20200217 TZHC Mtwara

IN ThE HIGH COURI? OF TANZANIA AT MTWARA CIVIL APPEAL NO. k OF 1998 (Consolidated with Misc. Civil Appeal Noe 6/98) (Arising from the debsision of Mtwara District Court in Civil Case No. 114/97 delivered by Mnunguye l.A. SqPDM dated 4/5/98). FATU • . 000,608 . 0APPELLAI1T versus: 1IGHLAND SERVICE GARAGE.. . RESPONDENT - JUDGMENT This jzdgment covers two appeals which were consolidatd 'and heard together. They are Civ eal No. 4 of 98 where the app&J.ant is ELT1,KAWANGA and tha respondent is HIGHLAND SERVICE GARAGE. , The other one is Miscellaneous Civil Aal--No. 6 of 1998 w1ra. the appellazt isL HIGHLAND SERVICE GARAGE and the respondent is — qk. The later appeal was erroueouly zcorded to have cwiate: from Mtwarfl District Court Miscellaneous Civil Applicatiou No, 13 of 199& But the grournls stated in the memorandum of appeal show clear)y that that peal is against part of the decision of the main ui.t aDd acit eferrd Hiscellanacus Civil apliation which was about stay of xecution and custody:of motor vehicle Reg. No. TDZ 5852, pending determination of the then intended appeal (which is now ci.vil appeal No. 4 of 1998). . The facts of these appeals as stated in the record are simple. It is recorded that around Apiil, 1996 FATU 1AWANA took her motor vehicle, a Land Rover 110 Reg. No. TZD 5852 to HIGHLAND SERVICE GARAGE for service. It was serviced to the satisfaction of BTU and handed over to her in the same month of April, 1996. The total costs were listed at shs. Fatu accepted those costs. But she said she had no money at that time. She pleaded to pay later. Her plea was granted. But up to March 1997 she had paid nothing. She pledged the said motor vehicle to the said Garage with a promise that in the event she failed to pay the 98 9,350/- by the end of June 1997, the said motor vehicle would be sold and the iproceeds would be shared by the creditor and the debtor accordingly, that is, the creditor would take sha. 0. ./ 2... . SSS IS °D ooTAiaS PuTt.I2TH iq peiid s 4uowAd iin TTT4 4T1OU1cI anp Gt Jo ep e uioJ mpawmjo 4unotm olqj uo 4saaoquT kv d o. .XapXo 04 uTJ UI M1 UI paija iotxq. eqmouot( Otfl. 00IAJ3g prnTqH JO 1U0A?J UT 4UauIpnç POJO4UO UTAtflI 4'T1 (TT) !n41I q potujuioo IoL- j4uoo ;o t[oCoJq aT41 ioj So2 mrep pop.xt oq oq. PDT'4T'4uO Sla m @Ro xe o 0 TA.I PWTTH o1 tr; q PLU . lIT pui u-t i.oq poxe oqtxnouot oq. 41eil l () _ :q PunoJ2 Sulmolloj aqq UtD STqj pOUeTtIf .Xt23 00tAXO9 PtTTH 09TV * 996L 6 40V a JnPa00.Td ICAID Ot(4 jo 3IflH X X q poJTnboJ ee suo sre aT BuTuS Tegu qno-q,4TM Wt3 .XO4UflOO XOt( iM2 MO1t4 04 JOdOadWT SlIM 41 4Et(4 S UTSVS Sq 9 TK4 POUOTTtT 3 Ot{S •iclIMlI UMOJtfl. 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Fatu elaborated her grounds of appeal by way of filing written submission as direbted by this Cou±'t • There was no such writteh submission by Highland. Service Garage and no reascn was given. In short that is the gist of the matter I. will start with Miscellaneous. Civil Appeal No. 6 of 199 HIGSLUM Oi 8.7.99 it was directed by this Court that Highland Service.. Garage sbDuld . file its written submission not later than on 30a7.99 This th.rection was given in the presence of Highland Service Garage 4 & advocate Mr. Mlanzi. But up to the time of writing this judgment thee is no any such written submission or any application for exten.ion of time to file the samei There is no any explanation by either Hlanzi (AdvOcate) or High1aM Srvice Garage itself as to why the required submissi,on was not filed. For the above reasons I dismiss this a'eal for want of prosecution. Costs to follow the event. As far as Civil Appeal No. 4 of 1998 (FATU KAWANGA V HIGHLAND GABAG1 ) is oóicerned, the learned trial Magistrate made a tQrribla exrov by 3 throwing away Fat't owter claim without giving any reasons. This offon.ded ORDER XX RULE 4 of the Civil Procedure Code 1966. In view of this I set aside the dismissal order in respect of Fatu's counter claim and order the said counter claim to he heard DENOVO na the .ane f.e which Fatu had paid when sho filed that uxtz claim. There is no necessity of making an order that the Do novo hearing should be before another Magistiate because I understand the learned former trial Magistrate is dead. Appeal allowed to that extent. Costs will be on the one who will lose in the Dc novo hearing. / I! 7 ' S. N. KAJI JUDGE 17.2.2000 Court: Judgment has been delivered in the presence of Fatu Kawanga and in the absence of Highland Service Garagelanzi without notice '\ although served on 19.1.2000 this 17th day of February, 2000. .. - / si,( ,-••' '-- - j S."N. KAJI JUDGE / 17.2.2000