Paschal Martin Kimaro vs Mary Mpina and 7 Others (PC Civil Appeal No 80 of 1995) [1999] TZHC 101 (19 November 1999)

. ,... -, IN THE HIGH COURT OF TANZAf~IA DAR ES SALAAM DISTRICT REGI$TRY AT DAR ES SALAAM PC. CIVIl, APPEAL NO. 80 OF 1995 PASCHAL M.: 1 RTIN KIMARO ••••••••••••••• .APPLICANT VERSUS MARY MPINA & 7 OTHERS••••···••••••• RESPONDENTS J,c u· D G M E N T .. BUBESHI, J: The appellant has filed this appeal against the • decision of the District Court Kinondoni which was delivered on 10/5/99 where the present respondents were awarded possession of a banda la biashara. Mr. Luguwa learned advocate ai..peared for the appellant •. His main ground for appeal was that the 1st appellate court failed to under~tand the real issue in dispute. He also stated that the District Court erred to decide on the basis of the evidence SM 9 and SM 10, which evidence Mr. Lugunwa elaimed was unsupportive of the respondents claim. He added that apart from SM 5, the other witnesses were not connected with the issue at all. He stated that basing on the evidence tendered by SM 5 and that of the defence, their appeal be allowed and the court issue appropriate orders the area in question is open space. In course of digesting this appeal, this court had to refer to the judgment delivered by the trial court on 28/11/94. The judgment of the trial court eonsist of a two paged document - onr page one and two the trial magistrate recorded the opinion of the assessors, on page two of the judgment there is ree'.orded the order ol the court to the effect: ttMdai c1meshiJ1r 1 .\Ta au wameshihdwa. Warudishe gharama za mdaiwa - - - -" ,,, ... . /2

2 The question I ask myself is what is the judgment or decision of the trial court. Did the so called judgment address itself to the issues as framed? Secondly does the judgment recorded conform to the requirement (5) of GN No.2 of 1/1/88? I think not. For ease of reference I shall reproduce herewith the relevant parts: 3 (1) where in any proceedings the court has heard all the evidence, 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~ 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 court which shall be signed by all the members4 (~) For the avoidance of doubt a magistrate shall not, in lieu of or in addition to, the consultations referred to in sub rule (1) of this Rule, be entitled to sum up to the other members of the court; 4 (1) Where after consultations in accordance with Rule 3 the issue is determined by the vote of majority, the magistrate shall proceed to record the decision or judgment of the majority which shall be signed by the assenting members of the court. (2) The dissenting member of the court shall give a brief statement specifying findings of fact and the law, his decision on the issue and the reasons for it. • •.• /3

• I ,, (3) The brief statement referred to in sub rule 2 of this Rule shall be recorded by the magistrate immediately below the decision or judgment of the majority and shall be signed by the dissenting member." As remarked earlier on, the ,Judgment of the trial court is confined to the opinions given by assessors .. and the order of the trial magistrate. The issues framed heye not been addressed to and infact the sketch plan drawn when the court visited the locus in quo does not support the decision reached. All considered I am of the view that the judgment of the court is no judgment at all.. It is ordered that the matter be heard de novG before another magistrate sitting with a fresh pair of assessor_s. The requirement of Government Notice 2 of 1988 must be Observed at all times. There will be no order as to cost_s. Delivered in presence of Appellant and · in absence of the Respondent. ;.- ,.-·. ,Iii .' r.)J ' ."f ,, •' 0 ' 1'i,. \ / 1-' /.;, ",1.-,l, u •• • ',l 1·-- . _...·•:,t_:> ':,1-- ....,.,..,...--. A. G. BUBESHI JUDGE . 19/11/99