Rashid Nkungu v Ally Mohamed 1984 TLR 46 (HC)

RASHID NKUNGU v ALLY MOHAMED 1984 TLR 46 (HC)

Court High Court of Tanzania - Singida

Judge Lugakingira J

November 22, 1985

CIVIL APPEAL 22 of 1984 C

Flynote

Civil Practice and Procedure - Judgment - Dispute over ownership of land - Whether decision maintainable where the trial court entered judgment after framing the issues without allowing parties to adduce evidence.

-Headnote

The appellant claimed a piece of land from the respondent. The Primary Court Magistrate framed only one issue, namely, to which party the disputed land belonged. The Magistrate then proceeded to sum up the case to the assessors who gave opinion in favour of appellant. The Magistrate E entered judgment accordingly whereafter the respondent successfully appealed to the District Court. Appellant then brought this appeal. 

Held: (i) As no evidence was adduced there was no basis for the summing up to the assessors' and F the judgment that followed; (ii) pleading which is all there was before the court are not evidence and cannot be the basis of a decision except where they amount to admissions which was not the case in the instant case; (iii) the irregularity went to the root of the entire proceeding for, in effect, there was no trial at all. Case Information Appeal allowed. No case referred to: 

[zJDz]Judgment 

Lugakingira, J.: The appellant claimed a piece of land from the respondent. At the commencement of the proceeding in the Primary Court the appellant briefly stated the substance and basis of his I claim and the respondent briefly stated  the substance of his defence. At that juncture the trial magistrate framed one issue, namely, to which of the parties the disputed land belonged. Then, and without more, he summed up the case to the assessors who gave opinions in favour of the appellant, and judgment was entered accordingly. B The respondent successfully appealed to the District Court, and the appellant brought this appeal. I do not have to go into the merits of the appeal as I think the proceeding was a nullity. No evidence was adduced. It follows that there was no basis for the purported summing up, the assessors' opinions and the judgment. What there was were just pleadings, but pleadings are not evidence and cannot be the basis of a decision except where they amount to admissions, which was not the case here. I am of the view that the irregularity went to the root of the entire proceeding for, in effect, there was no trial at all. The proceeding is quashed in its entirety with liberty to the appellant to institute fresh proceedings if so minded. The parties will bear their respective costs here and below.

Appeal allowed.

1984 TLR p47

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