Sajeni Mbunile vs Sahonje s/o Pangayila (PC Criminal Appeal No. 4 of 1998) [1999] TZHC 388 (3 December 1999)
Judgment
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IN THE HIGH COURT OF TANZANIA
AT MBEYA
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(PC) CRIMiNAL AP.PEAL NO. 4 OF 1998
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:.{From :I(ibeya District Court Crimi:ti-al Appeal
... Noa 25 of. 1997
BEFORE: B.H. MJ\l'IDAWA RESJDENT MAGISTRATE)-
SAJEN:I: MBUNILE •••••••••••••••r•••
.• ·< . V.:r.sus
siNJE 'ri/o '. PANGAYILA ••••••• : • ~ -~ ;
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.r,l.i.J .
· JUDGMENT
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APPELLANT
RESPONDENT
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The respondent; prosecuted the appellant . bef?re _ the ·primary. CR;ur.J:'J:?:f.. _
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Ilembo of the Offence of Forcible entry, contrary to section 85 of th Pnal
Code. The appellant :was convicted as charged and sentenced to six months
imprisonment.:'· The appellant felt .aggrieved and preferred an appeal to. the
district·· tourt of }1beyao
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The district cour;, ~~wever, did not hea,r:;-,d decide the appeal on meritso
The ·distict•·coμrt _nullified the procedings and judgment of ·the .. primary .court
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on the,. $ole:'g:ro1l,l),d :1:1:,at the judgment-·was signed by the magistrate al.ohe.l: .. .::.::..-.
of Court) Rules, G.N. Noo 2 of 1988. This decision aggri'ev'ed :t;h~,. appellant,d not
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sub-rule (2) of rule 3 of the·' r.-ta.gistrats
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_ Courts ·(Priirta:z-y -Courts),. (Judgment
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hence this second,·appeal preferred and argued•··o'efttre ·me by his learned advocate,
Mr. Mushok.o~wa.
This sec;nd appeal is abundin.t in merit. Sub-rule (2) of Rule 3 of
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G.N. 2/88 reads:
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3(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 'which shall be .·
signed by,;•.-
r the mmbe:;-:s. ~••••o /2
It is thus mandatory in terms-of sub-rule (2) above that a judgment or decision
of a primary court, if unanimous, must be signed by the magistrate and all the·
assessors who sat with him.. The rationale for this -is that. assessors_ are not
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only members of the court but they are part of the decision making process ..
The judgment or decision of the court, if not unanimous, is on the majority
vote basiso The assessors maJ take. s·ictes aga1:4:3t the. magistrate and theirs
becomes the judgment or decision of the court.
The sole ground of complaint by JV'ir. fiu'.5;1.okorwa was that the judgment of
the primary court was in fact signed by the magistrate and the two assessors
wh~ sat with him... With res.:pE:!ct, I. agree.. . It comes out clearly from the primary · · ·
court's judgment, the handwr_itt.en and typed version, that it was duly signed by
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the magistrate and h.is two assessors. It is astounding that this glaring fact
had escaped, the attentipn of the cappellate magistrate (B.H. MANDAWA, RM). Quite
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obviously, therefore, the appellate magistrate was absent-minded and inattentive
when he p~rused that judgment. The primary court's judgment was thus in
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compliance with sub-rule (2) of Rule 3 of G .. N. 2/88.
In consequence, I allow the appeal, quash the district court's judgment,
and hereby remit the first appeal to the_district court for hearing and deter-
mination on merits by another appellate magistrate of competent jurisdiction ..
- . , .... JUDGE. AT MBEYA. 3 December 1999. ':::., For Appellant: Mr. Mbi~e for Mr. Mushor,.orwa., For Respondent: Absent. ..