raphael bura vs mandoo ngaida another 2008 tzhc 133 30 september 2008

IN THE HIGH COURT OF TANZANIA AT ARUSHA (PC) CRIMINAL APPEAL NO. 9 OF 2006 (c/f Babati District Court Misc. Criminal Application No. 1 o f2006, Original Babati Primary Court Criminal Case No. 832 o f2005) RAPHAEL BURA...................................................... APPELLANT VERSUS 1. MANDOO NG'AIDA 1 2. KWAANG ZUBERI J ................................... RESPONDENTS (Appeal from the decision o f Babati District Court (U. S. SWALLO , RM) Dated 2$h day of March, 2006 In Misc. Criminal Application No. 1 o f2006) JUDGMENT N.P.Z. CHOCHA, J. This is practically an appeal against the order of District Court vide Misc. Criminal Application No. 1 of 2006. In that application one Mandoo Ng'aida successfully objected the attachment of the properties including three heads of cattle, a piece of land and a house. The respondent in that application had successfully prosecuted one Kwaang Zuberi at Babati Primary Court. The later was charged under section 302 of the Penal Code. It was alleged that he had taken from the complainant/respondent, a total of shs. 700,000/= on pretext that he would supply to the complainant 50 bags of maize grain. He did not honour his 1 promise. The trial court became satisfied that the accused had swindled the complainant. It convicted and sentenced him to custodial sentence. On top hereof, it ordered him to compensate the sum he swindled (Tshs. 700,000/=) to the complainant. The convict Kwaang Zuberi lasted in prison very shortly before he was released on presidential amnesty. The complainant noted his release. He reported to the trial primary court for a way forward regarding the recovery of the amount swindled. The trial court, rightly empowered by Section 5(3) of the Magistrates' Courts Act. Cap. 11 R.E. 2002, (Part II Third Schedule) ordered payment of compensation to be levied by sale of Kwaang's property. In that same vein, the court issued a warrant of distress whereupon a three acres piece of land, three heads of cattle and a business premises, all believed to belong to Kwaang, were earmarked for attachment. The order is dated 3rd February, 2006. On the 13th February, 2006, Mandoo Ng'aida lodged an objection against the attachment. She alleged that the attached properties were her's, and did not belong to the judgment debtor. The objection was marked for hearing on the 20th February, 2006 upon objection having been lodged. The date of hearing was communicated to both parties well in advance (a week ahead). Come on the 20th February, 2006 the objector did not enter appearance. The court dismissed the objection. 2 It appears the objector surfaced later during the day only to find her objection already thrown out. Her attempts to put up her case with the view to revive it were thrown aboard. She tried to explain the reason behind her late arrival. The trial court refused to heed to it. It advised her to lodge an appeal to the District Court. " TumeshatupiHa ombi lake kama hakuridhika aombe rufaa huo ni uche/eweshajiwa haki". This was the magistrate's remark upon application. It literary means that the application had been rejected and that the objector had right to appeal. The objector then filed an application for reliefs "that the honourable court to grant as under (sic) for temporary injunction" and "costs to follow the event." The application was against Raphael Bura and Kwaang Zuberi the applicant had stated in the affidavit that the two had erroneously attached her properties. The District Court decided that the attached properties belonged to the applicant. It said the Village Executive Officer had proved to it as such. It ordered that the properties should be restored to her. The order for restoration has provoked this appeal. Five grounds have been drawn which in brief are: i) That the District Resident Magistrate erred in finding that there was a decree out of criminal proceeding. ii) That the trial magistrate was bias when she denied the appellant opportunity to call witnesses. 3 iii) That the magistrate erred in granting the stay of execution whereas the attached properties had already been sold. iv) That the magistrate erred in believing the story of the applicant and Kwaang who are a mother and son without looking for an independent evidence. I have taken trouble to restate the facts at length believing that out of it is possible to see clearly what went wrong where, and probably why. With me, justice began loosing its track right at the primary court. It went astray when the court sort of summarily rejected the objector's account of why he had come, late to court on the 20th February, 2006. Looking at the composition of the rejection statement, I find it is both administrative and judicious. The magistrate replied to the application to restore the objection administratively through the third party, with a judicial slam of right of appeal. The magistrate acted unfairly for refusing to afford the applicant a right of being heard. The magistrate ought to attend to the applicant judiciously to find out whether the story he was advancing as a reason behind to his late arrival to court had any colour of truth and whether it was justified. He arbitrarily rejected the application. This was a violation of a constitutional right of being heard. The mismanagement of the matter did not end there. It was infectious as the matter went up to the District Court. Instead of appealing against the decision of the Primary Court, the objector filed an application whose relief(s) sought are, to me, not very comprehensible. They are not sufficiently clear unless they are looked 4 at together with the supportive affidavit. The magistrate sitting at the District Court ought to seek clarification of what exactly the applicant had gone there for. Reading the ruling of the District Magistrate, she was under the impression that the applicant was objecting the attachment. But this was not the case. The applicant was only seeking for temporary injunction. The magistrate however issued a permanent injunction and actually ordered the restoration of the attached properties. The magistrate went beyond what she had been asked to do through the application. Assuming it was necessary to cross the perimeters of the application and deliberate on what the magistrate did, it was necessary to hear the 1st respondent too. According to the proceedings dated 24th August, 2006 only the 2nd respondent, who according to the pleadings is Kwaang Zuberi, was heard before the matter matured for ruling. The District Court's proceeding reveal that only the applicant and the 2nd respondent were heard. In view of their blood ties and the nature of the dispute, it was necessary, as the appellant claims, to have the evidence of an independent witness. Practically, the objection proceeding were not heard before the trial court. There was no appellable order. The applicant before the District court, if anything, was bound to challenge the primary court's rejection of her application to reinstate the objection. 5 To the contrary, the District Court entertained an objection which was not in issue before it. Indeed, it erroneously dealt with the objection as of first instance court because it was not the trial court. It therefore acted without jurisdiction. The District Court's proceeding vide Misc. Cr. Application No. 1 of 2006 are quashed for being void. The trial primary court's directive cum order rejecting the application to reinstate the objection proceeding is set aside. The Primary Court is directed to attend to the objection proceeding INTERPARTIES as soon as conveniently practicable. Each party to bear his costs. N.P.Z. CHOCHA JUDGE 03/ 09/2008 Court: Delivered in presence of the appellant. The respondent may acquire the copy upon need. Right of appeal is open. N.P.Z. CHOCHA JUDGE 03/ 09/2008 NPZC/vm 6