Mariam Ally Ponda v Kherry Kissinger Hassan 1983 TLR 223 (HC)

MARIAM ALLY PONDA v KHERRY KISSINGER HASSAN 1983 TLR 223 (HC)

Court High Court of Tanzania - Dodoma

Judge Lugakingira J

October 25, 1983

(PC) MATRIMONIAL APPEAL 1 of 1983

Flynote

Civil Practice and Procedure - Assessors - Trial commenced with two assessors, then trial adjourned - On resumption only one assessor present - During summing and judgment there were two assessors - Whether irregularity curable.

-Headnote

At the commencement of the proceedings two assessors sat with the magistrate. The suit was adjourned and when it resumed there was only one assessor. In the final stage of the proceedings, that is summing up and judgment, there were two assessors again. The records did not show whether the assessor who appeared in the final stage was the same I one as the one who was present at the commencement of the proceedings. The impropriety of the procedure was challenged on A appeal.

Held: 

(i) An assessor who has absented himself for part of the trial cannot afterwards be permitted to participate in the determination of the proceedings;

(ii) where an assessor is present at the commencement of any proceeding and is subsequently unable to continue to perform his functions as an assessor, the magistrate may continue to hear and determine the proceeding with the remaining assessor;

(iii)assessors in the primary court have equivalent and complementary powers to those of the magistrate.

Case Information

Order accordingly.

Case referred to:

1. Samwel v Marcel [1967] HCD n. 333

2. Rajabali v Curtis [1968] HCD n. 120

3. Desai v Varsama [1957] E.A. 351

4. Ndatuya v Kisukari [1975] L.R.T. no. 66 E

[zJDz]Judgment

Lugakingira, J.: The appellant successfully petitioned for divorce in the Urban Primary Court, Dodoma, but the decree was overturned by the District Court on appeal by the respondent. She therefore appealed here.

Unfortunately, I cannot go into the merits of the appeal. There was an irregularity in the proceedings of the trial court which I think went to the root of the entire trial.

The trial magistrate, whose name I cannot decipher and whose hand-writing generally can be read by few, sat with two unnamed assessors at the commencement of the trial. The appellant and her witnesses gave evidence in the presence of these assessors and the trial was adjourned for hearing the defence. At the resumed hearing, some three days later, the trial magistrate recorded "Washauri wapo", again without naming them. The truth is that there was a single assessor and the respondent and his witnesses gave evidence. The proceeding was then adjourned for summing up and judgment. However, at the summing up and judgment there were two assessors whose names, again, do not appear and these gave their opinions. In other words, one of the assessors - we do not know who - gave his opinion in the case although he never heard the defence. The I respondent raised the matter in his appeal to the District Court, but the learned appellate magistrate gave it no consideration, let alone a mention. In fact he stated that "there (was) not much substance to abstract from (the) memorandum of appeal".

I think the irregularity was incurable. Section 8(3) of the Magistrates Courts Act, 1963 provides that where an assessor is present at the commencement of any proceeding and is subsquently for any reason unable to continue to perform his functions as an assessor, the magistrate may continue to hear and determine the proceeding with the remaining assessor or assessors. This, in my view, implies that an assessor who has absented himself for part of the trial cannot afterwards be permitted to participate in the determination of the proceeding. Indeed it is against elementary rules of natural justice that a man should sit in judgment over a matter he is not seized with. It is also dangerous to permit such a situation considering that decisions in primary courts proceed on the majority basis. The intruding assessor might be the most articulate and could carry the day. In such an event there would be a miscarriage of justice.

I turn to s.32(2) of the Act aforesaid to reassure myself of the position. It provides, inter alia, that no decision or order of a primary court or a District Court shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the proceedings before or during hearing, unless such error, omission or irregularity has in fact occasioned a failure of justice. I believe, however, that this provision is not intended to cure irregularities such as the one we are considering. I think that the provision is aimed at technical errors, omissions and irregularities which do not go to the jurisdiction of the court. Absence of jurisdiction means absence of a lawful trial and I apprehend that F the court destroys its jurisdiction the moment it is unlawfully constituted.

In the case of Samwel v Marcel [1967] HCD n.33 Mustafa, J., (as he then was) declined to consider the issue of jurisdiction, although apparent on the record, because neither party had raised it. That case is clearly distinguishable from the case before me because, in the instant case, the respondent raised the issue at the first available opportunity. Even though, in Rajabali v Curtis [1968] HCD n. 120 it was held that jurisdiction cannot be conferred by consent of parties. And although in that case this court went to uphold the divorce granted by a primary court it was because the court was merely "doubtful" whether the primary court had jurisdiction and it was also for "practical" reasons which do not obtain in the instant case.

Jurisdiction is thus a fundamental issue the absence of which cannot be cured by the application of s.32(2). In this connection I think it is sufficient to quote from Desai v Varsama [1967] E.A. 351 where the late Hamlyn, J.,

A said, at p. 354:

I cannot agree that this section bears in anyway on the question of lack of jurisdiction in the primary Court. If there was no jurisdiction, then the whole of the proceedings were a nullity and the appellant cannot pray in aid this provision of the law. Lack of jurisdiction goes far beyond any "error', omission or irregularity', nor can it be regarded as mere technicality. There is in law nothing to be reversed or altered and there is a complete absence of any material from which C an appeal can be heard.

I am satisfied that the trial court lost its jurisdiction the moment it became unlawfully constituted. This was not a technical error or irregularity for, in law, there was no lawful tribunal. I am not saying, however, that its decision was necessarily bad. Perhaps I am more inclined to its decision than that of the District Court which even overstepped its powers by ordering the parties to reunite. I am saying that there was no decision in law and, therefore, no material upon which to determine the appeal on merits.

A word is also necessary on the decision of the trial magistrate not to name the assessors. This is perhaps a curable error but it is still significant. First, on the administrative side, I do not know how the assessors could claim and be paid allowances without appearing to have attended. Secondly, and more pertinently, assessors in the primary court are not mere advisers as elsewhere. Their powers in a trial and the powers of the magistrate are almost equivalent and certainly complementary. It is then not out of courtesy or compliment that their identities appear on the record; it is because of the responsibility they share in the court's decision. Further, an appellate G court would always desire to satisfy itself that the proceedings below were conducted with due regard to law and procedure. That makes it desirable, if not necessary, for the record to leave no opportunity for possible uncertainty. There have been instances indeed when, in primary courts, assessors have been changed in the most irregular way. H The result of this is vitiated proceedings. But such a situation would never be evident in the absence of the assessors' names. Is it not interesting, for instance, that in the instant case the magistrate recorded "Washauri wapo" when in fact there was only one? I find it difficult to believe that there was any problem with grammar, but I will be excused for saying that this was an instance of patched up work. I would not wish to believe that this has been the trend. It may finally be mentioned that the appellate court may at times wish to seek clarification on the views expressed by the assessors. This would particularly arise where a point of customary law is involved, and it did arise in Ndatuya v Kisukari [1975] LRT n.66.

There would be no easy way of realising this if the assessors' names are withheld. It would be a risk to count on the memory of the trial magistrate, assuming, of course, that the magistrate himself can be located. All in all, therefore, the assessors' names must appear on the record.

For the reasons I have endeavoured to give, I quash the proceedings and set aside the judgments and orders of the lower courts. The appellant is at liberty to file a fresh petition at no further cost if it be in the primary court. I make no order as to the cost of this appeal.

1983 TLR p227

D