibifu huo.

This problem could partly be accounted for by the summing up factor which found

itself in this case. It seems that neither the trial magistrate (J.M. Waigama) nor the

appellate H magistrate (N.M. Kaserero) is aware of the Magistrate's Courts (Primary

Courts) Judgment of Court) Rules, Government Notice No.2 of 1988. I would

particularly draw their attention to Rule 3 thereof which puts an end to the practice

of summing up to the assessors. The assessors are to be consulted for their opinions

after the conclusion of I the evidence without any preliminaries. If I were convinced

that the

1992 TLR p377

summing up in this case was solely or substantially responsible for the decision A

reached, I would have felt compelled to quash the proceedings on the ground that the

indulgence occasioned a failure of justice. I feel, however, that with or without the

summing up, the trial court was under the spell of the respondent as shown by its

prejudiced remarks following its visit to the shamba. I do not know how they did not

B expect to find bush almost four months after the destruction complained of.

The field officer's evidence was certainly vague. It did not particularise how he

reached the figure of 16,000/=. But this did not absolve at the trial court from forming

its own C opinion and making a reward it considered reasonable. It would be futile

to refer this matter back to that court as the position on the ground must have

changed even more drastically and also since the court cannot have got over its

prejudices in the case. I will take the risk of adjudicating in the matter and reduce the

claim by 6,000/= as an D adjustment for the field officer's vagueness.

The appeal is accordingly allowed and the decisions of the lower courts are set aside.

Judgment is entered for the appellant in the sum of 10,000/= with costs here and

below. E

Appeal allowed.

F