20190418 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY AT MWANlA CIVIL APPEAL NO 70 OF 2017 ·1 l :i (Originating from District Court of Misungwi District in Civil Case No 3 of 2016) ! SHENDA D/O KABOJE ....... n••·······•• ■■ ••·••mn••··PLAINTIFF ! 11 ' i VERSUS MAJELE MAGOBE ........ u............ ~ ............. RESPONDENT JUDGMENT 24th February 2019 & 15th April, 2019 Matupa, J. Before the district court of Misungwi and the primary court, there is no dispute that there is a dispute over a certain piece of land between the parties. There· is no dispute that on the 26th November, 2015 at 8.00 am, the appellant was at the shamba in dispute. While there, she was assaulted by some people. According to his daim, the appellant later reported to the police that she suspected the respondentto be one of the persons who . . assaulted her. Jhe police. set out for him and they arrested him. Several people swore in court how they- arrested th~ respondent at the shamba. 1 ,~ ..· These were Ningu Sheeda, who at trial of the criminal case at the primary \ .../ court, featured as SM2; Mashaka Sama, who featured as SM3. Both of them are appellant's children. They all testified before the trial court that they saw the respondent with the other assaulting the appellant. At the conclusion of the trial the · trial primary court convicted one of the accused persons and acquitted the respondent. In reaching the decision learned trial magistrate entertained a doubt if at all he was at the scene. He accordingly acquitted him. Following the acquittal, the respondent filed a claim for malicious prosecution. The trial district court decided that since the appellant was acquitted and the appell~nt did not appeal then the case for malicious prosecution was made , , out. The appellant was dissatisfied with that decision of the court. She has enlisted services of Kailu Law Chambers to prosecute this appeal for her. The petition of appeal contains the following grounds: 1. .That the trial court erred in law and fact for deciding that there was malicious prosecution and false imprisonment while it was not proved to the required balance of probabilities. 2. That the trial court erred in law and fact for failure to analyze properly evidence adduced by parties. 2 3. That the trial court erred in law and in fact for relying on documents which re not properly admitted in court. 4. That the trial court erred in law and in fact for failure to consider the defence evidence. When the case was called up for hearing, the Mr. · John Edward represented the appellant and Mr. Buberwa advocate represented the respondent. I am disposed to deal with ground no 3 of the memorandum of appeal. the learned counsel contended that all exhibits which we.re tendered in court were not endorsed nor were marked. It was his contention that these did not form part of the record in terms of order XIII rule 4 of the Civil Procedure Code. Mr. Buberwa conceded that the procedure for admitting the documents was flawed. Mr. Buberwa could not do otherwise. The rule · stipulates as follows: 4. (1) Subject to the provisions of the sub rule (2J there shall be endorsed on every document which has been admitted in evidence in the · suit the following particulars1 namely- (a) The number and title of the suit; (b) The name of the person producing_ the document; (c) The da(e on which it was produced; and 3 (1 () ~L // \J I (d) A statement of its having been so admitted; and the endorsement shall be signed or initialed by the Judge or magistrate. With the admission by the learned counsel, definitely all the exhibits, including the judgment of the primary court, which formed the cause of action of the claim, do not form part of the record. This is in accordance with rule 7(1) of the code. I have asked myself, what cause of action to adopt in the circumstances of the present case. There is a standing guidance on the matter by the Court of Appeal in the case of AAR insurance {T) Ltd versus Beatus Kisusi civil appeal no 67 of 2015.In that case, the Court of Appea'I faced a similar situation as the one I am facing. In that case, the Court did two things. One, it expunged the il_l admitted documents from record. Secondly, for the ends of justice, it directed the· retrial .of the case from the stage after mediation. I think this guidance also serves this present case. In exercise of powers of this court of revision under section 79 of the Civil Procedure Code; and section 44 (l)(b) of the magistrates Act, Cap 11 of the 2002 Revised Edition of the laws of Tanzania, do hereby revise and ·quash the proceedings, judgment and decree of the case before the trial . . I court after the framing of issues. I do he'reby direct that the case shall be retried de-novo, before another magistrate. I will not make an order as to costs. Dated at Mwanza this 18th day of April, 2019. I '' ~ S.B.M.G. Matupa j . . t· ( Judge I . 5