Vincent Kanondo vs Emil Pesambili (PC Civil Appeal No. 56 of 1999) [2000] TZHC 446 (15 May 2000)

IN THE HIGH COURT OF TANZANIA AT MBE'IA (PC) CIVIL APPEAL NO. 56 OF 1999 (From the decision of the District Court of Sumbawanga District at Sumbawanga in Civil Appeal No. 11 of 199 - Original Civil Case No~ 58 of 1998 of Laela Primary Court) VICENT KAOO~ APPELLANI' . \LERSUS .:aai . .-1 EMIL PES.A,MBILI ••••••ooeeo••••• RESPONDENT MACKANJA, J. The respondent instituted a suit at the Laela Primary Court against the appellant for recovery of a parc&l of land. He succeeded. The appellant successfully challenged that decision before the District Court which held that the appellant had been wrongly joined. Instead of applying for costs before the appellate District Court the appellant instituted a fresh suit for costs. It is the suit for the recovery of costs that has given birth to this appeal. It has occurred to me, however, that the appeal is untenable, This is so because the trial primry court magistrate ignored a ;1 mandatory statutory requirement wen he recorded the judgment of the court. Rule 3 of the Magistrates cdurts (Primary Courts) (Judgment of Court) Rules, G.N. 2 of 1988, must be cqmplied with if a judgment or decision i' I of a primary court is to be vali~. Sulr-rule (2) of that Rule provides that: I, I, ! "(2) If all members of the court agree on one decision, the magistrate shall proceed to record the decision or judgment of the court which shall ••• /2

2 - be signed by all the members" (underscoring supplied). The term "member of the court" is defined to mean an assessor and includes a magistrate. So in the instant case the learned trial magistrate together with each of the two assessors with whom he sa.t, were-required as a matter of law to sign the judgment. That was not done. Only the trial ,· magistrate signed it. The omission to have the assessors sign the judgment has rendered a fatal irregulnrity on that judgment and the proceedings on which it is founded; they have become null and yoid. So is the judgment of the appellate District Court. There is another feature which is unusual. What the plaintiff was required to do was not to institute a fresh suit for recovery -of costs. He was only required to make an applicntion for costs before the court that awarded them to him, for costs follow the event. In these circumstances and by reason of the fatal irregularity I have pointed out, the judgment and proceedings before the trial court and those before the appellate District Court are quashed~ It is directed that whoever was awarded costs may apply .for them before the court that awarded them to him, and in the same case file. It follows that the application has to be made before the District Court at Sumbawanga in the appeal in which that court directed that the proper party, and not F.~ili Pesambili, be sued. A fresh applicRtion in this behalf may be made subject to the law of limitation. JUDGE 15/5/2000