John Hiza v. Shekefu (PC) Civ. App. 117-D-70; 27/11/71; Biron, J.

 John Hiza v. Shekefu (PC) Civ. App. 117-D-70; 27/11/71; Biron, J.

The dispute was over a piece of land lying between the shambas owned by the appellant and respondent. The appellant claimed that his father assisted by him had cultivated the disputed piece of land from virgin bush. Upon his father’s death in 1966 he continued cultivating the land but was absent some time in 1968, working in an ujamaa village, when the respondent encroached on the land and started cultivating it. The respondent’s claim was based on allocation. I the face of conflicting evidence the primary court unanimously found for the appellant on the basis of traditional evidence i. e. the omission of the respondent to appear at the mourning ceremonies and declare title to the land, it being in the possession of the appellant’s father at the time of the latter’s death, was an indication that he had no claim to the land. On appeal to the district court the assessors were prepared to dismiss the case but the district magistrate disregarding their views found for the respondent. One issue raised on appeal was the power of the magistrate to disregard the wished of the assessors in giving this decision.

            Held: (1) “Although in primary court cases the decision is determined by the majority, that in effect the assessors if they are unanimous can overrule the magistrate, in a district court, as provided for by the Magistrate’s Courts (Amendment Act 1969, the magistrate is not bound by the opinions of his assessors, as laid down in section 8A(2), which reads: ”(2) In determining any proceedings in which a district court or a court of a resident magistrate sits with assessors, the magistrate shall not be bound to conform with the opinions of the assessors, but in any case in which he does not so conform the magistrate shall record his reasons therefore in writing.” The magistrate has not however recorded his reasons for disagreeing with his own assessors.”