Mgaya vs Kandi (PC Civil Appeal 81 of 1995) [1998] TZHC 19 (30 December 1998)

IN THE HIGH COURT OF TANZANIA AT QblL.E:J?.S.Af,l\A M (Originating from Kinondoni O\C Civil Appeal No. 46\94 and original Kinonnoni PrimAry r.OlJrt Civil Case No. 43\94) Z I D I MGA YA. . • . . . . . . . . . . . .' . . . . . . . . . . . . . . . . . . . . A P P T,T r.A NT VERSUS RASHID BAKARI KANDI RESPONDENT This is an interest ing and a Iso an unfort.unat.emat ter. T t· ,s unfortunate because it has taken l,nnecessarily a long time to reach where it is and there is st.ill a long way to go. Tf we tread by what the records tell us in their duplicat.e form ..it started in 1994 before the Kinondoni Primary COl,rt. ..ann it has yet to terminate. Not only that, while it.dilly dallied at the District Court for no apparent and just.ifiable reason, when it finally came to the High Court, the records disappeared! As if this was not enough, while the originating records (t.o the High Court Registry) suggest that it came by way of revision it was entered and registered as a Civil Appeal (it is entitled, 'PC Civil Appeal No. 81 of 1995'). And, finally, a look at t.he records available (both in substance and form), leaves no one in doubt that the proceedings and ensuing jlldgements\orders cannot be sustained. It is interesting because both parties, represent.ed by learned Counsel, front formidable arguments, which ..if true .. rather than cleansing any, do paint, darkly and suspiciously .. cutting across, the High Court Registry ..the parties themselves, the District Court personnel let al.one the cOl'nsel themselves!

I have already indjcted tht we re ~~ting on ~ reord in its "duplicate form". This is so heause the original Primary Court and District Court records including the origini'llr.hamher summons and affidavit which brought the matter to the High COllrt disappeared! What is on record are what are said to he r.opies of the Primary Court proceedings and judgement; a copy of an amenrlerl memorandum of appeal to the District Court; uncertifieo ann undated chamber summons t.owhich is attacheo n undat.ed though signed affidavit both of which are said to have originaterl the present case before the High Court; a copy of the judge-in- charge's minute in the general file re-assigning the matter to me (originally it was assigned to Kyando: J: who moveo on transfer); a copy of t.he District Court. expart.e jllrlgementrli'lt.eo 10\5\95 which allowed Rashid Kandj's (Respondent) appeal against the Primary Court judgement.: and a copy of a revisional order in r.r. Revision No. 12\94 between the present Respondent (as a cnnvir.t and one Mohamed Said Hatibu which set. asioe the convition and sentene of 6 months imprisonment for the offence of t.hreatening violence, which factor I consj.der irrelevant in the present matter. The chamber summons by Applicant: irli Mgaya, pray for orders, among others, that, "l. The exparte decision of t.he Senior Resident. Magistrate, Ms. Kalombola, in Civil Appeal No. 46 of 1994 on the 10th May, 1q9S be revised. 2. In the alternative, the appeal No. 46\94 be heard inter-parties by another Mi'lgistrate". Reasons in support of these prayers are r.ont.:Jined in .:In .:Jffidavit which allege that the appeal should have heen summarily reject.eo for being frivolous; th.:Jt the expart.e jllrlgementwas p.:Jssed when the Applicant's Counsel was stuck in mud just 100 yrds .:Jway from the court room, and that it is against. priniples of natural jllstice to condemn a person unheard. Mr. Mkondya: Advocate: for the Applicant, in his further submissions insisted t.hat there was dubious dealings between the District COllrt and the Respondent /.

for, the latter, in company of his advocate, was seen entering the Magistrate's chambers while Applicant was standing j\lst outside, and without the case having been called out, only to come out. with an order as t.O when an exparte judgement· wall 1 rl he delivered. This attracted preliminary ohjecti()ns from Remgalawp: Jundu & Co. Advocates, to the effect that the affidavit is defective as it was not verified and attested (it will be recalled t.hat it was said t.o be a re-(~ons'rll(~tionfrom the 10s1 docllments); that there is no indication that necessary fees were paid; that it is not clear as to whether the matter was an appeal or revision (comparing t.he chamher summons and the way t.he record is entitled); that the applicant shOlJld not have applied for revision under s. 30(1)(c), for, that. relates to where cOllrt.sact suo mota but should have acted under s. 44(1 )(h) of the Magistrate's Court Act, No. ~\R4; that as no fees were indici'lpd to have been paid by 29\6\95 "going by the dat.e shown in t.he chamber summons ...." (although the copy of t.he chamher summons on record does not indicate the date and one wonders where the learned counsel got 29.6.95!) the appliration is time barred by item 21, Part III, of the Law of Limitation, Act, 1971, whirh fixes the period to only 60 days. On the main suhmission the respondent argue that it is inconceivahle that the rOllTlselrOllld simp 1y rema in st.randed just 100 yrns away withou t ;nfarm; ng the rourt when t.he scheduled time for the case s t nIck; that there were triahle issues in t.he appeal ann that t.here was no hias on the rourt's side but that the Applicants failed t.o enter appearance accordingly. In reply the Applicant.'s Counsel insists t.hat. the fees were paid and receipts were in the lost files; t.hat. t.ime sholJld not he computed from 1998 but 1995, and, wonders, asking himself, why the other party is capitalising on t.he lost files if they have no knowledge of their whereabouts.

A]l this started with Rashidi Kandi (Respondent) slling unsuccesflllly, idi Mgaya (Applicant), at Kinondoni Primry Court, for possession of unsurveyed piece of lnd on which ~ "KihandFl" is erected. The Respondent appealed succesflllly hefore the Rinandoni District Court., which, in i'ln ex-part.ejudgement set. i'lside the primary court judgement.. The Applicant (idi Mgaya) cOlJld not stomach this hence the present applici'ltionto revise the District Court exparte judgement as per prayers already quoted ahove. I have summarised the history of the mtter and the submissions by both parties just for clarity: for, regard heing hi'ld t.o t.wo fact.ors which Twill short.ly discuss, t.here is no nRed of going into the merits thereof, for, the proceedings and ensuing judgment.s\orders hfwe no feet on which t.o strmi. "First. T should st.ab, t.hat. the well est.ahlished prindple in criminal Appeals "of loss of record leads t.o ret.rial" (Rv Ahdi May and Others (1948) 15 RACA 86; Raiderali takhoo Zaver (1qS~) F..A. 244; Shahan Mat.ondo v R (1q6q) RCD 57) Flpplies as well to Civil Appeals SUffering from t.he same malaise, FlS is t.he present. appeal whose facts establish beyond douht t.hat t.he reconls got lost or misplaced. This is so because there is no record on which the appeal court can base it.s analysis and decision regarding the issues raised between the parties. T should go further and st.ate 1'. h t t h . ..]. 1 . e,s .•. h a .. IS prlnClpe .. app .J •.. "'. ln SJt.uat.lom:; were tA.s ••• e.Ll "'~ t.here are no records at all A where those availahle FIre copies whose authenticit.y have not heen proved. Tn the Ci'lse at hand we only have copies of the primrJry court proceedings. Apart from t.hese unrJut.henticated primary court. proceedings, (i'lnd it should he not.ed that none of the Counsel took stock of the proceeoings t.here, for, Advocates don't appear in primary court.s) there FIre no District Court proceedlnqs, and, which are alleqed hy the

challenged is an exparte judgement. of t.hp. ni Rtri r.t COllrt it iR pertinent that this court be availed with whi'iti'ir.tlli'llly transpired, record wise, before the Ri'ime Wi'iRentered. There iR no original nor a copy of the said proceedingR. This in itRelf is deplori'ibly fatal to the present appeal. There iR yet ,::motherRer iOlls oefer.t on n~r.ord. And th i R is the 2nd factor which necesRitat.e i'i retrii'il.And thiR wOllld hi'ive attracted same consequences even if the origini'il rer.oroR were present.. Under Rule 3 of t:he Magistri'ite'R r.ollrts(Primary r.ourtR) (,Judgment of court.) Rules, made under S.71(1) of the Mi'lgiRtri'ite'R Court Act., No.2 of 1984, the old syRtem whereby i'it the r.loRe of t.he t.rial, a primary court. Magistrat.e hi'idto RUmmi'irl Re the evidence t.o assessorR and t.hen seek their views was Rr.ri'iped off wit.h no reserved element of diRcret.ion. The said RIlle provideR: "3 (1) where in any proceedings the COllf·t. has hei'ird all the evidence or mat.t.erRpert.aining t.o the isslle t.o be determined by t.he court.: the magistri'ite shall proceed t.o consult with t.he i'iRSeSROrpreRent: with t.he view of reaching a ded Ri on of the court. (2) If all lthe members of t.he r.ollrti'lgreeon one decision, t.he magistrate shall proceed to rer.oro the decision or judgement of the cOllrt which Rhall be Rigned by all the memberR. (3) For the avoidi'ince of doubt i'i mi'lgiRtrate Rhi'l11 not in lieu of or in addit.ion to: the conRlIltat.ionR referred to in sub-rule (1) of t.his rule: he entitled to sum liP to the other memberR of t.he court.". The copy of judgement of the primary r.ollrt. on rer.ord shows that the Magistrat.e summarised the evidenr.e: invited the aRReRRorR who gave their individual opinions which were recoroeo. He then

recorded immediate 1 y thereaft.er, Ri;1JjrrttJ: ann proceenen to express his views sllpporting those given by assessors. This is followed by: mj Mdai anashindwa kuthibitisha ~ai hini ya k ifungu No. 06 ya Kanun i za ushahi di. M(laiwa anayo haki katika nai hili aennelee kllishi katika nyumba hiyo ... ". Wi t.hout even posing to answer whet.her t.h is is how a jllngement· should look like, a question prompted hyits curiolls format, T should out-r ightly state that it has v io I at.en Rille ::l qllot.en above. Under the Rule a magistrate only conslllts the assessors and then writes the judgement wit.hout. putt.ing on recorn the 'individual opinions unless therei sad issent. i ng member, ann there was none here. The consequences of violat.ing Rule) is t.o tllrn the whole proceedi ngs, judgement ann orders int.o a null ity [(PC) C iv i I Appeal No.1 S6\97 Omary Nassoro Mbot.t.o vs Ahnallah Raie] T,ilwpila; (PC) Civil Appeal No. 55 of 1990 Relemani Rakari vs Fel ista Helman;; PC Civl Appeal No. R1\9R Hrlmisi NguT'rlngwrlvs 7.rlinrlhll Konno - all of Dsm Reg; st.ry, unreportFHl]. Thus, both lower court.R' proceed ings: jllngement s ann orne r's rln neclared a nullit.y. It. is further orderen that. t.he Crlse shouln start de novo, on same fees aR orignrllly prlid, for, t.he cOllrt is to blame for what transpired. That settled, I have asked myself as t.O whether T shonln order to have t.rial ne novo held before t.he primary court or District Court. Under s. 18 and 6::l of the Magi st.rat.es' COllr1- Act the d isput.ed piece of land fa 11 R IInder sUhj ect. mat.t.ers whose jur;Rdiction lie wit.h primary courtR IInlAss, f'!lTlong others: "the Hi gh court. gives 1Ai=lVAfor Fluch procee(li ngs to he commencAn in n

some ot.her court". I t. wi 11 he not.eo th;:1thot h part ieR were repreRenteo by defence counsel right from lhe niRtri~t C;ourt. We are not t.olo (and indeed t.here wOlllo he no jURtifieo caURe even to inquire, for, we know t.hat AdvocateR oon't appear in primary courts) whether t.hey would not. have mAnagen to engage Rervir.es of counsel from the start. However, h.wi ng ma i ntn ineo r.ounse 1 in hot.h court.s (District and High Court.) it is moRt likely than not: that given chance, t.hey would still maintnin r.ounsels' representation. Considering this, ano also t.he time lag so far taken, and, furt.her, t.hat the r.ounsel (nRRlIming parties ret.ain t.he same) must. obviously by now have the fnr.tR ann law at their finger tips, it. is my considered view lhnt T sholJln order: a!'l T hereby do.. t.hat t rial de novo be r.on(lucteo he fore the Rinondoni nistrict Court. T hnve given lei=lvp. lo hnve this matter commp.nced in the Di!'ltrict court. not WiU10llt rlllP. regi=lrclto legnlit.y. T hi=lvecarefully con!'lideTed !'l.~1 of the Mngi!'llrate'R Court., Act.: where it. st.at.e!'l, "Unless the High Court gives lp.avp. for such proceedings to be commenced in !'lomeothp.r court": and I have concluded t.hat t.he si'liowords mean that. the court r.an be moved by a part.y to gri'lnt. the requ i refl 1 eave or r.an i'lclSilO mot.o, depending on the circumst.ance!'l of a particllli'lT r.i'lSP.. The present. Ci'lsenecessit.ates the lat.t.er COllrSp. which T have i'loopted. Li'l!'ltly, for the Ri'lmerei'lROn!'l that r.o"p.lleo me not to ordet for pi'lyment.of fre!'lh fee!'lhefore commenr.ement of retrii'll T mi'lkp. no order a!'lto CO!'lt.R. Ri'lchpart.y to bear ils own cO!'lls. JO(/2Icr g 11- (T.. R. RalegeYi=l ,TunnR