Ali Nyembwe vs Mwanaidi Rashidi [1987] TZHC 39 (16 October 1987)


Chipeta, J.: In Ujiji primary court, the present respondent, Mwanaidi d/o Rashid, sued the present appellant, Ally Nyembwe, for recovery of a plot measuring two acres.
After a full trial, the learned presiding primary court magistrate summed up the case to the gentlemen assessors.  The two gentlemen assessors were unanimously of the view E that the respondent/plaintiff had proved her claim and gave their reasons for holding those opinions.  The learned trial magistrate dissented and gave his reasons.  The learned magistrate, however, continued: F
   Kutokana na uwezo aliopewa Hakimu wa Mahakama ya Mwanzo na sheria, sio lazima afuate maoni ya washauri.  Kwa hiyo Mahakama inaamua kuwa madai haya hayakuthibitika kwa sababu mdaiwa aliipata sehemu hiyo ki halali.  Amri:  Madai hayakuthibitika, mdaiwa G aendelee kulihudumia shamba lake kwa sababu alilipata kihalali".
The respondent then appealed to the District Court.  The learned principal district magistrate of the first appellate court took the view that the learned primary court magistrate had grossly misdirected himself in that he acted contrary to express provisions H of section 7 (2) of the Magistrates' Court Act, 1984.  In the opinion of the learned principal district magistrate, the error was incurable.  He accordingly allow the appeal and ordered a retrial.
During the hearing of this appeal, Mr Kwikima, learned counsel for the appellant, I submitted that the first appellate court

could itself have re-assessed the evidence and decided the issues without ordering a A retrial.
Without labouring the point, I respectfully agree with the learned principal district magistrate that the learned primary court magistrate of the court of first instance clearly B acted contrary to express statutory provisions.  Section 7 (2) of the Magistrate's Court Act, 1984 unambiguously states:
   (2) All matters in the primary court including a finding of any issue, the question of adjourning a hearing, application for bail, a question of guilt or innocence of any accused person, the C determination of sentence, the assessment of any monetary award and all questions and issues what-soever shall, in the event of difference between a magistrate and the assessors or any of them, be decided by votes of the majority of the magistrate and assessors present D and in the event of an equality of votes the magistrate shall have the casting vote in addition to his deliberative vote.
In the present case, the court was constituted by the primary court magistrate and two E gentlemen assessors.  Since the two gentlemen assessors were unanimous in their finding, the learned primary court magistrate had no option but to draw up a judgement of the court containing the decision of the majority of the court and the reasons for the decision.
The learned primary court magistrate, therefore, had no authority to overrule the F unanimous opinions of the two gentlemen assessors however perverse their opinions might have appeared to him.  The only option the learned magistrate had was to write his dissenting opinion.
The result in this case, then, is that there was, in effect, no judgement, and such "order" G as was purportedly made by the learned magistrate had no legal validity.
This error, in my view, and with deference to the learned principal district magistrate, was such a fundamental breach of mandatory statutory provisions as to be incurable. H
For the foregoing reasons, this appeal fails and is accordingly dismissed with costs in this court and the courts below.  It is hereby directed that the suit be tried de novo by a court of competent jurisdiction constituted by a different magistrate and different panel of assessors. I
Appeal dismissed.


▲ To the top