19850923 TZHC Mwanza

IN ,rm.:: HIGH COU~tT OF TANZANIA APPELL.A.TB. JU~t ISDICTION ··' ·i' - ., , HIGH COURT CIVIL llPPElA L·N6~ 14 OF 1984 .;.. . ,,:(CF) en. APP. NO. 38-41/1982, ..• ,.. .: '.'.,... .. .·. ;.,r~? -~- .. (From_ th~ Jecisiqp _of the District Court oi' ::;ugur:1u Distr·ict at I";ugumu . . :, r~~1 , :·. ·. '..0 ;-~:-,.i.1!.1.1~...... \ :in Cr~rninal,Ca,se. NP• .37 of 1981 ..... B.eforeC,,.A.C, Odongo., Sea;-;'r:-:P· YiagisJr~t·:/ • ·, . :· ,• .' ). 'j . : ,- . MOSET·I MKinA 2. @,vA11b. MWITA ; ._ ', ' 'AfoOSI AKUKD • ~ ~~- .\. 0~ . : . ~ ·~ •• 41 • • • • . • • • . •A·• o. ·~ •\········ -. ... ~-. b.:;·J.tEs.PoNDl.!l!.'\JT · - : · · · · · ·... ·· '· , (Ori 5 inal Complainant); :MUSH Ia J •: One MagJb~ Ny~n;{{~a and anoth.er _\ve~ie convio.ted of ci:(ttle theft c/ss ·'f•:. •; •. 268 and 265 of· th,_e Penal, Coue. They were ~en-~,cnced to 'seven years ;ni.~ioonll'1en t and. t: 1 ey were fu.:i:dd1er or~·:ll~eli to ca.mp eh sci te ;the cotnpla ina~1 t 139 heads of catt.le.' ...~-~ ·,30.: goats ~ac?~- This was .the High Cburt··ord~r>dl'appealc The compla:inarif:kpplied to the cour,t ~or cJ distress·wsrrant/order to ~-ttach some cattle be'lorig.ing 'to Magubo Nyan ~iga :i,rhich. ;1ece in tht/:tpdss~s~·ion of one Moseti Nkira. 'The 'c6,LU't accordingly issued a~.attachnfent' wa:~'raii1 ,in accorda110:::. with section -·296 of the Criminal Procedure Code. cattle were a tfachd from the homestead of._ this Moseti Nklra'• This Moseti Nk ira obj ect~d to.' tf1e a tt,:ichmen t c,la iming ,.. tha'.i: a 11 · the atta·ched animals were his property~ ·The Court he:ud o~j_ection_ to at ta ch men t in a cbordi;,:ce ~ • !... to the provisions'6f ·section 297 of the CrL·tinal P.rocec.iure -Code. ·The·· proceedings were conducted before Ifr._}•:'l•: !l'1ahizi, Distrfo-t .li1agistrate. After hearing•'the ·eviclenc&e of both objectors and. the re·spohd·ents ·witnesses; the learned magistrate orde.ced that 49 head!:? of cattle be r-estored ·tb the •,· objector - M,seti Nkira while the remaining . , . 28 heads;be retained 'by the ,: '. :, ,- -.: :· . ~ ~ •.' . . .... respondent pendmg the ·summoning of Mc:1,guba N_y,rntiga,.·to state whether the .,· said animals were his property or not.,. Th~ case was adjourned to 30 /4/8 3• For reasons which ~1.·e' ~;t· recorded :in the f~le 1 the.adjourned hearing was never reswned before the same mag.i,~~r?teo •. Il'lste::.CJ. the• proceedings were . ~ '. .. . , . commenced a fresh bJfore IVir. C• .A. c~ Od9ngo, S~nior District Magistrate., r• :· : -. . .. ; ,r' t .. • .A~l those witnesses who had . given . evidence befo_re Mr. Mahizi adduced· . ,\.. .' ' evidence before the new magistrateo. _Mr. Odongo, after hearing the evidence confirmed the order.oir-4';~. ·Mahizi that i~.had proved that 28head·s of cattle ;ut of 77 heacls attach~d fr~m MAiseti :tiikir~',~ homestead belonged to rb 6 ubo Nyantinga and the·s:~id,~n'il!l~ls were give~.-to t~e,-compl.jin'.'lh't, Amos ~kuku. The appellan t/obji6'to~ 'is appealing ap ~st the, District Coiirt Lidcisi6~., ·· .. ' :, ' . :' .. ~ ,, " " , , 2 - Th is nppea 1 has too many ir1'egulaf'i ties which m~ke it not possible to deterrr,ine the appeal on its merits. F{r ~t- ·1t wz-.'s wrong for the court to h~:ve acted. unde1' the provisions of Criminal P.coceaure · Gode to issue -~n att:1chrnent warrant under sections 296 and 297 of Cri'rr1in"'l Proceu.ure.-.Cod_e., Cattle theft c/s €68 ainct 295.~f. the ~enal, was at the material tiTe of this case a s•~eduled 6ff'ehce under the M~i~~' S~nten~es' ~ct~'. "Ul'J.d~r that a'.~t, the court ·~s empowered on· c'onviction, to 'm3ke_=1 compensation order and the same Jlct pro;vides the ..procedur~- a~ to .how .°U1E: compensation order may be ,, '"': . . . . . . .. .... . enforced by the person in whose favour such order is mc;o.e. · 'it i\/'s•e·ctiori.' 0 7( 3) of the .Act which ~ta te~ the .PX:QceJ.u. e to ,b.'3 ::f.Q.UOHed ·but for the benefit of the trial. magistrate will quote tha whole of section 7 which reads:- '/ , Not,htbstanding the p;rovision:3 of section 16 · · of the Cr:fo:inal Procedure Code, wherf -:1 .• c,;ourt convicts any' :-, ...,... . person of a' schec..uled: offence other than: an offence under · ..... . i . · 'iri.e Pr~ven·'t"i6n' of-Corruption Act., 197.1, .s'the.court shall,' ' ' if it i's··c;{ the opinion that such person l/.as .' ': obtained . any propert.1/ i;-:'.:l ·a result of the .c,on1.e1ission of the offence and that the owner of ·the property can be iJ.ent.ified, make an order that the pe'rs·on convicteu. shall pay t0 the owner of ,, the!' proper'ty· ~ompe.msnt-iori equal· to _the valueu. of the property a~.: ass'essed by' the ··court •. ' ~ .· ('2), ,·, .!ln order unct:er this section may _be ..macte at any time. after the sentence has been •passed, an_~ wh.ere t:t has not been mad:e 'immediately after. ·the sent.ence ,,.n-as.,been .., . . passed, \,, the coli.ft which passed the sentence or any court . .'·· ... having -~ . ' revisforial j lir isd iction over it, may make su.ch 9rder, at :ny · subsequent time: on the ,application -of the owr1:er of the 'propi:i'rty or on 'its own motion •. Provided that S:o '.SU-ch order sha 11 be made save in the • :r,re·se~ce of the persori 'against .who-fl! _it is maJ.e.~ '( 3) Where an order is made uncJ.er this section, ,,the person in whose ·.:t;avour such order is made may file an authenticated copy th§reof in. -the clts-trict court having jurisctiction over the area over which the you.rt which m~ii'e the'·order has jurisdiction,.end •. upon being so filed ,. '..th\/ ofder'' sl-iall be deemed to -b_e a decr_ee pci:ssed: by such ' 1 . . ~ district- court and may _be execute9- _in tho mpnner as 'if ''ft- M~r,e a u.ecree passed by such court under the provisions of the ·civil Procedure Code, 1966 1 and the district court or any other district court to ·w-hich the decree may be ; ' " f 3 transferred., f,1r execution; shall have jurisdiction to execute .such decree nothithstanding that the amount cf the compensation award eel ex~~:eds the pecuniary jurisdiction of the district court. This means therefore that after filing the compensation order \vhich is shai'l opefi ah1iscellan'eous ·civil ',i:.;1.., to be treat-ed as~:::'.'liecree 1 the cou.tt case file for the·•purpose's· of' the 'execut'1\m :proceectihgs :w which case the '}lrovisions of Civil Procedure Code shall apply. Secondly as I have already stated above, the proceedings were contructed by two magistrates without assigning any reasons as to why .. .I the magistrate' who started the hearing and made the :first order could ; . . : ... ' . ' ' ~-. !;. .: . : ; . :.- t ., ; not continue and finish the hearing particularly when he had specif .ically adjourned to s'GTuti1c5~ one witness. Our Criminal Procjdure Code has p~t~ttibns whereby a magistrate can take over the henring of a case where for stated reasons that the r.1gistrate before whom the proceedings commenced can not finalize the case. There are provisions, as to ho,., in these circumstances the new trial magistrate should go about and how the evidence on record should be treated. In the present ca_se .rn do not know why Mr. Oaongo had to -take over the proceedings from l1fr. ia,h iz i anJ the sub sequent rnagistra te did not record any comrliance to any provision of Criminal Procedure Code. .• Mr. Odongo seemed to hnve proceeded as if the case was not partly heard b~fore Mr. Mahizi. It is a cardinal rule in Court p.cactice that proc2eu.ings legun before one magistrate particularly where parties have started adducing evidence, should ba finalized by the same person unless for good reasons it is not possible for the same person to do so. To do otherwise is to invite chaos. Thirdly and possible the most imp or tan t of a 11, Iv1agubo Nyan tiga was not called to give evidence as to whether the cattle which we.ce attached were his property or noto The warrant of attachment was directed to the cattle of Magtlbo Nyantiga which ;..,ere alleged to be at the homsetead of the objector. The issue whether the cattle belonged to tne objector or to M agubo Nyantiga would better be decided after he:::,ring t!;agubo N yantiga. Inf act had the proceedings been p.roperly filed, Magubo Nyan tiga would have been a party and his evidence would have been irresistible. Fro all these irregularities, the proceedings 3re quashed and the decision is set a siue. It is ordered that a new hearing be conducted before another comp3te.ltt magistrate. To avoid confussion, it is ordered that Amos Okuku remci in with the 28 heads of cattle handea to- him by the lower court until the new hearing of the case is completed. Each party ,, to pay his costs. ~. \ \. ··: ,··.,•!\, .. .--·-·· M dANZ.A N .M. NUSH I 23/9/85. ,JUDGE , ~ ~ ·• /-t" , ' -:·· Order: 1 r.he juJ.geuent is to,,b·e certified. to.the .:D..:.istrict Court . ,: . ~ .., .. ., . .,., . for read·ing to th{p~r'ties· i:ind necessa.ry:a~tion~ j).,, ' 4hl ,. • M di\NZA - \\\_./, tiusH I . N • It • 23/;9./85 JUlJGE . ..., ; ·I . ,' • I_,· C ,'