Georges Jayo v. Mohamed Hamisi (PC) Civ. App. 217-D-69; 27/7/70; El-Kindy, Ag, J.

Georges Jayo v. Mohamed Hamisi (PC) Civ. App. 217-D-69; 27/7/70; El-Kindy, Ag, J.

This case involved an inherited shamba. On 20th August 1968, the respondent filed this suit against the appellant at Gambero primary court claiming ownership of the shamba and was awarded judgment. However, the appellant took his appeal to the District Court of Tanga. The District Court in its judgment said that had it not been for material technical irregularities which were found to have been committed during the trial, it would have dismissed the appeal as the appellant magistrate was satisfied that there was sufficient evidence to support the respondent’s claim. He quashed the proceedings and ordered retrial de novo. One of the irregularities at the original trial was that the case record failed to show that any of the contesting parties had been given the opportunity to cross- examine each other’s witnesses as provided for in rule 47(2) of the Magistrates’ Courts (Civil Procedure in Primary Courts) Rules G.N. No. 310 of 1964. The retrial was conducted by the same magistrate sitting with the same assessors and hearing the same witnesses and the judgments given were also identical. This was made one of the grounds of the present appeal. It was also argued on appeal, by the appellant that the evidence that the shamba belonged to him was that there were 19 members of his descendants and relatives who were buried in that shamba.

            Held: (1) “It seems to me that the learned district magistrate was quite right in considering that such procedural breach was of material nature. One of the purposes of cross examination is to test the evidence of the witnesses and if this is not done, the evidence goes untested. Testing such evidence is important as it might affect he credibility of the witnesses and hence the weight to be put on such evidence. Where the evidence is weakened or destroyed by the cross examination, the weight to be given to such evidence is affected, and where it is not affected then the weight given to such evidence is not affected either. It was therefore necessary for the witnesses in that case to be cross examined as it is provided for in Rule 47(2) of the Magistrates Courts (Civil Procedure in Primary Courts) Rules G.N. 310 of 1964. I would agree that such defect would be fatal and would be sufficient to cause the proceedings to be quashed and, where suitable, a retrial ordered.” (2) On the issue of the identity of judgment of the primary courts, the learned district magistrate said: I see no reason that there should not be the same judgment if the witnesses for both sides were the same and they all gave the very same evidence as before – there fore the judgment must be the same. I feel that the magistrate gave it in good faith and no miscarriage of justice done. With respect I would agree that the judgment in such case would be expected to be same, unless it can be shown positively that the trial court did not in fact consider the evidence, but merely copied down what it had said previously in the decision which had been set aside. Careful examination of the record, would show that the cross examination carried out would appear not to have affected the credibility of the witness.” (3) “And in respect of the complainant that the same magistrate and assessors heard the same case, and therefore justice was not seen to be done, the learned magistrate said that: there is no provision in law or procedure which I know of which debar the same people not to hear it again and further more, there was no directive from this court that the case be retried by another magistrate with new assessors … I would respectfully agree that his complaint had no merit, for the reasons stated. In any case the complainant if it was worth consideration should have been raised at the first earliest moment i.e. at the retrial. Apparently the appellant had no objection to having the same people trying this case, and he did not suggest any here, at any stage, that he has been prejudiced by having the same people hearing his case. It may well be, in some cases, retrial should be done by either a different magistrate sitting with a fresh panel of assessors or by the same magistrate sitting with a fresh panel, in order to establish the principle that justice was not only done but was seen to be done. But this in my view is not sanctioned by any rule or procedure, and each case must be considered in the circumstances of the case and its own case. In this case, as I have already stated, the course taken did not cause any injustice to the appellant. (4) “….. there was more than enough evidence from the respondent’s side to show that the property in dispute in fact belonged to the respondent. The primary court, in a unanimous opinion, held that the shamba is the property of the respondent, and they accordingly gave judgment in his favour. I am satisfied that three was sufficient evidence before the trial court to justify this finding. The fact that a person has buried his ancestors in that piece of shamba does not necessarily mean that the shamba belonged to him. There was no evidence to show that in the custom of the appellant that dead people can only be buried in the shambas of the clan, and at no other place. I find, therefore, the lower courts came to the right conclusion.” (5) Appeal dismissed.