Enala Mbuba vs Rashidi Mwasantubwa (PC Civil Appeal No. 33 of 1998) [1998] TZHC 2333 (20 November 1998)

~~')SHI 1 ·Jo. IN THE HIGH COURI' OF TANZANIA AT MBEYA PC CIVIL APPEAL.NO. 33 OF 1998 (From the decision of the District Court of_ Kyela at Kyela in Civil Appeal No. 6 of.1998 Before: N.O. Lilibe - District Magistrate). EN'ALA MBUBA APPELLANT • VERSUS RASHIDI MWASANTUBWA RESPONDENT JUDGMENT The primary court of Lusungo adjudged the appellant, En.ala d/o Mbuba, the lawful_owner.of-:a piece of land measuring 2¼ acres., She had sued the respondent, Rashidi Mwasantubwa, for ito That decision aggrieved the respondent who preferred an appeal to the district court of Kyela in consequence. The district court found' the matter to have- been tainted with fatal procedural irregularity·, quashed the trial court I s proceedings, and ordered a trial denovo before another magistrate of competent jurisdictiono The irregularity was thiso On account of the appeliant 1 s alleged old age·and ill-health, the trial court, on a written request by the appellant, permitted her son, George Mwakapande (PW1), to appear and act on her behalf in terms of Section 33(2) of the Magistrates' Courts Act 1984, hereinafter called the Act; which reads: 11 33(2) Subject to the provisions of subsections ( 1) and (3) of this sction and to any rules of court relating to the representation of parties, a·primary court may permit any relative or any membr of the household of any party to any proceeding of a civil nature, upon t~e request of such party, to appear and act for-such party. 11 Subsections ( 1) and (3) are not relevant because they are concerned with appearances of public prosecutors, advocates and bodies corporate. The son, 0 0 0. 0 •• 9 /2

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• 2 - Gerge Mwakapande, then testified as appellant's first witness (PW1), and the appellant herself testified as the fifth witness (PW5),, The district .court found the procedure to be uncommon practice in law, and.ended up with the.decision it dido Let me reproduce in full what the learned district magistrate said about the procedure at page 2 in his judgment: 11 A person whq appoints another person to represent him as either a plaintiff or·defendant is taken by law that he/she is not capable of appearing himself/herself as plaintiff or ,defendant for one reason or·another such as sickness, old age or te:t1der age to mention but a few. He/she is therefore not expected to appear in the same court and testify as a witness, . . . . for all what he/she had to tell the,court as a plaintiff or .. defendant has been-transferred a.rid vestd to his/her representative. If as in this case the original plaintiff Enala d/o Mbuba was. capable of testifying in court.as she did as ' PW5 there was no logic to appoint her son George s/o • Mwakapande to represent her as a plaintiffo · The fact· that Enala d/o Mbuba was capable.of testifying before the trial court, she could stand personally as a plaintiff and not as a· witness, as the record shows. In my view such irregularity occasioned a failure of justice on the part of the defendant now appellant who was not in a clear position to ascertain · who was a proper plaintiff in the case in hand., 11 I I would, with respect, agree with the learned district magistrate. The . reasons he gav~ for his decision were commendably sound. A defendant has the right to know who his plaintiff is and vice versa. ·;Parties to a suit .must be identified and be identifiable. I think the provisions of section 33(2) of the Act were abused here. They are-meant to enable the infirm on account of age or illness to have their cases prosecuted. They are not meant to be exercised just for the pleasure of it. They are exercisable in lieu • of, and not in addition to, the relevant party. I agree that the irregularity 0 0 ••• 0 .• 0 •• /3 [_ •

3 - r had occasioed a failure of justice to the respondent for the reason given by. the lec3;.rned district magistrate,·and therefore incurable under. section 37(2) of the Acto This appeal, in consequence, stands dismissed in its entiretyo AT ¥JJ3EYA. 20 November 1998. For Appellant: Absent. For Respondent: Absent. B.. MOSHI