Kuburi Amiri Kovu and Another vs Abdallah Amiri Kovu (CIVIL APPEAL NO 11 OF 1996) [1999] TZHC 182 (22 July 1999)

KAJI 1 Jo lJodomQ IN THE HIGH COURT OF TANZANIA AT MTWARA CIVIL APPEAL NO~ 11 OF 1996 ORIGINAL MTWARA DISTRICT COURT CIVIL CASE NOo 27 OF 1996 ·1.,. KUBURI ANIRI KOVU) 2. SAIDI AMIRI KOVU ~ • 0 0 0 • oAPPELLANTS versus: ABDALLAH AMIRI KOVU •••••••••• RESPONDENT JUDGMENT The appellants ( 1) KUBURI .AMIRI KOVU ( 2) SAIDI AMIRI KOVU and the respondent ABDALLAH .AMIRI KOVU are brothers,, They are the sons of the late Mzee AMIRI KOVU who died in 1988. After.his death the appellants and the respondent were assigned different responsibilities to run his Estate on behalf of and for the ·' . interest bf all rightful heirs. It would appear the 1st appellant Kuburi was assigned the duties of supervising cashewnut shambas, a salt farm, cattle and a tractor~ The 2nd appellant Saidi was assigned to run a shop., The respondent was assigned the duties of supervising transport section., Later a misunderstanding errupted among them over the ownership of two motor vehicles, namely, a scania 81 Reg. Noo TZ 24336 and a Benz Tanker Reg. No .. TZC 4o59o · While the appellants maintained that those motor vehicles were part of the Estate of the late Amiri Kovu, the respondent maintained that they were his personal propertyo Efforts to solve the matter by clan members proved fruitless., The respondent took the matter to Court claiming, inter alia, for a declaration that those motor vehicles were his legal propertieso The appellants who were the defendants objected the claim vehemently maintaining that those motor vehicles were part of the estate of their late father Mzee Amiri Kovu, and therefore the property of all rightful heirs. The trial Court found for the respondent. The appellants were aggrieved., Hence this appealo In their memorandum of appeal they raised only two grounds of appeal; that is. • e • ./2o • o

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1. The learned trial Magistrate having found that the respondent was operating the deceased's transport busine:;;s in trust of the whele family eut of which the tw8 disputed vehicles were acquired, he 2c sounded absurd in hblding that the same were obtained through the respbμdent•s private projects which were not proved by any-evidence. 2~ The trial Magistrate erred in law and fact when he held that the two disputed vehicles belong to the respondej).t despite ample evidence adduced in Court both oral and documentary through registration, proving the deceased 1 s legal titie over the said two vehicles which are part ·anc1· parcel of the decea:sed•s estate which has nt yet been distributed/ adi:ninistered. -- .. In reply the resp&ndent insisted that they are his personal propartyl and that the judgment of the rial Court is proper. He called upon the Ccurt to dismiss the appeal with costs. In short, that is the gist of the matter. Before going into the merits and demerits of this cQSe, it is necessary- first to decide whether this ce was properly heard and determined, that is whether it was properly conducted. At the trial the respono,ent who was the plaintiff called two witnesses. , The appellants who were defendants called 3 witnesses. But before the trial began, the learned trial Principal District Magistrate did not f,,reme any issue as required by ORDER XIV Rule 1(5). o the Civil Procedure Code, 1966. The 01,iel issue at this stage therefore., is whether under th.ose circumstances the trial was proper and valid. The said provision of the law says:"".' ORDER XIV _.E.ULE 1 {.5),.....9fQ.:- 11A t the first hearing of the suit· the Court sha1.l• after reading the plaint and the written statements, if any, and after such examination of the parties as may appear necessary t ascertain upon what material prophsitions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. 11 The wording of this Rule shows clearly that framing of issues at the first hearing is mandatoryo Failure to do sd renders the trial null and void. Therefore in the present case since the' trial was not ex parte, it was necessary for the learned trial Magistrate to frame the issueso The case was sensitive and required the utmost care and attention because there was an allegation y the defendants/appellants that the two motor vehicles in dispute wer.',. realized from the proceeds from the Estate of their late father which hadi~t yet been distributed to all the rightful heirs. The plaintiff/ -;,i: oeo/2•••

3 respondent had alleged to have purchased them from his o,m money from his private projectso Those vehicles were alleged to have been registered in the name of their late father the late Amiri Kovu .. All these would have formed some of the crucial issues requiring strong evidence and proper explanation or clarification for a meaningful decision. Failure to frame issues left the trial Court groping in the dark not knowing exactly as to what wero the issues upon which the right decisi9n of the case appeared to depend. It has been the practice of this Court where there framed issues and the trial Magistrate fails to try them adequately, to remand the case t-.!l him with a direction that he must write a proper judgment which decides all questions of fat arising from the issues framed. But where the trial Magistrate did not frame any issue at all, the of only remedy is to quash the proceedings and judgmentlthe case and to direct a fresh trial of the suit before another :Magistrate as per the case of KHAGA._,ERNESt,_!I~ 1976 LRT No., 10 (by Hon. Mwakasendo Jo as he then was). There was a hint by the respondent in his reply to the memorandum of appeal that the appellants who were the defendants at the trial failed to present/file their written statement of defence. But this allegation can hardly be entertained by this Court in view of what the record sayso The trial was not ex partco Both parties adduced evidence with their witnesses. In fact the second paragraph of the typed judgment tells it all. It says:- nThe defendants denied this plaint as per their written statement of defence presentedr. 11 Since the trial was null and void for failure to frame issues, the proceedings wd judgment are hereby quashed. The case is to be heard afresh before another Magistrate, preferrably a Resident Magistrate., The DE NOVO hearing will be on the very fee the plaintiff had paid when instituting this suito Both parties who are brothers arc to bear their own costs of this appealo Due to the nature of the case itself, it is desirable that it should be heard and determined as soon as possibleo It is my great hope that the DE NOVO trial Magistrate will observe this and give it the weight it deserves. !~ .. , i ; i I . V - .... So ,{{o KAJI JUDGE 22o7n99 oeoo/40000

Court: 4 Judgment· has been del. ,)red in the presence of the appellants and the respondent this 22nd day of July, 19990 ~,-.•- .;·· JUDGE 22.7099 B/C: Nanyanga (M'.:':.ss) )