Mkude, J.: This is a second appeal. The appellant Mohamed Saidi Amiri had sued the respondent, Said Ngapwela, in the Primary Court of Temeke in Temeke District. The B suit was dismissed by the Primary Court and so the appellant appealed to the District Court of Temeke where the appeal was also dismissed. He is now appealing to this court. The case involves rival claims to a piece of land. C
Mr. Marando, learned counsel for the appellant cited the Magistrates' Courts (Primary Courts) Judgment of Court) Rules, 1987 contained in GN 2/88 and submitted that the presiding magistrate in the Primary Court had summed up to the assessors and the said assessors did not sign the judgment of the court as required by rule 4(1) of the said D Rules. He submitted therefore that the trial was a nullity and urged the court to order a new trial.
These two points were raised on appeal to the District Court of Temeke but the learned District Magistrate who heard the appeal dismissed them. As regards the point relating to summing up, this is how the first appellate court dealt with it: E
Having made a sober sorting through the contents of the so called summing up to assessors which the trial Magistrate titled them "Hukumu" which means judgment, I have F come to the view that the portion is not really summing up to asessessors but it is actually the judgment itself because it contains the summary of the evidence of both sides of the case, the issues of the case and the reasoning of the magistrate. In that form I take the same to be the judgment of the court because the gist in it is what the court has found G in the case.
I have examined the original record of proceedings in the Primary Court and found that what the presiding magistrate titled Hukumu comes immediately after the last defence witness, one Zaina Mlola. The order of the court appear in immediately before H Hukumu reads:
Amri: Shauri hadi tarehe 21/12/90 kwa kwenda kukagua sehemu ya tukio gharama zitagharamiwa na wote wawili. I
It is true that the said "Hukumu" contains the summary of the evidence of both sides A of the case, the issues of the case and the reasoning of the magistrate but it cannot be said that the magistrate had intended this to be the judgment of the court. Reading through it one gets the impression quite clearly that it was intended to be a summing up to the assessors. He starts with a summary of the facts and the case for the plaintiff, B then the case for the defendant, after which he frames the issues for determination. Then the next paragraph reads:
C Kwa hiyo waheshimiwa Wazee wa Baraza tuangalie matukio yaliyothibitishwa na kukanushwa tukianzia na tukio la kwanza kuwa (l) Je Kiwanja anachodai mdai ni halali kukidai? Kwa kweli ushahidi uliotolewa na mdai ni kuwa Kiwanja hicho aliuziwa 1985 ... D
This shows that he was addressing the assessors after hearing the evidence of both sides and visiting the land in dispute. In fact this point is put beyond doubt in the last two sentences in which he says:
E Kwa hiyo waheshimiwa wazee wa baraza nafikiri matukio mmeyaelewa jinsi yalivyothibitishwa na kukanushwa. Kwa hiyo ni juu yenu kunipa maoni yenu kama mdai amethibitisha dai lake. F
After this follows "Maoni ya Washauri" under which there is the opinion of the first assessor, Rashidi Abdara Lamani followed by the opinion of the second assessor, Salum. Below the opinion of each assessor there is the signature of the assessor concerned. Then follows the following: G
Hakimu: Kutokana na matukio jinsi yalivyothibitishwa na kukanushwa naungana na washauri wangu kuwa mdai ameshindwa kumleta shahidi aliyemuuzia kuja kuthibitisha H kuwa kweli mali aliyouza ni halali kwake na vile vile hata mashahidi walioshuhudia mauziano hayo pia ameshindwa kuwaleta ....
Mahakama: Kwa kauli moja mahakama inaamua kuwa mdai ameshindwa kuthibitisha I dai lake mdaiwa ameshinda. Mdai amepoteza gharama za shauri.
Below this there is only the signature of the magistrate. Thus the assessors have their A signatures appearing only once each, below their respective opinions.
Nowhere in the record of proceedings can you find the two signatures and that of the magistrate together.
In dealing with the question whether the two assessors had jointly signed the judgment B of the court or not the learned District Magistrate who sat on appeal said:
With reference to the lower court's records, I should not, at this juncture, hesitate to dismiss the appellant's second ground of appeal that the trial court assessors did not C sign the judgment, as the records show clearly that there are signatures of the two assessors namely Rashid and Salum, which they had signed after their respective opinions. D
In my considered view those signatures are enough to serve the purpose intended by the rules cited by the learned, Advocate for the appellant.
With due respect to the learned District Magistrate, those signatures are not enough E for the purpose intended by the rules. Rule 3 provides as follows:
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 F the assessors present, with the view of reaching a decision of the court.
G (2) If all the members of the court agree on one decision, the magistrate shall proceed to record the decision or judgment of the court which shall be signed by all the members.
(3) For the avoidance of doubt a magistrate shall not, in lieu of or in addition to, the consultations referred to in sub rule (1) of this Rule, be entitled to sum up to the other H members of the court. (Emphasis supplied)
These are mandatory provisions intended to emphasize the role of assessors in Primary Courts as members of the court and not just simple assessors assisting the court. The I magistrate has to consult
the assessors and if there is a unanimous decision his duty is to reduce the decision to A writing and call upon the assessors to sign it with him so that it then becomes the decision or judgment of the court. Where there is a dissent then the majority must sign the majority judgment, which becomes the judgment of the court, and the magistrate must record the dissent and have it signed by the dissenting member. In the present B case as all the members of the court had agreed on dismissing the suit then they ought to have signed one decision jointly.
In the final result I agree with Mr. Marando, learned counsel for the appellant, that the C trial magistrate erred when he purported to sum up to the assessors in what he called "Hukumu" and also erred when he failed to record the unanimous decision of the court and call upon the assessors to sign it with him, for these reasons I declare the trial a nullity and order that the case be tried de novo before another magistrate sitting with D different assessors. Costs will abide the outcome of the said new trial.
Trial nullity.
E
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