MASANJA JAMES JD

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF SHINYANGA AT SHINYANGA PC CIVIL APPEAL NO. 39 OF 2022 MASANJA lAM ES APPELLANT VERSUS NG'WANDU NKALANGO RESPONDENT [Appeal from the decision of the District Court of Kishapu at Kishapu.] (Hon. A.K. Ismail SRM.l dated the 23th day of June, 2022 in Civil Appeal No. 04 of 2022 JUDGMENT ;rd November, 2023 & 3(Jh Jenosry; 2024. S.M. KULITA, J. This is an appeal from Kishapu District Court. The story behind this appeal in a nut shell is that, the respondent instituted a Civil Case No.4 of 2022 against the appellant herein at the Negezi Primary Court in Kishapu District. In that case, the Respondent claimed against the Appellant for the payment of 5 (five) cows, following the appellant being found committing adultery with the respondent's wife on 20th January, 1 2020. In that case, the respondent emerged the winner whereby the appellant was ordered to pay him (respondent) five cows. This decision aggrieved the appellant herein, hence appealed at the District Court of Kishapu with five grounds. Luck was not on his side, as the said 1st appellate court found the appellant's appeal unmeritorious, hence dismissed. For the second bite, the appellant has now approached this court with two grounds, one, the 1st appellate court erred in law for failure to order additional evidence to be recorded and two, the trial court and the 1st appellate court erred to entertain and affirm the respondent's case that had been formerly instituted at Isungang'holo Primary Court and withdrawn without leave to refile before the same being filed again at the Negezi Primary court. On 18th September, 2023 the matter was scheduled for hearing. On that day Mr. Geofrey Tuli, Advocate represented the appellant whereas the respondent was unrepresented. Submitting in support of the appeal Mr. Tuli did it only on the second ground. Submitting on that ground of appeal, Mr. Tuli stated that, the respondent had once instituted the same matter of adultery against the appellant herein at Isungang'holo Primary Court. He added that, the 2 Respondent then withdrew it, without seeking for leave to refile it afresh. He added that, the said prayer was granted by that said court. The Counsel submitted that, to their surprise, the respondent filed again the same matter at Negezi Primary Court. It is Mr. Tuli's contention that, the appellant raised that defect at the Negezi Primary Court but the trial Magistrate neglected to act upon it. On that account, the Counsel rested that, as the respondent had withdrawn his case at Isungang'holo Primary Court without leave to refile it, he formed an opinion that, the Civil Case No.4 of 2022 at Negezi Primary Court was incompetent. In reply, the respondent admitted to have had instituted Civil Case against the appellant on the same matter at Isungang'holo Primary Court. He gave the reason for withdrawing the same that, he had no trust with the trial Magistrate. He thus withdrew it so as to refile it before another court. I have earnestly gone through the parties' submissions, as well as the available records. From the submissions the parties do not dispute that the respondent had once instituted this case against the appellant at Isungang'holo Primary Court and withdrew it. It is also undisputed that the Civil Case No. 4 of 2022 Negezi Primary Court was the second move by the respondent in suing the appellant on the same matter, adultery, following his withdraw of the first case at Isungang'holo Primary Court. 3 Apart from the fact that, the parties herein are not in dispute on those above said issues, yet the record proves the same that, the respondent had instituted Civil Case No. 1 of 2022 at Isungang'holo Primary Court, claiming for the same adultery alleged to have been committed by the appellant. Further, the records prove that, at page No. 7 which is the second page before the last of the typed proceedings of the Isungang'holo Primary Court, in the Civil Case No. 1 of 2022, the respondent had been recorded to withdraw his case without seeking for leave to refile the same. The said peragraph reads; ''Nimetafakari kwa makini sana pasipo ku/azimishwa wa/a kushawishiwa na mtu yeyote nimeamua kutoende/ea na shau/i hili hivyo naomba kesi hii iondo/ewe sihitaji kumdai tena mdaiwa kwenye kesi hii ya fidia ya ugoni. AMRI Shauri hili /imeondo/ewa chini ya fungu /a 16 KMKMM kwa ombi /a Mdai maana hana nia tena ya kuende/ea kumdai Mdaiwa/~ As the respondent had withdrawn his case without seeking for leave to refile the same, and the fact that it was so ordered by the trial Magistrate, under Rule 16(3) of the Primary Courts Civil Procedure Rules, the 4 Appellant herein was precluded to refile that same matter at any court. The said Rule provides that; "16.-(1) At any time after the institution of a proceeding, the claimant may withdraw the proceeding or abandon part of his claim. (2) Where there are two or more defendants, the withdrawal or abandonmentt may be as against all or any of the defendants. (3) A claimant who has withdrawn a proceeding or abandoned part of his claim shall not be entitled to institute any fresh proceeding in respect of the claim or part thereof withdrawn or abandoned, unless at the time of such withdrawal or abandonment he has obtained the leave of the court to institute a fresh proceeding. The court shall only grant such leave where it is satisfied that there is some sufficient reason // On account of the above quoted rule, particularly rule 16(3), the law is vivid as correctly submitted by Mr. Tuli, that, the Civil Case No.4 of 2022 at the Negezi Primary Court, was improperly instituted, hence, I proceed to nullify its proceedings, as well as its resultant judgment and orders thereof. For that reason, the proceedings, judgment and orders of 5 the first appellate court are nullity, hence nullified too. On that note, the appellant's appeal is meritorious, hence allowed. itL S.M. KULITA JUDGE 30/01/2024. ttL S.M. KULITA JUDGE 30/01/2024. 6