Zidi Mgaya vs Rashid Bakari Kandi (Civil Case No 43/94) [1998] TZHC 2106 (30 December 1998)

.. -, L....::. ·_ 3'f IN THE HIGH COURT OF TANZANIA AT DAR ES SAT..A_M (PC) CIVIL APPRAt NO. 81. OF 1Q9 (Originating from Kinononj O\C Civil Appeal No. 46\94 and original Rinoncioni Prirnr1ry r.011rt. Civil Case No. 43\94) ZIDI MGAYA .............. .' .................... APPT.TCANT VERSUS RASHID BAKARI KANDI ......................... . RESPONDENT .:Tuu----,Jr . . . . .. . . . . . . . . . . . . . . . KALEGEYA, J. This is an interesting and a J.so an onf ortunate mr.1t t.er. T t i ~ unfortunate because it has taken t1nnecessarily a long time to reach where it is and there is stj.l]. a long way to go. If we tread by what the records tell us in their d11plicr1te form,. jt started in 1994 before the Kinondoni Pri.mary Cotirt, r1nd j.t hrtR yet to terminate. Not only that, while it dilly dallied ;:it the District Court for no apparent and justifir1ble rer1son, when i.t finally came to the High Court, the records disapper1red! As if this was not enough, while the originating records (to the Hi.gh Coutt 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 the records available (both in substance and form), leaves no one in doubt that the proceedings and ensuing judgements\orders cannot be sustained. It is interesting because hoth parties, represented by learned Counsel, front formidable arguments, which .. i.f t n1e .- rather than cleansing any, do paint, a~rkly ~nd suF'lpir.io11sly,. cutting across, the High Court Registry, the part. i es t.hemse.1 vP.s, the District Court personnel let ~lonA t.hP. counsel t.hP.msP.lves ! 1 . .

I have already indicated that we are ar.ting on a record i.n its "duplicate form". This is so beca.use the original Primary Court and District Court records including t.he origin;:.il r.hamher summons and affidavit which brought the matter to the Hjgh Col1rt disappeared! What is on record are what are said to he copies of the Primary Court proceedings and judgement; a copy of an amended memorandum of appeal to the District Cot1rt; uncert. i. f i P.n and undated chamber summons to wh:i.ch is attached ;:in undated though signed affidavit both of which are said tn have ori.ginated the present case before the High Court; a copy of the judge-in- charge1s minute in the general file re-assigning the matter tn ,ne (originally it was assigned to Kyando, J, who moved on transfer)_; a copy oft.he District Court. exparte j11dgP.mP.nt. dateti 10!)\qs which allowed Rashi.d Kandi.'s (Respondent.) appeal against the Primary Court judgement, and a copy of a revisional order in ~r. Revision No. 12\94 between the present RP.spon<lent (as a convict) and one Mohamed Said Hatibu whjch set asjne the conviction and sentence of 6 months imprisonment for the offence of threatening violence, which factor I consider irrel.evant i.n the present matter. The chamber. summons hy Appl.ican t., 7. ·id i Mgriya, pray for orders, among others, that, "1. The exparte decision of the Senior Resident Magistrate, Ms. Kalombola, in Civil Appeal No. 46 of 1994 on the 10th Mriy, 1995 be revised. 2. In the alternative, the r1pper1l No. 46\94 he heard inter-parties by another Magistrate". Reasons in st1pport of these prayers are r.nntained in an affidavit. which au egA that the appeal should have been summarily n=lject.ed for being frivolous; that the expart.e j11ngement wai:i pi:issed whP.n the Applicant's Counsel was stuck i.n mud just-. 100 yrds aw.:=iy from the court room, and that it is against principJ.es of nr1tl1ral justice to condemn a person unheard. Mr. Mkondya, Advocate, for the Applicant, in his further submissions insisted that there was dubious dealings between the District Co11rt and the RP.spnndent ,··,•! •. : .. ........ 2

for, the latter, in company of his advocate, was seen enterjng the Magistrate's chambers while Applicant. was standing j11st. outside, and without the case havjng been calleo out., only t.o come out with an order a.s to when an exparte judgemP.nt. wo11l rl hP. delivered. This attracted preliminary ohjer.tions from SemgalRWA, Jundu & Co. Advocates, to the effect. that the affidavit. is defective as it was not. ver.i.fied ann .:it.t-.est.e<'l (it wil1 he reca l l.ed that. it was said to he r1 n~-r.onR1· n,r.t. ion from the 1 os t. documents).: that there is no .i.ndir.at ion t.hat. necesRary f P.P.s were paid; that it is not clear as to whether the matt.er was an appeal. or revision (comparing the chr.imher summons ;rno the WFJY the rer.or<'l is entitled); that the applicant shoul o not. have appl .i.ed for revision under s. 30(l)(c)·, for, thFJt relates to where courts ;H::t. suo moto but should have a.ct.ea under s. 44 ( 1 ) ( h) of U1e Magistrate's Court Act, No. l\A4; that RR no fees were in<li~~t.Rrl to have been paid by 29\6\95 "going by t.he dat.e shown int.he chamber summons .... " (although the copy of the r.hamher summons on record does not indicate the date and one wonders wherP. the learned co11nsel got 29.6.95!) the application is-time barren by item 21, Part III, of the Law of Limitati.on, Act, 1971, which fixes the period to only 60 days. On thP. ma:in submission t.hP. n'!spondP.nt argue that it is inconcP. ivFJh 1 e that. the c01mse l r.rrn 1 n simply remain st.randed just t00 yrc'Js awr1y without informing thA court when the scheduled time for thP. r,asP. Rt.rnr:k; thFJt. thP.re WP.re t.r.i.ahl.P. issues int.he appeal ;:mo t.hr1t. then" wr1s no h"i.s on the court's side but that. the Applicanti=; fr1iled to enter appearance accordingly. In reply the Applicant's Counsel inRiRt.:=; that. thA fees wan paid and receipts were in the lost files; thFJt time should not be computed from 1998 but 1995, and, wondP.rs, r1sking himself, why the other party is capitalising on t.hP. lost files lf they have no knowledge of their whereabouts. ;I

All this startd with Rashidi Randi (Respondent) s11ing unsuccesful.ly_. 7.idi Mgaya (Appl.i.r.r1nt.) .. at. Kinondoni Primr1ry Court, for possession of unsur.veyed pier::e of land on which r1 "Kibanda" is erected. The Respondent appealed sur.cesf11lly hefore t.he Kinondoni. District Court, which, in an expart.e judgement. set aside the primary court judgement. The Applicant. (7.idi Mgaya} coulo not. stomach this hence the present application to revise the Djstr.ir.t Court exparte judgement as per prayers alreridy q11oted ahove. I have summarised the history of the matter and the submissions by both par.tie just. for clarity, for, regard heing had to two factors which I will shortly disr.11ss, there is nn need of going into the merits thereof, for., the pror.eedings and ensuing judgment.s\orders h.::tve no feet on which to st..::tnd.. "First I should sta.t.e, that the well estnhl i.shed pr inr. ipl e in er .i.mi nal Appeals "of loss of record J eads t.o n'ltr ia l" ( Rv Ahd i May and Others {1948} 15 EACA 86; Haiderali. takhoo Zaver (195~) E.A. 244; Shaban Matondo v R (1969) HCD 57) applies as well to Civil Appeals suffering from the same malaise, as is the presAnt appeal whose facts establish beyond do11ht that the rer.ords got lost or misplaced. This is so because there is no record on which the appeal court can base its analysis nnn decision regarding the issues raised between the parties. I should go further and stat?. th h · · · J · 1 ,e.s: • . t . h at t. 1s pr1.nc1p .e •. -: app .. 1l-:-~-- 1.n s1 .uat1.ons w P.:re tu 1..1e..Lt tA.-' there are no records at all A where thosP. available are copi.es whose authenticity have not been proved. Tn the case at hand WP. only have copies of the pti.mrJry co11rt pror.P.eoings. Apart. from these unauthenticated pr. i.mi'ir.y cot1rt. pror.ee<h ngs.. ( ,mcl it. shou.l d be noted that none of the Counsel took st.or.k of the pro<::FH=io i ngs there, fo:r. .. Advocates don't a.ppear in pr.i.mary r.ou:rts) t.her-e rffe no District Court proceedings, and, which ~re ~lleged by the 4 \

Applicant to have been pregnant with bias. As what is being challenged is an exparte judgement of thP. nistrir.t Cn11rt it is pertinent that this court be availed wi.th what . .::1r.t11al 1 y transpired, record wise, before the same was entered. ThP.rP. is nn original nor a copy of the Raid proceedings. This in it.self is deplorably fatal to the present appeal. Then~ is yet another. ser.i.ous defP.r.t. on nr.orn. Anrl t.hii:: is t.hA 2nd factor which necP.ssitr.1t.e a retrial. And this wo11l<l h-'lvP. attracted same consequences even if the original records were prAsent.. Under Rule 3 of fhe Magistrr1tA' s coort.s ( Pri.mr1ry C:n11rts) (,Judgment of cour.t) Rules, ma.de under R.71(1) of thP. Magist.n1t·e's Court Act, No. 2 of 1984, the old system whereby at the r.1.nse nf the trial, a primary court Magistrate han to summr1d se t.he evidence to assessors and then seek their views was scraperl off with no reserved element of discretion. The sajd Rt1Je provides: "3 (1) where in any proceedings the r:our.t. hr1R herinl all the evidence or. matters pert.ain.ing tot.he issue to be determined by the court. .. the mr1gjst.rrJte i:;hr111 proceed to consult with the r1ssessnr present .. with the view of reaching a <lecjs:ion of the court. (2) If all lthe members of the <:'.OHrt r1gree on onP. decision, the magistrate shall proceed to rer:ord t:he decision or judgemf!rnt. of t.he c:nurt. wh j ch shaJ.1 be signe<l by all the memhers. ( 3) For the avoidr1nce of doubt. r1 magi.str.ate shal 1 not .i.n li.eu of or. in adrlit.ion t.o .. the cons11J.t.;:itions referred to in suh-r.ule (1) of th.is rule: he ent. it.led t.o sum up t.o the other mAmhe.rs of the cour.t". 'J'he copy of judgement of the primary court. on nr.oro shows thnt-. the Magistrate summarised lhe evidence, invited the assessors whn gave their individual opinions whi.ch were recorded. He then 5

recorded immediately thereaft.er .. !JaJ~:im!!: ;:,no pr.oceedec't to P.xprP.ss his views supporting those gi.ven by nRRessors .. 'fhj s i.s fol lowed by: f\mri: Mda i anashindwa kuthihi t ishn ,la i ch.in i y;:i ki fun au No. 06 va K;,rnun.i. za ushah id ·i . Mrla i wa anayo-haki katika dai hili ;:,endelee k11i.shi kntikn nyumba hi.yo ... ". Without even posing to answer. whet.her this is how a judgement should look like.- a question prompted hy .its r.ur.io11s format, T should out-rightly state thi:lt it hns vi.olnted Rule 3 qoot.ed above. Under the Rule~ magistrate only cons111ts the assessors and then writes the judgement without p11t.t. ing on nr.orc'I thP. individual opinions unless then is a d i.sRenti. ng mP.mhe:r,. r1nn there was none here. 'T'he consequences of violating Ru]P. 3 is tot.urn t.hP. wholP. p:ror.ee,Ungs, judgement. and orders into r1 nullity [(PC) r.ivil Appeal No. 1.56\97 Om;:Jry lfassoro Mbot:t.o vs Ah<'lnlJ;:ih S;:iin f,i.lmpilr1.: (PC) Civil Appeal No. 55 of 19QO SlAmnni Rakari vs FAlista Helm;:ini.; PC Ci.vl. Appeal No. R1\9R Hr1misi Ng11nrngw;:i vs 7.F1inr1l111 Kondo - ;:Jl. l of Dsm Regi.stry: unnport.Arl] . 'T'hus, hoth lower courts' pr.or.eAo i ngs: jungement.i=; ;:inn orderr-:; ;irP. decl;ir.ed a mil lit.y. It is f11r.ther. orderer! thAt. t.hA r.;:ii:;e should start de novo, on same fees as or.ignally pain, for .. the r.011rt is to blame for what transpired. That sett.led, I have aslked myself ;:is to whether T sho11ln order to have trial de novo held bP.forA the pr.i.mary r.nurt or District Court. Under s. l8 and 6] oft.he Mr1gii:;t.rr.1tes 1 r.011rt Ar.1"., the disputed piece of land £,alls under s11hjAct. mat.te:rs whnRA j11r. isd :i.ct ion lie with pr :i.mary courts 11n less, r1mong 01".hP.rs: "Urn High cour.t. gives Jar.=tve for st1ch pror.eed i ngs to hP. r.ommenr.eo in 6

some other court''. It will he noted thr1t. hnl·h pr1rtieR were represented by defence counsel ri.ght from the nistr.ir.t Co11rt. We an~ not t.olc'l {and indeed there wm1lr'J he no jm:;t.i fied cr111:=;e even to i.nqtHre: for, we know that: Advocr1t.es don't-. r1ppe;::ir i.n pr. i m;:iry courts) whether they would not. hr1ve mi=m;:igerf t.o engr1ge ::.ervi r.es of co1.msel from the start. However: hr1ving m;:iint.r1ined r.mrni=:P.J in both courts (District and H:i.gh Court.) jt. i:=; most likely thr1n not.- that given chance, they would still mr1i.nt.r1i.n r.o,msP.1.R' representation. Considering this: r1n<l r11sn the time lr1g so far taken, and, further., t.hr1t the r.ouni=;el (;isi=:11ming p;nt.iei=: r.ebdn the same) must obvi.ouRly hy now hr1ve t.he f;ir.ts r1nci lr1w at their. fi.nger. t.ips 1 it :i.s·my·consi.oere<'i view t·.h;:it:. T i::ho11ln order.- i'IR T. hereby do, th;:it · tr:i a.1 de novo he r.on<'lur.t.eil he fore the J{j nondon i Dist.r ict Court. T h;:ive given 1 er1ve to hr1ve t· hi R ma U·.er r.ommenced i.n the Di.strict. c011r.t. not wi.t.hnut. rluA rP.gr1nl to legality. •T have carefully conRidered R. 61 of the Mr1gi.strr1te'R Cour. t., Act., where it states, "On less the High Court gives J e;:ive for ~mr.h proceedings to be commenced in Rome other court.".- and I have concluded that the snid wordR me;:in thr1 t t.hP. r.ourt. can be moved by a party to gr.ant the teq11 i. rerl leave or c;::in ar.t. suo moto, depending on the circumstnnces of ;:i pr1rtir.11Jr1r case. The present case necessit.;1t.es the J r1t.t.er cmirse wh j ch T hr1ve anopt.P.<1. t,a.stly, for thP. i;,3me r.er1soni:; t.hr1t-. r.nmpelle<l mP. not t·.o or<1P.t· for paymAnt of fresh fees hefore cnmmenr.ement of ret.rir1l T mr1ke no order aR to costs. Rach pr1rty t.n he;:ir it-R own r.nstR. 3n ( I 21 Cy g !J • . . (T.. R. Kr1legeyr1) Jt!._1_1(:;_f,