19801111 TZHC Mwanza

IN THF HIGH CU1-T OF TNNI JT (nc) CIVIL iPPFL NO 37 F 1979 (From the decision of the District court of Buba at Bi ; in Civil Appeal No4 33 of 1918) FSTORY KAi4UGISH1 versu. JOSEPHT 1USIZP RF iD?NT JU P G M F N T RUBtU, J. The appellant claims that he had inherited the sL; in dispute from hispaternal uncle while the respondent mi:iains that hF3 had actually b3n given the shanba in dispute - ne Evarister Byabato 0 At the Primary Court, Fvaristr Byeh 'o was not called to testify as to the ownership of th' dispute 0 The court found for the appellant/defendant s C peal, thdsaid Evarister Byabato was su;n:noned to. give evidn. i\fter was the hearing of the appeal, the decision of the tria.1 C;wa reversed Th:lanodcbunse1 for the appellant, 4rG Rweyem.: . ...has subnitted that the reception of the evidence by the appellant court magistrate wasimproper.I accept third ,iDmission In the recePtion of the evidence of Evarister Byabato 7 8 learned ma'tistrate infringed the mandatory procisions of So 17 - f the agistrates Courts ic -t 1963 which require that in car'r he'e the District Court decided to itself take additional '' oce, the said court must record its reasons for so decidin. S. of the Act etats.- - In the exercise of its appellate jurisdic. ' a district court shall have power - (a) to direct the primary court to ' - ditional evidence and to certify the same - the disrict court or for rasons.to recorded in writinp q itself hear - evidence, (emphasis supplied) The learned appellate court magistrate did not record - reasons for taking the additional evidence as 2equired by law accordingly ignore this evidence for iiot to do would circumstances of this ease lend to a iiscrarrage of j: - On the reading of the recor of 'his casC, and r that this is a second appeal and thus the urt has difforr 'ULy .../2. ¶ 4 - 2 from that of the first appellate court, I find that the findings of the trial court fully justified by the evidence on record. Th6 evidence was properly evaluated and the findings reached are fully suppried by the •id•eo. he findings of the appellait brt - on the. other hand are influ.enáed by the additional evidence that hadb ninproperly received. iccordingly I find merit •in,eappe1bs hereby allowed with costs. Thy. judgent ofhiTappellate cot is hereby reversed and set aside and that - of'he trial couxt \ ip1\eld. c - , / Sgd YA HYA RUB1 IJ JUDGE &IWNZP 11th November, 1980. CERTIFIED TRUE COPY OF THE ORIGINAL DISTRICT REGISTRAR