Hellena Sasi vs Sarah Osiyo (Pc. Civil Appeal No. 29 of 2016) [2017] TZCA 1355 (25 August 2017)

·· IN THE HIGH COURT OF TANZANIA (MWANZA REGISTRY) ATMWAN.ZA PCCIViL APPEAL N0.29 OF 2016 · · . . . {Arising from Tarimr= lJistrict Court in Civil Appeal No. 13 of 2015, · ·· > ,> · ·.:: Originating from Nyaburorigo Primary Court in Civil Case No. 16 cif20lsr·· ::..·.-·.i.:·,,.: .. :· ·. . . ' ' : .·_. :;• . . . .. : . . HELLE NA SASl11 ■ 11 a a ■ it 11111 ■ • ■■• ■■•■■ Ii ■-■ ■ ·11 ■'■. ■■■■■■■ ti ■■■·• ■■■■■■■- ■■■■■■■■- ■■■■ ■ APPELLANf' --, i' .!'·:_'.;:: Last Order: 08/06/2017 Judgment: 25/08/2017 ·. • ·. · · MAKARAMBA, l.: VERSUS · JUDGMENT -· . ·, . _. . , . . . .. .. . . - ... • -( ...... -- . :- On the 31 st day of March, 2015, the Respondent, SARAH OSIYO, instituted a suit before the primary Court of Nyaburongo within Tarime: ·. District in Civil Case No 16 · of :2015 against the .Appellant, HELLEN.A·· SASI claiming for· payment .of Jshs.729,000/ ~ being compensation ..for·· . crops destroyed by the AppeUant's cattle. On the 24 th February, 2016he:: · ·.<·.-··: ·. · District Court of Tari me. (Hor.,. A. Kahimba Esq RM) dismissed the suit. The·· Appellant was dissatisfied. with the decision and appealed it to the District . Court of Tari me in Civil. Appeal No .. 13 of 2015. Rather unfortunately,· the appeal before the District Court indicates to have originated from Civil · . Case No. 12/2015 instead of the original Civil Case No. 16 of 2015.: · As per the record, in Civil Ca.se _ No 12/ 2015 the Appellant had complained against the . Respondent ·. for unlawful . seizing and· retention/detention of the Appellant's six (6) heads of cattle, which is a · .· completely different matter from what the Respondent had alleged before the Primary Court in Civil Appeal No. 16 of 2015. Th District Court of Page 1 of 8

Tarime having ·noted :such procedural irregularity held that, the Appellant ·. had misdirected· herself hi ·preferring· such - a·ppeal. ·. Rather unfortunate··· however,,. the. District .:court' de'sp,te:·: having 'rioted ·such fatal irregularity·.-·.' .... proceeded to determine ttie>appeal on its merits by upholding the decision .:_. of the Primary Court havfrig niade a finding· that; the Respondent managed·· '. -•- .. to prove· her case to the ·required standard. It is this decision ·which·: has · , ' · , .. ·

• infuriated the Appellant and hence the instant appeal the subj.ect 6f this Judgment.· In this appeal the AppeUant has 'petitioned this Court on the· follo~ing· . · grounds, namely:-

1. That, fro,n Appellant's Petition ·of Appeal and Respondent's Reply-lo: Petition of Appeal No; ·13 of 2015 of Tarime District Court, the dispute was over 'Tshs.729~000/= ·awarded to the Respondent -but Appellate Court wrongly dismissed the appeal in unfounded ground that the issuJ /n the-case was .. over Appellant's 2 heads of cattle unlawfully retained by the Respondent.·,
2. That, Appellate Court i,,vas in toto confusion by failing to note that the· . issue of Appellant's 2 heads of cattle unlawfully retained by the Respondent up to date was in Appeal No. 12/2015 and not appeal No. 13/2015 both of Tarime District Court as was wrongly argued by the Appellate Court ·
3. That, the Responden( in her own testimony told trial Court that she . implicated the Appellant with the - matter only because the Appellant filed Civil Case No.12/2015 against her at Nyaburongo Primary Court claiming from her 2 heads of cattle. Page 2 of 8

•• 4. That, valuation did not follow appropriate laid don procedure and· laws· for· valuation for .. Agricultural. Office,r ·was ·not called. to particularize how he rached the figure of Tshs.729,'tJ0()/. . . . . . . .. '. . ..... ·. . . . .. ' s. That; ChJef Goverriment Valuer ·dJd. not authentl;ate and verify the'· .· value as c/ain1ed:as required by law. ,: . r. · ·6. That; · both · the Respondent and PW2, Scola were · not ·credible witnesses worth 't:o believe as the Respondent told trial Court that the· · · young boy was looking ·after Appellant's heads of cattle told them that he was asleep as Appellants heads of cattle were feeding on Respondent's rice plantation while PW2, Scola told the Court the . . . . . .. . . . ... · young boy told them to be looking a lost goat. · 7. That, .. the ResprJndf!t callerf no -witness who found Appellant's heads . of ca.ttle feedings on her_ rice plantation. · 8. · That,' the Respondent ··called no witness· who saw her removing. . . . Appeilant's heads of cattle. from Respondent's rice plantation. The Appellant prayed before this Court for the following Orders:- (/) That, Judgment and Order of trial Court be set aside and the appeal be decided in favour of the Appellant. (ii) Costs of the matter be provided for. (iii) Any other and further relief(s) this Honourable Court may deem it Just and equitable to grant in· the circumstances of the case. Page 3 of 8

· The pc1rties appeared in •person to prosecute the appeal and by their ' consent the · appeal · w:as· disposed · of · by' way ·of ·-written submissions·. >, ,; Following a scheduling:.order:for submissions by this ·.c;ourt on the 8 th June,.. ···. •·· · ... ·, 2017, the Appellant was to file his Submissions in support ·or the appeal' by ·: . . or on 28/06/2017 and the Respondent to frle. his. Reply submissions by or·;. on 17/07/2017, while a ... Rejoinder (if any) by the Appellant was to be fHed · . ·. '· by or not 20/07/2017. The· Appellant filed his submissions··in chief on the.. ·, 21 st June, 2017 as scheduled. Rather unfortunately, on the 17 th July, 201.i ·• the Respondent instead of filing reply submissions, filed ·a document styled ·· - , "Additional Reply to Petition of Appeal subsequent to Appellant's Re-joinder to her Petition of Appeal' which is unknown to this Court, . and without the. leave of. this · Court; The Order of this Court dated 08/06/2017 required the· Respondent to file submissions in reply to the Appellant's · submissions ·in. chief. The self-styled document filed in this Court by the Respondent, w.hkh is unknown and without the leave of this · Court cannot be consider€:!d by this 'Court and it is hereby expunged from · the court record. In the premise, the R~spondent having failed to file her Reply Submissions as ordered by this Court, the appealis deemed not to · have been defended and in this Judgment, I shall only consider the written submissions of the Appellant in support of the appeal, the grounds., of appeal and the evidence on.record. In her submissions the Appellant, Helena Sasi, submitted that, the· Respondent filed a Civil Case No. 16 of 2015 at the Nyaburongo Primary. Court claiming from the Appellant cash Tshs.729,000/= ·a.lleged to be Page 4 of 8

compensation for her destroyed crops. The case ended in favour of the :··.: .·.- .1·:. . . . . . ·. . • . . Respondent. The Appellant. believed that the lower Gourt did_ ·not triumph·-. · ;:/-: ~ . ,:- . ·. . : . ' . ·: .. '. ·:: .......... .. ?:.. ' - - .... . : . . .· . -i . . • : justice and hence she. lodged. Civil Appeal No. 13,/2015 before·.the ··.,· >· ►..: :, • • .- .. ·.• •• 1 __ •• , •• • - , ., ' : ,,. • • • .._ • . : .. . . : . Ta rime District Court, the subject of thi:5· appeal '-'.Vhich- Y'J!=lS: J10t heard .,,ind·-·• ·, , <. · .: . . . finally determined. by \he .Appellate District· Magistrate.: Ampiifyir.ig on :this.· . point, . the Appellant•":.su'bmitt_ed ·. fl.Jrther. that the ' appe_a_l .· in,. Civil::;;_ .... AppealNo .. 13 of 2015 -was summa_rily dismissed by the Appellate District./·· '.! -:·,· - . ',•:, ..;,, .. Court on the grounq that th Appellate .District M.agistrate was confused:by-: ·: ,.· ,·. the appeal itself and _tat th_e Appellant was not aware of what she ·was ·: · · appealing for, a. fact which caused a miscarriage of justice since justice .. should not.only be seen to have been done but must manifestly be seen to .. have been done, The Appellant stated further that,. the Appellate District Magistrate in · dismissing the appeal hi Civil AppealNo.13. of 201~ failed to note and. · appreciate that there ··was only a typc>graphic:al: error in. Civil Appeal . · .. .:,: .: 11- : t No.13/2015 of Tarime District Court:, which had originated from-:Civil : : :·• .. /:: Case No. 16/ 2015 • of . Nyaburongo Primary Court in which, the- · Respondent was claiming from the Appellant the amount of Tshs.729,000/= alleged to be compensation of the Respondent's destroyed ·. crops. The Appellant stated further that, in Civil Appeal No. 13/2015 of· · Tarime District Court, it was shown that through a typing error, the appeal . · showed to have originated from Civil Case.No. 12 of 2015 in wt,ich the Appellant was claiming fr~m the Respondent two head_s of .cattle unlawfully- · · seized and retained by the Respondent while in fact the appeal originated · Page 5 of_8 .

from Civil Case No. 16/ 2015 of Nyaburongo Primary Court. Such typing · error caused the· Petition of Appeal ·in Civil Appeal· No. ·13/ 2015 to be . , ~ ~ . filed by a Court Clerk- thrbugh· a mistake in Appeal No. 12/2015, whlch originated from Civil Appeal_ No.· 12/ 2015 of Nyaburongo Primary Court . . . and the Petition of Appeal in Civi•1~ Appeal ·No. 12/2015 was also filed by a Court Clerk through;a· mistake: iri Civil Appeal No13/2015 and vice versa. The Appellant stated ·furfher·that, the appeals in. Civil Appeal No. 13/ 2015 and Civil Appeal· ·No. 12/-2015 arise from the same cause of action and between same ·parties. who .were before the same Appellate District Magistrate. Such error should have been rectified immediately by filing each petition- of appeal_ in the respective case file to enable the two appeals to be heard · and finally decided but not to dismiss the appeal · summarily as the appellate District Magistrate did· . . .. The Appellant stated· further that, the Respondent failed to prove her claim against the Appellant ·on a balance of probabilities as she called no witness who saw her removing the Appellant's heads of cattle away from · her rice farm. The Respondent called no witness who found the Appellant's heads of cattle feeding in the Respondent's rice farm. According to the Appellant, the Respondent in her own testimony· told the trial Court that she is implicated the Appellant with the matter only because the Appellant had filed Civil Case No. 12/ 2015 of Nyaburongo Primary Court claiming from the Respondent two heads of cattle. The Appellant surmised that,.th Respondent failed to call Agricultural Officer to. particularize how she .Page 6 of 8 •

• It .. . . • reached the figure of Tshs.729,000/= and t~at C_hief Government Valuer· · did·not authenticate and veri,fythe valued as claimed .. :._ . .. .. • , • t . ~ ' ' ·. On the. argumnt::-by:,the=-Appllant .,md the_ evidence in- te CourL:, ,. -- . records, it is worthwhile to note, that, there was. serious procedural issue-iff :: .. ··. ;. ::·: : • 0 I I • . ·the appeal before .the· --Distri~t Court- of Tar:ime of. which the. Appellate . · :· •·: .·:.,. · Magistrate Hor,. Kahirnba; ,noticed - but did not properly resolve-it As Hon .. ··::·. ·. · ::. Kahimba-rightly observed;:the appeal before-him was wrongly·filed as-it: ... ·.:--",.·· showed to have originated from Civil Case No. 12/ 2015 of Nyaburongo ·'.. : · Primary Court instead.-of Civil Case No. 16/ 2015 of Nyaburongo Primary· .· Court between the same parties. The Civil Case No. 12/2015 and Civil Case. No 16/2015 are two different cases, since the former, Civil Case No. 12/2015, is about unlawful seizing and detention of the cattle whilst the.· latter, Civil Case. No.·: 16/2015; was about conipensation on the alleged .• destroyed crops. The Judgment and Proceedings of the Primary Court. of · Nyaburongo from which the- appeal before the. District Court of Tari me· originated shows· that,: it .was- '.in· Civil Case No. 16/ 2015 where the_ · . . . Respondent had beeh ·t1aiming for .compensation in respect_ of her-· .. destroyed crops. Rather unfortunately, .the Petition of Appeal before the District Court of Ta rime in .Civil Appeal No. 13 of 2015 was wrongly and· mistakenly filed as originating from Civil Case No. 12/ 2015 instead of original Civil Case - No~ 16/ 2015-. In the premise, the Appellate District Magistrate having noted such fatal procedural irregularity could have struck out the appeal _on- that ground instead of dismissing lt as if it had heard it on merits .. In the · premise the Appellate District Magistrate having proceeded to determine the appeal on its merits, while it had not been Page 7 of 8 .. .' . . . ~.

properly moved; clearly the Appellat_e District Mag_istrate clothed himself .: with jurisdiction he d_id not have and this will make the determination oh · the appeal on its merits a rwllity,fqr wantofjurisdiction. · . On the foregoing rasons,,Jhis Court finds th9t, the Appellate District Court of Ta rime in Civil Appeal No. 13 of -2015 was not properly moved-· · to determine the appe! on its merits. The appeal before.the District Court of Tari me ought to have been struck out for want of: procedure instead ·o" being determined on its merits .. It is trite principle that a court of law which· · acts without jurisdiction r~nders itself a candidate ofhaving its decision being quashed and set aside on the ground that it had wrongly assumed jurisdiction. In the whole and for the above reasons, this appeal succeeds. The ·. decision by the District Co.urt of Tari me in Civil Appeal No. 13 of 2015 is. , hereby quashed and set aside; - Considering that the appeal before the .District Court of Tarime in Civil Appeal No. 13 of 2015 oughtto have been 5.truck out, the Apt>ellant if she wishes is at liberty tq- pursue a fresh appeal before the District Court of . Tarime in accordance with the law and subject to limitation period. In the circumstances of this appeal, and considering the situation of the parties, I shall not make any order as to costs. Each party shall therefore bear its own costs in this appeal. It is so ordered. ■■■ me ■■ e ■ a ■■■■■■■ a ■ a ■ ae ■■■■ m · R.V. MAKARAMBA JUDGE 25/08/2017 Page 8 of 8