20080529 TZHC Mwanza

~ ('._. ~~ / .,~ ' \ft>~~\,_ IN THE HIGH COURT OF TANZANIA ATMWANZA HC CIVIL APPEAL NO 33 OF 1999 (Original Serengeti District coun Civil Case JI 1995 dated 5/7/96:Before P.M Nkombe( SDM): District Court of Serengeti at Mugumu MU GET A MWITA ................................ . APPELLANT Versus GHATI TUMBO ............................... : ... . RESPONDENT JUDGMENT RWEYEMAMU, J. The appellant Mugcta Mwita was successfully sued by the Respondent Ghati Turnbo in Serengeti District that Civil case 1/95. In that case the respondent had sued the appellant claiming 'dainages' in the sum of Shs. 500,000 for injuries sustained by the respondent after. being bitten by the appellant's dog. The DC found for the plaintiff/respondent and granted da111ages in the whole amount clain1ed. Dissatisfied, Mugcta Mwita appealed to this court. The parties were represented on appeal by· Ms. Munna Advocate for the appelfant arid Mr.. Byabusha Advocate fot the respondent. The appeal proceeded by way of written sub1nission. Mr Munna gave two grounds for faulting the DC decision. First that the DC erred in failing to record and allow the appellant to rely on two lower court judgments in criminal case where the appellant was found not proved to have been the owner of the dog that beat the respondent. That the District court erred in finding that the appellant voluntarily paid medical bills of the respondent despite evidence on record showing that the appellant was forced to pay the amount by· Maj in1oto PC. In response Mr Byabusha submitted; that the law does not give room to a court to admit proceedings in a criminal case as conclusive proof in a civil case; that the lamentations by the appellant that the DC did not record his request to refer to er. Case judgments is an afterthought because if he had intended to rely on them, he would have annexed· them to his pleadings; and that the court is entitled to presume that the evidence of a witness was properly recorded. 2 In· the cause of resolving the. contested issues, I found .it curious that the appeal has remained pending for such a k>ng time and on going through the records, I found out the following: The impugned DC decision was delivered on 5/7/1996 the · appellant after · failing to appeal . in · time, filed Misc. Civil · · application 31/97 applying for extension of time to file appeal and the same was granted by Nchalla J. in a ruling dated 6/10/99. His appeal was registered as HC Civil Appeal 33/99. The appeal was thereafter properly transferred to the RM' s court under extended jurisdiction where it was registered as RM Civil Appeal 3/2000. In that court, the respondent through his counsel Mr. Byabusha raised a Preliminary Objection on the same point i.e. that the appeal was time barred. The PO was dismissed by Mtotela PRM Ext. Jurisdiction in a ruling dated 12/5/2003 and the appeal I ordered to proceed with hearing on 23/8/2003. It is not clear what happened thereafter, but the record indicates that the appeal was brought back to the High Court registry, the papers put in the · original file HC Civil Appeal 33/99 then assigned to me by the then Hon. Judge I/charge on 5/52005. I have perused the record but I have not been able to trace the Order transferring the appeal from the RM's court to the HC. 3 I'\ Extrapolating the CA reasoning m the decision of Banyanyirubusu s/o Gasper & Others v, R; Cr Revision 18/2006, MZA sub-registry, (unreported), once the appeal had been transferred in the resident Magistrate/s under extended jurisdiction and the matter was partly handtd there, it could not be brought back to the High court registry and continued in the initial file without a specific retransfer order. As there was no retransfer order, I find that the appeal was not properly before the cou11 as such, I have no jurisdiction to deal with it. It is so ordered. ~yema Judge 29/5/2008 Order: Case file and judgment forwarded to the District Registrar HC Mwanza; for delivery to the parties. R.MRweyem Judge 29/5/2008 AT Mtwara HC 4