Jackson Mwakwana vs Chabo Mwakisyala (PC Civil Appeal No 78 of 1998) [1999] TZHC 386 (22 December 1999)

.., IN THE HIGH COURT OF TANZANIA (From the deision of the Dis·fr.:fct. eourt of Mbeya District at Mbeya iri :civil Appe No~ 1.10 of 1997 ·* .,.. Original Civil Case No~ 31 6f 00 197 of r'1°anJelwa • . · ·• .. . ,i .. ,:., .... -···. · Primary Coui't .. ,. ·, . . ,.·.,_; · ·. -. .... . JACKSON MWAK,'WANA . \ . ···-' .- ; . ooo.;•••d·••,•oooe APPELLANT. _,,, VERSUS CHAI30 ·MWAKISYALA o o o. c •• o • •.o ■ •·• .• • • • o • o RESPONDENT Chabo Mwakisyala brought a civil action before the Mwanjelwa Primary Court against·Jckson Mwaka:bana.for_recovery of a parcel of land that was diSp()ed o.:f. in contentious circumstances He w~>n and the appeal by his.adversary before·the District Court of Mbeya District was dismissed~ However, before :t delve into" the merits of the appeal let me. cast a glc.e_ at the form of the judgment that was prepared by the trial.:.Primary Court. The judgment in qu~~tion was delivered on 18th November 1997, According to the record of proceedings of the trial court the trial magistrate sat with two assessors,, Although the_ magistrate signed the judgment, the record vividly shows that none of the othei members of the court; the assessors, signed it~ Mr. Naalit lech-ned counsel for the appellant, has argued tha~ the omission to have the other ,"-..;J: members of the court sign .the-' judgment has rendered it a fatal irregularity. He· did not go,on to cite the statutory authority for his contention~ The format that a judgment or decision of a primary court must take is spelt out in the Magistrates• Courts (Primary Courts) ••• /2 ·I I . ' . . '

2 --· (Judgment of Court) Hules, 1984 which were publishedin Government Notic~ No. 2 of 1988. Sub-rules (1) and (2~. o.f Rule 3 of those Rules provide that· "(l) Wher·; in any proceedings the court has heard all the evidence or matters pertaining to the issue to be determined by the cci"urt, the ·magistrate shaJ.:l proceed to consult with the assessors present, with a view of reaching a. decision of the court& (2) If all.the members of the court agree on :- :_·-,, ·.·. one decision, the magistrate· shall proceed to record the decision or judgment .. of the cqurt Jwli:i::h ·shall be ·., signed by al+ the mem"berso u These Rules hqtv•E)(:.!'ilde, a·· dparture. from the previous practice where / ·, ... • .. - . :·,, ... ' only the magistrate signed the judgment or decision ,.of the court. In ;··.•. .. . . fact the word 11 decisionn includ~s.an,0rder that will be made by

• .. :·•; .. .'J' .... ~ .~ ~ -. ~ ,., .. ~ ....... , ••. - --- ••· the court and which is interitlerr-to be enforced against anyone, whether a party to a proceeding or any . .:third party to ito And the word 11 proceedings 11 referred to in the Rules include proceedings of a civil and those of a criminal nature, Since the language employed makes the signing of the judgment or decision mandatory, omission to· do so invalidat€£ th~- .e'ntire proceeqingsl Accordingly, I declare ·=:··•.·,: ·. the proceedings bef9re the trial court and those of the first appellate court voi_d r-;i.gh,t fr-orri the betsinning. Upon the rendition of the fatal irregularity on the trial proceedings, judgment and orders .co,nsequential th'erefrom, are quashedo There shall be no order as to costs as no one of the parties is the cause of the irregularity. The case shall be tried a.'1.ew before another r.1agistrate with compet€rit jurisdictiono Delivered •. JUDGE 22/12/1999