ALLY KAGURU v HALIMA YANGA 1984 TLR 156 (HC)

ALLY KAGURU v HALIMA YANGA 1984 TLR 156 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Maina J

February 10, 1984

(PC) CIVIL APPEAL 45 OF 1983 B

Flynote

Civil Practice and Procedure - Assessors - Trial in Primary Court - Opinion and vote

of assessors recorded by magistrate - One assessor not present when judgment was

read - Whether irregularity curable. C

-Headnote

During the trial both assessors were present and their opinion and vote was recorded

by the magistrate. On the date of delivering the judgment one assessor was absent.

The issue was whether the irregularity could invalidate the proceedings. D

Held: Although there is no legal requirement for assessors to be present when

judgment is delivered provided they give their opinions before a decision is made, it is

desirable that they should be present. E

Case Information

Appeal dismissed.

No case referred to.

[zJDz]Judgment

Maina, J.: The respondent, Halima Yanga, successfully sued the appellant, Ally

Kaguru, at the F urban primary court, Singida, for a house valued at Shs.10,000/=.

The appellant's appeal to the Singida district court was dismissed. This is a second

appeal.

There was no dispute that the house, subject matter of the suit, was being occupied by

the G deceased, one Isaka Kamanyile until the time of his death in 1982. The

respondent said that she was married to the late Isaka in about 1945. Theirs was a

marriage under customary law. During their marriage, the respondent said she built

the house now in dispute with the assistance of the deceased Isaka. The respondent

said that she supplied all the building materials. They lived in the H house together.

They had no children. The respondent had a daughter, apparently by another man,

and when she was away in Tanga visiting her daughter, the deceased lived with

another woman named. When the respondent returned to the matrimonial home

after many years the late I Isaka refused to take

1984 TLR p157

MAINA J

A her back. There was a claim filed before the reconciliation tribunal at Kibaoni in

which the respondent claimed her house and household effects. According to a

member of the tribunal, Juma Msombe, the deceased admitted that the house was

build by joint efforts between the respondent B and the deceased. Unfortunately,

the deceased died before the tribunal finalized the dispute. There was also evidence

by Jumanne Salum in support of the respondent's evidence that the respondent had

build the main house, now in dispute.

Against all that evidence, the appellant alleged that he was related to the late Isaka

and that the said C Isaka bequeathed the house to him. Isaka's former wife, Amina

was present when Isaka built the house, testified what she did not know who had

constructed the house, although she alleged that she was married to the late Isaka and

that the house was jointly built by herself and Isaka before D their marriage was

dissolved. Idi Ntandu said that he had plastered the house at the request of the late

Isaka and that the respondent had been away at Arusha.

Both lower courts found that the house in dispute was built mainly by the respondent

but also with some efforts made by her late husband. The lower courts found as a fact

that the couple had no E child and this was undisputed. It was held, therefore, that

the respondent was entitled to the house. The appellant's first ground of appeal is

that the house was build jointly by the late Isaka and his former wife Amina. But the

evidence by Amina failed to prove that. Her evidence was discredited as F she could

not even tell who had actually constructed it. If the house was built during the time

she was living with Isaka and with their joint efforts she could not possibly have

failed to name the person who constructed it. Both lower courts rightly found

Amina's evidence unworthy of credit and rejected it.

G The appellant's second ground of appeal is that he was given the house by Isaka

and that there was a will to that effect. But no such will was tendered in court.

Furthermore, Isaka could not have bequeathed what was not his property. The

respondent's evidence was supported by that of the H witnesses she called that she

built the house with money she obtained after selling millet and that her late husband

only assisted her.

The last ground of appeal is that one of the two assessors was not present when

judgment was delivered by the primary court. I have only to point out that the

record of the trial court shows I clearly that each one of the assessors gave his

opinion at the end of the trial. Both said that in their opinion the house belongs to

the respondent.

1984 TLR p158

The trial magistrate complied with section 8 of the Magistrates' Courts Act, 1963, by

getting and A recording the opinions of the assessors. The record does not show

whether both assessors were present when judgment was delivered in the primary

court, but there is nothing in the law which requires assessors to be present when

judgment is delivered by a primary court. What is important B is that they must

give their opinions before a decision is made. This was done. It is desirable that the

assessors be present when judgment is delivered but there is no legal provision

requiring their presence in the primary court when judgment is being delivered.

Absence of assessors or one of them at the time of delivery of judgment does not in

any way invalidate the proceedings. C

I may point out here that even in the proceedings in which the appellant applied for,

and was appointed administrator of the estate of the deceased Isaka Kamanyero, in

Civil Application No. 10 of 1982 of the Singida Urban Court there is no mention of

the house or of any properties left by the D deceased Isaka.

The evidence on record proved, on balance of probabilities, that the house in dispute

was the property of the respondent and I can find no reason to interfere with the

findings of the lower courts. It is for the foregoing reasons that this appeal is

dismissed with costs. E

Appeal dismissed. F

1984 TLR p158

G