Hadija Mbaruku vs Juma Hatibu ((PC) CIVIL APPEAL NO. 69 OF 1997) [1998] TZHC 2262 (7 May 1998)

IN THE HIGH COUHT OF TANZANIA AT TABORA - .... ~ ' (PC) CIVIL APPEAL NO. 69 OF 1997 ( OH IG TI-JAL CIVIL APPEAL NO. 17 /97DISTR IC T 'COURT KIGOV.lA) HADIJA MBARUKU-·.-. ._ ••••••••••••••••••• AF PELLANT .. ···-- Versus .· ,. JUMA Hl.TIBU ...•.....•....... - ...... . RES PON DE HT ===-===--=-==========-- This is a second appeal. The appellant, an old lady, J.l~.d.:!-.j.,3:j{pr8:£uJ~~ w>as sued by the respondent Juma I-Ia:ti:bu., an old n1c.n, ( age given at 70) for a quarter of an acre of la·:nd. rrhere was an allegation that the old lady had encroached into the land of the respondent at Ujiji in Kigoma Disttict. The two are apparently neighbours. The respondent, as I s.ay, ·won the case. The lady then appealed to the District Court. There she has lost hence this appeal. The situation I am describing is what is substantive now - the chrono:i:ggy that must be used to entertain the appeal. However, the nreal 11 history of the case, if I may say so, is really a chequred one. Although the real history of the case may not assist in other deciding this appeal one wa-y O!j:> the:r.c 'r think it is good that I mention it so as to give a good understanding of the b~ttle.

2 Tha respondent, actually, had, in 1994,·opened a case at Ujiji (Civil Case No. 40/94) asking the lady -fo· quit the area she had encroached upon. He . .., . . lost the case. The case had···oome ... b~_fore a lady primary Court magistrate one !i~~~..Y~• ,This m·agistrat.e . ., .. _ at the time she started hearing the case, was expecting a child. So, she could not finish the trial. The record suggests, but does not show, that the magistrat;e never visited the site. Only two assessors visited it. And then, to make matters worse, at the end of the day, one of the assessors had retired, making it pactically impossible for him to sign::·,· the judgment. So, a lot of things became both irregular and fatal. First the visit to the site by the two assessors only, in the absence of the magistrate, was irregular. Then, the non signing of the final judgment by the two assessors became not only irregular but also fatal mandatory that all assessors participating in a trial sign the final judgment). These irregularities however came to the notice of Mr. Yongolo, Resident Magistrate, who, on 18/5/95, declared the judgment of the lady magistrate a nullity. That judgment (of the lady primary Court magistrate) had entered judgment for lJ.ja_JJ?-:1:1:~ujr2,. So, I was not surprised when Eadija Mbaruku, when she was before me, talked of winning a case. Perhaps, while I am still on assessors, I should point out one thing:courts of Law are quite serious

3 in asserting the participation of assessors in decision maing. The Court of Appeal for Tanzania has annulled a lot of cases, including murder cases, whE'.1re the participation of assessors was absent or £21 clea. This is, in fact, I should imagi,ne, is going in line with the provisions of law governing assessors., Whereas the old law was liberal for, it said (s. 8(3) of Magistrates Court. Act 1963 as amended by Act No. 18/69).; 11 Where an assessor is present at the commencement of any proceeding and is subsequently, by reason of illhealth or other good cause~ unable to coptinue to perform.his functions as an assessors, the proceedings shall not: be invalid by reason of his absence and the magistrate may contj_nue to hear and determine the proceeding with the remaining assessor/ or assessors, as the case may be: Provided that in no case shall a magistrate proceed to hear and determine any proceeding in the absence of au the assessors 11 (this provision is also quoted by Lugakingira J. (as he then was) in Arobogast Fundi v. Masudi Zaid ,;.·:.c...c-r~-.:..a.::.-.:..c ,._,-4,...,.:.J:-..c-/.·-- ·-----~,..;.,.:...,_,s..;;,1 fi9sQ7 T.L.R. 125 at page 127), ·now the law is quite strict. Section 7(1) of The Magistrate"s Courts' Act No. 2/84 now reads: 11 In every proceeding in the primary ~ourt, including a f'.inding, the Court shall sit with not less than two asse ssors •. 11

4 ,That provision has been interpreted to mean that if, .. before judgment, an assessor c1J2~ (put it at that worst) the case must start 9:..e,PS!Y£ with a new set of assessors. It is therefore advised to have always,. three assessors in a trial, so that if a mishap befalls one of them, the other two can continue and sign the judgment. wanted to say on assessors. That .. is what 1 '· Now coming back to the instant appeal, the' fact,s established were that the respondent had bought that piece of l,and in 1970. He rented out a portion of it, but eventually decided to use the shamba himself. The appellant took advantage of the short absence of the re spond.ent, when he (respondent} had gone to Bugando Hospital for treatment. She encroached. But children noticed the encroachment and they reported to the respondent. When tho respondent got cured he opened this case~ -True, the respondent had dug a 1riell separating the two areas., of the appeilant and respondent. Everybody wondered why the appellant jumped that Y.J.2.ll and went into the slofQE,:lJ1, of the respondent. I started by saying that this is a second appeal. Well the law is that where there are two concurrent findings of facts of two courts, an appellate Court (the way I am sitting now) should not, as a matter of practice, disturb those concurrent findings of fact, unless there has been a ;imisappre hens ion II of evidence, or Hmiscarriage 11 of justice, or a ;'violation or of sorne well established lawp;l practice.1 (see _4,l]W.];_tlal

\ 5 32 - Court of Appeal for Tanzania). I frankly see nothing of that sort here. The appeal is dismissed with costs. At Tabora 7th May, 1998. 9..F..sl-.er.1, This judgment is to be typed, certified., then sent to the Court of Resident Magistrate Kigoma where the Resident Magistrate in charge there should summon the parties and have the judgment read to them. J. E. C. MASANCI-IB., JUDGE c=---~