Gamaha v. Lwavu (PC) Civ. App. 173-D-69; 10/7/70; Georges, C. J.

Gamaha v. Lwavu (PC) Civ. App. 173-D-69; 10/7/70; Georges, C. J.

The plaintiff, who has failed in both courts below, now presses his appeal to this Court in his claim for a parcel of land at Kondoa.

            Held: (1) “Having carefully read the evidence led before the Primary Court, I am satisfied that the decision reached by the Magistrate and the assessors was correct. “ [However, the court went on to make the following comments as regards the procedure followed during the trial]. (2) “When the plaintiff closed his case the suit was adjourned to enable the defendant to attend with his witnesses. On the adjourned date the defendant duly attended but the plaintiff did not. Thereupon the magistrate purported to dismiss the plaintiff had already made out his case. If he failed to turn up the proper course was to hear he defendant’s case in his absence and decide the issues. A plaintiff’s case can be dismissed for non-appearance only when he had led no sufficient evidence to justify the defendant’s being called upon to answer. This is the position provided for by rule 24 of the Primary Court Civil Procedure Rules.” (3) “….. On a visit to the scene the magistrate questioned neighbours who were not witnesses at the hearing. I appreciate that valuable information may be obtained this way but it is desirable that some proper procedure be followed. The Primary Court Civil Procedure Code lays down that evidence must be given on oath – Rule 46(2). People who give answers to Magistrates on the scene have not been sworn. Perhaps all this should be changed but once it remains as it is, the procedure should be followed. There is no indication that the defendant was allowed to cross-examine their persons who made statements adverse to this case. Again the right to cross-examine an opposing witness has always been regarded as basis to the process of administering justice. Well directed questions will often show that a witness’ evidence is not as accurate or as unbiased as it might, at first hearing, appear to be. If a neighbour on the scene can give useful evidence the better course is to summon him to the Court and have his evidence recorded there as would be the evidence of any other witness.” I am satisfied, however, that this irregularity, though serious, has not resulted in a failure of justice.’’ [Considering all the evidence properly taken] “the assessors could have come to no other conclusion than that to which they did come.” (4) Appeal dismissed.