jeremia mkemangwa vs gayo kiwone 2002 tzhc 2048 9 may 2002

•IN THE HIGH COURT'OF TANZ*iNlA •AT MBEYa A PC. CIVIL ilPPEiiL NO. 11 OF 2002 (From the decision of the District Court of Iringa in Civil appeal No. 37 of 2001 - Original Civil Case No* 12 of 2001 of Mazombe Primary Court) ■ ■ .. ■ i JEREMIA MKEMiiNGWA.... «............ APPELLANT •• , VERSUS • * ' t G/iYO KI v£>NE....... ................ RESPONDENT \ JUDGMENT Ma CK/iNJA, J. Jeremia Mkemangwa successfully sued Gayo Kiwone for, recovery of a parcel of.land before the Mazombe Primary Court. The trial court unanimously found ^ * K/ for the plaintiff after it satisfied itself from the cogent evidence the plaintiff proferred. In that behalf Victor Kage (PW.2) , a72-y*ar oldman who wasone of the leaders of the Vitono Village government, swor# tjiat the suit land was allocated to the plaintiffTs father by the village council* Paulo Mbosa (PW.3), a 70 year old man, who was also on the village govern­ ment, confirmed PW,2’s testimony, i&d so did Thabit Mkakatu (PW.4) who was the caretaker of that land. On his part the defendant testified that he got the suit parcel of land from his father in 198^. He and Elias Kadilu (DW.3) testified that the only interest the plaintiff’s father had in that farm was a temporary one, 4» *• that the defendant's father had leased the suit,, piece of land for one year, itnd Mahmud Msoia (DW.2) swore that his shamba bordered that of the defendant's father. Now it is very possible that atf- one time the defendant's father owned * '* * • *• the suit property. But once it was allocated to the plaintiff's father by the village council which is invested with statutory power to allocate village land, the allocation conclussively extinguished his rights. However, considering the totality of the evidence the trial court was quite entitled to find for the plaintiff. The trial court's decision did not last long. It was set aside by the Iringa District Court while exercising appellate jurisdiction* It- was contended before the learned appellate District Magistrate that the appeal was incompetent because the dispute had been adjudicated up^n by the local Ward Tribunal, In the view of the^ appellate ..cpuf^ the trial .court's proceedings were thus res judicata. Mr* Mwakolo, learned counsel for the appellant, submitted that the•learned, appellate,District Magistrate erred in so holding because there never was a civil litigation between the same parties on the same subject before the Ward Tribunal. I agree with Mr. Mwakolo on this matter because all there was was a criminal case based on trespass* s' the law stands a judgment^in a criminal proceeding cannot be reference for the application of res judicata. For this doctrine to apply the previous proceeding must likewise be, of a civil nature. I hold, therefore,, that the' appellate District Court misapplied the principle that governs res judicata in his judgment. The appeal would therefore succeed. r There is another and independent ground upon which this appeal w6uld ^ j 4 . succeed* That ground is based on the law of limitation, according to section 20 (2) of the Magistrates Courts .net, 198^1 an appeal against a fdeci­ ■ sion of a primary court has to be lodged in the District Court within thirty days after the date of that decision. In the instant case the decision against which it was appealed before the District Court was delivered by the * Mazombe Primary Court on 23rd August, 2001. The record of the appellate ' I District Court shows that the ajjpeal was lodged on 3rd October, 2001. Simple arithmetical computation leads us to the conclusion that the appeal was filed twelve days out of time. It follows that the appeal before the District Court was a nullity inasmuch as it was time-barred. In that form it cannot be t^e foundation for a competent appeal before this Court. I would dismiss this appeal for being incompetent. In the final result the appeal is allowed with costs. 1 Sgd* J« MACKjiNJa JUDGE 9/5/2002 Mwakolo, -udv« - For appellant Respondent: - In Person. Certified true copy of the original judgment, . \ EEL STRICT REGISTRAR / f i ^ T C 'f S >mOT.