Mathias Katonya vs Ndola Masimbi (PC Civil Appeal No. 87 of 1995) [1998] TZHC 2521 (13 November 1998)

IN 'l'HE HIGH COUR'.1.1 OF '1 1 AT-JZANIA . AT MBEYA · (PC) CIVIL APPE.u.L NO. 87 OF 1995 (From the decision of the District Court of. ,· Mbeya at fc'lbeya in Civil Appeal No .. 32 of 1995 l Before: S. Musa ... District Magistrate) . MATHIAS KIi.TONYA QO 00 60 O 00000 QO 000 0 0 Q APPELLANT Versus 0 Q O O Q V O C: 0 0 0 0 "l O ,0 0 .:) 0 0 0 ~ 0 RESPOND:El\TT JUD3-MENT The dispute between the parties centred on a shamba. Each party claimet e>wner,;;h;ip of it., 1 .fue appeliant 1 s contention was that the respondent had I ., i:.," encroached into thaf·ihamba:since·th~·yea.r 1977 - 1978. 'rhe suit, however., w~ . r ... preferred in 19910 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 I. I was time-barred, and, secondly, that there had been a change of assessors. I would, with respect, uphold the decision of the district court .. Firstly, the shamba was clan land hld under, and go'rerned by, customary . ..,._. .. ,,. . . . lawo The period of limitation for its, r<:;covery was twelve years according to . ''..l item 6 of the Schedule to the Customary Law (Limitation of .-Toceedings) Rules 1963, G.N. 311 of 1964, which reads: ' 1 Proceedings to recover possession of land or monc •' secured on mortgage of · 1and •••• ·• ~ • " • ~ • " i::ieriod ,·. f limitation ••• 4 •.•• ~ ...... 12 year~•'' I • • ~ ! • • • That the period of limitation for the recovery of such lru:id · ., twelve years according to item 6 of the Schedule to G.N. 311 of 1964 was , :,ttled by the···· ' C~urt of Appeal in ERIZEUS RU'l1AKUB1.-JA Versus JASON ANGERO: r.::_v:i.l Appeal Ifo. 21' ·,·- of 1987 (unreported). In this case the appellant had twelve years during which ocioooeoo /2

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 6.7.93 the trial magistrate· sat with Kamegele and J. Ntosa as assessors. The evidence of the appellant was heard and the case·was adjourned tll on 20.7 .. 93. On that day the magistrate sat with S. Nsyukwe and Ja Ntosa. These two continued to sit with him for the remaining part of the trial. With respectl Nsyukwe was, quite obviously, incompetent to take part in this proceeding as he had not done so from the beginningo The question, therefore, is whether Nsyu,kwe'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: SEE _Jose,Eh _ _Jfabui Vo Bee;in 21 E.A.C.A. 260, and 1abulo:f.1:!..J'iwakalile and 11 Othe..£._ VeR., (1980) TLR 144. 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' Courts Act 1984 does not authorise substitution of a~ assessor or assessors in the course of a triale There are 1 however, the provisio:i.s of sect ion 37 (2) of the Magistrates 9 Courts Act to reckon with. Under these provisions a decision or 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 occassioned a.failure of justiceo The test of determining whether a change cf assessors dur:ing trial is a curable irregularity or not is, therefore, whether such a. change occasions a failure ef justice to a party in facto Looking at what transpired in this case there can be no doubt that there was failure of justice. It is evid.ent from the record before me that tl1e participation ot Nsyukwe, a stranger,, influenc-ed tl:le re-sul ts. He gave his opinion before Jo Ntosa who then concurred with him, and·. the trial magistrate then concurred with both of themo Nsyukwe vs opinion, therefore, was not without ooaooooc>oo• /3

• 3 - consequence~ In those events, it could not safly 1?-- uled out that the opinion ' .· '. .... ' , :' : .. of Nsyukwe, who had heard only part of the v::i,.d..e;1:4ce, influenced· the ;r--es, pf the members of the court in coming to their opinio_ns. I am thus sat-isf.ied 1 as was •'• '.· . ,.•. ' the district court, ·that the participation of Nsyukwe ocasiorie'd -inj,μs,ticeo . . ' . , / . There is yet another technical ground upon which the proceedin~~ of the trial court could be nullifiedo 'l'here was contravention of the provision of Rule 3 of the Magistrates 1 Courts (Primary Courts) (Judgment of the Court) Rules, GoNo Noo2 of 1988, which provides 11 3(1) Where in 1any procedings 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 dec,is.ion of the court o (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 ell the memberso (3) For the avoidance of doubt a magistrate shall not, in lieu of, or in a.ddition to, the consultations referred to in sub-rule (1) of this Rule, be entitled to sum up t• the other members of the court.;, What happened in this case was, firstly, that the primary court magistrate summed up the case to the two assessors present and r-ecorde<l,. their opinions. ins.t~ad of holding consultations 1r1ith thema The magistrate did not thus adhere to the procedure laid down in sub-rule (1) aboveo I take the view, however, that the error cannot vitiate the decision as I consider it to have occasioned no failure of justice, and therefore curable under section 37(2) of the Magistratesi 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 assessors as 1 ·:sll, and thus in contravention of sub-rule (2) aboveo Assessors are an essential part of the court. 'j_'hey $.re members of the court, and the judgment or decision of •00••000000• /4

...IL 4 - the court, if not unanimous, is on the majority vote basis. 'I'his means that the assessors may take sides agai:n.st the ,nagistrate, 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-:cule (2) above for the mc:. 6 istrate and the two assessors to have all signed the judgment recorded by the rnagistrateo 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 proceedingsG For all the foregoing reasons, this appeal stands dismissed with cost~ ·here and in the courts belowo AT MBEYA. 13 November 19980 For Appellant~ Absento ; For Respondent: Absent .. B.P. YiOSHI JUDGEo