ALEXANDA KILLIAN v LINUS KINUNDA 1988 TLR 71 (HC)

 

ALEXANDA KILLIAN v LINUS KINUNDA 1988 TLR 71 (HC)

Court High Court of Tanzania - Mtwara

Judge Kazimoto J

9th June, 1988 G

Flynote

Civil Practice and Procedure - Assessors - Change of assessors during trial - Section 37

(2) of the Magistrates Court Act 1984 - Whether failure of justice occasioned. H

-Headnote

The Respondent sued the appellant in Mkumbi Primary Court in Mbinga District for

the unpaid balance of Shs. 2,000/= being the price of a cow. The appellant was

ordered to pay the amount, hence this appeal. Before dealing with the merits of the

case the I Judge observed that there was a change of assessors during the trial. On

1988 TLR p72

KAZIMOTO J

22/10/85, the assessors who sat with the trial magistrate were Felix Kapungu and

Vicent A who heard the evidence for the Respondent until he closed his case. Then

the case was adjourned for defence which was fixed on 21/11/85. On that day, the

assessors were H. Wandela and V Nusuhela, the appellant did not appear though he

was duly B served. The trial Court decided to close the appellant's case, and summed

up the case to the assessors who both found for the respondent. The issue is whether

the proceedings are irregular and if so whether the irregularity is incurable.

Held: (i) As a matter of practice it is irregular to change assessors during trial; C

(ii) however the irregular procceedings can be upheld if no failure of justice

has been occasioned thereby. But in this case the irregularity occassioned a failure of

justice.

Case Information

Proceedings quashed. D

Case referred to:

1. Arobogast Fundi v Masudi Zaidi [1980] T.L.R. no. 125. E

[zJDz]Judgment

Kazimoto, J.: In Mkumbi Primary Court in Mbinga District the respondent sued the

appellant for Shs. 2,000/= being the unpaid balance for the price of a cow. The

appellant was ordered to pay the amount claimed. He unsuccessfully appealed to the

District Court. He is now appealing to this court. He has submitted seven grounds of

F appeal.

Before deciding whether I should deal with the appeal on merits I have to decide on

one point first. I have noted that in this case there was a change of assessors during

the trial. G On 22/10/85 the assessors who sat with the trial magistrate were Felix

Kapungu and Vicent Nusuhela. They heard the evidence for the respondent until he

closed his case. Then the case was adjourned for defence which was fixed on 21/11/85.

On that day the assessors were H. Wandela and V Nusuhela. The appellant did not

appear though he H was duly served. The trial court decided to close the appellant's

case and summed up the case to the assessors who both found for the respondent. The

issue is whether the proceedings are irregular and if so the irregularity is incurable.

As a matter of practice assessors during trial should not be changed. In this case there

I can be no doubt that Wandela's participation in the trial on 21/11/85 was irregular.

The issue is

1988 TLR p73

whether there has been a failure of justice in this case. Section 37(2) of the

Magistrates' A Courts Act 1984 has provision to the effect that no decision or order

of a Primary Court or a District Court shall be reversed or altered on appeal or

revision on account of an error, omission or irregularity in the proceedings before or

during the hearing or in such decision or order unless such error, omission or

irregularity has in fact occasioned a B failure of justice. It is clear that an irregular

proceeding can be upheld if no failure of justice has been occasioned thereby. In order

to decide the issue one has to ask a further question if Wandela could have properly

decided the case. In the case of C Arobogast Fundi v Masudi Zaidi [1980] TLR 125

where the facts of the case were exactly the same this court (Lugakingira, J.) decided

that there was no failure of justice in the change of assessors. I have some difficulties

in agreeing with that decision. Wandela in this case as the other assessor in the case

cited above never heard the evidence of any D witness. He did not know the case for

both the parties in the case. After the summing-up he could not give any meaningful

and independent opinion. He was the first to give his opinion. In his opinion he

found that the appellant was liable. Wandela was in my opinion incapable, without

hearing the evidence of the witnesses in the case reach a E just decision. Nusuhela

concurred with Wandela, who never heard the witnesses. In my considered view I

find that the irregularity in this case has in fact occasioned a failure of justice and I,

with greatest respect, dissent from the decision in Arobogast Fundi v Masudi Zaidi

(supra).

For these reasons the proceedings are quashed and if the parties wish they can bring a

F fresh suit. I make no order as to costs.

Order accordingly.

1988 TLR p73

G