Dickson Mwakyusa vs Yona Mwakambinda (PC Civil Application No. 39 of 1998) [1999] TZHC 64 (30 November 1999)

N IN THE HIGH COUR' OF PANZP.NIA AT MBEYA PC CIVIL £-PPEAL NO.39/98 t from the Decision of Dstrict court of Rungwe at Tukuyu in PC Civil App.No.3JJ9?) DICKSON MWKYiJSI. * 0 0 *0 0 0 9 0 0 0 0 0 0 0 0 0 0 0 0 0 00 0 C APPELLANT VEISUS YONA MWA1BINDA 0 ........ .,..00...,.0.,..4..,0RESPONDENT flIIGEMENT The respondent Yona Mwakambinda has never attended any court in this case from the time it was filed on 221611997 at the trial c.urt of Li.lpata Primary Court Rungwe District up to the District Court of Bungwe in first appeal and to this court. He was never testi±'ied either this case appears to be a bogus and fabicated civil case 3ust as there are bogus and riminal charges. &ie Yonah s/i Mwkambinda sued Dickson s/o Mwakyusa the present appellant in. 21/12/92 claiming: land ownership from the appellant. That has teiminàted.on 15/2/93 in favour of the said Yonah Mwakambinda and the appellant abitted and adhered to the decree of the that c-e as the 0. Judgement debtor to the full satisfaction of thetria udgement's holdings. b J e That was the testimony of DW 2 Dickso Mwasa given on 12/8/1998 r at the trial curt before . the laThed Mr. Kalenzi (Pimary Court Magtrate) in this case which testimony was quite authentic and believedhy the trial Magistrate. That is hy the same trial Magistrate give a disset.ing Judgement in favour of the appellant in these words, I quote from the verdict of the trial Magistrate the learned Ir, Kalenzi Primary Court Magistrate: "Hakimu ! Mimi sikubaliani kabisa na washauri kwa sababu wadaawa wa—likwisha patana .±iyumbani katika kesi ya awaliw, A

• 2- h Hukumu 00• .,.6Washauri it wa Mahakama walimuunga mkono mdai kwamba alipwe. Lakini mimi nakataa 'na kusema kuwa hakima sababu ya mdai kulipwa mara mbilii Vileylle sharnba la. ugomvi wadaawa walikwisha patana kwa suluhu'iiiyokwisha pitia". The quoted above portion is an extration from the magistrate verdict and his Jiement in the .prset. case which in short supported the appellants testimony in defence in this case that he was not liable to pay the presently claimed Shs.118 1 800/= as Costs and loss 0• .• " of farm podu ': e in relatithi'.to the 1992 Civil, case No3.77/1992 between the said Yonah Mwakambinda and the present appellant Dickson Mwakyusa. The above quated Swahili portion of the verdict and Judgement means in English that the learned Magistrat: dissents from the majority verdict of the 2 gentlemen Assessors who enter Judgement in favour of the plaintiff because the learned Nagistrae finds that the.: pntiff cannot be paid 'the bill"f costs twice moreover the farm in dispute was. finally o.dudicate upon and fully settled by agreement in court, these is every ground to support the version of the presgnt appellant that the 'original civil case N.1771199 2 between Yonah Mwakanfoinda and himself was indeed settlement by Compromise' reached in court and fully satisfied in this excution because 2 the case lasted in court for only l months having been, filed on 21/12/1992 determined on 15/2/1993. . On the,'o,ther hand, one crant I4wakabinda who testified. as DWI came to court'at'Lu'pa•,a?rimar.y court on 22/5/97 claiming to have a letter of one Yonah Mwakambinda with the Adress of Lupata Secondary School S.L.P. 1102 Tukuyu dated O/5/97 which requeted the Primary Magistrate to tax his bill of costs of the pEevious civil .as No0177/92 beteen himself and Dickson s/o Mwakyusa. He prayed to have taxed bill of costs to be collected by Grantonl Mwakambinga for he himself was travelling back to Dar es Salaam

3- ('!Naomba malipo hayo akabicth±we mdogo wangu Grantory Mwakambinda Mimi nategemea kusafiri kurudi kazini") i the basis of this letter Grantony,Mwakabinda ofeedup this case and presented it to its finality and exèütion for he was given by the Magis&ate a portion oi the farm of the appellant with crops in it as payment of the decretal sum of Sh8.118,800/= entered by the primary cOurt on majority file of the lady.. and gentlemen assessors. • The disputed letter october 20/6/1997 of Yonah Mwakambinda has certainly a bogus one' s It contained an address of Lupata SeccDndth.y, School where as the true Yona Mwakambinda was working in Dar es Salaä and should have contained his Dar es Salaam addres MorOovr the true Yona used to writehis name as Yonah with an "h at theend as clearly shownin the espéct of the recrd of the Primary Court •: . od:cLvi1 case No.177192 whereas this lona of this lOtter had nobuch. h" at the end: of the Yona Again, the letter of 20/5/97 has riot signed à alI.: Only the name Yna Mwakanibinda was scribed at the end of it. Anybodycould have written the ona Mwakambinda, It is the aoi'ued sigñatur whi&L distingushes a written documit. moreover by the time the case was opened up on 22/5/97 the Respondent Yona should have already gone toDar es Salaam to work but that is why he fond a need to write a letter if le was present in court ou 22/5/97 whé he opened up this case in person there. vould be no need of filing in court a letter of approving Grantony Mwakanibinda oollect his taxed bill dated :2/5/97 he would have written the 1eter dated 22/5/97 awards mn backwards.

It apeers it was of Grant Mwakaibinda himself he opened up this suit spoudent to be Yona. Mwaibinda and he signed the domplaint form as Yona Nwakambinda instead of signing as Grant Mwakembinda with pow'r of attorney' presumably to: act for Yona Mwakambinda 0 . It better be more c1ar:ev.e if. the letter of Yonah Nwakambinda had been a genuine one it did not appoint Grant Mwakanibinda as his representative to sue on his. ?..ehalby power of attoneny etc. It appointed Granty Mwa an daKprasumably Grantony is the same as Granty.) for purposes of collecting on his bea1f the taxed costs only not to sue on his behalf, Worst of all even if 'the said Yonah had appointed Gr'antony as his epesentative to sue'i his behalf that was, a mereapliction.whith I, should have been delibe±ated upon by the court and adecision rnde to ailow Grant to prosècut'the case on behalf of Yonah 9 Suc,h,.ecision this being aPrimary Court casb should have been made by the entire panel of the 2 assesors and I iiagistrate by majority verdict. The reoord shows no such step was ever taken 0 ice. .uch a representative prose 3utor of the case had been granted permision to.. proseoute for the plaintiff there would still be need to 'call .te,actualYonah as a witness on the day of the trial In this case . the fake, representative prosecutor testified himself putting himself in the shoes of Yonah as DWI afld, claimed the osts and everything from what had been by the actual Yonab about ,s travel from Dar as Salaam 4 .. ..:) to Lbpata what he ate and drink run the way the value of the coffee harvested and the value of bananas harvested for 3 years from the previous 177/1992 5 years before the case was opened up0

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The Judgement of the District --ir .:co was e:eit did ::t address itself to the above explain'd bogus proseoutie:. ef {tis crac. After the present cases Primary court magistrate had entced h.s dissenting Verdi:ct he shou have fo1lowid the f.?ed. to the D±stri ':u:t :or confirma6h othe.majoid - .; -: of th '°rs :Lu'teadf haiting until the efldr had aup tho 'ntire deciion of thePCct Th '. i ral null an void.. They are cushe The c h Di i a10 rronous. it i quashed thoro is no n3c-d to -'. the entire claim is :cxatious S nf cc N6177/92 was trially det3rmined onOl executoi -• This ,rrosent case is a indeed a bogus as o ' bought" ease, This spoeai is J1e-..sd * x":

• -. Date:30/11 /99 Coram: Hois- EOL,K Mwo. J Appello.nt: ::resent n PC000U = D ekon 4wakyusa Respondent: present in person 0 Yona iwkonibinda B/C: Kosats Ct: Judgment delivered in ta :':1 ekplained 1'•-- '-' : Certified true co-y oZ toe