20181130 TZHC Mwanza

IN THE HIGH COURT TANZANIA MWANZA DISTRICT REGISTRY. AT MWANZA. c\,\{\\ . PC~APPEAL NO. 08 OF 2017. (ORIGINATNG FROM CIVIL CASE NO 33 OF 2015 MUGUMU URBAN PRIMARY COURT AND ARISING FROM DISTRICT COURT CIVIL APPEAL NO.01 OF 2016 BY HON. NGAILE, DRM) KERARYO MASANA ................................................. APPELLANT. VERSUS. JACKSON ADAM ................................................. .. RESPONDENT. Date of last order: 27/11/2018 Date of judgement: 30/11/2018. JUDGEMENT. MAGOIGA, J. The appellant, KERARYO MASANA aggrieved by the decision of Serengeti District Court filed this appeal in this court challenging the findings of the District court of Serengeti on the following grounds: - 1. That the learned magistrate erred in law and fact in ruling out that the trial magistrate adopted the findings of criminal case no. 157/2010 while it is evident that the trial magistrate considered the evidence given by the parties.

2. That even if it was true that the trial magistrate adopted the findings of the criminal case no. 157/2010, the learned magistrate erred in law and facts by allowing the appeal without retrial order. 1 3. That the learned magistrate erred in law and fact by determining the appeal by suo moto raising his own issues of appeal without giving the parties the chance to respond to those issues. The facts pertaining to this appeal are straight forward that the appellant instituted civil case no 33 of 2015 in Mugumu urban primary court against the respondent herein above and one person by the name Wilson Chacha not in this appeal jointly and severally claiming Tshs. 1,050,000/= being compensation for causing injury to the appellant and stealing by agent. The trial court after full trial decided in favour of the appellant and the respondents were ordered to pay Tshs. 850,000/= and costs of the suit ¢ based on evidence on record and.)1f'exhibit Pl which is the judgement in criminal case no 157 of 2015. The respondent, JACKSON ADAM was aggrieved by the trial court findings and appealed to the District court of Serengeti against the findings of the trial court. The district court after hearing both parties in civil appeal no 01 of 2016, for some reasons as articulated in the judgement set aside the judgement of the trial court and consequential orders thereto with costs. The appellant

aggrieved by the district court findings has come to this court challenging the first appellate court findings on the above grounds, hence this judgement. 2 When this appeal was called for hearing, the appellant was enjoying the legal services of Mr. Alhaji Majogoro, learned advocate. On the other hand, the respondent was enjoying the legal services of Mr. Kiteja Charles, learned advocate, from Mwanza based legal clinic of Right Marks Attorneys. Both learned advocates were ready for hearing. Mr. Majogoro started by informing the court that they filed three grounds of appeal but he prayed to drop grounds number 1 and 3. He remained with ground number two. Submitting on ground number two, Mr. Majogoro submitted that ground number two is merited in this appeal and it suffices to dispose of this appeal. It was the submission of Mr. Majogoro that at page 3 paragraph 2 of the typed judgement the first appellate district court noted some mistakes/irregularities which were committed by the trial court. These are considering findings in criminal cases as facts to prove a civil case, failure to frame issues for determination of the matter and failure to analyze evidence on record, pointed out Mr. Majogoro. According to Mr. Majogoro the first appellate court after noting such irregularities was to set aside the proceedings, judgement and order retrial but instead set aside the trial court

judgement and allow the 3 t' appeal. This according to Mr. Majogoro was wrong and he invited this court to rectify the anomaly by giving an order that the matter be remitted back to trial court for retrial. Mr. Majogoro cited the cases of JAPAN INTERNATIONAL COOPERATION AGENCY (JICA) V. KHAKI COMPLEX LIMITED, CIVIL APPEAL NO. 107 OF 2004 (CAT) DSM, (unreported) and SHABAAN MADEBE V. REPUBLIC, CRIMINAL APPEAL NO. 72 OF 2002 (CAT) DSM (unreported) to buttress his point. Mr. Majogoro concluded by praying that this appeal be allowed on this ground and order a retrial of the case afresh in the urban primary court inter parties. On the other hand, Mr. Charles basically conceded and supported wholly the submission by his learned friend Mr. Majogoro. Mr. Charles was brief but to the point that the proper order in the circumstances was the order for retrial and asked this court to so hold and direct that this matter be remitted back to Mugumu urban primary court for retrial. However, Mr. Charles was quick to point out that each party to bear his own costs because the anomaly, if any, was caused by the court. Mr. Majogoro had nothing to rejoin and that marked the end of the hearing of this appeal. 4 I have anxiously and keenly considered the submissions of the learned advocates in this appeal which were at no issue at all for an order for retrial. I have gone through the judgement of the

first appellate court,, which in essence noted three misfortunes in the trial court proceedings and judgement namely reliance on judgement in criminal case to determine civil case, failure to analyze evidence and failure to frame issues for determination of the case. I have also find it apposite to go through the trial court record the subject of this appeal and have noted the following:- One, the first appellate court faulted the trial court for considering findings in criminal case made in criminal case no 157 of 2010 without considering other evidence on record whether established the claim and according to him that was against Rule 6 of the Magistrates' Courts (Rules of Evidence in Primary Courts) Regulations, via GN 22/1964 and 66/1972. This has necessitated me to revisit the said regulation and for better understanding what the said Regulation entails I produce it hereunder for easy of reference: Regulation 6- in civil cases 5 "In civil cases, the court is not required to be satisfied beyond reasonable doubt that a party is correct before it decides the case in its favour, but it shall be sufficient if the weight of the evidence of the one party is greater than the weight of evidence of the other." Perusal of the above provision it is clear the findings of the Resident District Magistrate on regulation 6 is misconceived and against the above Regulation. What is required

of the above regulation is to gauge whose evidence is weightier than the other and decide in favour of the one with strong evidence. Moreover, the Resident District Magistrate utterly failed to note that the said judgement in criminal case was admitted in evidence as exhibit PW A 1 and there was nothing wrong on the part of the trial court to consider such an evidence when composing its judgement. Therefore, it is my considered opinion the trial court was right to consider the evidence admitted and acted upon it in its findings. The said Regulation does not bar the court to act on such evidence and as such it was the first appellate court which misapprehended the requirement of the law on this point. 6 Nevertheless, on different reason, I find the admissibility of the said exhibit PWAl was marred by some procedural irregularity for being admitted without giving the defendant/respondent a chance to object or not. This was fatal and the trial magistrate was duty bound to give a chance for the defendants to say whether they object or not before the same was admitted and it was the very exhibit which was the basis of its findings. On this reason alone I find merits on this point Secondly, another point raised and determined by the first appellate court was the failure of the trial court to frame issues and make analysis of evidence in the light of issues contrary Rule 3 (1) of the

Magistrates' Courts (Primary Courts) (Judgement of Courts) Rules. In order to do justice, I find it apposite as well to produce the said rule hereunder for proper understanding what was required of by the trial court under the rule. "Rule 3 (1) where in any proceedings the court has heard all evidence or matters pertaining to the issue to be determined by the court, the magistrate shall proceed to consult with the assessors present, with view of reaching a decision of the court." 7 I have gone through the trial court findings in the light of decision by the first appellate court on this point and am satisfied that indeed the trial court was duty enjoined to frame issues for determination as rightly held by the first appellate court. Based on the issues framed, the trial court could have now gauge the weight of evidence and make a proper finding. Failure to comply with this legal requirement was in deed wrong and I agree and subscribe to the holding of the first appellate court and the submissions by the learned counsel on this point. Messrs. Majogoro and Charles have in one voice asked this court to find merits on this points and allow this appeal and order that this matter be remitted back to trial court for retrial. Mr. Majogoro cited the cases of JAPAN INTERNATIONAL COOPERATION AGENCY (JICA) V KHAKI COMPLEX LIMITED (Supra) and SHABAN! MADEBE V. REPUBLIC (supra) to buttress

his point that this is a fit case for an order of retrial. Given what I have noted above, guidance from the case law above and for the reasons discussed above I allow this appeal on this ground and hold that the first appellate court after noting the above defects in the proceedings and judgement of the trial court, the proper cause was to set aside all what was done in ignorance of the law and order a retrial. Now having so 8 noted and held this court allow this appeal and under the provisions of · section 29 (1) the Magistrate Courts' Act, [Cap 11 R.E 2002] and to the extent explained above exercise by revision powers by ordering that this matter be remitted back to Mugumu Urban Primary Court for retrial before another magistrate competent to try this suit with a different set of assessors. Given that the parties have nothing to the noted defects this court finds it proper and just to make no order as to costs. It is so ordered. Date at Mwanza this 30th November, 2018. S. M. MAGOI GA. JUDGE. 30/11/2018. 9