BRYSON

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (BUKOBA SUB-REGISTRY)

AT BUKOBA (PC) CIVIL APPEAL NO 05 OF 2023 (Arising from the Judgment of the District Court of Ngara at Ngara in Civil Appeal No. 5 of2023, Original Civil Case No. 4 of2023at Kabanga Primary Court) BRYSON DAWSON............................................... APPELLANT

VERSUS STRANGER DAWSON........................................... RESPONDENT

JUDGMENT 31st October & 7th November 2024 KIWONDE, J. Before Kabanga primary court, the respondent, Stranger Dawson instituted a Civil Case No. 4 of 2024 claiming from the appellant TZS 7, 917, 668/= share from electricity project compensation for the land acquired. The appellant is the head of the family, but he refused to give the said amount to her. Upon conclusion of the trial, the trial court held that the respondent's evidence was heavier than that of the appellant. It was found that she managed to prove the case on the balance of probabilities. i The appellant was offended by the said decision. He unsuccessfully, appealed to the District Court of Ngara via Civil Appeal No. 5 of 2023 in which upheld the decision of the trial court. Aggrieved by the decision of the first appellate court, the appellant preferred the present appeal to this court raising six (6) grounds of appeal as follow: 1) That the trial Magistrate grossly erred in law and facts by upholding the decision of the primary court that reached the decision by accepting the evidence arising from a document called LADP (Local Area Development Plan) which was not tendered in court during the hearing of the case.

2) That the trial Magistrate grossly erred in law and facts by upholding the decision of the primary court which reached its decision based on procedural irregularities guiding the institution of civil cases in primary court.

3) That the trial Magistrate grossly erred in law and facts by upholding the decision of the primary court which failed to consider the evidence adduced by the appellant and his witness before the trial court. 2 4) That the trial Magistrate grossly erred in law and facts by upholding the decision of trial primary court Magistrate while there was contravening evidence among the parties contrary to the laws.

5) That the trial Magistrate grossly erred in law and facts for upholding the decision of the trial primary court which made orders of payment against the appellant while there was proof and evidence that marked the end of the respondent's claims of payment.

6) That the trial Magistrate grossly erred in law and facts for upholding the decision of the trial primary court which failed to abide to the principles of granting cost of the case. The appellant prayed this court to allow the appeal, set aside the whole proceedings, judgment and orders of the primary court, cost of this appeal be borne by the respondent and any other reliefs this court may deem fit and just to grant. By leave of the court, the appeal was ordered to be argued by way of filing written submissions. Both parties complied with the schedules. 3 From the records of the lower courts and the written submissions, the major issue for determination is whether the appeal is meritorious or otherwise. However, in the course of composing this judgment, it came to my knowledge that the appellant, in his petition of appeal is shown to challenge the trial court's decision. In his grounds of appeal, he refers to the trial Magistrate, which means the primary court Magistrate; instead of challenging the decision of the first appellate court. In the submissions in-chief too, the appellant is still faulting the decision of the trial primary court. Unfortunately, in their written submissions, the parties did not discern this anomaly. When I invited them to address the court if the appeal is properly presented before the second appellate court, the counsel, Mr. Scarious Bukagile said

the appellant had to fault the decision of the first appellate court, so the appeal is incompetent. While, the respondent, had nothing to add. From the foregoing observations, this court is of the view that the grounds of appeal raised before this court are not well presented before this court rendering the appeal incompetent. Had this been discovered at the early stage, the appellant would have been allowed to amend the petition of appeal, but this came to knowledge in the course of composing judgment. 4 Therefore, this court finds this appeal incompetent and it is hereby struck out. Under the circumstances of the matter, each party shall bear own cost. It is so ordered. Dated at Bukoba this 7th November 2024. F. H. ONDE

JUDGE 07.11.2024 Court: Judgment is delivered in chamber in the presence of Mr. Scarius Bukagile advocate holding brief of Mr. Baraka John Samula for the appellant, the respondent and Grace Mutoka (RMA) this 7th November 2024 and the right of further appeal is explained.

MONDE

JUDGE 07.11.2024 5