19940526 TZHC Dodoma

l Di 'i.1HE HIGH cou~:T OF TANZANIA ~}f)~ CIVIL APPEAL Nb. 3 OF 1994 ( FROM TITT .rD"l)]JENT OF THE 1:>.WTRI CT COlf.::1T o::r filNGIDA Nr SINGI'!)A IN CIVIL CAiJE NO~ 46 or 1991). ~0-:1E: J.. . sts. I~~li,,ES£_., •UB,TRI.Q~ I;U~~I~TRAX§ 1• 2• J. MN:l)I Il'l£ffiI ~ ;1JillGU NUliIA SL1A I1KDT rJ1A l •••• , • , • _.",l'PE.LL.ANTS versus L.TIIDMllliI MUGHONA ~ • ••• ·~- •· •••• • • RESP0N 1ENT MSOFFE,J; On the 10th 1ay of November 1992 this ~urt (Mwalusanya, J.) in Civ:iJ appeal N•·• 8 of 1992 mc:.ie an ori.er the material part of which rea1s as follows:- "In the event I fin1 that the respon1ent hai not established th_at the eattle he attaehc1 belonge1 to the juigment iebtor Ki•m Ng 1 oni;. Ti:icrefore the objectors appeal is allowed with Costs. The cattle attached. shoul-1 be in1i-ne1.iately restored to '.;, the three objectilrs 1i ~ The three objectors ani the rcsponient in that civil appeal are the present appellan·:;s an-'!. the respon'lent respectively~ In executing the. above or'ier of the High Court the B.esiient Magistrate, Singi'.la in Civil Case N\'. 46/91 of the llistrict Court at Singii.13., ."11 a 1.ate which ·is nowhere sho11m in ·cha record 1i1 as follt'.'lws·, a.ni. for ease 4'f reference I ,1uote him verbatim:- "Corrun: I.S. Mipawa - R.11 Appellant/Juigment Creditor: Absent Responient/Ju1.gment iebtor: Absent Court: The juigment of the high Court was rearl over

an1 explaine1 to the parties. The high Court oriererl that all eight ret~e~ · - · · heais of cattle be ~- . ·: , -~ t~ the respon'lent ani their issues calves i f any. . . ·, ---;1,1, •••••••••• ~TJER: attachment warrant tC'I issue 11 0 Pursuant to the above order of the J.1esident Magistrate a Warrant of attachment in execution of the decree was then issued a.ti signed by the same Resident Magistrate on 7/12/92 and handed to tr..e Court Broke:t'- one Mr., Aliy Mahamoud Ally• The said \-!arrant however was maie for atta•hing 14 hea1s of cattle awl not the e.~ght mentioned earlier& Accordingly the Court Broker acted as instructed an,i proceeded to the home of the present responient where he attached the 14 h0ads of cattle· on 19/12J92., This naturally offenied the responient who went back to the same court and . sucessfully filed an application for recovery of the 6 extra heads of cattle attached from him claiming thc,t they we:r-e his property ani uere therefo:r:e wrongfully attached,. The appellants are disatisfied and hence this appeaJ.., It is clear from the o,:rl.e_r of the Hesi0.ent Magistrate that he does not appear to have understood fully this Court•s order before he proceeded to make an order for the L:isue of the Warrant o.f at~chment~ Tb.is Courc ts Order was clear ani to the effect that "-the cattle attached~ should be i.mmediately restored. to the three objectors"

6 This orier made 11 11 no mention about the iasues or 11 Calves 11 if any., One therefore won1ers wherefrcm: the Magistrate got the oro.er for attaching the ''issues'i ,.ror "calves" if any i In the circmnr,tances one would have expected the Resident Magistrate to issu'? Notice to the then respondent to show cause why the off springs shoul i not also be subject to the attachment in issue, before proceeding•'- to issue the said. w2,rrant t I hope the i"1agistrate concerned will in future be more carefui an1. less casual in handling ma:!irters of this naturea The order by the Resident Magistrate notwithstaniing, it is clear from the record that it ·is common grouni that the heads of cattle due for. attachment in compliance with the High Court ora.er were only eight. The parties have no quarell ia,bout these eight heaJs,, ''lheir controversy is on the 6 other heais o.f cattle said to h:we been offsprings born by some of the eight heais when in the custody of the responient o In ~lealing with the relevant application on the 6 heads the District Magistrate properly invoked the provisions of order XXI Rule 57 (1) of the Civil Procedure Cartel' }966 in determining the application before him after which he was satisfied that the 6 heads of cattle saii by the appellants to be offsprings belong to the respon1ent. It is evident from tho record that before the rosponient's application for

return of the 6 heads of cattle uas heard another Resiient Magistrate of the same station visited Mdilu village on the application of the appellants ()OQOt;,Q-003/o : 3 : t~ witness whether or not the 6 calves/cows claimed by the respi,n1ent are proceeds of some of the 8 cows. The visit was on 15/4/93 after which the Magistrate' 1~-q:1i_ thus:- 11 I have seen the cattle/cows an"!. have seen an1 or witnessed. that the calves are really sucking,. 'I'he issue whether or not the milking cows are part of the retrieveri cattle shall be resolved in the course of hearing the eviience of the applioatio.nlt. In his Inju..i.)·.1,;:pt'.t__:::-·- ·, it is clear that the Distxict Magistrate based part of his ieoision on the above visit maiie by the B.esi1.ent Magistrate. In- the ordinary course of things one woulri have expected two things:- (a). '4iat the visit would be made after the applicatfon was heard oerit • on :11:.,:t:,:'_ fr¥··-'. ·c. By so rloing the court concerned would have been better placed to appreciate and reconcile whatever woulri be shown tn,it by the par.bies concerned regarding the disputed calves/cowsi (b). 'I\iat the same Magistrate hearing the applicG.tion would be the same one to go out for the visit in <_:uer3tion~ :By so ioing he would be in a better position to come out ui th a more rational 1ecision of the matter. However for un1isclosed r0asons the visit ,,ras

made by a Resi1ent Magisil.'atE! an1 the application the subject of the visit heari by a District Magistratel One woniers why this was allO\TGri to happen when there is no record that the "Visit Magistrate 1: was probably not at the station at the material time(s) on account of. a transfer or any othor lawful cause. It: is no surprise therefore that at some stage in t1le course of procee'lings the respon-lent unsuccessfully applied to the "Di.strict Magistrate ti have the Rem.1ent Magistrate who ma 'le the visit summoned as a wi tnessl Perhaps he earnestly thought that if summonc,d the i-lesident Magistrate woulri probably have helped in clearing some 1ouMs he;r-e anrl there regarding the calves/oowH It is evi -'lent from this ju i.gment therefore that this matter was haniled by thr8e different Magistrat~s and at rlifferent times i.e. from the one who maie the general order for the attachment of the 14 heads of cattle out of which were the disputed 6 calves/cows; the one who ma1~ the visit; •ani finally to the other one who heard. the application.- In my considered opinion all thi:s Has allo,-rei to happen to the detriment -if · all the parties concerned. · 'lhis matter, and particularly the responient' s ' application, was not given the necessary ani riue weight aiH attenti-in ........ -.• .4/. . 4 . . it deservei~ In the midst .of all this it eannot, in my_vie~, be

safely near1 ani Jhc said. that the re~pon, ent I s applio:..~tion was vell Lestablished tha ~ caJ.vea/ cows actually belbng to him. Neither can one, say that they belong to the respon ~ent s either! I think to :;et out of this state of aff~ s there is need for this Court to invoke the provisions of s. 44(b) of the Magistrates• Courts Act NO 2/1984 an-1. cr1er as foliowe:- . ' Conscious that the responients might have incurred expenses in facilitating the visit of 15/4/93 and that it may be too much to exp~ct them to finance another visit; all proceedings an:'l. criers maie before the District Court '· regar1ing the responient•s a~pl.ication, except for prooee1ings regar1ing the saii visit ani its observations, are hearby ieolared a nullity ani set asi-J.e. It is hGreby ordere~ that the :cesponientls application shall be hear1 cin merit by the same . 1• ·- •, - , Magistrate who ma:ie the visit of · 15/4/93. No orier is ma:ie as to Costs. ;A✓z:jl ( J,H. NSOFFE) ~ 26/5/1994 'Oeliveredi The Appellants - All Present~ The Respon'l.ent - Present. , ✓,,1 V?J!. -~1 ( J ~H. rrsoFFE) JU1X¾E 26/5/1994 ,,.... ·.. ·~ "•·---- - --~.,, .... ·,"""'--· . r"'.,;!.-