AGNES SEVERINI v MUSSA MDOE 1989 TLR 164 (CA)

 AGNES SEVERINI v MUSSA MDOE 1989 TLR 164 (CA)

Court Court of Appeal of Tanzania- Tanga

Judge Kisanga JJA, Omar JJA and Mnzavas JJA

22 September, 1989 H

Flynote

Civil Practice and Procedure - Appeals - To the Court fo Appeal - Case originating

from Primary Court - A certificate on a point of law necessary. I

Civil Practice and Procedure - Assessors - Omission to take assessor's opinion - Effect.

1989 TLR p165

MAINA J

-Headnote

This was a third appeal arising from a suit filed in the Primary Court to recover a

piece of A land. The appellant asserted that she bought the piece of land in 1966. In

1974 she took up the respondent as her boyfriend and they lived together, for one

year after which they parted company and lived apart. In 1987 the respondent sold

the disputed piece of B land claiming that he bought it from someone else. After the

conclusion of the respondent's case only one assessor gave his opinion to the Primary

Court Magistrate. The Primary Court gave judgment in favour of the respondent. The

appellant's appeals to the District and High Courts were unsuccessful. As the appeal to

the Court of Appeal was the third one it needed a certificate on a point of law by the

High Court. C

Held: (i) The correct point of law to be determined by the Court of Appeal is the

question of the constitution of the Primary Court at the time it decided the suit; D

(ii) the omission by the trial magistrate to take the opinion of the second

assessor was fatal and it rendered the purported judgment null and void;

(iii) the judgment of the Primary Court is set aside and the judgments of the

two appellate courts below necessarily crumble. E

Case Information

Order accordingly.

[zJDz]Judgment

Kisanga, Omar and Mnzavas, JJ.A.: This is a third appeal arising from a suit F

brought in the Primary Court to recover a piece of land. The appellant, a woman,

testified in the Primary Court that she bought the disputed land in 1966. In 1974 she

took up the respondent as her boyfriend and they lived together for one year after

which they parted company and lived apart. Then in 1987 the respondent sold the

land in question claiming that it was his land which he had bought from someone

else. The G Primary Court disallowed the appellant's claim. The appellant's appeal to

the District Court was dismissed and further appeal to the High Court was equally

unsuccessful. The present appeal to this Court is upon a certificate by the High Court

that appoint of law is H involved in the decision, namely, whether the concurrent

decisions of the courts below were supported and justified by the evidence. Both

parties who were unrepresented each appeared and argued the appeal in person.

We wish to observe at the outset that this was an unsatisfactory way of certifying a

point I of law. That certificate is capable of two

1989 TLR p166

KISANGA JJA, OMAR JJA AND MNZAVAS JJA

interpretations. It could mean posing the question whether there was any evidence at

all A to support the concurrent decisions of the courts below. It could equally mean

to ask the question whether the evidence as adduced was sufficient to support and

justify those decisions. How, this distinction is imported. The question whether there

was any B evidence at all to support the decision is a question of law which can

properly be certified for the opinion of this court. But whether the evidence as

adduced was sufficient to support the decision is a question of fact which could not

properly be the subject of a certificate for the opinion of this court. For, this court

takes the view that if there was C some evidence on which the courts below could

have arrived at the decision they did, then this court will not interfere, even though

had this court itself tried the case it might have come to a different decision. Those

who are called upon to certify points of law should, therefore, keep this distinction in

mind in order to ensure that only the correct D questions are certified for the

opinion of this court.

The learned High Court judge who certified the point of law in this case found that

the three courts below misconstrued or neglected altogether the evidence of the

appellant's witness (PW.4). That witness had testified that in 1984 he, as an

agricultural field E assistant, had allocated some of the appellant's land to some

"wananchi" or villagers, and that before doing so he had to consult the appellant as

the owner of the land. The learned judge criticised the trial court and the first and

second appellate courts for wrongly understanding PW.4 as saying that he had

allocated the disputed land to the F appellant in 1984. Thus the learned judge stated

that had the three courts below taken the correct view of PW.4's evidence, he was in

doubt if they would have come to the conclusion which they did.

It is pertinent to point out here that this criticism would be relevant only in relation

to the G decisions of the first and second appellate courts. The District Court which

heard the first appeal clearly fell into the error. That court took the mistaken view

that PW.4 said that he had allocated the disputed land to the appellant in 1984. And

the Principal H Resident Magistrate (Exercising Extended Jurisdiction) who heard

the second appeal made reference to such mistaken view of the District Court without

correcting it. But the Primary Court was under no mistaken view at all about PW.4's

evidence. It did not give any impression at all that it understood PE/4 as saying that

he had allocated any land to the appellant. I

So the true position really was that the first appellate court and, to some extent, the

second appellate court, misdirected

1989 TLR p167

KISANGA JJA, OMAR JJA AND MNZAVAS JJA

themselves as to the evidence of PW.4. And the question which the learned judge

meant A to certify for our opinion is whether those courts would still have come to

the conclusions which they did, had they not so misdirected themselves. That is a

question of law which could properly be certified for opinion by this Court.

In considering that question it has to be pointed out once again that the Primary

Court in B arriving at its decision it did not rely on any mistaken view of PW.4's

evidence. It proceeded on the correct view that according to PW.4 the appellant was

in occupation of the suit land in 1984 when he allocated some of the appellant's land

to the villagers. C So the Primary Court found against the appellant not because it

took any wrong view of PW.4's evidence; it arrived at that decision upon its

unmistaken understanding and appreciation of the evidence before it.

The next question which we would have to decide is whether had the first and second

D appellate courts properly directed themselves as to PW.4's evidence, they would

still have come to the conclusion which they did. But having regard to the course

which we have decided to adopt in this appeal it is no longer necessary to do so.

What we have dealt with so far was the only point of law specifically certified for the

E opinion of this court. But the learned judge also reserved unspecified questions of

law for the opinion of the court. Thus in this ruling he said:

The applicant raises other grounds but, in view of the aforegoing I do not

consider it necessary F to deal with them. How that it has been found that this is a

fit case for consideration by the Court of Appeal I will leave the said grounds for

consideration or otherwise by the Court of Appeal itself. G

With great respect to the learned judge he was wrong in so doing, in as much as it

amounted to abdicating his responsibility in the matter. Once he had decided that

other points of law existed, he was enjoined by law to go further and spell out clearly

what H those points of law were. It was wrong for him to leave for the Court of

Appeal to guess what those points were.

In her memorandum of appeal the appellant complained that the assessor Nathaniel

Nungazija is a father-in-law of the respondent, and that she had requested the trial

court I to have the assessor disqualified on that ground but her request was not

heeded. That

1989 TLR p168

KISANGA JJA, OMAR JJA AND MNZAVAS JJA

complaint, however, is not borne out by the record. There is no endorsement by the

trial A magistrate to that effect, and the appellant made no mention of it in her

successive appeals to the District Court and the High Court. Indeed at the hearing of

the appeal the respondent vehemently denied the allegation. thus as there was

nothing to support the B appellant's allegation the same could not have been

certified for the opinion of this court.

The memorandum of appeal also raised the complaint that only one of the two

assessors in the Primary Court gave opinion in the case. This is fully supported by the

record which C clearly shows that only the first assessor gave his opinion while the

second assessor did not and was absent. This raises the question of constitution of the

court which is a point of law that could properly have been certified to us. The

omission by the second assessor to give his opinion contravened section 7 of the

Magistrates' Courts Act which D provides that:

(1) In every proceeding in the Primary Court, including a finding, the

court shall sit with not less than two assessors. E

(2) All matters in the Primary Court including a finding in any issue, the

question of adjourning the hearing, an application for bail, a question of guilt or

innocence of any F accused person, the determination of sentence, the assessment of

any monetary award and all questions and issues whatsoever shall, in the event of

difference between a magistrates and the assessors or any of them, be decided by the

votes of the majority of the magistrates and assessors present and in the event of an

equality of G votes the magistrate shall have the casting vote in addition to his

deliberative vote.

We think that it was mandatory for the second assessor to give his opinion on the

final issue in the suit i.e. which party was successful and to what extent. The omission

to do H so was necessarily fatal, and it rendered the purported decision null and

void. That is to say there was no decision by a competent or properly constituted

court. We think that the present appeal ought to succeed on that ground. Thus it

should now be clear why earlier on in this judgment we decided not to go into the

question whether the two I appellate courts below would have come to the same

conclusion if they had

1989 TLR p169

KISANGA JJA, OMAR JJA AND MNZAVAS JJA

properly directed themselves as to the evidence of PW.4. It is apparent too that we

had A to touch, although only in passing, on the purported judgment of the Primary

Court simply for the purpose of ascertaining the actual point of law which the learned

judge meant to certify for our opinion. It so happens also that this would appear to

exhaust the B unspecified questions of law which were reserved for our opinion.

In the light of the foregoing, we set aside the purported judgment of the Primary

Court. Needless to say the judgment of the first and second appellate courts

necessarily crumble; they could not stand on what has been declared a nullity. C

The question as to what future course is to be taken in this matter has exercised our

minds quite considerably. We are conscious of the time element involved in

commencing a new trial, inconveniences to the parties and the problems of resummoning

the witnesses. In the course of hearing the appeal the respondent, for

instance, informed us D that one of the witnesses who gave evidence at the trial is

already dead. Thus in order to minimize inconveniences to the parties and delays in

finalizing this matter, and in order to avoid further costs and possible problems

connected with tracing or non-availability of E witness, we direct that the matter be

remitted back to the Primary Court for action as follows: If the assessors Adam

Hamisi and Nathaniel Mungazija are still alive and can be traced, then the Primary

Court magistrate who tried the case with them should summon them, sum up the case

to them afresh on the evidence as already recorded and then F proceed to decide the

case in accordance with the provisions of section 7 of the Magistrates's Courts Act as

reproduced earlier. Thereafter any party

who is aggrieved by that decision can appeal to the District Court in the usual

manner. If the said assessors are dead or cannot be found, then the matter is to be

tried de novo G before a different magistrate and upon the same court fees as have

already been paid. It is further ordered that each party is to bear it own costs of this

appeal.

H Order accordingly.

1989 TLR p170

A