19850315 TZHC Mbeya

Cu & IN Tifl IJIGH COURT OF TANZ1NIA AT,JJUf (DC) CIVIL i?PEAL NO6 64 OF 1983 rom the: dccisibli of thd District Court oi ,11beyc Civil Case No66/82) / HITSON.M0 MW;JILIIvIA e aoo oo 0000 00 APPELLANT Vtrus KANIs4 j MQVIAN 02 TANZANIA ion. opy,*;4! 0Ooo000 IESPONDENT IKAU J VV V The appöl1nnt one 1litso bi. Wamlima apearin throi.gh his advoøate, Nr. .Mwkiiasa appeals c.ainst tbp th of the lower Øourt that the Rospdent/PIai:itiff had no locus c±di in prospcuting the suit, and that the trial -ourA had no jurisdiction to try the suit it which the Respdnclen -b/Plain_ tiff C.!.G K.nisa la !ioravian. Kusini Maharibi, Tonzania claimed Vacant pasession of the house in which the Apollani has been reoding. It is noted 000 the rccod qf the lower CO lhat among the giounds of defe4pp raised by the ppel1ani/Defondant, those that inyolve poiflts o law are V that : — () the 3epond.ont/P1aintiff had to locus stdi because he did not aver and produce cny ovi once that he had title to V the sui1 rcmises; V (h) the Rapondent/Planitiff 7as not a legal pex4sp4 and therfore ppj ontjticd in law, to instjil't the suit;. V () the tHai coit had no t1triodiction to entertain and hoax V the suit. It was then maintained by oVwn::ol for the Appeil:nt before this court that, as such grcuads were ioouen of law in tome, of Order XIV R.2 of the C,P,, 1966, the trial maistr -;e dot•rni:aeci thpw frst. In fac' such issues were dealt rtth first ami snio -iieatly lea to who lower courts rig appealed mainst. Mr. Bateyunn, V.110d cV.Vnnsel for the iecpó Lea±/?laintiff submitted that the appoa•l was incoimetent az . 4nc 3uli:' snenied a.ninst was in the form of on intorlocutory order th±oh apeallalo had to fall undpr the provisions of S,74 and order XL of tho C0P0C. 1966; and that. tho Thfling V appealed miair.nt :ia not. 0 . 0 . /2 2. Having darofully e::aninecl the o1ov;nt provislins of the C.P.C. 1966 and the grounds of.ap - :oal tcother liitix the record of t ,loidar court I. find myself compelled iio o bP t . .i a-io o' ii umuc tna, learned ooujiel for 'tLZO Respondont/Pici uiffb In the first place it is conoodor2. on botn sides thathe prmise having beoLl re isterad under . ti Z of Oo"upanc3r O1'LI1L1 lcO, and situE,.ta witnin the Mwiicipality of iThaya, it is goveriod by the font fostrictibn J% Cap.. 419. That confers unliiiitod pocuiux, jurisdictio1 court of Resident M -iistrate as provided for under S6 hA (i) of the hot, in so far as, -rnong other thing' si a $uit for vacant possessin is concerned, . . . It is also provided, unde.. d liD of the said Aet that appeols from the Resident Nagistrat.!s Court in repeot of- any orer,deoision or jucigement arising from such b -t sh11 1.o to Uhe High Court and governed by the prisions of the C.P.C. 1966 i1ating to apL?oals from orders and decrees in civU sjts mutatis autandis . . The word order" is deLinea nauler 53 of tne C.p.U. 1966 as !nean1rt12e formal expression of any decision of a eivil court which is not a decree.: And the term dobreo is defined under the said section ahovemntjd ad meaning the fori 1 oxocioi of r jdiooLon whic , so fox. as regards ihe court expressing it, Con1usivoly letennincot he ±'ights of the parties wjt1 regard to all or any of the matters in oontraveror ji suit and may ba ditlwr preliminary or final. It shall be doteraiud to inclucb the rejection 4 plaint and the dOtermiao;tiorL of an - uootiion;rithin section 38 or section 691 but shall not ind1ucie— . . . an adjud1catioi :tt-aa waich fl ppea1 lies ad en appeal from on orcIor; ci an order of (ursa: al for default I em therefore satiafied from the above -bhat in for as ttse riilin has no -b had the effect of conchiaively tetorLeisu the rifhtrs of th parties concerned in the dispute, either prc1ioinoii1: or finally; it is no a rejection of a slaint or ifs cter..no:±io:. 0± ".11,7 ±uc- tion ::ithix or Section 89 of the C-T.00 1966, it irnitfin ...categor f orders of a court, As rightly argued by the learned conusel 'er the dosor4ant, such ord of the lower court does not fall X. f-n; iii a en.J,able rdore as 'DxJ1rjde rb' under S.,74 oxid order XL of the A& such this. apocal con rightly be s:J to he isicorriotont . - In iy view, while I do not exiocs any opi lion as 10 whether there was sufficicnt evidende for the 1arnec1 trial magistrate to reach the conclusion as he didhs to the -iso of lou sani and lgal personality of -the Appellant I donsider thet uch jssus bi1rb o be considered in the normalprocose of the trial c.d hould as party f e1 di8at isf ieL with the view t on by tfc lower ocurt, t)ie oroper Qouso wotüd 1aVe been to prefer an appeal to a hidhc' court after the doteralnation' of the suit.. 'The only issue of law, which as I look at ib 1 vlas the nusibf one g oar in the prbóessof.the trial of the suit is one of juriscliotion. . That however, f4as rightly decided as Was done by the learned ti'ial maistrate Yet er.n if there w_141 an ruor in the djsion of the learned trial mogistratc on si,icii iosu the prcer procedure 7v&uld have been for the court trying the suit .to.refer suáh clouhful issue of jrisdiotión to: the'Ugh Court .o have it deter irecj 1 as provided for uider OdorXLIR., of the C.P.O 1966.. . .. But that is not by way of an appeal, Rather, :it is in he form of a case stateci That in fact would have been the rocedure to be. adopted as well where issues of. law. are tnvolvcth as in the, instant Oasc JJI a case .i whici the - decree is net acouiable, -s provio.ed for uacr smo Order XLI 1 R.I. Jertainr the doree in the instaat case is one that is ape,a1la1e, and therefore asy controversy in sry issue of i other..th.. one..affeçtin jurisdiction could be nithheld sad proccoed with on appeal in the ,no'al course of events after determination of the suit by t . h.o tr-Ial. court, - It is for the above xeaso,, s that this appo]. is ,dsirised witi coats with the order 'that the trial of the suit should nroceoci before -the lower court ' ... i> . 1TAI:SUie - Delivered in chambers this 15th dey of March 1985 at Mbeya in the presence of Mr. Batoyunga, advo iate for the Respondent with leavo, of absence for Mr. Mrkilasa, coino.il for Appellant. 2( : AT MBEYA. .L. iAIi(ASU, 15TH MARCH, 1985 q TT I.' I