Alimwene Mwaiswaga vs Makanika Katatula (PC Criminal Appeal No. 6 of 1999) [2000] TZHC 448 (25 April 2000)

IN THE HIGH COURT OF TANZANIA AT MBEYA APPELLATE JURISDICTION (Mbeya Registry) {PC) CRIMINAL APPEAL NO. 6 OF 1999· (From Criminal Appeal No. Bo of 1997 of the District :Court of Mbeya - Original Criminal Case No. 173 of · , 1997 of Iyunga Primary Court BEFORE: A. Mo SALLUM .. S .. DoM./H.M.) ALIMWENE MWAISWAGA APPELLANT VERSUS MAKANIKA KATATULA. •eocoeoo•••••••••••••• RESPONDENT JUDGMENr MACKANJA 1 J • " . This appeal originates in a decision that,was made in Civil Gase the Mbalizi No. 136 of 1996 before L Primary Court. So. before this appeal can b~ determined on the merits I must satisfy nyself that that decision is a yalid one. The validity of a decision of a primary court depends on several procedural pre-conditions having.been complied with. One of such pre-co1+ditions is compliance with The Magistrates Courts (Primary Courts) (Judgment of Court) Rul~,. :987, which were published as Government Notice No. 2 of 19880 Rule 3 of those Rules creates the following mandatory condition:~ 11 (1) Where in any proceedings the court has heard all the evidence or matters partaining to the issue to be determined by the court the magistratP --1:-,.all 9roceed to consult with the assessors present, with the view of reaching a decision of the courtott ••• /2

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• 2 - Sub-rule (1) of Rule 3 has thus abolished the practice where, at the close of the trial, the trial magistrate summed up the evidenoe to the ass&asors. Nowadays consultation with the assessors, who are described in Rule 2 as members of the court, has replaced the eumming up. Sub-rule (2) makes :provision for what must be done 'after the • consultation in order to make a valid consensual. judgrrtent or decision • of the court. It states this:-· n(2) If all the members of the court agree on one decision, the magu;trate shall proceed to record the decision or judgment of the court which shall be signed by all the members." The word 11 signn is the root for the word ''signature"•· A peNIOl\ is eaid to sign a document if he writes his name or puts a·mark representing his name or if he· puts his finger print on such • document. This is an act that must be performed by the person who is required to sign. So if a magistrate writes down the names -of the assessors at the end of the·judgment without each of those assessors having signed it, as is the case here, the omission will amount to non-compliance with .sub-rule (3) of Rule 3. Because the requirement that all the members of the court shall sign the decision or judgment of the court to which they all agree is mandatory, omission to do so renders the judgment a nullity; This is what has happened in this case, for only the magistrate has signed the judgment. The rendition of the fatal error to the judgment has not only nullified that decision, it has also rend~ the trial proceedings void. Likewise, the proceedings before the appellate District Court, its judgment and orders are null and void. Now, the typed copy of the judgment purports to show that

the assessors sf.sne<i it as well. The truth of the matter is that there is no signature by any of the assessors. Their names wro,e simply recorded by the trial magistrate. Upon the foregoing observations the decision of the trial oourt 1 proceedings and the sentence that was imposed on the accused are quashed. Since the judgment and the pro-oeedinga before the appellate District Court are based on a nullity they are also quashed. directed that the appellant be refunded the fi.e that he paid. It is l Considering the triviaJ.. circumstan.ees of this case justioo does demand a re-trial; I so order, the '3ruse be re-tried before another magistrate with a fresh team of assessors. Judgment to be delivered by the District 1«3gistrar. Date: 25/4/2000 Coram: A.S.N. Wambura - D.R • .Appellant: Present in person Respondent: Present in person C/Ce Mwakalonge J.M. MACKANJA JUDGE 21/3/2000 Court: Judgment delivered in open chambers and transla,ed in Kiswahili this 25th day of April, 2000 at the presence of all parties. s. A. N. WAMBURA DISTRICT REGISTRAR 25/4/2000 copy of the original.·· · ....... / ,/ ' • : . :, ·.· ·"=,,,t./ • ./ • ·_,. ·- I s. A. N. WAMBURA, PRM (E.J.) 15/5/2000