NA TZHC Mbeya

• IN. THE HIGH COURT" OF TANZANIA -AT :ViBEYA PC. CIVIL i\f'PE,·.r., NO. 11 . OF 200.2 (From· the decision of the District Court of Iringa in Civil ..i.ppeal No. 37 of 2001 - ()rigina.l Civil . . Case No• 12 of 2001 of Mazombe Primary Cc;urt) ... ~' • ••• JEREMI ;, MKEMANGWh · • ...... ... • ....... • • • • 1\IPELL!INT · . '."'·I . .VERSUS ·• .- 't •••• tt G11YO KI ~JONE • ~ • •·•. o . . . . . . . . .. .. .... . • • .,.. .o • • • • •. RESPONDENT . . . . . JUDGMENT M1~CIG1NJ A, J • Jeremi,a 1'1kerr)1:U18Wa successfully s~0d Gayo Kiwone :ecr ,reco.v~ry of a parcel . of. ).'nnd before the Mazombe Primary Court, The trial: court unnnimously found for th'; plaintiff after it sat'isfied itself from the cogen~ _e;vi:,ience the ' p:La;i.ntiff pr9ferred. In that behnlf Victor ·Kage (PW.2), a 72-year olcl man who was one of the leaders of the Vito;o Village government, swor• tpat the ,. . ,•·• · suit lruid was a.lloc~ted to the plaintiff's ·father by the vi~lp_g~ coun•il. Paulo Mbosa (PW.3), a 70 year old man,, who was also on. the_ village govern- ment, confirmed PW.2 1 s testimony,. ,fud so did Thabit Mko.katu (Piv.4) who was :the ,paretaker of that land. On h;is pnrt the defendrui.t testified that he got the suit parcel of land ·,. from .his father in 1984. He nnd _Elias Kadilµ ·(DW.3) • testified that the ' .. . . ... only i:1terest the plaintiff's father had in that f::;i,rm .was n. temporary one, that the defendant's father had lea5.ed tho suit. pie·ce o.f_ ;Le.nd fo:r:- one yea:r, . •, And Mahmud ~solo. (D~.2) swore that. his sharnba border~d that of the defendant I s ,father, ... , I '·•· '. ' Now it_i;s very l?ossible that at··one time the de_fe:r:i,da.nt's fath0r owned :•· ,, the suit prope·rty, But once it was alloca-ted·to the plaintiff's fother by the village council which is invested with statutory_powor to nllocate village land, the allocation conclussively extineuished his rights. However, considering the totality of the evidence the trial court was quite entitled ••• /2 2, - to find for the plaintiff. The trio.l court's decision did not last long! It. was. set aside by the Iringa District Court while exercising appellate jurisdiction-. - ' . ',: It· was c_ontended before the learned a:ppell~~e District lf.tagistrate that the appeal was incompetent because the dispute had been adjudicated upo.n by the local ',, ' ~ \:Jard Tribunal,, In the view of· the.-appel:1, :j;o_.cyiµrt . 9. . . . . the trial . .• .court's proceedings were thus r...es judicata. Mr. Mwakolo, le::u-ned cotu1sel for the 3.ppellant, submitted that the·learne~•appellaJe_.11,-strict Magistrate erred in so holding because there nE!ver 'was a civil .. litigation between the same parties on the same subject before the Ward Tribunal. I agree with Mr. Mwu.kolo on . this matter because all; there was was a criminal case based on trespass:. ::.:i9: ' the law st~ds a. judgment\in a criminal proceeding· cannot be reference for the application ,of . re.s \udi9ata. Fo'r this doctrine to ,apply the pre-~ious proceeding must ~ik\wise ~e'. of a civil nature. I hold, therefore,. that the' appellate Distri-ct •Court misapplied the principle that governs 'ies .,.1~4i,cata in his judgment. ,The appeal would therefore succeed. There is another and independent ground upon whi9.h this appeal would succeed. That ground is based on the law of limitation .. :,1.ccording to section 20 (2) of the Magistrates Courts ..:.ct, 1984, an appeal against atdeci- sion of a primary court has to be lodged in the District Court within thirty <lays after the date of tha.t decision~ In the instnnt case the decision against •I'•' which it was appealed before the District Court was delivered by the · : .,. Mazombe Frimary Court on 23rd August,, 2001. The record of the appellate District Court shows that the appeal was lodged on 3rd October," 2001/ Simple arithmetical computation leads us to the conclusion that the appeal was filed twelve days out o! time. It follows that the appeal before the District Court w"3.S a nullity inasmuch as it was time-b~rred. In that form it cannot be foe foundation for a competent. appeal before this :Court·. I would dismiss this appeal for being incompetent. -I'! • . In the final result the appeal is allowed with costs·• •••/3