Kazimoto, J.: In Mkumbi Primary Court in Mbinga District the respondent sued the appellant for Shs. 2,000/= being the unpaid balance for the price of a cow. The appellant was ordered to pay the amount claimed. He unsuccessfully appealed to the District Court. He is now appealing to this court. He has submitted seven grounds of F appeal.
Before deciding whether I should deal with the appeal on merits I have to decide on one point first. I have noted that in this case there was a change of assessors during the trial. G On 22/10/85 the assessors who sat with the trial magistrate were Felix Kapungu and Vicent Nusuhela. They heard the evidence for the respondent until he closed his case. Then the case was adjourned for defence which was fixed on 21/11/85. On that day the assessors were H. Wandela and V Nusuhela. The appellant did not appear though he H was duly served. The trial court decided to close the appellant's case and summed up the case to the assessors who both found for the respondent. The issue is whether the proceedings are irregular and if so the irregularity is incurable.
As a matter of practice assessors during trial should not be changed. In this case there I can be no doubt that Wandela's participation in the trial on 21/11/85 was irregular. The issue is
whether there has been a failure of justice in this case. Section 37(2) of the Magistrates' A Courts Act 1984 has provision to the effect that no decision or order of a Primary Court or a District Court shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the proceedings before or during the hearing or in such decision or order unless such error, omission or irregularity has in fact occasioned a B failure of justice. It is clear that an irregular proceeding can be upheld if no failure of justice has been occasioned thereby. In order to decide the issue one has to ask a further question if Wandela could have properly decided the case. In the case of C Arobogast Fundi v Masudi Zaidi  TLR 125 where the facts of the case were exactly the same this court (Lugakingira, J.) decided that there was no failure of justice in the change of assessors. I have some difficulties in agreeing with that decision. Wandela in this case as the other assessor in the case cited above never heard the evidence of any D witness. He did not know the case for both the parties in the case. After the summing-up he could not give any meaningful and independent opinion. He was the first to give his opinion. In his opinion he found that the appellant was liable. Wandela was in my opinion incapable, without hearing the evidence of the witnesses in the case reach a E just decision. Nusuhela concurred with Wandela, who never heard the witnesses. In my considered view I find that the irregularity in this case has in fact occasioned a failure of justice and I, with greatest respect, dissent from the decision in Arobogast Fundi v Masudi Zaidi (supra).
For these reasons the proceedings are quashed and if the parties wish they can bring a F fresh suit. I make no order as to costs.