Yisambi Mwakaliule vs Kanyela Chalotela ((PC) Civil Appeal No. 56 of 1996) [2000] TZHC 290 (1 December 2000)

WcGr - — i)Sr 3 IN TkIE HIGi-i CuU1T OF TANZANIA AT MBEYA (Pc) CIVIL APPEAL NO0 56 OF 1 996 (F'om the decision of the District Court of Mbozi at Vwawa in Civil Appeal No0 43 of 1 995 Before: J.L. Lupenza — District Nagistrate) YISANBIMWAKALIULE APPELLANT Versus KANYELA CHALOTELA RESPONDENT RULING MOSHI, J This is a second appeal from the decision of the primary court of Igamba. The suit centred on a piee. of land which the respondent was claiming its ownership. The primary court found for the respondent, and the appellant, feeling aggrieved, preferred his first appeal to the district, court of Nbozi which was dismissed0 The appellant still felt agrieved, and his learned advocate, Ir. Kayange, preferred this second appeal to this court. r. Kayange preferred four grounds of appeal but argued only the second ground which read: (2) That the learned District hagistrate grossly erred in law by not declaring the judgment of the trial primary court to be a nullity since it was not a judgment of tne majority, and also since it offended the requirements of the Magistrates Courts (primary courts) (Judgment of court) Rules 1937, ON No. 2 of 1988 Rule 3 of GN No. 2 of 1988 is relevant here and it provides 3(1) Where in any proceedings the court has heard all the evidnce or matters pertaining to the issue to be determined by the court, the magistrate shall proceed to consult with the assessors present, with the view of reaching a decision of the court0 (2) If all the members of the couragTee on one decision, the magistrate shall proceed to record the decision or judgment of the court which shall he signed by all the members. oO•0*00• 12

(3) For the avoidance of doubt a magistrateshal1 not, in lieu of or in addition to the consultation referred to in subrule (1) of this Rule, be entitled to sum up to the other members of the court. What happened in this case was firstly, that the primary, court magistrate received and recorded opinions from the assessors present instead of holding consultations with them. The maistrate did not thus adhere to the procedure laid down in subrule (1) above. I am, however, of the view that the error cannot vitiate the decision. I consider it to be one which falls squarely within the purview of section 37(2) of the Magistrates Courts Act 1984, which inter alia provides that no decision of a primary curt shall be reversed or altered on appeal on account of any error in the proceedings during the hearing, unless such error has in fact occassioned failure of' justice. In my view that error did not occasion a failure of justice in the Wrcumstances of this case. The erroris therefore curable under section 37(2) of the Magistrates' Courts Act. Secondly, the judgment of the primary cdurt was signed by the primary court magistrate alone, and not by the assessors as well, and thus in contra- v±i of subrule (2) above. Assessors are members of the court, and the decision of the court, if not unanimous, is on the majority vote basis. This means that the assessors may take sides against the magistrate, and theirs becomes the judgment or decision of the court. In this case, the decision was an, and I agree with Mr. Kayange that it was mandatory in terms of subrule (2) above for the magistrate and the twQ asessors to have all signed the judgment recorded by the magistrate. In the circumstances of this case, howeve2-, that judgment cannot be said to have been that of the magistrate alone. It was the unanimous decision of the court. True, the judgment recorded by the i2iagistrata bears only the signature of the magistrate under it. But the assessors had duly signed their concurrent opinions, and in the judgment recorded by the magistrate, the magistrate duly referred to, ancj cited, those oianioas -and concluded that he . . . . ...... . . /3

/URT'N o Zi A I / .. ......•...' f. I N \ ( TV • I' / B8P. I]OSHI JUDGE was of the same opinion0 On prope' reflection, therefore, the assessors i:-n this I case cannot properly be excluded from the unanimous judgment recorded by the the magistrate4 And besides, failure of he assessors to sign under the :judgment in the circ'wnstances of this case would have been a curable oiission under section 37(2) of the Magistrates 9 Courts Act which in part provides that no decision of a primary couit shall be reversed or altered on appeal on account of any omission in such decision unless such omission has in fact occassioned a failure of justice0 In this case, the omission did not occasion a failure of justice4 With respect to Mr. Icayange, I rule, therefore, that the irregularities cited did not vitiate the proceedings0 In consequence, this second appeal stands dismissed with costs. AT MBEYA. 1 December 2000. -. For Appellant Absent

• For Pespondent: Iresent.