Kamaria Husein Ally and Others vs Rukia Hemed (PC Criminal Appeal No. 22 of 1997) [1998] TZHC 2266 (16 November 1998)

AT DODOMA (PC) CRIMINAL APPEAL NO. 22 OF 1997 (From the dEieii:m.on of the District Court of Singida District at Singida in Criminal. Aeeal. No. 136 of 1996.., . · Before NoPoZo Chocha Esq., s. Resident Magistrate Original Criminal Case No. 310 of 1996 of the Urban Primary Court at Singida-District)" · lo KA.MARIA HUSEIN ALLY) 2. ASHA. GAID ) • •.••• o o APPELLANTS 3. SALMA HUSSEIN ) versus RUKIA HEMED o • • • • • • 0 • • • • • RESPONDENT J · U D G M- E N T KYAND0 1 J.: This is an appeal agai::1s;; ac,:,onviction for assault causing actual. bodily harm c/s 241 of the Penal Code. The trial of the case was held in the Urban Primary Court at Singida where the appellants were acquitted. The respondent/complainant appealed to the District Court which convicted them (the appellants). They were aggrieved, hence this appeal.. Unfortunately I cannot deal. with the appeal on merits as the proceedings in the Primary Court were incurrably irregular. At the end of the evidence for both sides the assessors each gave 81 maoni 11 (opinions)., Then the Primary Court Magistrate wrote a judgment in which he addresses the assessors as follows:- "Waheshirniwa washauri kama tuli vyosikia katika usikilizaji wa shauri hili ni shauri la Jinai la shambaj.io la kudhuru mwili K/F 241 St1ra ya 16 Kam;~ ya Adhabu. 81 Dy doing this the Magistrate was setting ~mself apart from the assessors, quite contrary t.c thP. :ru.1i:.s soverning judgment making in Primary Courtse Worse still the giving of 0 maoni 11 by the assessors was an exercise in Serious breach of the said rules.

2 The rules are in GoN., Noo 2 of 1988~/'a. For the benefit of the Magistrate, in case they are not avail.able in: llia. lib~ .I. reproduce them below i!l: "xtensot::, GOVERNMr-·"1' NOTICE NO •. 2 - public hed on 1/1/88 .. ... . ..,.,...., ~ COURTS ACT, .1984 (No. 2 of 1984) J ·r L E S Under Section 7 1 .(j_) Th~ 1AGISTRATES 1 ·-COURI.'S (PRIMl'...RY CC-t.JRTS) (JUDGMENT: OF COURr) RULES, 1.98?_ • . 1. These Rules may be cited as the Magistrat•a' _ Courts• (Primary Courts) (Judgment of Court) Rules, 1987. 2. In tese Rules unless the context requirP• "' otherwise:•• "the courtn means a primary ct; 19 magistrate 91 means primary court magistr~~e presiding ov.,.,.. · ._,.,,.,.,,,.,i.;1.!"c:: before the callrtJ 11 member of courtH means an assessor of &he court and includes a magistrate. 3. - (i) Where in a:ny pro·ceedings t court has 'I heard all the evidence or matters i,ertaining to the · ~ -: issue to be determined by the cs,urt, the magistrate shall proceed to consult witll, 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 --11.·-'decisiori_ oi· jud~~nt of the court which shall be signed. by al~ --e members. -:·::•. •:, (3) For thi av:oie of doubt a magistrate shall •· ..... not,: n lieu of or ;n·addition to, the consultations referred .. t6 ·i-ri suq rul (1) of the RuJ.e, be entitled to .SU~;· up to:_-t;h~,:ther m_embers of the court. • • •. ~ • • •· ·:;":. •. '. I • • • 4. - (1) Where :afte;. consuitations i accordane with . . ~ ·. . . -".. ·--: Rul·e:3 t_he is.sue is_. __ determi.ned·, by the_ vote ·of· the • • • :-, •T• • : :. -•••":,..• • •• • ,• •.• • • .• • ,. • • • : majority,'' tq,e "magstrat-1?hall · proceed to record the deciitx;i - ,,. ,;::.,....,;1"-1- ';-f t}:J:e majority ,-,hich shall': be -. :·-· ... . . -:, signed by th assenting members of the court. ,; : ;

I _I (J •,I (2) The dissenting member of the court sha.,:.t.l give a brief statement specifying findings of ftet and the law, his decision on the issue an,d the reasons for it., (3) The brief statement ~~f~,;red to in sub rule (2) of thi_s Rule shall be ref,orded by t_he" magistra'(;e immediately below the dqi_sion or judgment of the major:ij;y and shall be sigheq. by the dissenting member• Dar es Salaam, 2nd December, 1987' 1 • F•L• NYALALI, 1 Chief Justice These rules are as clear as can be. Under the rules :there i.s n~. prqcedure for assessors giving mere 0 maoni ".. What~ :: (the rules) require is that if all the members of the Court,, ·i.e.. the Primary Court Magistrate an..d. the. assessoragree on -one decision, aft.er consuitation then one Judgment of the court is prepared by the Magistrate and it then is signed by all. ·,: the members. The judgment under the rules is not that of the Magistrate alone; i;t ,has to be of all the "members . df the court who agree on it~ .. As $hown above•- thl abov~ procedure was t - .. l \ . - . followed in this caset th assessors gave opinions <'Jiaoni")-;n the case while the magistrate made his own j1,1dgment. This,'.-':.< as stated, was iITegular and rende.ced the n;ix'.~ preedings as he],d in the Primary Court nul],. and void, And iITegularities wer repeated in judgmeni; making proc~dure in ;he District Court as well. The learned Resident Magistrate, after earing the appeal, set out t_o compos'? judgmen. He <4d SQ~ hut somwhere in the middle, in the course of th· judgment, he disco'V!ered th~t adeitional. evidence was reqaj.~~d :;.n the case. Ile directed th~ l'ricary Court ther.efor~ ,to ,r_e,wd the - - 8 evidence and then cel!:μr,- tt to li..in, _ ~--, · · · - ··•:•-•14 •-• •-• ./4

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This supplementary judgment therefore should be treated as part and cont:Lnuation of the 13th May, 1997 judgment~ It completes the former, and therefore, the two shall be read as the same judgmento"

• ... . .. . I consider this .,1:'.1-.-~~~~dopted by the learned Resident Magistrate . unusua1 and of course, as already indicated, irregu1ar. There has to.be one judgment in a case. The judgment has to be a cont:i:nuoJJS one, from beginning to the end. A judgment cannot be in parts or portions. What the learned Resident Magistrate (Chocha SRM) should have done in this case upon diecovering,in the course of writing hi·s judgment., tha-t. there. was need for additiona1 evidence to be recorded was to can.1 the part of the judgment he had started to write. (It is only a judgment which has been delivered which cannot be _concelled 1 amended or in anywa::, . . altered. He should then have made order for additional evidence to be taken. Upon receipt of the additional evidence he should •: :. ··,. have writ" startectthedgment afresh,- from the beginning. There then would have been one complete judgment in the nc-::-::-:aJ.. manner and not a judgment in instalments as happened. But the irregularity in procedure by the Resident Magistrate could not _have made this court to mlllify the proceedings as it is not as serious as the irregularity appearing in the Primary Court proceedings. -Having declared the proceedings in the Primary Court null and void; I quash those proceedings and I diri?.,."- ~ ..__.:1. de novo before :·a, differen Magistrate and set of assessors., T:1e proceedings in the District Court on appeal equally go. They are hereby quashed also. 1 ti// <,i>--· --·Ck «.L. .., /KY.ANDO) J 'GE DODOMA..