AMOS MALINGIRA JUDGEMENT 0001

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY)

THE HIGH COURT (MUSOMA SUB REGISTRY AT MUSOMA) PC. CIVIL APPEAL No. 17878 OF 2024 (Arising from the District Court of Musoma at Musoma in PC Civil Appeal No. 12374 of2024 originating from Bwasi Primary Court in Civil Case No. 65 of2024) AMOS MALINGIRA...................................................................... APPELLANT Versus STEPHEN MKAMA................................................................... RESPONDENT

JUDGMENT 29.01.2025 & 30.01.2025 Mtulya, J.: On 14th March 2024, Mr. Stephen Mkama (the respondent) had approached Bwasi Primary Court (the primary court) and preferred Civil Case No. 65 of 2024 (the case) complaining that Mr. Amos Malingira (the appellant) had declined payment of Tanzanian Shillings 1,065,000 as per their agreement entered at Kurugee Village on 11th November 2024. In replying the complaint, the appellant stated before the district court that: siyo kweli. Mimi sidaiwi pesa hiyo. Nadaiwa Tshs. 500,000/=. Nitaiipa ndaniya miezi miwiii The primary court then heard the parties and resolved that: mdaiwa amiipe mdai jumia ya shiiingi l,065,000/=Tshs na 180,000/= Tshs kama fidia ya jumia na gharama ya shauri. The appellant was aggrieved by the decision of the primary court hence rushed to the District Court of Musoma at Musoma (the district court) and lodged Civil Appeal No. 12374 of 2024 (the appeal). In the i appeal, the appellant had produced a total of four (4) complaints, viz, in brief that: first, the primary court had no territorial jurisdiction; second, the complainant had produced weak evidence; third, the primary court produced extraneous matters; and finally, the case was not proved to the required standard of balance of probability. The district court in the appeal heard the parties and thought, at page 3 of the judgment, that: having considered the record

of the trial court, grounds of appeal, reply and submission of both parties, I have one issue that I am inclined to resolve in reaching the final determination of the appeal, which is whether the claim against the appellant was proved to the required standard. The district court then, at page 6 of the judgment, had replied the issue that: I find the trial court decision is correct. The evidence of the respondent is much heavier compared to that of the appellant. The district court finally had dismissed the appeal with costs. The appellant was not comfortable with the judgment of the district court hence approached this court and filed PC Civil Appeal No. 17878 (the civil appeal) complaining that: first, the district court has resolved the appeal without replying the issue of territorial jurisdiction; and second, the district court had consolidated all grounds of appeal and replied them jointly. When the appellant was summoned in this court to explain his reasons of appeal in protesting the judgment, he briefly submitted that the agreement was entered and exchanging of 2 monies occurred at the appellant's residence in Mugala Village within Bunda District hence the appropriate primary court empowered to resolve the matter is supposed to be Kenkombyo or Nansimo, and not Bwasi Primary Court located within the jurisdiction of Musoma District. In his opinion, the issue is crucial and

carries with it a point of law, which the district court had declined to reply. Regarding the second complaint, the appellant submitted that the decision and reasoning of the district court did not resolve all issues brought before it independently and separately. According to him, he registered a total of four (4) grounds of appeal, but the district court had combined all issues and did not reply them separately and properly. In replying the complaints, the respondent submitted that he produced evidence at the primary court to show that the agreement transactions had occurred at Majita Kurugee lake shore hamlet within Busekera Village in Bukumi Ward of Musoma Rural, the area which is within the jurisdiction of Bwasi Primary Court. According to the respondent, the materials on the location of the agreement were not disputed by the appellant during hearing of the case at the primary court and now surprised with the complaint produced by the appellant. The respondent stated further that the second ground of appeal has no any merit in the sense that the district court had joined all grounds of appeal and decided all of them together in one holding. 3 I have perused the instant record and found that the appellant had registered a total of four (4) grounds of appeal and the first one is related to the point of law on territorial jurisdiction of the primary court. I have scanned the

judgment of the district court and found that the decision is silent in replying the point. I am aware the second, third and fourth grounds of appeal registered by the appellant at the district court relate to the materials facts and evidences produced at the primary court. I am aware questions brought to this may be replied as whole jointly or separately (see: Nyakwama Ondare v. Republic, Criminal Appeal No. 507 of 2019 and France Michael Nyoni v. Republic, Criminal Appeal No. 505 of 2020). However, in the circumstances of the present contest, and considering the parties are lay persons without any legal representation, it is desirable to reply all issues separately. In such situation, the parties will appreciate contents of the decision of the district court with its associated reasoning. What is the way forward in the circumstances, like the instant one. A reply is found in the Court of Appeal decision of Swabaha Mohamed Shoshi v. Saburia Mohamed Shoshi, Civil Appeal No. 98 of I 2018, where the Court stated that: for interest ofjustice, the court is required to quash the decision of the district court with dear direction to the presiding magistrate to compose a judgment that captures all issues that are complained by the appellant. The Court in the 4 precedent had thought that: it is a settled position of the law that, a matter not decided by subordinate court cannot be

decided by the higher court in judicial hierarchy. The reasoning of holding so is related to the jurisdiction of this court on appeal as it only considers and examines matters that have been considered and decided upon by subordinate courts. The thinking of the superior court in the indicated precedent is celebrated and supported by the Court itself and this court in a bundle of precedents (see: Alnoor Sharif Jamal v. Bahadur Ebrahim Shamji, Civil Appeal No. 25 of 2006; Celestine Maagi v. Tanzania Elimu Supplies (TES) & Another, Civil Revision No. 2 of 2014; and Agripa Fares Nyakutonya v. Baraka Phares Nyakutonya, Civil Appeal No. 40 Of 2021). In the circumstances of the present contest, I am constructed to allow the appeal and quash the judgment of the district court in the appeal. I am moved further to order the record of the appeal be remitted to the district court before the same learned magistrate for composition of a fresh and proper decision on all matters submitted before her. I do so without costs. Each party shall bear its own costs. Accordingly ordered. 5 This judgment was delivered in Chambers under the Seal of this court in the presence of the appellant, Mr. Amos Malingira and in the presence of the responden^J^r. Stephen Mkama. F. H. Mtu lya Judge 30.01.2025 6