20060724 TZHC Moshi2

IN THE HIGH COURT OF TANZANIA -\ 1 ATMOSID (C;~I: :P;:,:::.:~::~::;o~I) /\"'-'- \ ...• ORIGINAL HAI KATI PR. COURT CIVIL CASE NO. 22/2004) 1. OYIELI ELIMUU ) .J 2. ISACK SHILERUNGO )------------ APPELLANTS VERSUS MALIKI JUMA ----------·----RESPONDENT JUDGMENT 0 HON. JUNDU, J. The record of this appeal shows that the Respondent on 29.3.2004 had filed a suit at the Hai Kati Primary Court against the above named two Appellants for recovery of a piece of land he claimed to be his inheritance from his grand father one Daudi. The Appellants admitted that the said piece of land originally belonged to the said Daudi, the grandfather of the Respondent, but he had later on sold the same to their late fathers. The trial court having heard the evidence of all the parties it entered judgment in favour of the Respondent. Having been aggrieved by the decision of the trial court, the Appellant appealed to Hai District Court against the decision of the trial court interalia that it had no jurisdiction to entertain, hear and determine the said land dispute by virtue of Section 167 of the Land Act. No. 4 of 1999 which sets particular courts to hear land matters and such courts became operative effective 1st 0 October, 2003. In a Ruling dated 29/9/2004, the Senior District Magistrate upheld that the trial court had no jurisdiction to entertain the suit as contended by the Appellants in their Petition of Appeal. He further ordered each party to bear own costs. The Appellants having been partly aggrieved by the decision of the Senior District Magistrate have appealed to this court listing three (3) grounds of appeal in their Petition of Appeal namely that: (1) The learned Senior District Magistrate erred in giving the decision the title Ruling. (2) The learned Senior District Magistrate erred in refusing the Appellants costs altogether and in assigning no reasons for refusing such costs: l (3) The learned Senior District Magistrate erred in not adverting to the fact that the Appellants, one of whom is gainfully employed at Dar es Salaam had incurred considerable expenses in traveling and retaining the services of an Advocate. Based on the above named grounds of appeal, the Appellants in their Petition of Appeal prayed to this court to allow the appeal, by setting aside the order for costs made by the first appellate court and substituting therefore an order granting the Appellants the costs of the District Court and those .... ;•· .: ~-.-:. .. •' . . ~ of the Primary Court. They also prayed for costs in this court. On 22/8/2005, this court ordered the parties to argue the appeal by way of written submissions. The Appellants are advocated by Mr. Jonathan, learned Senior Counsel while the Respondent responded the appeal on his own. On the first ground of appeal, Mr. Jonathan in his submission contended that as the matter before the first appellate court was an appeal as district from (() ari application or a preliminary objection, its decision by the Senior District Magistrate should have had title "Judgment" and not "Ruling" as done by the said magistrate. The Respondent in his submission replied that the Senior District Magistrate was correct to call his decision "Ruling" because the Appellants' counsel at the hearing before the said magistrate had raised the matter of jurisdiction of the trial court as a point oflaw. However, in my considered view, the point that the trial court had no jurisdiction to entertain the land dispute had been stated by the Appellants in their Petition of Appeal before the District Court as a ground of appeal against the decision of the trial court. The said point was therefore heard by the said magistrate by way of an appeal and the said magistrate was required to resolve or determine the same in a judgment and not by "Ruling". When an appeal is heard, it is determination results irlto a judgment, unless a preliminary objection is p~sued for which a ruling has to be made in respect of the preliminary objection. Therefore, the first ground of appeal has merit, the Senior District Magistrate having heard the ground of appeal that the trial court had no jurisdiction, he ought to have titled his decision as "Judgment" and not as "Ruling". Therefore, I hereby amend the title of the decision of the Senior District Magistrate to read "Judgment" instead of "Ruling". The second and third grounds of appeal is directed towards the order of the Senior District Magistrate that each party should bear own costs without assigning reasons. Mr. Jonathan in his submission contends that as the Appellants were the successful party in the appeal before the District Court, they were entitled to costs unless the magistrate assigns reasons for refusing to award costs to them. He points out that the Appellants had also incurred expenses in the trial court for themselves 2 {:r, {, ,,=d their witnesses and that the second Appellant had to travel from Dar es Salaam to make appearances. He further contended that in the District Court the Appellants had incurred additional expenses of retaining an advocate to file and prosecute their appeal. He therefore prayed to this court to set aside the order of the District Court on costs and substituting it for an order that the ,. > ., ,,, ,.. . , , .• Respondent pay the costs incurred by the Appellants in the trial court and the District Court. He also prayed for the costs of this appeal. The Respondent in his submission replied that the Senior District Magistrate had ordered each party to bear own costs because even the Respondent had incurred expenses, and neither the Appellant's nor the Respondent knew that the trial court had no jurisdiction to entertain the matter. Further, the point of the trial court having no jurisdiction was raised by the Appellants at the first appellate court but not at the trial court. I have carefully considered the submission of the parties on the second and third grounds of appeal. My careful reading of the decision of the Senior District Magistrate shows that he stated "Appeal allowed to that e·xtent and each party to bear its own costs". This meant that though the Appellants were successful in their appeal before the said first appellate court but no costs were awarded to them. It is a rule of thumb that a successful party has to have its costs unless reasons are assigned by the presiding magistrate for refusing to award costs thereto. The reasons advanced by the Respondent as to why the Senior District Magistrate did not award costs are not stated in the decision of the said magistrate. As the Appellants were the successful party in the appeal before the said District Court, they had to be awarded their costs unless the Senior District Magistrate assigned reasons for not doing so. Therefore, the second and third grounds of appeal are meritous. I hereby set aside the order of the Senior District Magistrate on costs and substitute with an order that the Resp~pdent pay the costs incurred by the Appellants in both the District Court and the Primary Court. However, the actual costs and expenses should be subject to a Bill of Costs to be taxed by the relevant taxing officer. It is so ordered. F.A.R. JUNDU, JUDGE, 24/7/2006 ,..... ····· 3 ------------- --·- .. ---------··------···•·· ...... -~-----·--···· --- .. .. - . --~-' , Right of Appeal Explained. ~ F.A.R. JUNDU, JUDGE, 24/7/2006. 24/7/2006 Coram:- F.A.R. Jundu, J. For the Ist Appellant ) 2nd Appellant ) Mr. Jonathan, Advocate 0 For the Respondent:- present C/C:- Matiku Court:- Judgment delivered in the presence of Mr. Jonathan, learned counsel for the Appellants and in the presence of the Respondent. ~ F.A.R. JUNDU, JUDGE, 24/7/2006 ATMOSHI 4