Sisya, J.: The short point of law raised in this appeal is, whether G when the Mjesani Primary Court of Muheza District resumed the trial of the appellant on 12.5.81 with a new set of assessors the trial Court was lawfully constituted.
The record of proceedings of the trial Primary Court shows that trial of the appellant commenced on 30.4.81 with E.P. Magula, Esq. Primary Court Magistrate, presiding H and Rashidi Rajab and Bayagayana Pyugula as assessors. Two witnesses including the complainant herself gave evidence. The case was then adjourned to allow the complainant time to bring her witness, one William Msengi, who, for unknown reasons had failed to turn up on that day. When the trial resumed on 12/5/81 Mr. Magula was I still the presiding Magistrate. The assessors this time, however, were Kassimu and Enock Mkumbo. Only one witness, William
Msengi, gave evidence and the complainant closed her case. The appellant elected not A to say anything whereupon, after summing up, the Court proceeded to judgment. The appellant was found guilty by a unanimous decision of the presiding Magistrate and the "assessors" and he was convicted as charged and he was sentenced to pay shs.1,000/= fine or to go to jail for six months. He paid the fine. B
The appellant who was represented by learned Counsel, Mr. Mramba, raised the same point, among others, through his same advocate on first appeal before the District Court. In dealing with this point the learned District Magistrate, on first appeal, directed himself in the following terms, and I quote from his judgment: C
It is true that the assessors were changed but after considering the circumstances of this case I find that the error caused no failure of justice in determining the case as I feel that the decision was just and fair as if the assessors were the same. D
With respect, in arriving at the conclusion which he did in this case I do not feel that the learned District Magistrate proceeded on the right premise. The material question before him on first appeal, and now on second appeal, is not whether or not justice was E done but rather whether the Court which finally disposed of the case was, in law, properly constituted. The situation in the instant matter regarding the position of assessors in the Primary Court is almost on all fours with that in the case of Dominico Simon v R.  H.C.D. 152. In that case, just like in the instant matter, the two F original assessors were replaced by others who did not hear all the evidence presented during the course of the trial. El-Kindy J. (as he then was) expressed the view that the fresh set of assessors could not be substituted for the original set of assessors. The position remains the same even if the accused person did not raise any objection at the G time of substitution. With this I most respectfully agree. It must be conceded that there is no provision in the Magistrates' Courts Act, 1963, covering such an eventuality as the one before this Court in the present appeal. I am, nevertheless, by far, not persuaded that it is proper for a fresh set of assessors to be substituted for the original one. If this were to be permitted then some valuable material - the demeanour of both accused and H witnesses included - would easily escape their knowledge and consequently affect the just determination of the case.
In the Simon case quoted above El- Kindy J. declared the proceedings a nullity. With respect, I hold that that was the only matter. This is because when the Court of first I instance resumed the trial on 12.5.81 and the presiding Magistrate sat with a new set of two assessors
the Court was not lawfully constituted, properly so-called. This appeal succeeds on this A ground. The conviction is quashed and the sentence is set aside. It is noted that the appellant paid the fine. It is hereby ordered that the same shall now be refunded to him.
I have left the question of trial de novo open to whoever between the Republic and the complainant may be interested to pursue the matter further. B
This appeal succeeds to that extent indicated.
C Appeal Allowed