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. D

-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; G

(iii) the irregularity went to the root of the entire proceeding for, in effect,

there was no trial at all.

Case Information

Appeal allowed. H

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

1984 TLR p47

A 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 C 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 D if so minded. The parties will bear their respective costs here

and below.

Appeal allowed.

1984 TLR p47

E