salum augustino membe vs yono auction martjordan augustino membe and evarine matembo mpambalyoto 2020 tzhc 4417 7 december 2020

IN THE HIGH COURT OF TANZANIA (MTWARA DISTRICT REGISTRY) AT MTWARA CRIMINAL APPEAL NO. 87 OF 2019 (Originating from Nachingwea District Court Criminal Application No. 1 of 2019) SALUM AUGUSTINO MEMBE........................................ APPELLANT VERSUS YONO AUCTION MART....................................... 1st RESPONDENT JORDAN AUGUSTINO MEMBE........................... 2nd RESPONDENT EVARINE MATEMBO MPAMBALYOTO................. 3rd RESPONDENT JUDGMENT 11 Nov. & 7 December, 2020 DYANSOBERA J.: Salum Augustino Membe, the appellant is challenging the ruling and order made by the District Court of Nachingwea in Criminal Application No. 1 of 2019 on the following grounds: 1. That the trial court erred in law and fact in giving an order of attachment of the house in plot 44 Mjengo D Nachingwea Urban i which was not property of the 2nd respondent (the convict in the main case.) 2. That, the trial court erred in law and facts in holding that the house attached in the execution warrant was the property of the 2nd respondent. 3. That, the trial magistrate reached erroneously by failure to weigh the testimony adduced by the applicant/objector that the house that was attached was the house of their late father Augustin Membe and not the property of the 2nd respondent/convict. 4. That the trial Magistrate erred in law and fact by holding that the appellant had failed to adduce sufficient evidence to warrant granting him an order for stay of execution. 5.. That the trial court reached erroneously decision the house was wrongly attached on the basis there was no document tendered shows the said house attached appears with the name of the 2nd respondent/convict. The brief facts of the case for determination of this appeal are the following. Everine Matembo Mpambalyoto, the 3rd respondent herein, initiated Criminal Case No. 63 of 2018 before the District Court of Nachingwea against the 2nd respondent one Jordan Augustino Member. In that case, the 2nd respondent was charged with stealing by agent c/s 273 of the Penal Code [Cap. 16 R.E.2002], He was tried and subsequently convicted and ultimately sentenced to conditional discharge in that he 2 should commit no offence for the period of six months and directed that within that period he should be of good behaviour. The appellant was further ordered to pay back the remaining money to the complainant as promised, that is, Tshs. 6, 277,000/= within thirty days as per his promise. The 2nd respondent failed to pay the said amount and the 3rd respondent applied for execution by attachment and sale of the house on Plot No. 344 Block D Majengo D within Nachingwea District and a farm located at Libea estimated to measure eight acres alleged to belong to the 2nd respondent. The 1st respondent was appointed to conduct the auction and the sale. In that regard, a notice was, accordingly published and this prompted the appellant to file a notice of objection under section 329 (1) of the Criminal Procedure Act requesting the trial court to stay execution on account that it was not the property of the 2nd respondent. The notice of objection was not, however, pursued as the 3rd respondent raised a preliminary objection arguing that the court had no jurisdiction to entertain a land matter and the applicant had no locus standi. The 2nd respondent joined hands with the appellant that the house under attachment was a family property not belonging to him. At the end of the day, the learned Resident Magistrate made the following ruling: 3 RULING The third respondent herein instituted Criminal Case No. 01/2019 before this Court against the second respondent herein. The second respondent was convicted to six months conditional discharge and pay the third respondent the total sum after expiration of six months. Following the failure of the second respondent to pay the money, third respondent applied for execution of the order by attaching the property (House of the third respondent) and first respondent was appointed to conduct the Auction of the said house. The notice of Auction was published hence this arose, the objector/appiicant herein to file notice of objection in accordance to section 329 (1) of Criminal procedure Act (Cap 20 RE 2002) requesting this court to stay the execution as the property attacked bin the application was not the property of the second respondent. The notice of objection was supported by the affidavit of one Saium Augustino Membe appiicant/objector herein. When the matter came from hearing the applicant adopted what was in the affidavit and further submitted that the said property attached is not property of the second respondent simply it is the property of the family. That 4 order the execution to proceed, and dismiss his objection for lack of merits. SGD: S. W.MWALUSAMBA RESIDENT MAGISTRA TE 10/06/2019 The appellant was aggrieved by this decision hence the instant appeal. At the hearing of this appeal, the appellant, 2nd and 3rd respondents appeared in person while Mr. Ibrahim Hussein Mwalimu stood for the 1st respondent. The parties had nothing to add to their written arguments. As the record shows, the appellant had, before the trial Court in the application the subject of this appeal, filed a notice of objection to attachment in terms of section 329 (1) of the Criminal Procedure Act [Cap.20 R.E.2002] requesting for stay of execution on the ground that the attached property did not belong to the 2nd respondent. The 3rd respondent raised a preliminary objection arguing that the court had no jurisdiction to entertain land matter and that there was no application for stay of execution filed to warrant the order for stay of execution, the appellant, therefore, lacked locus standi. Instead of determining the preliminary objection or otherwise investigating the claim, the learned Resident Magistrate proceeded to rule 6 out that the objector (appellant) had failed to prove his claim, dismissed the objection by the appellant ordered the execution to proceed. With due respect, the learned Resident Magistrate committed a serious irregularity that occasioned miscarriage of justice. As clearly indicated by the appellant in the fourth ground of appeal, the trial Magistrate erred in law and in fact by holding that the appellant had failed to adduce sufficient evidence to warrant granting him an order for stay of execution. Before him, there were two important questions to be tried. First, there was the 3rd respondent's preliminary objection questioning his jurisdiction of trying the application and then there was the appellant's notice of objection to attachment praying for stay of execution. By the law, the learned trial Resident Magistrate was enjoined to determine first the preliminary objection which had been raised by the respondent. If the preliminary objection was sustained, that would have been the end of the matter as that preliminary objection was questioning his jurisdiction. However, if he was minded that the preliminary objection had no legal basis, the Magistrate was then required ascertain whether the notice was in compliance with sub-section (1) of section 392 of the Act and if satisfied, proceed with the case in accordance with the provisions of sub­ 7 sections (2), (3), (4), (5), (6), (7) and (8) of section 293 of the Act. After observing the previous sub-sections, the learned Resident Magistrate was mandatorily required to comply with the provisions of sub-section (5) which provides that: "upon the date fixed for the hearing of the objection, the court shall investigate the claim and, for that purpose, may hear any evidence which the objector may give or adduce and any evidence given or adduced by any person served with a notice in accordance with sub­ section (4) and then depending on the outcome of his investigation, either make an order releasing the property or ordering the attachment and execution to proceed. This is clearly stipulated under subsections (6) and (7). As the record of the trial court demonstrates, those mandatory procedures were not followed. This, in my view, occasioned miscarriage of justice particularly where it was clear that the notice of objection was in respect of the property which, allegedly did not belong to the 2nd respondent but was a family asset. It cannot, therefore, be gainsaid the proceedings were a nullity and I so declare. The same are quashed and set aside. 8 It is ordered that the record be remitted back to the trial court for it to determine whether or not it had jurisdiction as had been contended by the 3rd respondent and then, depending on the outcome of the finding, properly determine the notice of objectiop the appellant had raised. . - n\ The appeal is allowed. nj W.P.Dyansobera Judge 7.12.2020 This judgment is delivered under my hand and the seal of this Court on this 7th day of December, 2020 in the presence of the appellant, 2nd and 3rd respondents and in the presence of Mr. Ibrahim Hussein Mwalimu, representing the 1st respondent. . x Rights of appeal explained. W.P. Dyansobera Judge 9