19710805 TZHC Mwanza

IN THE HIGH C(Uiil' OF TAANIA AT 7071, WNTZA Appellate Jurisdiction. (Pc' CIVIL APPEAL NO.16 OF 1973. (Fr om the decision of the District Court of panda District at panda in Civil Appeal o,4 of 1970 Befoie A.M.Sana Esci, P.., Original Civil Cae No.9 of 1969 of the Primary Court at Kabunu Before .A,B.Kasansa Primary Court "agistrate.) E.J.Nguinera.. . . . . . . . . . . ppellant(0rig.efendanY vs. - Faustine Bugingo. .. ,. /. 0 ftpondent(Orig0Plainti:; I J1JDGENT EL-KINTDY, J. 971 / The appellant, F.J Ngui edin the/Primar Court of Kabungu and judgment was entered a geist-*i-i1n. He s ordered to pay shs.368/- with costs to the respondent, Bugingo Faustin. His appeal to the District Court of pancia failed, and he is now appealing to this Court. On the 12th of ay 1971, the appellant was served with notice of date of hearing of his appeal, but he did not appear for hearing on the 2nd of August 1971. The respondent who was also served with similar notice on the 24th of April 197I appeared and argued in support of the District Court judgment. Briefly this suit was heard in the Primary Court on the 26th of June 1970 when the respondent's evidence and that of his two witnesses was taken down and as the appellant, who I was served with a summons, did not arpear against him ex parte. A. His main ground of appeal to the District Court was that a1thou.g he was served with a summons this was

not done in sufficient ti to enable hin to appear during the triai as he was then stat.o- ed at some 70 miles away. And his appeal in the District Court • as also heard in his absence. It is one of his grounds of appeal, in addition to what is stated above, that he was not served with the notice of appea). by the District Court and as such he could not attend his appeal. The District Court recod tends to bear him; out. Although the notice of date of hearin. for 18th of November 1970 was issued by the appellate court on the 21st of October, 1970 it does not show whether it was se on the appellant or not. Even the District Court proceedings did not show whether the appellate court satisfied itself that the appellant was aware of the date fixed. for him The anpeal rules are not devoid of difficulty. The Civil Procedure (App.Is in Proceedings originating in Primary Courts) Rules, 196, G. 12 of 1964 do not specifically state that the District Court, in its appellate jurisdiction should. serve such notiQe to the parties but such reouirement can be gathered from the reading of all the rules. If notices can be issued for adjourned. hear- 'ingç as it can be seen fran Rule 12(2) or in the High Court aa Rule 11(1) 9 it is difficult to hold that sub-ru7e (2) of Rule 11 or the District Court is not recuired to issue notice of date ................... p .i; -2- hearing for the first date

fixed for hearing. If that were so it would be manifestly illogical and bontrary to natural justic In the circurnstanes, I a 'satisfied that the appellant was entitled to be notified of the date of hearing. It could he argued that 'the appellant was not prejudiced as his crounds of appeal were taIen into account when the appellate court considered his apiea1 in his absence, but this assumes that th. appellant would nt have added an extra g,round of appeal. with leave of court as per Rule 15 of the same rules, and in nr vie.'7 this assuription isi not justified. As a iatter of practice an appellant Who ehs a hearing on a fixed date is normally Esked if he want'ed\to speak anything on his petition or add any'hing, to what he has already stated in his petition of As the appellant did not have this practical opportunity, it cannot be 'said forcertain that his appeal was not prejudiced by his appeal bein determined in his absence. The appellant too, under Rule 18 of the same rules, could have applied, to the District Court to re-hear his appeal on the ground that he all these matters I was not duly served with notice. Therefore, taking into account a' satisfied that his complaint against the District Court is valid. The District Court judgment is set aside and i.s referrd back to the District fcr hearing of the appeliant's appeal fter both parties had been served with notice in sufficien time. The parties should be accbrdingly informed. The appellant is entitled to his costs on appeal. The'e should he determined 'by the District Court of competent jurisdiction. Delivered thi\s. 5th of August 1971. (z.N. EL-) J UDGE.