Gilbert Nzunda vs Watson Salale (PC Civil Appeal No. 29 of 1997) [1998] TZHC 2297 (11 September 1998)

Ii THE lGH CC.URT OF TAN2LNIA AT MBEYA PC CIVIL Ai-PAL NO. 29 OF 1997 I . < om 1bozi District Court at Vwawa Civil Appeal No. 5 of 1996 - Original Puanda Primary Cox Civil Case N0.27 of 1 996 Before L.S I1tambc Mrs District Magistrate) APPELLJNT Versus .tESPONDE1'IT J1TDGAENT Thij ±spondent, Wlatsth 6alale, prefrred a aui-t agxin4 the 9ppd1lantj Gilj-'1 Nzundai before the district court of Mboz± for a 200 40OQ/ for what he termed kudhalilishwa. He ailegsd to ba bn al1ed a thief. It was iTbozi District Court -Civil Case No.6 of 1994. A settlement o ut f cvrt was reached, and the respdndent then withdrew te suit frozn the dis.ttict court under Order XXIII Pule 1(1) of th Civil Proedu.re Code 1966t, before it was heard and decided. The respondent then preferrei uit against the appellant bef.re the priitary court of -Ruanda claiming shs LO, OOO/ as with the distrt court case. It was Iuanda1'imary Court Civil Caae N, 27 of 1996. The claim nëlaboratd and wholly nisubstantiaied.. Nst siily that.

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• •-.: . . . . . The respondent. tld the trial court-: in 'ilC coe f tèin that the

I ss.8O,()OO/=, w t being claimed as part of the shs.200,QOO/zarri14ed at as the result of the settlement The primary court unanimously dismia.se.the wxit on accQunt of that the claim was unsubstantiated and in chanibles. The respondent felt aggr eyed and. pr eferred an appeal to th district court of Mbozi. The district court found the claim of shs.80,000/ to have been part of the claim of shs.200,000/= reduced in the settlement. But that finding, quite obviously, -was made in. errors The statement of the cJ.ain was uit& specific that

2 1 4/ the shso80,000/ was being claimed as expenses incurred in the district court case0 The statement read: NamdaimdaiwaGi1bertju.ndanirudjshja aznhlizoumiakweekej j.11 v. Gharamahjzo ni O,OOO/Jiajondiomadaiyan. That was the claim whiCh the respondent was required in law to have established on the balance of 'probabilities. The district court then found the decision of the primary court to have been improper without assigning any reasons, allowed the apDeal with costs, and ordered the appellant to pay:shs.'80,000/= to the respondent, again without any explanation as to how it arrived at•thatfigure. uite'expectedly, the apoellant, in his S\ turn, felt aggrieved, ce his appeal w1uc was prefe"d-ano. argued before me by his l'(axthecl adocate, fr.-ibi'se, and-res1tedb r13range, larned I ' ' advocàt, for the respondent ; Mr. Mbise pr,efered. five gucuncts of appeal, but in the circumstances.Qf : this case, I need only consider and determine th..fotand fifth.guouid,s., c, which are: • li, The learned 1)istrict i1agistrate erred in ordering he appellant.. to pay shs.O,OOQ/= to the respondent without any explanation as to how she arrived at that figure. 5. The learned District Magistrate erred on failting the findings of fact made by tiie trial court which is the best court without ascribing any reasons. • . Mr. KayangG did not make any fernial submission beIore me The learned advocat told this cout that he abided by the coiitents of a writteit reply to the emoandthn of aypeal he al?eiy filed. But there was nthing lndicati\70 of /f .'..- ;._ —-'. that he hadfil/ed auij such reply. It codid not be fouid ii?,-this appeal record, and notvèn a receipt for its filinthfées could be traceth It becah clear, therefSe, that the learned advocate had not filed a reply. I would, with respect, aguee with . bise that the judgment of the district court was fraught with dissatisfaction as set out in his two grounds of appeal. The learned district magistrate did, not state her reasons for her finding that the trial court' s decisioii vas improper.. She also did not explain c.00000..a /3

.9. . . . .. - how she arz.ved at shs.80,000/=. One cannot streso strongly the importance ,of giving reasons for, or the basis of, conlusioi 4r'eched. It is not enough merely to set out conclusions without setting out t4p7 .process of reasoning which has led to them.

• In any judicial proceeding, failure to give reasons for any step taken and any .rder made and any decision reached is not a proper and 'judicial exercise of discretion9 Justice is never meted out on whims or arbitrarily9 Justice is evaluated not by looking only at the end result of the case, but also by the manner in which that result is reacheth Perhaps the learned district magistrate is yet to gasp the full importof the principle echoed by Lord Howart, C.J. in Rex1oSsexJusticesex.'parte-McCarthy(1924) , 1 K. B. Page 259, tiat: It is notmeiely of soeiraportance,Thu is of • ixndani'èntal importance that jitic'e 'shulJnot only be done, but should manifestly andóbtedly seen to be done. It is a question of transparency. Transparency id"jtice are inseparable One of the essential comronents of transparency in the''ainistrat ion of justice is to give 'reasons for all the steps taken and all the orders made and all the decisions reachec. iny step ta:en and any order made and any decision reached without assigning reasons must be quashed on appeal. In this case, the trial court, as already explained, dismissed the suit
• with costs on finding the claim wholly unsubstantiated and in shambles. I find that decision to have beei 'jutified on the facts and sound in law. The claim was indeed unsubstantiated and. in shambles. The respondent himself was at a -loss as to the natu'eohis clai. He was nocertain about what he was claiming from the appellant. lt is trite la that findJgs,of fact by a trial court should be affirmed, on" appeal unless the same were not &4at reasonably or they cannot rationally be supported. The rationale for this principle is that a trial court has got advantage over an appellate court in that%i'eCormer saw and heard the parties and their witnesses testifying while the 1ttr did net.. I am, however, 1 /Lf.

satisfied on account of all the 1oreoing reasons that the decision of the primary court, sound as it wire, was impropery Wand unjustifiably impugned I - . by the district court0 .... . ... I accordingly allow the appeal. quash the district court V decision, set aside the award, and hereby restore the primary courts judgment which had dismissed the salt0 The appellant i to have his costs hero and in both courts below0 r 1 ... . ....... BP0 OSHI .- . . .. AT NBEYA0 -- 11 September 1°93 . --S

• For Appellant:. 1, 1r0 Mbise, advocate0 .-
• For 1èCpondent: Absent. 0 • .

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