Shabani Ugumba Mhoja vs Sivester Masatu (PC Criminal Appeal No. 18 of 2000) [2000] TZHC 142 (18 October 2000)

0-• IN THE HIGH COURT OF TA1\1ZANIA AT D~ .ES SALAAM PC CRIMINAL AP?L NO 18 OF 2009 ORIGINATING FROM KIBAHA CRo REV. NOJ 4/99 QRIG. MKUZA PC CR., CASE NO. 218/99 SHABANI UGUMBA MHOJA ••• VERSUS, . . 0 0 0 APPELLANT SILVESTER MASATU o • • i • • • • 0 e RESPONDEI'lT JUDGErJJENT M.NEN'JD I J.o This is a second appeal. The first appeal was by the respondent Silvester Masatu to the district court against the decision of the Mkuza Primary Court. ,-._ :.• In this appeal 1 the appellant Shabani Ugumba Mhoja was the complainant at ~Mkuza Primary_ Court in Criminal case number 218199 whereas the re3pondent, '.:. ~ . Silvester Masatu was the accused person. The respondent was charged of ·<riminal trespass c/s 29 and malisious damage to property c/s 326 cf the penal code, The respondent was found guilty and convicted of both countf, 1 st.r1i·,-nced to pas a· fine of five (5) thousand shilings in each count and to p2y a ·compe- nsation for the destructed orops at the tune of :3ts. 118,85®/""" I~:" ,09.ic_ both the fin'? and compensation. He appealed to the district court,.. Ee mac.e -:;,n.g- thy written submissions. The district court opened a revisional case fil0 instead of the appeal which was the one prefered by the :responde:n.t. The liic'-.:;:-ic-1:: q)Urt reversed. the Hkuza primary court judgment and c1:v ).s:::- 1:(.·l'.' eor· ·, ___ , ':i.t:,1i,/ The appellant was then surpriced to be serY(;d. wit'b. :=;. copy of jl,::12;nent hlt:ci1 Wb.S d.ili-v-ered on 10/'i/2000,. 'I'he district magistrate coI1c:1'..t: -'-: 2ft;:;::· ,(. ;1is j;1dgment that the··rights of appeal was explained. Unfortunate:'..7, ;.he proceedings-and judgment did not show that there were any perscn appearing on the date the judgment was read. Infact 1 there are no any proceedings in the district court file other than the judgment of the court. On the other hand, there is a memorandum of a.ppeal and written· submissions by the respondent. an he Havi,?,g been served with the copy of the judgment, the appellant filed appea],. before th:j.s·court and he raised 8 grcunds of appeal. \ ' ~ ~ . Ir. his thid (3:r,d) g:cou: .. 1d of appeal, th'? appellant said tha-1 wheh1er it '. / ~ ~ '' 2~ci appeal 01: revtsion, -:'t•e district q.ourt Gr::ed in hea_: j_::,_g -cr.8 :;ase with .! { r,utifying ciim 9 ,; In hi,=; oral s-c1.bmi.ssions,· ll'> insisted ":hi.s le2:al p•::,int that , ,· I u '.,;:,,-; c9p.9-emned ur1μeard.:, _ This subn; ssion ,.,.,-2."' v:ot denh ' ·vy tr.e r 0 s90ndent. i . ; t ,·' ug;. 'he rIpp11c2nt 1aa4 fils 1 an apjJeaJ befor ·. I. ·. the ,:

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'- ,,. .. ... 2 opeed a revisional fiie and instead-of writing a revision decision, the magistr,ate wrote a judgment One important thing now to be decised is whether the district: magistrate ·erred ;in writ;i.ng a judgement/revisional decision without ' calling the Po.!'tie$ or the appellant, a person to be affected by the decision. The appea;:L to the district court by Mr. Masatu was ad.mi tted on 21/12/1999. On 30/12/99 the respondent wrote a letter requesting the district magistrate to rectify the bounderies of his plot. This letter was attached to a detailed submissions and the district court magistrate wrote his ruling on 11/1/2cicio. I dori.t know whether he took into consi- ! . . deration the submisstons made by the respondent or not., However, it is not easy to say that he· was not· influeked by thos~ submi'ssion in his :·udgement. ,;-,_ -- . .__...,, · ~ ••✓, · Under Section 20 ( 4) (b) of" the Magistrate I s Court Act, 1984 the district court after ad.rni tting the appeal, is required to hea.r the aftAal accordingly• The words hear the appeal accordingly here me!.1.!!S to hear both parties. The appellant was to be notified of the date in which the ,-Jr-;:sal was scheduled to be heard and not to hear only one person; the 8.fi_.•e::. ".:.,:1::·::. Even though the respondent 1 Mro Masatu had filed an appeal to the di.strict court, challenging the decision of the primary court, the district magistrate decided to take a short cut, to exesize revisional jurisdiction w10.er 8Ccti:m 22 of th':l Magistrate I s Cour:;s Act 1 1984· whe:'eby -::h"' ce;:u·r on ··.:·:-:, OivD fii'3.y call ad inspect the reco:ct:s of the pr·i:!"18.::-y court b..'1d c8rt-:.. t-.; ::. ;_-- .i 1 .i :.:.8 tc the concotne I s J.egali tJ or propriety of the dec,isio11 o_ c,.c:·ifor ;K V• ·;;-:..-? _prii:1ary co:.:irt ! e ::.r.u as to tL.8 requla:rity of any proceedings ttt-1··,.;;J.::lo Now that the respondent had filed an appeal to the district courtv made written submission 1 and the district magistrate entered a judgment on the strength of both te memorandum of appeal/and and the submissions, devising the decision and order of the primary co111°t, he erred in not giving the appellant the right t9 be heard. The trial court should have proceeded with the hearing of the appal and make necessnry orders as he would have ser:?n it thut not t9 revise the fiecision of the primary court on appee.l in tbe absence ' of the comp;l.ainant/appallant in this case. ' '. After ing r.hat the tal befor2 the dis,.1 i.ct court ·.; - .. , a nul .Hy for failure to P.~?f both part:i.es, 1 need not go intr · 1e other 1 ;.ry,mdj c.n· ·. ppeal o , I t '• r ,. I "·· .. ; .. i.•.: " ' ·.-.1. ~ ..... ::::· • I ~ •. : 0 • r

.. r I ' It is just enduh to declare"the judgement of the district court dated 12/1/F0OO a nuli ty and '6.rder that the appeal b"' heard denoval by , '-r, ,· • · ' : I another magistrate of compe.tent jurisdiction, the appellant _being giv211 copies of t:i.1e memorai,.dum of appeal and the submissions made· to tho co-:.:irt by the respondent~.· In short, the appeal is ~ i1,: ii. I,, allowed and an order for trial 'denoval befo1·e another magistrate is magistrite is made, .' ,' I r .. i','' . ,, ,I I ,, ,, \ ... A e R.t-1.'NENTO, J. 18/10/2000 ...