20150522 TZHC Mwanza

,; AJ: F~VVANZA i I , (PC) CIVIL APP~Al NO. 53 OF 2013: · . . . . --· ·- ·-·------ -I .... . ·. • ...•••.•.....•. ..... :. -~.:.:: _ :._ c_ .. GOrigio.a.tlngJrom DlstricLCo.urt ~If.Ny.am.a.g.ana_.Ci.v~A.P;P~No~-28/.2013i, ·.:: .··. . • , I ori~ina! ll~mela Pr, ~durt Civ. Case No. 19/f011) ~ I . EPMRAJIM JOHN MSft1BirLA ................... APPELLANT,·.·.-·. 1: ! VE;RSUS 1 ELIZABETH NAHONGE J.................. ~ESPONDENT· I : I i

JUDGMENT MAKAR.AM BA, J.: ,_ I ·. 1· I . . The Appellant in this second · ppeal, EPHRAIM, JOHN MSABILA having I . I ! been dissatisfied with boththe dedsion of the Ilemela Primary-court in Civil · i· I ! I Case No. 19 of 2011, and decision of the Nyamagaha District Court· in Civil 1 ! I Appeal No. 28 of 2013 has come lto·this Court on second appeal on two 1 grounds:- • i (1) That both subo"rd:inate coJrts learned Magistrates erred in law and . in fact in ·holding that the·~-ppeliant had \ fai!l~d to establis·h his case on a balance of probability; and 1 . ! I ' i (2) That both learned Magist~ates erred in la\fV and in· fact in holding .I . that the claim of the Appellant , was time barred. I ., i' . . . . -·-·I ' ;J I I .~, f--1•e' barl,·grr1 unr1 t-o ·t···n· '1'<. a:pne··aj· ~c r·o· u·1r1ci·+1e--·--,-(a ..Lhererl fro.m,. ~l· he r-ecorri ..... . . . .· I . '-•' .., ..... '- - ~ y r·•-'..., "' . .v~--· .'.j . 1;: . - ,. . .. . . ~. is rather interestl.na, The Appellant,. and the Respondent I ~ are grandfather ; I and granddaughter, The Appellant at the time he filed the suit at the .. .... .. ......... . .. 1 . ... .. ....... . ·-· , .·· .Ilemela Primary. Court was 70 years old (2011); and the Respondent was .................. ---·- ········-·-·-·-····---··----. -·· ···----······••··-·•····-····· • ...... . ................. ··---•·-·······-···-·---···--··· ....

1..........................-----· • ....... • ............................. I 74 years old. The •~ispute involves a claim of two mninga beds 4'.X. 6' · ~ ' I I (feet) with its sponge matiness alsoi4' X 6' (feet); and a second bed of 3' X I . 6' (feet) with its "sufi" matiness. also 3' X 6' (feet), which the Appellant ' i claims that he had entrusted with the Respondent for keeping with a view . ' I . I to collect them for use by the children of his decease.d son, who· was a I • I Primary School teacher. The Appellant is the administrator of the estate of . , I I , I his deceased son. The Respondent contends that tl:1e said properties were I I not known to her and has never seen them a;nd neither were they I entrusted unto her as the Appellarit maintains. The Respondent contends

I I I that what she knows is that the Appellant was her tenant and that the said I properties were apprehended so 1that the Appell~nt could settle a rent claim, which was unsettled. . .. t-- 1 Before I traverse the two grounds of appe~I let me point out two I •. I matters·. In the first place, it seems very clearly Ito me that, the appeal I I involves allegation of insufficiency of evidence by, the prosecution in the . I I Page I 2 of 7 I ···seft;e that the Aopei!af1t· dld 'not· adduce ""E.~Vioence of entrusting the sard · I - properties to the Respondent foi- safe keeping as th~ Appellant alleges. -As . I a· ma~i_er of prlnciple 1 this being a second instance Appellate Court, it rare!y I -- ··--• -··. . ... . - ·-·- . -· -··-· - I . -· .. - - · .revisit the evidence adduced at the, triai Court and -which was a. subject of · .appeal .to the ·first ipstance appellate Court at the District Court except - I . I · where doing otherwise may occasion injustice to thei parties .. ·• I The second issue is in relation to the limitation period .. Both the trial I I Primary Court Magistrate and the first instance appellate Magistrate held I that the matter before the trial Court was time barred. However, there is I controversy as at what point in time, the limitation period came into play ! I was it at the time the Appellant claims to ha1 ve entrusted the said properties into the

Respondent for safe keeping o~ was it. at the time the I Appellant went to the Respondent to ask for his properties and found them I I missing. The learned trial Magistrate invoked the provisions of S. 5 of the Magistrate's Courts (Limitation of proceedings I Under Customary ·. ___ _taw) Rules, G.N. No. 311 of _1964, wh.ich .governs .limitation period for I . proceedings for the enforcement of a claim und~r customary law. The Rules contain a schedule showing the nature of such claims and the I I corresponding period for bringing such claims. 1As a matter of general Page 3 of 7 instituting such cla'irns is '\cfesn1ed to, co11u11ence (J1nlthe day when the · dght to, bring s:u:ch µrcce.edh1g~ fir~t accrued cir on the dav vihen I . ----------- . -------·-···· - .- . the Rures ca,me into operati~H1r whichever ~s the later"., In this reaard~ the first issue for .determination :is whether the nature ~ ' of the claim which the Appellant had brought befo~e the Ilemela Primary Court was for the enforcement of a claim under customary law of a nature I shown in the second schedule. The second issue is: to determine whether I the claim was brought within the period stipulated; in the 3 rd schedule to the Rules. It does not seem that the trial Magistr'ate or the 1st instance I appellate Magistrate concerned themselves in deter~ining these issues .. It seems that they were just satisfied that

the clair, was time barred by reckoning from the period when the Appellant claims to have entrusted the I property unto the Respondent and found that a period of more than 10 I years was unjustifiable. ' T have carefully ·examin-ealhe scfieaure to tHe Rules. The claim tne•-- ' subject of this appeal is not among those for whi<:h a period of limitation has been provided in the Rules. In terms of Rule 5 of the Rules, "where any proceedings is brought for the enforcement of:a claim under customary Page 4 of 7 · ·--·······-tavv for which no pe.dod o{·ffmif:ation:ts-~··pr"ffscribed by: the Rufe5r £11e Co-uri: ' I I • •···•·-····· . -·• .... ..... . I · mav .,, re'Jfeet the claim if it: is af the .o1oinian that there hzsI been unwarraFFtabfe delay ln bringing the proceedings arid that the just :determination of the I I ... .......claim may have been prejudiced by that..def.;1,y': Thi.s particular provision .is I I ··-····-·-·•····----·--t·he-·o~-~--~~-h·ich the learned E~iai . . M.ag.istrate invoked tjo determine. that ·tt,·e·····--·-·-••·----- 1 ✓ I ciaim was time barred and with which decision the learned .1 st instance I appellate Magistrate agreed. I wish to point out here that in terms of Rule I I 2 of the Rules the period for bringing proceedings for the enforcement of a I I I claim under customary law is deemed to commence on the day when the

I I I right to bring such proceedings first accrued Hqwever, this provision applies in respect of proceedings for the enforcement of a claim under I customary law of a nature shown in the second sch~dule to the Rules. I I The issue is whether a claim for demandi;ng to be given back I I properties entrusted unto another for safe custody falls under such

I I I category. It is trite to determining here what was ~he nature of the claim 1 of the Appellant and further whether such claim is a claim under customary I . I I law. The Appellant maintains that he entrusted the two beds and their I I mattresses unto the Respondent for safe keeping qhtil such time he comes to pick them for handing over to the children of his :deceased son. Page 5 of 7 ' -· J --~------·---- .... ___ ,. __ ... ' . . ?,ppeltant and ·the · ·· --------·----- , Respondent of grandfather and granddaughter; cle9rly this .is a matter which was L...as:ed on frusf a violation of which ls br~ach . of trust, and Is gor,;erned by the pdncipfes of· trust and equity and JJot .contract" .· In my -·•-·-···--·-·--·---·-···• -· -·-·· --··· ......... ·····-·-··-. -· • .••.•. •• ·-··-···· - - ·•·····-- ----------·- -·-·····-------· . ---· ···••-•···--------··----. ··-i • ····•· •• ---···-·····-••-~-- --- --------------- -- I considered view., this.,,could not be simply a claim under customary law and ~ ' therefore it does not fall under the· provisions of the Magistrate's Courts I ' (Limitation of Proceedings Under Customary Law} Rule$. The tri.al Court sitting at Ilemela Prima.ry ~ourt ought to have declined to hear the matter and transfer it to a ~ourt with competent jurisdiction. That being the case, by the Primary Court at Ilemela wrongly ' I assuming

jurisdiction in a. matter for which it ha:d no jurisdiction, the ' proceedings becomes a nullity. Similarly, the District Court at Nyamagana I ' having determined the appeal originating from a ~ourt which had been improperly moved, equally its decision on appeal was without jurisdiction and hence a nullity. It is on this ground that the appeal succeeds with the · • -·---·· attendant order that both the decision of the Ilemeta Primary Court in Civil -- ·-----··------ • - ---------. • - •• I - --- - ~~------ Case No. 19 of 2011 and the decision of the Nyamagana District Court in ' Civil Appeal No. 28 of 2013 are hereby quashed and set aside. Page 6 of 7 . -~---T .... -.-• I ' --·--·---·---· ··-···--· ' .. - ···--·----+------- ..... . The Appellant "if so mlndea'-···17trs· to institute a fresh·su1t irr a Court;of"··---------- competent jurisdiction. The natur~ of.the matter is such that I shall make no order for costs. Each party shall bear its own CO$tS .. I • - ··•·➔---- I Judge I 22/105/2015 Date:- 22/05/2015 I • '· I Coram:- Hon. E.G. Rujwahuka - DR Appellant - Absent Respondent:- Present in person B/C:- Sekela Order:- I I Judgment delivered today in! the presence of the Respondent and the I , Appellant absent. . ~ E.G.I RUJWAHUKA

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DEPUTY REGISTRAR

ATMWANZA 22ND MAY, 2015 :Page 7 of 7