THE COURT OF APPEAL OF TANZANIA AT
ARUSHA
(CORAM:
RAMADHANI
J. A.: NSEKELA, J. A.; And
KAJI J.
A.)
CIVIL
APPEAL NO. 25 OF 2002 BETWEEN
NELI
MANASE FOYA...............................................APPELANT
AND
DAMIAN
MLINGA …..........................................RESPONDENT
(Appeal
from the Ruling of the High Court of Tanzania at Moshi)
(Mchome,
J.)
dated the 15th
day of Febuary, 2000
in
Misc.
Civil Appeal No. 19 of 1999
JUDGMENT
OF THE COURT
NSEKELA.
J. A.:
This
appeal concerns a dispute on a boundary over a piece of land and the
uprooting of trees thus causing the alteration of the boundary in a
plot situate at Old Moshi, Mbokomu. The value of the said trees was
not pleaded. The suit started in Moshi Urban Primary Court, Civil
Case No. 63 of 1997 in which one Damian Mlinga, now respondent, was
the plaintiff and one Neli Manase Foya, now appellant, was the
defendant. The respondent Mlinga was the successful party in the
Primary Court and so the appellant appealed to the District Court
where she lost. Still aggrieved by this decision, the appellant
unsuccessfully appealed to the High Court, hence this appeal.Section
5 (2) (c) of the Appellate Jurisdiction Act, 1979 provides -
"No
appeal shall lie against any decision or order of the High Court in
any proceedings under Head (c) of Part III of the Magistrate's Courts
Act, 1963, unless the High Court certifies that a point of law is
involved in the decision or order."
Under
this provision of the law, the High Court was required to certify
that a point/s of law were involved before an appeal could be
entertained by this Court. This certificate was duly given by the
High Court, (Munuo, J.) as she then was, who certified three points
of law, namely -
Whether
the trial, court had jurisdiction to determine the suit;
Whether
the assessors gave their opinions;
Whether
the second appeal was rightly determined
At
the hearing of the appeal, the appellant appeared in person,
unrepresented. The respondent, who was duly served with notice of the
hearing date, was absent and so the Court proceeded on to hear the
appeal in terms of Rule 105 (2) of the Court Rules. In her brief ora
l submission, the appellant stated that she had nothing to add apart
from the contents of the memorandum of appeal.
We
propose to start with the question of the jurisdiction of the Urban
Primary Court, Moshi to determine the suit.
The
respondent in the Urban Primary Court had alleged that the appellant
had encroached upon his land and uprooted trees thus altering the
boundaries of their respective plots of land. The number of trees so
uprooted and the value thereof was not disclosed in the plaint. The
essence of the respondent's claim was the repossession of the land
that had been encroached upon by the appellant. On page 10 of the
record of appeal, the appellant filed a document which reads in part
-
"JURISDICTION
The
land in dispute is traditional land under customary law. Not
registered. Located Kijiji cha Korini Kusini, Mbokomu Ward, Moshi
District Council, Moshi Rural.
Jurisdiction:
Old Moshi Primary Court, Moshi Rural."
Section
3 (1) and (2) of the Magistrates Courts' Act, 1984 provides as
follows -
"3
(1) There is hereby established in every district a primary
court which shall, subject to the provisions of any law for the time
being in force, exercise jurisdiction within the district in which it
is established.
(2)
The designation of a primary court shall be for the primary court
in which it is established."
The
suit was instituted in a Primary Court in Moshi District. The Primary
Court therefore had jurisdiction to hear and determine the suit. We
are further fortified in this view by Section 19 (1) of the
Magistrates Courts Act read together with paragraph 1 (a) of the
Fourth Schedule to the Act. Paragraph 1 (a) provides -
"1.
Subject to the provisions of this Act, proceedings of a civil nature
shall be heard and determined:-
(a)
if they relate to immovable property, by a court within the local
jurisdiction of which the property is situated.''
The
trial court therefore had the jurisdiction to try the suit.
The
second point of law certified by the learned judge concerned the
necessity of giving their opinions by the assessors. The learned
judge who heard and determined the second appeal had this to say -
"I
have gone through the trial court's record and found that the hearing
of this case was throughout with two assessors, Raymond and Rose. The
only time there was a different assessor was at mention date.
As
for the assessors opinions it is nowadays not necessary to
write
assessors opinions provided they sign the judgment of the court to
certify that they agree with it. So the primary court judgment is not
defective."
We
think that the answer to the issue as certified lies in Rule 3 (1)
and (2) of the Magistrate's Court's (Primary Courts) (Judgment of
Court) Rules, 1987 GN No. 2 of 1988. It 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 the assessors present, with
the view of reaching a decision of the court.
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."
(emphasis
supplied)
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 members of the court."
We
do not read anything in Rule 3 (1), (2) and (3) above which demands
the assessors to give their opinions on an issue before the court.
Under Rule2 assessors are members of the court which include the
magistrate. It is evident from sub rule (2) above that all members of
the court
are required
to participate in the decision making process of the court. Assessors
are members of the court, co - equal with the magistrate. After they
have completed hearing the evidence from the parties, the stage is
then set for the magistrate to
consult
with them in order to reach a decision of the court. This presupposes
that before the court reaches a decision, there will be a conference
of the members of the court to deliberate on the issues before them
and reach a decision. In such a case, the magistrate will write down
the decision, which will then be signed by all members of the court.
It will be recalled that Mchome, J. said that -
"they
(assessors) sign the judgment of the court to certify that they agree
with it."
With
all due respect to the learned High Court judge, this is not what
Rule 3 (2) provides. The assessors are members of the court and sign
the judgment as such, and not for the purpose of authenticating it or
confirming it. In answer to the second point of law, assessors are
neither required to give their opinions, nor to have their opinions
recorded by the magisrate.
We
now proceed on to the third point of law, namely, whether the second
appeal was rightly determined. The essence of the learned appellate
judge's decision is to be found in the following extract which reads
-
"Both
lower courts decided against the appellant on point of fact. The only
points of law raised on this second appeal are that the court tried
the case with a different set of assessors, and that the assessor's
opinions were not given. The other grounds of appeal are on purely
factual issues, which are none of my concern at this second appeal.
And
he continued -
"As
there is no valid point of law raised in this second appeal, I find
no reason to differ from both lower courts' findings of fact."
It
has often been stated that a second appellate court should be
reluctant to interfere with a finding of fact by a trial court, more
so where a first appellate court has concurred with such a finding of
fact. The District Court, which was the first appellate court,
concurred with the findings of fact by the Primary Court. So did the
High Court itself, which considered and evaluated the evidence before
it and was satisfied that there was evidence upon which both the
lower courts could make concurrent findings of fact. As was said by
Sir Kenneth O'Connor, P. of the defunct Court of Appeal for Eastern
Africa in the case of Peters
v. Sunday
Post Limited
(1958) EA 424 at page 429 -
"It
is a strong thing for an appellate court to differ from the finding,
on a question of fact, of the judge who tried the case, and who has
had the advantage of seeing and hearing the witnesses. An appellate
court has, indeed, jurisdiction to review the evidence in order to
determine whether the conclusion originally reached upon that
evidence should stand. But this is a jurisdiction which should be
exercised with caution: it is not enough that the appellate court
might itself have come to a different conclusion." (see also:
Watt
or Thomas
v. Thomas
(1947 AC 484)
In
all the circumstances, we are satisfied that the second appeal was
rightly determined. In the result, we dismiss the appeal in its
entirety. Since the respondent did not appear before us, we make no
order as to costs.
DATED
at ARUSHA this 27th
day of October, 2004.
A.
S. L. RAMADHANI
JUSTICE
OF APPEAL
H.
R. NSEKELA
JUSTICE
OF APPEAL
S.
N. KAJI
JUSTICE
OF APPEAL
THIS
IS A TRUE COPY OF THE ORIGINAL
S.
M. RUMANYIKA
DEPUTY
REGISTRAR
