19721020 TZHC Mwanza

H t)p IN TL 1iIGN COUiLL' OF L. ZuI .T It (pc) civii PL io. 4 OF 1971 (From the luoision of th i)istrict Court of nu±oOo 'at Buko'ea in Civil a1 io. 212 of '1970 I:efure I.ic itchumu Fac, iii. an ivi1 Case No, 6/68 of IOorbaoino Primary Cuurt). IFUhAJ BiGiIffUZ1 . , ......................,,,,,,, API-.eLLAI'IW Th . versus ............................................. ..... AESPOWN'2, JUDGdMdNT, J. - The prsorit res:oncLeht sued the .11ants Grotian FoflcrJLs ind Mich ci kabwera (now dcse(I jd repisentce. by Ifujnb aoailiyuza) to rocover C piCO of 1en worth ohs, 3000/= consisting of two perts A and B. Part A is non-c.1an lend and Port Ii is clan lnd. The prirnaiy court found that pa1t A Dlonjc 10 the re)onnent but that the appellant Grat Ian sole it to the ap.L1ant hicthaei. The respondent was t1erefore allowed to recovr th.t lend without h.vin to refunci. the purchase price, e rarcis part B, howvr, tre court held that the responeent couLi redeem it on payment of hits. 2,000/ to the appellant loichaci. On th first jcni the district court at Bukoba held that pert A did not belong to the respondent and. that if the respondent so desired ho coalct.redeero the whole shamba on rofanaind the purchase price of shs, .3,000/= to the appellant Michael. Disset1.sfied with that decision the respondent this Court. This Court in its judgoment (ionza high Court (p.c.) Civil ippaal No, 99/68 cdttce 13/8/68) held that the rbsponant .ies not antit1c to redeem part A. As reeres part B it was not clear whether tho respondent had instituted the claim within three months time limit, arid the case was therefor remitted bach to the primary court for taking further evidence arid. to determine that point. Pursuant to such direction of this urt the Primary Court recordeLt aohtjtional evieenco and in its rulind. acted 3/11/68 duly made a fincLind that the reponsnt institut the pro eceiribti within the 'three months tim limit end aocordtngly allowed the respondent to redeem port B of the shamba, Then another primary court madistratu, apoarantly not beind aware of the said rulind. of 3/11/63, recorded onotker set of evidence and decided on the same issue, In his dated 29/8/70 he Gaas to a different fin.ind. that the respondent did not bring the suit within the requisite time limit and conseouently he held that the reepondent was not entitled to reecem pert B of tho land. The rspondont thn aald to the district court which declared, the primary court's of 29/8/70 null and void and. st it aside. It is a 5 inst that decision that the appellants are now aealing to this Court, Paragraph 11 cf the Magistrate's Courts (Civil Procedure in Irimary Courts) kLules - GN. 1964 proviacs that, - 'Jhere in any proce.in 0efore a court, the court is satis- fie that any issue eet....ert the partes has alreaey been cieoieed by the court or by any other court of oomptont jurisietion in another proceceing between the same parties, the court shell riot try the issue. o..,,.,,, It is quite dcc: that the icouc aria th, parties 1i1VoiVu in both proceecirigs we'e tkia ho that kiae. the subs acu.rit macis trate OCcn aware of 4hie ruling of ta?,t court dated 3/ll/8 he would have LirCctCu himself on th. law as sot out :ove. and hold that the matt.r w.s a 11 ros judeta' so that he would not hove proceeded to hoar ane Qkecide on it as n. Cia. The leernea osetrict magistrate eec therefoz'e amply justified in holding tht the scco±id set of /2. proceedings was null and voi. on the siplc- ound that the c.ourt had no jurisdiction to try a me±er hich was already eajudi'ted upon by the same coirt in a previous proceeding. In the last analysis the decision ;overning the -viholQ matter rjht now is •s is conte ine-d in the judgornc-nt of this €ourt (Mwe.nza High CQurt (pc.) Civil ippo1 No. 99/68) mentioned above read in conjunction with the ru1in' of the primary court datod 3/11/68. The judgenánt of the district court is therafor upheld and the appeal hiisoed jth costs. 0th Octooer (t H. KIbrafG) 1972. jUD•G'•