Peniel Joshua v Gadiel Joshua and Another (PC Civil Appeal No. 58/1999) [2000] TZHC 466 (1 September 2000)

IN THE HIGH COURr OF TANZANIA AT ARUSHA- (FC) CIVIL APPEAL No. 58/1999. (ORIGINATING FROM CIVIL APPEAL NO. 7/1999) (C/F MAJI YA CHAI PR. COURT CIVIL CASE No·. 30/1998) PENIEL JOSHUA •• -.• ••••••••• • APPLICANT - versus GADIEL JOSHUA SErH JOSHUA o••···••e RESPONDENTS • .1 .• ... ~ ... -- .. - - .. - JUDGMENT N.M. MUSHI, J ') ' The appellant, Peniel Joshuai successfully instituted proceedings in.the :Primary Court at Maji ya Chai aga.inst the two·respondents, namely; Gabriel Joshua - 1st Respondent and Seth.Joshua 2nd Respondent. The dispute,concerned a piece Gf land measuring ab~ut ¼.an acre. The Respondents appealed to the District C&urt. One of the grounds of appeal, and on which the appeal was decided\ was that:- • I nThe trial court erred in law in entertaining the suit which is rejudicate as the matter was already determined in Maji ya Chai Primary Court civil case Noo4/98 between Saikiael Joshua-Vs. Gadiel Joshua and anothero 11 , • In the first appeal the parties were represented by counsels who filed-written submissions. After considering the.submissions, the iekned appellate magisti:ate stated and I quote:- " I carefully studied the proceedings and judgment in f.!aji ya Chai Primary Court.in civil suit No.30 of 1998 s well as the Judgement in Usa River Primary Court Civil Case No.. 4 qf 1998 in which evidence tendered was· summarize and I cannot but disagree with Mchami. Although parties in the tw& suitiare slightly different the subject matter and indeed issues are more or less __ . the same. The dispute revolves.round ownership of apiece of land Seth Jo_ 9 hua claim in both_ suits to be his. prGperty ': to the exclusion of Sar1kiel Joshua and Peniel.Joshua his step· brother." _.,. l· - What was actually done in.the·proceedings·at:Maji ; ya chai Primary Court was to substitute the name of- ~ Sarikiel Joshua with that of Peniel Joshua. These a.re -. claiing under the same title.,

:- 2 All said the proceedings and judgment in Maji ya Chai Primary Court Civil Suit No.30 of 1998 are in view of the judgme·nt in a suit earlier· on filed and decided by Usa River Primary Court·-res-judicate: They , are declared null void and accor·dngly struck out with costs.· .-. •·.The appellant was dis4tisfied by the District Court decisi9n and he has appealed to this c.ou:r:t on_th fqllowing grounds namely~- 01. That .the first appellate Court er:;.ect in Law an fact in its .decfaion ·wheri ·ruJ.ed that civil case No.30/98 before· ·· Maji ya Chai Primars Court. was and is null and·void and that the- same was Res..:.Judi:::.ata w"iile the rule of Res-Judicata.. do not apply to chat for the partie,:-: 2. That the first "\ppellate Court failed to annalize. that in Meru District is common trend for-Friends to pretends to su.e each other pretending to compete over a certain plot and- th-':l.t wance they won they _divide accordingly,, .. Things which done to my property by the 2ncl._Respondent and one·Sarikiael J"'shua further to that, .is that the _2nd respondent failed even to raise the issue be::ore the P::si.mar,J Court in the Civil Case No. 30/98 taking inf;o a,.,r:,:;,'JZl":: thD.t he was the decree holder., 3. That during examination In-_chief 1 :the 2nd respondent did not or said nothing regarding the case in which he was the decree holder even when was subjected to the . class- examin-dn nr :..-,.., R T.ri.dicates that ~~.::...., .:;;_-;il Case No.4/98 before the USA RIV:JlR PrLna...··7 Court was a toto Cooked case. That the first appellate c;;u .. 1'.'t rred in law_ in its decision when failed to put into his mind that the civil case No. 4/98 at USA RIV,t;H ?r. . ....;..'j :·..,-< :/1>.f': not to· the knowledge of the appellant. 11 _ The grounds of appeal were not drawn by an-advocate but -it is clear that the appellant is saying that it is not crrect that the suit between himself and the respondents had been determined before in a judicial forum. These is no doubt that the first appellate court's decisi6n was based on the finding that the subject matter or the claim in Maji ya Chai Civil Case No.30/1998 has been conlusively decided in Usa River Primary Court Civil Case No~ 4 of 1998 • •• • -~-• .3//-. . . .

3 _By this .finding, the first appellate magistrate found that the Primary Court at Maji ya Chai should not have entertained the proceedings between the parties and accordingly declared the same as null and void. In the first place, -wth due r.espect to the magistrate, the proceedings .ere not null and void. · 'J;'he issue of res-judicata is determinable in the proceedings before the court iri which it is raised. i'.fter hearing; the evidence regarding .. it (res-judicata) it is upon the trial magistrate to accept it or not. :Whether a·partcular.issue or issues or claims between parties before the court has/have ·been conclusively determined in a previous decision of the court with competent jurisdicti.:n is a matter of facts and law of which the trial court has tu make a finding. Inrespective of the final'out-came, the court is perfectly entitled to entertain the issue when it i properly raised. The question is whethet' the issue of res-judidtA was properly raised in the trial court; According to the proceedings in the 'Primary Court, the only reference to a posible .claim touching on the. disputed piece of land was ma.de by the appellant in his evidence when he stated, .. and I auote:- lfNdipo mwaka 1998 mdaiwa No,2 alikenda mahal<ama ya Usa Usa ajddai · mdogo wangu kuhusu nyumba' iliyoo ndani ya . . shamba langu·xeye akidai kwamba nyumba hiyo ndani y ni shamba l,'.3.ke, ndipo mimi nilifika hapa kufungua shauri hili kuwadai ili mahakama iweze kutoa o•••••••' ya mimi na hao wadaiwa ndani ya shamba languo 11 The respondent, in particular the 2nd Responqent, Seth Joshua, did not in their defence state anything concering the US,\ River Primexy Court Civil Case No.4 of 19980 In other words the respondents did not state in their evidence that•a court of Law had determined the ownership of the piee of land in their. favour. If infact there had b.een such a decision., the respondents would definitely have .stated so. The reference by the learned advocate to the judgment of the Primary Court where i,t was .stated that, and I f!Ute:- •.•.•~·····4//- .. -

:- 4 -: 11 na. hatimayekufikia mwaka 1983 baba yao alifariki na " kuliacha shamba hilo.ndani ya mg6"goro na kwainba mdaiwa No.2 amewahi kulalamikia nzymba·hiyo na ndani a shamba hilo ambayo ni mama,· yake akimdai mdogo wake kwam'ba iondolewe na wakati nyumba hiyo ilij engwa _ na baba yao 11 • does not, as the learned adocate argues, acknowledge that the disputed piece of land had been a subject matter or previous proceedings between the same partiesA The trial ·court could not have made such decision.· because there was no evidence before the court to enable it to make such an acknowledgement; raise such a defence. As already stated the respondents did not \ - There is no doubt at all that the decision that the decision that the claim in Maji ya Chai Civil case No.30/98 had been conclusively determined as between the same parties in Usa River Primary Court -• Civil case No. 4 of 1998 was made by the first -appellate magistrate The· portion of the judgment of the district court· quten ,,· --• supports this contention. Learned counsel in his submission.to the .- District court tendered USA River Primary Court decision as in exhibit. The learned appellate Magistrate read both Maji ya Chai and USA River Primary·court·decisions and conc1uded, and quote: 11 )!Jha.t was actually done in the proceedings at Maji ya ehai Primary Court was to s.ubstitute the name of Sari,kiel Joshua with that of Peniel Joshua. These are claiming under the same title. /1.ll said the proceedings and judgment in Maji ya Chai Primary Court Civil suit No.3() of 1998 are in view of the judgment in a suit earlier on filed and decided by Usa River Prim~ Court.res judicata: They are declared null void and accordingly struck out with costs. 11 The''question now is w:tlether the first appellate court was justified in -· - - ., entertaining the issue of res judicata when it was raised for the .-,f;Jrt:::<vmt,i:l:t,,t4~,,ppllate ,-leyel., . The, @S\•HW s df,iniely no. By entertaining the issue of resjudicata, the appellate court constituted itself a trial court. Mr. Oja.re-learned advocate who_ 'argued the appeai before th District Court in its appellate juri-, sdiction was undoubtedly aware that the issue of res-judica:ta was not prlperiy raised in the Maji ya Chai Primary Court Civil Case No~30 of 1998 and that is why he tendered before the appellate court the l,j judgment of USA River Primary Court Civil ase No. 4 of 1998. ,.

·- .- 5 -: The learned.ounsel was purportedly tenering as part of the evidence , ,·, to prove that the claim in Maji ya Chai Primary Court_ Civil Case No.30 of 1998 was res-judicata. The learned magistrate accepted the exhibit arid used it and determined the issue of res-judicata as ·indicated above in the quoted judgment of the first appllate court. Both the learned magistrate and the learned counsel fell into on error of law. Needless to say that an appellate court determines an appeal on matters which were before and determined by a trieJ. court •. However, if in th course of hearing an appeal or at the request by a party, it is found that for the proper determination of the case whose appeal is before the court and in .the interest of justice, a certain fact ought to have been empleaded and decision made on it but . it was not, then for reasons to be advanced and recorded, an order for taking of additional evidence may be inade, In this particular case such an application could have been made under Section 2l(l)(a). of magistrates courts ,Act, which for ease of reference reads:- 11In the exercise of its appealate jurisdiction, a district court shall have power (a) to direct the Primary ·Court to take additional (. · evidence and to certify the .'same to th~-\Hstrict court, or, for reasons to be record_eq in writing, Itself hear additional evidence; : . ~ . They could also apply for recording of additional evidenc,e :under rule 14 of Rule of Procedure for Civil Appeals originating from Primary Courts which reads: 11 Wakati wa kusikilizwa rufac3.ni, mahakama ya rufaani, ., .. baada ya kusikilizwa!ti.shahidi.zaidi, kama upo, kama itakavyo ruhusu au kuhitajia,kwanza itamsikiliza muomba rufaani au ajehti ·wake, na tene,, ikiwa haikufuta rufaani hiyo papo hapo, itamsikiliza mjibu rufaani au ajenti wake au mnomba rufaa au · ajenti wake atakuwa na haki ya kujibu." .••••••• 6/-. i I: fr :. tf.

--:- 6 It is clear tat the learned counsel for the appeliant in the first appellate court did not make use of these provisions. The appeal was decided on a pcint not before the trial court; which, as already noted, is legally wrong The appeal is therefore allowed. The first appellate court decision of declaring the proceedings and the judgment in the Primary Court null and void is set aside. The Primary Court decision is accordingly restored. The appellant is awarded costs in this court and courts below• 1/9/2000 Coram; N.M. Mushi, J ~. . . N.M.'MUS~ ~ JUDGE 10/8/20C/J Appellant: Peniel - present Respondent; ·seth Gadiel ·. • •• present Order: Judgment read in NMM/hjm chambe\ .. · .. .· ,~ . '&0----:::-· ·····c N.M, MUS!U 1 / JUDGE

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