Katonya v Masimbi ((PC) Civil Appeal No. 87 of 1995) [1998] TZHC 2538 (13 November 1998)

390 TANZANIA LAW REPORTS[1999]T.L.R. A It is upon the above reasons that I quash the conviction and set aside the sentence and the compensation order. The appellant is to be released forthwith from prison unless lawfully held in connection with another charge or charges. Appeal allowed. B MATHIAS KATONYA u NDOLA MASIMBI c HIGH COURT OF TANZANIA ATMBEYA D (Moshi, J.) (PC) CIVIL APPEAL No. 87 OF 1995) E (From the decision of the District Court of Mbeya at Mbeya in Civil Appeol No. 32 of 1995, S. Musa, District Magistrate) Customary Law - Limitation period - Limitation period for recovery of clan land - Item 6 of the Customary Law (Limitation of Proceedings) Rules p 1963, Government Notice Number 311 of 1963. Primary Court - Assessors - Substitution of assessor after trial has commenced — Effect thereof — Section 7 of the Magistrates ' Courts Act 1984. G Civil Practice and Procedure - Irregularity in the trial proceedings - Whether appellate Court may vary or alter the decision - Section 37 (2) of the Magistrates' Courts Act 1984. Civil Practice and Procedure - Primary Court — Irregularity in Primary Court H proceedings - Judgment signed by magistrate only and not signed by assessors - Whether curable. The appellant filed a suit in a Primary Court for recovery of clan land from the respondent more than fourteen years after the act complained of took place. The trial I

MATHIAS KATONYA v. NDOLAMASIMBI 391 began before the magistrate sitting with two assessors but on subsequent hearings A the magistrate sat with two assessors one of whom had not taken part on the first day of the trial. This new assessor was the first one to give his opinion with which the original assessor concurred after the magistrate had summed up the case to them. The trial magistrate wrote the judgment of the court agreeing with them. He signed B the judgment but none of the assessors did. Held: (i) As the land was held under customary law the limitation period for its recovery was twelve years and, therefore, the suit was time barred C (ii) The substitution of an assessor or assessors during trial is an irregularity (iii) An assessor who has not heard all the evidence in a trial is incompetent (iv) A Court on Appeal will not reverse or alter a decision of the Lower Court because of an irregularity in the proceedings unless such irregularity has in fact D occasioned a failure of justice (v) It is evident that the participation of a stranger influenced the result and there was therefore a failure of justice (vi) A trial magistrate is required to consult assessors and not to sum up the case to them before obtaining their opinions (vii) It is mandatory for the magistrate and assessors to all sign the judgment and failure to do so was a fatal irregularity. F Appeal dismissed with costs Cases referred to: (1) Ezizeus Rutakubwa v. Jason Angelo Civil Appeal Number 21 of 1987 g (unreported) (2) Joseph Kabni v. Regina, 21 E.A.C.A. 260 (3) Kabulofwa Mwakalile and 11 others v. R [1980] T.L.R. 144 H Statutory provisions referred to: (1) Customary Law (Limitation of Proceedings), Item 6 of Schedule (2) Magistrates Court Act 1989, sections 7 and 37(2)

392 TANZANIA LAW REPORTS [1999] TLR. JUDGMENT (Delivered 13 November 1998) MOSHI, J.: The dispute between the parties centred on a shamba. Each party claimed ownership of it. The appellant ’ s contention was that the respondent had encroached into that shamba since the year 1977-1978. The suit, however, was preferred in 1991. The Primary Court of Ilembo unanimously found in favour of the appellant. The respondent felt aggrieved and preferred an appeal to the District Court of Mbeya. The District Court allowed the appeal on two technical grounds and quashed the proceedings of the Primary Court. The grounds were, firstly, that the suit was time-barred, and, secondly, that there had been a change of assessors, would, with respect, uphold the decision of the District Court. Firstly, the shamba was clan land held under, and governed by, customary law. The period of limitation for its recovery was twelve years according to item 6 of the Schedule to the Customary Law (Limitation of Proceedings) Rules 1963 , G.N. 311 of 1964, which reads: Proceedings to recover possession of land or money secured on mortgage of land ... Period of limitation 12 years. That the period of limitation for the recovery of such land is twelve years according to item 6 of the Schedule to G.N. 311 of 1964 was settled by the Court of Appeal in Erizeus Rutakubwa v. Jason Angero, (1). In this case the appellant had twelve years during which to claim the land from the respondent. He did not do so. He preferred the suit after thirteen years. The suit was thus time-barred. Secondly, there was indeed a change of assessors. On 6 July 1993 the trial magistrate sat with Kamegele and J. Ntosa as assessors. The evidence of the appellant was heard and the case was adjourned till on 20 July 1993. On that day the magistrate sat with S Nsyukwe and J Ntosa. These two continued to sit with him for the remaining

MATHIAS KATONYA v. NDOI AMASIMBI 393 part of the trial . With respect, Nayukwe was, quite obviously, incompetent a to take part in proceeding as he had not done so from the beginning. The question, therefore, is whether Nsyukwe ’ s participation was fatal. As a general rule the substitution of an assessor or assessors during a trial has the effect of making the trial a nullity: Joseph B Kabui v. Reginam (2), and Kabulofwa Mwakalile and others v. R (3). In point of principle, every member of a judicial tribunal must hear all the evidence which is tendered before the tribunal in order to fully participate in deciding the matter. Section 7 of the Magistrates ’ c Courts Act 1984 does not authorize substitution of an assessor or assessors in the course of a trial. There are, however, the provisions of section 37(2) of the Magistrates ’ Courts Act to reckon with. Under these provisions a decision or D order of a Primary Court or District Court under Part III of the Act would not be reversed or altered by reason of any irregularity in the proceeding before or during hearing unless it has in fact occasioned a failure of justice. The test of determining whether a change of E assessors during trial is a curable irregularity or not is, therefore, whether such a change occasions a failure of justice to a party in fact. F Looking at what transpired in this case there can be no doubt that there was failure of justice. It is evident from the record before me that the participation of Nsyukwe, a stranger, influenced the results. He gave his opinion before J. Ntosa who then concurred with him, and the trial magistrate then concurred with both of them ; Nsyukwe ’ s G opinion, therefore, was not without consequence. In those events, it could not safely be ruled out that the opinion of Nsyukwe, who had heard only part of the evidence, influenced the rest of the members of the court in coming to their opinions. I am thus satisfied, as was H the District Court, that the participation of Nsyukwe occasioned injustice. There is yet another technical ground upon which the proceedings of the trial court could be nullified. There was contravention of the provision of rule 3 of the Magistrates ’ Courts (Primary Courts) i (judgment of the court) Rules G.N. Number 2 of 1988, which provides:

394 TANZANIA LAW REPORTS [1999JT.L.R. A 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 members. c (3) 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. What happened in this case was, firstly, that the Primary Court magistrate d summed up the case to the two assessors present and recorded their opinions instead of holding consultations with them. The magistrate did not thus adhere to the procedure laid down in sub-rule (1) above. I take the view, however, that the error cannot vitiate the decision as E I consider it to have occasioned no failure of justice, and therefore curable under section 37(2) of the Magistrates ’ Courts Act 1984. Secondly, and worse by far, the judgment of the Primary Court was signed by the Primary Court magistrate alone, and not by the F assessors as well, and thus in contravention of sub-rule (2) above. Assessors are an essential part of the court. They are members of the court, and the judgment or decision of the court, if not unanimous, is on the majority vote basis.This means that the assessors may take G sides against the magistrate, and theirs becomes the judgment or decision of the court. In this case, the decision was unanimous, and it was mandatory in terms of sub-rule (2) above for the magistrate and the two assessors to have all signed the judgment recorded by the magistrate. In the circumstances of this case, I am satisfied that the judgment of the primary was not, in law, a judgment, and that the irregularity was fatal to the proceedings. For all the foregoing reasons, this appeal stands dismissed with I costs here and in the courts below.