Mbotto vs Likupila (PC Civil Appeal 156 of 1997) [1998] TZHC 10 (21 August 1998)

IN THE IllGII COURT OF TANZANIA AT DAR ES SALAAI PC CIVIl, APPEAl, NO. 156/97 (Originating from Civil Appeal No.2 of 1997 of Kihaha District Court and Original Civil Case No. 15/96 of Mkuza Primary Court) OfARY NASSORO MBOTTO ...........•. APPELLANT VERSUS ABDALLA SAID IJKUPILA ......•.......... RESPONDENT JUDGEMENT KALEGEYA, J. The Appellant, Omari N assoro Mbotto who sued the Respondent, Abdallah Soidi Likupila, lost in the Primary Court as well as in the District Court on Appeal. Still dissatisfied he has tried his luck with this Court. 'The claim was for recovery of a piece of land estimated at 30 acres. Although the District Court upheld the judgement of the Primary Court , it overlooked one glaring error on the record of the said Primary Court. At the conclusion of the trial the Magistrate called upon the Assessors to give their opinions which were duly recorded. The Magistrate then proceeded to write a judgement which was not signed by the gentlemen Assessors. Clearly this was a violation of ON No. 2 of 1988, Rule 3 which states, " 3 (1) Where in any proceedings the Court has heard all the evidence or matters pertaining to the issue to be detennined 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 judgement of the Court which shall be signed by all the members. (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 swn up to the other members of the Cowt - (emphasis mine)". For this reason I need not go into the merits of the appeal, for, the judgment which led to the two appeals is a nullity. However inconvenient it may be to the parties, faced with such defect, this Court can do nothing but to declare the lower Court's proceedings and judgements a nullity as I hereby do. Hearing to start de novo before another Magistrate. As the Court has a hand ill this no filing fees should be paid afresh, and each party is to bear own cost~. L.B. KALF~GEYA JUDGE