20080529 TZHC Mwanza

·- -. - ~ 'flb' ~"2-\\' IN THE .HIGH COURT OF TANZANIA ATMWANZA HC CIVIL APPEAL NO 33 OF 1999 . (Original Serengeti District court Civif Case II 1995 dated 5/7/96:Before P.M. Nkombe( SDM): District Court o_f Serengeti at Mugumu MUG ETA MWITA ................................ .APPELLANT Versus GHATI TUMBO ........ ~ ........................... RESPONDENT JUDGMENT RWEYEMAMU, J~ The appellant Mugeta 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 clain1ing 'damages' 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 dainages in the whole amount claimed. Dissatisfied, Mugeta Mwita appealed to this court. ' fl . .,. . ,. The parties w.ere represented on appeal by Ms. Munna · Advocate for the appellant .and Mr. Byabusha Advocate for the respondent. The appeal proceeded by way of written submission. 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 app·ellant was forced to pay the amount by Majimoto 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 ··•'• . I I / I I In·_ the cause of resolving the contested issues, I found -it curious that the appeal has remained pending for such a long time and on going thrqugh 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 extensioQ. 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 · 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 Extrapolating the CA reasoning 1n · the decision of Banyanyirubusu s/o Gasper & Others v, R, Cr Revision 18/2006, MZA sub-registry, (unreported), once the· appeal had been ttansferred in the resident Magistrate/s Under extended jurisdiction and the matter was partly handkd there, it could not be brought back to the High court registty 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 court as such, I have no jurisdiction to deal with it. It is so ordered. ~ R MRweyema Judge 29/5/2008 Order: Case file and judgment forwarded to the District Regis_ttar HC Mwanza; for delivery to the parties. RMRweyem Judge 29/5/2008 AT Mtw-ara HC 4