Omary Nassoro Mbotto vs Abdallah Said Likupila (Civil Appeal 156 of 1997) [1998] TZHC 2011 (21 August 1998)

IN THE HIGH COURT OF TANZANIA a t TlAtt ES SALAAM PC CIVIL APPEAL NO. 156/97 (Originating from Civil Appeal No. 2 of 1997 of Kibaha District Court and Original Civil Case No. 15/96 of Mkuza Primary Court) OMARY NASSORO MBOTTO ................ APPELLANT VERSUS ABDALLA SAID LUOJPILA .................... RESPONDENT ■nroflEMENT KAT.F.GEYA. J. The Appellant, Omari Nassoro Mbotto w h o sued the Respondent, Abdallah Saidi Likupila, lost in the Primary Court as well as in the District Court on Appeal. Still dissatisfied he has tried his luck wilh 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 o f 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 Ihe gentlemen Assessors. Clearly this was a violation of GN 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 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 judgement of the Court which cV m ll be. signed bv all the members. (3) For the avoidance o f doubt a M agistrate shall not, in lieu o f or in addition tr> the consultations referred to in sub-rule (1) o f this rule, be entitled to siim up to the other members o f the Court - (em phasis m ine) . 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. H e a r i n g t o start de novo before another Magistrate. As the Court has a hand in this no filing fees should be paid afresh, and each party is to bear own costs. L.B. KALEGEYA JUDGE