Auredeni Ndeonansia vs Godbless Elibariki Swai ((Pc) Civil Appeal No. 15 of 2002) [2000] TZHC 65 (28 April 2000)

', 0 ' ' .'.. :. •·• .. ::, .,.~·i:;{~~f: :··.-•.-,')r,1:..•,~ /-;>: .. ,,, .. -- IN THE HIGH COURT OF-TANZANIA . . ATMOSHI (PC) CIVIL APPEAL NO. 15 OF 2002 (DC HAI MISC. CIVIL APPL. NO. ·10/2001)- (ORIGINAL HAI KA TI P/C CIVIL CASE_ N:O. 22/2001) AUREDENI NDEONANSIA ................. APPELLANT VERSUS , .. : ... GOD BLESS ELIBARIKI SW AI ............. RESPONDENT JUDGIVIENT: ,Q HON. JUNDU, J. The Appellant was an unsuccessful party in Civil Case No.-+2 of 200 I at Hai . ~ :. . ',· ', .. . .: _ _ ,,. :· .. ..,.t·-: . ..-:.: ::_··---:-''... \ . ·. . Kati Primary Court against the Respondent. He instituted Civil Revision Application No. 10 of 2001 in the Hai District Court for the latter court to revise the decision of the trial court allegedly because the same had errors material to the merits of the case involving injustice. The record shows th{tt the Appellant had presented two Chambers Summonses. One shows that the Appellant had instituted the application under Section 22 (1) (b) of the Nlagistrates' Courts Act, 1984 and another Chamber -' Summons shows that the application was instituted under Section 44 (1) (b) of the Magistrates' Courts Act, 1984. There was an affidavit of the Appellant in support of the said revisional application. In paragraph 6 of his counter· affidavit, the Respondent, contended that the Appellant should have filed an appeal instead of the revisional application. In the trial court, the Respondent had srnhlisl:ieq.tllat he hd~boμght the land, . the subject of the suit in the said court at a public auction. The Appellant contended that the suit land was his and had g}.ven it to his son _one Abrahamu Brenden K wayu and that he was not aware of any court decision that. had ordered the sale of the said

land nor did he know the Respondent. The trial court having heard the evidence of. both sides gave judgment in favour of the Respondent. The Appellant having been () aggrieved by the said decision instituted the above mentioned revisional application in the Hai District Court. The learned District Magistrate having he~~cfthe· p~rties arid xamined the evidence on record he was satisfied that the land in dispute was properly sold to the Respondent by public auction and that all procedures of selling the said land to the Respondent was followed and that there was no appe_al instituted by_ the Appellant in respect of Civil Case No.22 of 2001. He therefore dismissed the revisional application filed by the Appellant. Having being aggrieved by the decision of the Hai District Court, the Appellant has appealed to this court listing two grounds of appeal in his Petition of Appeal namely:- ( I) That the learned Magistrate erred in not finding that the trial was a nullity. (2) That the lean1ed trial Magistrate_ erred in not finding that the Plaintiffs witnesses had lied. The Appellant had the services of Mr.Munuo, learned counsel while the Respondent presented in person. ·' On 24(8/2005, this court by consentordered the parties to argue and dispose the appeal by way of written submissions. The parties have full complied with the said order of this court. I will therefore proceed to consider and determine-this appeal. In his submission, Mr.rvfunuo argued the two grounds of appeal collectively. He contends that though the niatter was brought to the attention of the Senior District Magistrate by way of revision rather than appeal that procedure was proper as the District Court had powers of revision under Section 22 (l)(b) of the Magistrates' Courts Act, 1984 and once the matter was before the Senior District Magitrate he ·' '.' .. ', 2

could decide to proceed by was of appeal or by way of revision. The Respondent did not respond to this point in his submission. However, I am compelled to put the same :0 in its proper perspective to avoid misleading this court. First, the Appellant, as I have shown in the first paragraph of this Judgment, had filed two Chamber Summonses, one made under Section 22 (1) (b) of the Magistrates' Courts Act;1984 and another under Section44 (1) (b) of the same Act. My proper reading of the Magistrates' Courts Act, 1984 does not show existence of Section 22 (I) (b) in the said ActFurther, even the existing Section 22 (1) of the.said Act does not allow revision application to be-ins_tituted by an aggrieved party but the District Court is to act on its own to call and ._e,xamine the .proceedings of the Primary Court and revise them ilso satisfied~: Not c~ the District Court on its own convert such revision to an appeal though in dealing with the revision it can exercise its appellate powers conferred on it under the said law. Secondly, it is not known for which reason, the Appellant had at the same time in the same application involved another Chamber Summons under Section 44 (1) (b) of the Magistrates' Courts Act,1984. It is clear that Section 44 (1) (b) of the said Act concerns revisional powers conferred to the High Court in respect of proceedings of a civil nature determined in a District Court or a Court of Resident Magistrate and not a Primary Court as was this case for the ·' Appellant.· Thirdly, if the Appellant was aggrieved by the decision of the trial court, (J · he was under the law, that is under Section 20 (1) (b) of the Magistrates' Courts Act, 1984 required to appeal to the District Court against the said decision rather than instituting.a;revision. In my.considered view in basing his application under Section . . - •· . 22 (1) (b) of the Magistrates'Courts Act, 1984.had based his application on a non existing provision of law. The senior District Magistrate ought to have held that the court had not been moved. 3

•' The Appellant, in his submission contends that the trial court proceedings were omnibus and equivocal in that it was conducted both as criminal and civil case. He ) further contends that in case of contest of ownership of land, the issue of title or ownership need to be settled in a chil suit first before criminal trespass charges can be entertained. However, I quite gree with the submission of the Respondent that it is . quite clear from the proceedings of the lower court that what was before the trial court was a civil case and the same ·was instituted and titled as "Shauri la Madai No. 22 of 2001" which is the same as "Civil Case No.22 of2001" and the parties were referred to as "Mdai" and "Mdaiwa" which means•" the Plaintiff' and "the Defendant." Indeed, I quite agree that in the judgment of the trial court there exists the words " Hili J ni Shauri la Jinai No.22/2001 ... , ...... " butthis was clearly a slip of the pen on the part of the trial court. Otherwise, the said judgment is titled" SHAURJ LA MDAI NA.22 YA 2001" that is "Civil Case No.22 of 200 I" and the parties in the said judgment have been referred to as "Mdai" and "Mdaiwa". that is "the Plaintiff' and "the Defendant". Even the outcome of the said)udgment is not conviction and sentence as is usual in criminal cases, but the usual reliefs that are granted in civil suits. Therefore, I find and hold that the case in the trial comt.was instituted as a civil suit, conducted as a civll case as the proceedings of the said court shows and the judgment • . . . .1 evidences determination of a civil suit and not a criminal case. The Appellant, in his submission contends that the Senior District Magistrate . . did not go into the merits and demerits of the proceedings in the primary court and chose to emphasize the sidUnes and among others missed the point that the trial magistrate at the primary court did not sit with the same assessors when conducting the case. He contends that under Section 7 {l) of the Magistrates' Courts Act, 1984 a primary court magistrate ought to sit with not less than two assessors when conducting a trial and that the two assessors ought to be_the same throughout but he contends that . ' the record shows that" the trial magistrat started with Modest Risha and Peter 4 . \·: .

Mchomba as assessors· and later finished the: case with Clemence and Athumani Mbaruku. On his part, the Respondnt in his submission contends that the trial court O was properly constituted as required under Section 7 (1) of the Magistrates' Courts Act, 1985. He further contends that it is true that the two assessors who sat on 2/4/2001 were different with the two assessors who sat on 3/5/2001 when the trial commenced but the latter assessors he contends were the ones who sat when the actual hearing started and did so to the date of judgment hence no injustice was occasioned in the trial court. In my considered view, the Senior District Magistrate as far as the merits and demerits of the case was concerned was very clear on his judgment. He started that he 0 had _examined the evidence of both parties in the primary court, the arguments of both parties before him and·was satisfied that the land in dispute was sold to the Respondent by public auction and all procedures of sale to him were foIIowed. As regards the issue of assessors, it is true that .the record of the trial court shows that the assessors who sat on the first day of the case were different from those who sat on the day when hearing started to the date of judgment. However, in my considered view, the Appellant did not raise this point in the trial court nor at the District Court in his revisional application, therefore it is not borne by the judgment of the District Court _, hence the same cannot be raised and pursued in this court by the Appellant. Further, the Appellant in his submission contended that the Respondent was a liar as in his counter-affidavit had professed to be a medical doctor whereas he was not, something which had dented his credibility as a witness hence the Senior District Magistrate ought to have rejected his testimony. The Respondent in his submission denied that he was a liar. First, the record of the trial court shows that the Respondent in his testimony did state that he was a "DAKTARI". However, the Appellant, in the said court did not cross - examine him or challenge him in anyway. So the said point was not icluded in thejudgrne11t of the trial court which the Appellant had sought 5

7 I f 0 0 revision in the District Court. Secondly, the Appellant did not take up the point in his affidavit in support of the application for revision in the District Court, it only surfaced in his Reply-to Counter-Affidavit of the Respondent. Still, it remained that the same was not borne by the judgment of the trial cou1i. It could not be a subject of the application for revision in the District Court hence in my considered view there was no need on the part of the Senior Distdct Magistrate to inquire the same or reject the testimony of the Respondent contrary to the submission of the Appellant. In the upshot, I find that the appeal filed by the Appellant in this court has no merit. The said appeal is hereby dismissed with costs. I uphold the decisions of the · two co"u;;:i!:?· It is so.ordered. ,AAAAA.AJ //'... !;4". ·,II f< ' • ---. ~ - :.::!'V ... - , ,..::-·c:,·- ---:, -t. . - . . '- _· . . . ,...- . /::·: ,I ;';.,•?:(>·:: . :·::- . .·.· . . . F.A.R. JlJNDU, !·; ·•. :' }t: ;,· c,, •. . .i. ':,":,\ · . ,· ' ? · · · •;' 1 •,,I· TUDGE .':' .' Ji'.)! . J' ' .· ''. 1 :/;-;..;;· ... :, /;' 28/4/2006 \ ·, . . '.t . . 1/' '"-..<~::-- ::..;.. _____ .,d, ... .._. __ .. ~ Right of Appeal Explained. 28/4/2006 Coram:- F.A.R.Jtindu, J. · For the Appellant: present For the Respondent: present CIC:- Muyungi · ·' F.A.R. JUNDU, JUDGE, 28/4/2006 6

' l 0 (} Court: Judgment delivered in the presence of the Appellant and in the presence of the Respondent. I . : I ATMOSill . .- .... "'./. --: .. F4A.R. JUNDU, JUDGE, 28/4/200 7 I