auredena ndeonansia vs godbless elibariki swai 2006 tzhc 292 28 april 2006

IN THE HIGH COURT OF TANZANIA AT MOSHI (PC) CIVIL APPEAL NO. 15 OF 2002 (DC HAI MISC. CIVIL APPL. NO. 10/2001) (ORIGINAL HAI KATI P/C CIVIL CASE NO. 22/2001) AUREDEN* NDEONANSIA......................... APPELLANT VERSUS GODBLESS ELIBARIKI S W A I................... RESPONDENT JUDGMENT: HON. JUNDU, J. The Appellant was an unsuccessful party in Civil Case No. 22 o f 2001 at Hai Kati Primary Corn} against the Respondent. He instituted Civil Revision Application No. 10 o f 2001 in the Hai D istrict Court for the latter court to revise the decision o f the trial court allegedly because the same had errors material to the merits o f the case involving injustice. The record shows that the Appellant had presented two Chambers Summonses. One shows that the Appellant had instituted the application under Section 22 (1) (b) o f the M agistrates’ Courts Act, 1984 and another Chamber Summons shows that the application was instituted under Section 44 (1) (b) o f the M agistrates’ Courts Act, 1984. There was an affidavit o f the Appellant in support o f the said revisional application. In paragraph 6 o f his counter affidavit, the Respondent, contended that the Appellant should have filed an appeal instead o f the revisional application. In the trial court, the Respondent had established that he had bought the land, the subject o f the suit in the said court at a public auction. The Appellant contended that the suit land was his and had given it to his son one Abrahamu Erenden Kwayu and that he was not aware o f any court decision that had ordered the sale o f the said land nor did he know the Respondent. The trial court having heard the evidence o f both sides gave judgm ent in favour o f the Respondent. The Appellant having been aggrieved by the said decision instituted the above m entioned revisional application in the Hai District Court. The learned District M agistrate having heard the parties and examined the evidence on record he was satisfied that the land in dispute was properly sold to the Respondent by public auction and that all procedures o f selling the said land to the Respondent was followed and that there was no appeal instituted by the Appellant in respect o f Civil Case N o.22 o f 2001. He therefore dism issed the revisional application filed by the Appellant. Having being aggrieved by the decision o f the Hai D istrict Court, the Appellant has appealed to this court listing two grounds o f appeal in his Petition o f Appeal namely:- (1) That the learned M agistrate erred in not finding that the trial was a nullity. (2) That the learned trial Magistrate erred in not finding that the P laintiffs witnesses had lied. The Appellant had the services o f M r.Munuo, learned counsel while the Respondent presented in person. ? On 24/8/2005, this court by consent ordered the parties to argue and dispose the appeal by way o f written submissions. The parties have full complied with the said order o f this court. I will therefore proceed to consider and determine this appeal. In his submission, M r.M unuo argued the two grounds o f appeal collectively. He contends that though the matter was brought to the attention o f the Senior District Magistrate by way o f revision rather than appeal that procedure was proper as the District Court had powers o f revision under Section 22 (l)(b ) o f the M agistrates’ Courts Act, 1984 and once the matter was before the Senior D istrict Magistrate he could decide to proceed by was o f appeal or by way o f revision. The Respondent did not respond to this point in his submission. However, I am compelled to put the same in its proper perspective to avoid misleading this court. First, the Appellant, as I have shown in the first paragraph o f this Judgment, had filed two Cham ber Summonses, one made under Section 22 (1) (b) o f the M agistrates’ Courts Act, 1984 and another under Section 44 (1) (b) o f the same Act. My proper reading o f the M agistrates’ Courts Act, 1984 does not show existence o f Section 22 (1) (b) in the said Act. Further, even the existing Section 22 (1) o f the said Act does not allow revision application to be instituted by an aggrieved parly but the District Court is to act on its own to call and examine the proceedings o f the Primary Court and revise them if so satisfied. N or can the District Court on its own convert such revision to an appeal though in dealing with the revision it can exercise its appellate powers conferred on it under the said law. Secondly, it is not known for which reason, the Appellant had at the same time in the same application involved another Chamber Summons under Section 44 (1) (b) o f the M agistrates’ Courts Act, 1984. It is clear that Section 44 (1) (b) o f the said Act concerns revisional powers conferred to the High Court in respect o f proceedings o f a civil nature determined in a District Court or a Court o f Resident M agistrate and not a Primary Court as was this case for the Appellant. Thirdly, if the Appellant was aggrieved by the decision o f the trial court, he was under the law, that is under Section 20 (1) (b) o f the M agistrates’ Courts Act, 1984 required to appeal to the District Court against the said decision rather than instituting a revision. In my considered view in basing his application under Section 22 (1) (b) o f the M agistrates’ Courts Act, 1984 had based his application on a non existing provision o f law. The senior District Magistrate ought to have held that the court had not been moved. The Appellant, in his submission contends that the trial court proceedings were omnibus and equivocal in that it was conducted both as criminal and civil case. He further contends that in case o f contest o f ownership o f land, the issue o f title or ownership need to be settled in a civil suit first before criminal trespass charges can be entertained. However, I quite agree with the submission o f the Respondent that it is quite clear from the proceedings o f the lower court that what was before the trial court was a civil case and the same was instituted and titled as “Shauri la Madai No. 22 o f 2001” which is the same as “Civil Case No.22 o f 2001” and the parties were referred to as “M dai” and “M daiw a” which means “ the P lain tiff’ and “the Defendant.” Indeed, I quite agree that in the judgm ent o f the trial court there exists the words “ Hili ni Shauri la Jinai No.22/2001 ............ ” but this was clearly a slip o f the pen on the part o f the trial court. Otherwise, the said judgm ent is titled “ SHAURI LA MDAI NA.22 YA 2001” that is “Civil Case No.22 o f 2001” and the parties in the said judgm ent have been referred to as “M dai” and “M daiwa” that is “the P laintiff’ and “the Defendant”. Even the outcome o f the said Judgment is not conviction and sentence as is usual in criminal cases, but the usual reliefs that are granted in civil suits. Therefore, I find and hold that the case in the trial court was instituted as a civil suit, conducted as a civil case as the proceedings o f the said court shows and the judgm ent evidences determ ination o f a civil suit and not a criminal case. The Appellant, in his submission contends that the Senior District Magistrate did not go into the merits and demerits o f the proceedings in the primary court and chose to emphasize the sidelines and among others missed the point that the trial magistrate at the primary court did not sit with the same assessors when conducting the case. He contends that under Section 7 (1) o f the M agistrates’ Courts Act, 1984 a primary court m agistrate ought to sit with not less than two assessors when conducting a trial and that the two assessors ought to be the same throughout but he contends that the record shows that the trial magistrate started with M odest Risha and Peter M chomba as assessors and later finished the case with Clem ence and Athumani Mbaruku. On his part, the Respondent in his submission contends that the trial court was properly constituted as required under Section 7 (1) o f the M agistrates’ Courts Act, 1985. He further contends that it is true that the two assessors who sat on 2/4/2001 were different with the two assessors who sat on 3/5/2001 when the trial commenced but the latter assessors he contends were the ones who sat when the actual hearing started and did so to the date o f judgm ent hence no injustice was occasioned in the trial court. In my considered view, the Senior District M agistrate as far as the merits and demerits o f the case was concerned was very clear on his judgm ent. He started that he had examined the evidence o f both parties in the primary court, the arguments o f both parties before him and was satisfied that the land in dispute was sold to the Respondent by public auction and all procedures o f sale to him were followed. As regards the issue o f assessors, it is true that the record o f the trial court shows that the assessors who sat on the first day o f the case were different from those who sat on the day when hearing started to the date o f judgm ent. However, in my considered view, the Appellant did not raise this point in the trial court nor at the District Court in his revisional application, therefore it is not borne by the judgment o f the District Court hence the same cannot be raised and pursued in this court by the Appellant. Further, the A ppellant in his submission contended that the Respondent was a liar as in his counter-affidavit had professed to be a medical doctor whereas he was not, something which had dented his credibility as a witness hence the Senior District M agistrate ought to have rejected his testimony. The Respondent in his submission denied that he was a liar. First, the record o f the trial court shows that the Respondent in his testimony did state that he was a “DAKTARI” . However, the Appellant, in the said court did not cross - examine him or challenge him in anyway. So the said point was not included in the judgm ent o f the trial court which the Appellant had sought revision in the D istrict Court. Secondly, the A ppellant did not take up the point in his affidavit in support o f the application for revision in the District Court, it only surfaced in his Reply to Counter-Affidavit o f the Respondent. Still, it remained that the same was not borne by the judgm ent of the trial court. It could not be a subject of the application for revision in the District Court hence in my considered view there was no need on the part o f the Senior District M agistrate to inquire the same or reject the testimony o f the Respondent contrary to the subm ission o f the Appellant. In the upshot, I find that the appeal filed by the Appellant in this court has no merit. The said appeal is hereby dismissed with costs. I uphold the decisions o f the two courts below. It is so ordered. » F.A.R. JUNDU, > ■ i' JUDGE, 28/4/2006 Right o f Appeal Explained. F.A.R. JUNDU, JUDGE, 28/4/2006 28/4/2006 Coram:- F.A.R. Jundu, J. For the Appellant: present For the Respondent: present C/C:- M uyungi Court: Judgm ent delivered in the presence o f the Appellant and in the presence o f the Respondent. Jk tV/v F.A.R. JUNDU, JUDGE, 28/4/200 AT MOSHI