19870902 TZHC Tabora

_,\ T 'I' :: "'JO R:i APPELL,\1:B JURISDIC"~I0N ORIGn1.';L C11TMTI11L c.1s-s no. 3 OF 1986 OF TWS DL=.F':Riff:· crn::rc Of UR!1T:T.BO DISTRICT AT URMIBO Bcfo1·2 ;,;- •.'}, :.:·.L;·:TI, Esq., I':rincipal District Tfagistrate Versus TTJ1 U"TIT:S:J TI~PITTLIC ••••••••••••• R-SSPOWD-SNT 0btain5ne m.oney by false pretRnces c/s 302 of the DMal Code. JUDGlf'8l'TT CHIP:?.r A , J. some tim0 in 1984, a P-:an by t\1,3 no.me of Ibrahim Seleman:j. Chanza had a small hou-::e ~rJithin nrambo township. In.March t.ha.t year, he hao.. financial problems and so he borro·rrnd Shs. 3,'500/=,from an old lady, one Asha Saidi, pledging his small house as security for -the loan. The· ag::reement for ti1e lo2n betv10en l1sha S0idi and Ibrahim Selcmani Chanza, which was m8de on 1st J1pril, 1984 9 · st ipulot 8d that should the said Ibrahim S81 r:..c:.~~Hli Jhanza f'8 il to repay the 1 oan within a period of four months, the house.would become·' the property of Asha Saidi 1 BY the agr,....ed period, I_brahim .Selcmani Chanza had not repaid the:_ \ loan and could not be seen. It was aftGr about.a ,YGrJr, that is in February, 1985, that. Ibrahim S elemani ChAnza ., re - surfaced in TTrambo t. own. ~i thout botber4 to.;repay the loan, h~ procef:lded to enter into.an agreemGnt with one Hussein Sungura, the Gppellrmt in this fl_ppeal, for thG sdle of the said house to the appellant. ·1'Jhen thet transacticn came to the notice of M:iha Saidi, who ,ha.d apparently treated tbe hou.s~ to be her property,. lodged a comp.JialiJtl.titn Urambo Primary Court, as a result of v:;!:1ich complaint Ibrahim Seleman.i Chanza vms charged before thE1t co1..u•-',~ ··1it.h the offence of obtaining money by false pretences in crimi.'.:.al CD.Se no. 41 of 1985. . ' J . j ·--------- .2/ ..... 'Without calling upon the parties to adduce evidence, the court made the f'ollowinr, order: "Amri: Shalll"i ni l.1 msdai siyo la jinai. Ni s ha :.;q-i l.s1 m;:i dai. Kufuntana na hati .. ya poni 9 n_yUI!lba ni ya mlal2mikaji." · Subsequently, ho,,,ever, Ibrahim Snlemnni Chanza and tha appellant · entered into another agroc:>:::wnt for tt_1e S8le of the hou..se by Ibrahim S el emqni Cb.2nza to t l1 i~ app ell ant. I bra '1im S cil em,.'J.ni ChRnza was again prosecuted, t11is tir:i_e on ch3.rges of obtaining mon(~Y by false pretern and comtempt of. court. -STe ,,vas convicted as charged but _was discharged. The trial court, hov.rev8r 9 mad2 the :f'ollo,_ving order: r-tsht3ki,,1a ar:i0c1.c 11iliwa hurtJ_ kwa mashtaka yotr:;. "::-ym.1bs iko c 11.ini ya mlalarnikaji lao mshtakiwa afun,;ue nad?ti ya nyumba. Undaunted, Ibra~1im s(,18.m.::mi C\1rJr;.za prcc eeded to transfer the title into the naP.;_o o:f ths '.J.J)I' :!ll. 1.ci-~ 9 an~: thG appellAnt started 0 demolishing the :1ouse, no doubt so as to put up a better building in its place. Equally undaunt cd 9 "\'Jhn S:1-idi pros ec ,.:t 0d the appellant ( criminal case no. 340 of 1985) on a chnrge '. of nalicious dnmage to her property - the house. In that CJ.Ge, th,2 a}J_pellant vm.s acquitted and the learned trial masistrn.te made an observation to the effect that the house belongr-;d to the appellnnt and not to ,\sha Saidi. In a 1 et ter she hoa d.2d •17arll'.1 ynn:J U. J'.J m.a ()I'lbi YA :rufaa II addressed to the Principal District T·/Iagistrate, Urambo, Asha Saidi bit-tBrlly attached the decision o:£' th,:' tri::1.l court in crimi.n:=il case no .. 340 of 1985. That 12.:1.gthy letter apparently prompted the learned \ Prine ipal District n8g istrat e to opon rcvi;=:;ional proc P-edings ( Criminal Revision Ho, 3 of 1986). In his rulin,3, which h8 inadvertently called a "Judgment," the Principal District T-Tagistrate reversed the findings of the trial court and restorsd th,-, orders in crimin81 cases nos. 4!. of 1985 and 123 of 1985 • .~gainst that ruli.ng 9 th'3 appcllnnt now appeals to tb,is Gourt. During the hearing of. this appeal, both T:,..r. Ntabaye, learned advocate for the appellr:mt, Gnd "fliT'T. ~utsn.g2, learned.state attorneyl submitted that the mattc:!r wns civil '111d not cri.m.L'1al, and that the order of' the District Cot:1.rt contravv:nGd. th:-; provioions of section 22 9(3) of the l~g±strates' courts Act, 1984. 3 - With respGct, I entirel,Y agree with both learnod counsel ou both the procedural and substantive points. On th0 procedural p6int1 a perusal of the roe ord of trw District Court reveals that the appellant was not given any 0 pportw-1it_y of· being heard ih the revision.al proceedings. He was condemned w.1.heard. Apc;1rt from the fact that such a contravention of the proyisions of subsection (3) of section 22 of the Magistrats·., Courts Act 9 1984 which provide:; that _a district court may not make a rev isional order in a civil natter which order alters the rights of ar.. party to his d~tri:r:u::nt unless snch party shall have first been given an -opportunity of b(::in:; heard. On the subst8n't,ive :natters, I respectfully agree that th.e issue . here is: who is tho owner of the 1~ouse? The question 1 therefore, is a civil and not a crir::J.in.gl on8 and so is fit for determination in a civil court of competent ju.risdiction. For the foregoing reasons, this appeal is allowed to this erte.i.1."c,:. that all orders of all th~ courts bclov1 in all the relevant proceeding.,, are hereby quashed • .AsJ.18 Saic1t i::::, he:re;J.Y directed to institute civil proceedings in respect of owners hip of th,:.: house/plot. in a court of .. I competent jurisdic'tion without further delay. In order to avoid unnecessary costs and confusion, it is hereby directed that no person shall in any was de:=i.l with or interfere with·-. th(~ house/plot in dispute in any way until the civil proceedings to be c OIDinenc ed have been f'inaliz·ed. It is so ordered. B. D. CTIIPET1\, JUWE. Delivered in Mr. Ntabaye: Mr. Bilaro: