Kibwana Rajabu Tangani vs Yusufu R.O Tangani (PC Civil Appeal No. 126 of 1997) [1999] TZHC 122 (2 March 1999)

IN THE HIGH CGlJRT OF TANZANIA AT DAR ES SALAAN PC., CIVIL f-i.PPEAL NOo o., 126/97 KIBHANA PJi.JABU · TANGANI. • • • • • • • • • • • • • • • APPELLANT Versus YUSU1''U R. O. Tli.NGANI o ••••••••••••••••• ., RESPONDENT ----.,,.·-· ------- J U D G E M E N T Before the Ifakara Urban Primary Court, the Appellant, Kibwana Tangani, sued succesfully the Respondent, Yusufu Tangani, for possession of a piece of land estimated at 7 cres. _An appeal to the District Court by Yusufu Tangani cut short the Appellants joy.aover .. his sucess ' for,the appeal was allowed. He in turn tried his luck with this court.; It is unfortunate that this matter proceeded to this stage without one very fatal defect committed by the Primary Coμrt being discovered. This :i.. the violation of Rule .. 3 of the "Magistrate's Courts (Primary Courts) 0-udgement of cotrt) Rules, 1987 (GN.2 of 1988). Under that rule the old procedure of a mar;i.strate summing up to the assessors and rec.ording their views was scrapped. off. The current procefure prescribed under Rule 3 (1) requires a IDEtgistrate to consult with assessors at the conc],usion of the trial and.if there is a consensus, to reduce the judgment or decision into writing and that juegment is then signed by the magistrate and assessors (Rule 3 (2))e -=---- In the case at hand, the magistrate recorded the individual views of the assessors and proceeded to compose a judgement which he signed · mh· n.. • 1 t · leaves · tb · d t f -'-h t ralone. 1 is Cit.ear v:w a ion l us 1:11. , no JU gemen o 1., e cour. . at allo The conBequence thereof is to declare the proceeciings, judgement and orders a nullity as I hereby <loo The same fate befalls those of the District Court for they can not survive once their very base is removedo There is.a string of authorities on this-all unreported: HG-DSM, Registry: (PC) Civil Appo No. 6/91 Ibral1im Saidi Vs. Salum Said, (PC) Civi·l App 0 No.' 105/91 Mohamed S., Amir Vs. Saidi Ngere.la; (PC) Civil App. No., 133/935 - CaJ:"oline Hamisi vs,, Harif Hemed (just to mention a few)., The matter to be tried afresh on same fees, and as the court has a hand in this no order is made as to costs., ,: ·.!.-1/ . I. ,, , . .-. . .,, ·!·.I KAt~:GEYA~· JUDGE

' = 2 = Coram Mshote ·~ DR/HC Tn person: · .•For the Appellant . Absent For the Respondent. Judgement cteli\Terei:i. fhit:f 2nd larc.hl i999 in the presence of the AppelUmt il'J. the absence of the Responr.iento F oSo· MSHffi'E. DISTRICT ].EGt:T1AR 2/3/1999~