20181207 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA MWANZA DISTRICT REGISTRY. , AT MWANZA. \J CIVIL APPEAL NO. 68 OF 2017. (ARISING FROM ORDER Of MWANZA RESIDENT MAGISTRATES' COURT IN CIVIL CASE NO 03 Of 2015 BY A. A. MOSHI, RM). PASTORY MWITA NSABI (ADMINISTRATOR Of ESTATE OF THE LATE MARGRETH P. NSABI) ••••••••••••••••••••••••••••••••••••••••••••••••••••••• APPELLANT. VERSUS. SAID SELEMAN ··············•l!I ■••······························ 1 ST RESPONDENT. BUNDA BUS EXPRESS CO LIMITED ..................... zNo RESPONDENT. Date of last order:28/11/2018 Date of judgement:07 / 12/ 2018 JUDGEMENT.· MAGOIGA, J. The appellant, PASTORY MWITA NSABI aggrieved by the order of the .Mwanza Resident Magistrates' court dated J rd August 2017 has come to this court by way of appeal armed with 9 grounds of appeal drafted in a way that one can group them into two groups. Grounds number 1 to 5 are narrating the history of the suit and group two which are basically grounds of appeal faulting the findings of the trial court. But for purpose of this judgement I will only deal with grounds.number 6 to 9 which were prop·erly couc;hed and suffice to dispose of this appeal in· ~he following language: - 1 6. That the learned trial Resident Magistrate erred in law and in fact, when she revised her own decision in which she was functus officio, after she had ruled out that civil case against the 1st and 2nd defendants had to proceed for hearing after the 3rd defendant had paid the appellant Tshs. 5,000,000/= as compensation. 7. That the learned trial Resident Magistrate erred in law and fact when he failed to take into consideration the fact that the 1st and 2nd defendants were not parties to the deed of settlement between the appellant and the 3rd defendant; hence they cannot be bound by the said deed of settlement, which is essentially between the appellant and the 3rd defendant. · 8. That the learned trial Resident magistrate erred in law and fact when he. failed to take into. consideration the fact that the respondent insurance cover note was not comprehensive insurance cover note but third parties' premium insurance which could not have suffice payment of Tshs. 60,000,000/= compensation by Zanzibar Insurance Co Limited, · hence 1st and 2nd defendants. are still bound to pay the appellant the· remaining claimed amount of Tshs. 55,000,000/= being actual culprits. 2 9. That the learned trial Resident Magistrate erred in law and facts when· she failed to give the appellant an opportunity of being heard, when she revised her own ruling in which· she had ordered the trial to proceed against the 1st and 3rd respondents, after 3rd defendant had paid the appellant Tshs. 5,000,000/= compensation out of the claimed Tshs. 60,000,000/= compensation. The facts of this appeal as can be gathered from the pleadings are that the appellant, Pastory Mwita Nsabi was appointed the administrator of the estate of his late wife Margreth P. Nsabi by the court, which powers enabled him to file civil suit number 03 of 2015 against the Said Se!eman,. - ::.:--- _Bunda Bus Express Co Ltd and Zanzibar Insurance Co Limited. The cquse of action stem from a motor car accident which untimely claimed the life of the beloved wife of the appellant on 07/06/2012 at Maziwa. area, along Nyerere· Road, Nyamagana District Mwanza city. It is alleged, the said motor vehicle with registration no Tl 17 AUD was on the fateful day driven by the first respondent in the course- of his employment and is owned by the second defendant, who is sued vicariously for having employed a driver who dangerously drove the motor vehicle and caused. an accident. The Zanzibar . . Insurance Co Limited was sued for being the insurer of the said motor vehicle alongside with other two above named respondents. This matter 3 underwent as usual protracted procedures but in between the suit was settled as between the appellant and the Zanzibar Insurance Co Limited. The settlement was in writing and on 05/07/2017 a deed of settlement was duly filed in court and recorded before a mediator, one, A.A Moshi, (RM) and the Zanzibar Insurance Co. Limited was relieved from the proceedings. The mediator resident magistrate recorded that the suit to proceed against the 1st and 2nd defendants and same was scheduled for mention on 24/07/2017 before trial magistrate all parties and their legal representatives. The record of the case at the lower court shows that on 24/07/2017_ the- then · trial Resident Magistrate disqualified himself form the conduct of th~ matter and the suit was placed before the Resident Magistrate in charge for re-assignment. Unfortunately, the suit was re-assigned before Hon. A.A Moshi Resident Magistrate, who. mediated this suit before. On 03/08/2017 · the then mediator who took up the matter on the same day this time as the trial Resident Magistrate. The trial resident magistrate was moved by Mr. Alex Banturaki learned advocate for defendants/respondents that the ma'tter before· her was for review of her order of settlement which was passed on 05/07/2017 on understanding that since the ·matter was settled between the insurance, therefore, it follows automatically the whole suit is 4 settled and without any reservation and. without hearing the plaintiff ordered that the whole suit is marked settled conclusively against the u parties and vacated its earlier order as mediator. The appellant, was according to his words, grossly aggrieved by that order, hence this appeal and this judgement. When this appeal was called for hearing the appellant appeared in person and unrepresented and was ready for hearing. On the other hand, the respondents were enjoying the legal services of Mr. Alex Banturaki, learned _advocate from Mwanza based legal Clinic of · BANTURAKI AND CO ADVOCATES and was ready for hearing. The appellant in arguing his appeal w_as very brief to the point that the trial magistrate erred to order that payment of Tshs. 5,000,000/- paid by the insurance company was covering all other claims against the defendants. According to the appellant that payment and the contract was not covering other defendants. ·He prayed that his other grounds be fully considered and allow his appeal with costs. Mr. Banturaki in reply to this appeal informed the court ~hat he strongly opposes this appeal and that .he will argued all nine grounds of appeal wholesome, of which he called them as baseless. According to Mr. Banturaki 5 the car that caused the accident is not the property of Bunda Bus Express Co. Limited but the personal property of one of the directors of the Bunda Bus Express Co. Limited by. the name Said Seleman. Therefore, submitted Mr. Banturaki suing Bunda Bus Express Co. Limited was wrong and the contract of insurance was between Said Seleman and Zanzibar Insurance and the claim was for third parties. As to the agreement between the appellant and Zanzibar Insurance Co. Limited it was the submission of Mr. Banturaki that what was paid by the insurances company was damages which were covering all parties to the suit and no claim can be entertained against the first and second respondents, any more. He concluded by - - - - · --calling the instant appeal baseles~ and invited this court to dismiss it with · costs. In rejoinder, the appellant was of the strong $Ubmission that their denial of ownership_ is calculated and intended to deny him his rights. as the issue of ownership by Bunda Bus Express Co. Limited was long time decided by Hon. Mlacha, judge. According to the appellant, the insurance company . paid for their own and not for all others and he concluded by submitting that the deed of settlement is clear what was settled and between who. He pressed that his appeal be allowed with costs. This marked the end of the hearing of this appeal . .. 6 The task of this court now is to determine the merits or otherwise of this appeal. Let me say that of the 9 grounds of appeal filed, I decided to deal with last four as the first five were just giving the history or what transpired and were not even saying that the trial magistrate erred anything. As to the ground number six that the trial resident magistrate erred to review his own decision in which she was functus officio after she had ruled out that civil case against the 1st and 2nd defendants had to proceed for hearing after the third defendant had paid the appellant Tshs. 5,000,000/= compensation. In deed without much ado this ground is merited in this appeal. The trial Magistrate Hon. A. A Moshi, Rm according to the lower court record had - presided over this suit aS" mediator. And parties appeared ·before her and a ·settlement in writing was recorded by her as mediator _on 05/07/2017 between the appellant and the third defendant whereby the third defendant paid him Tshs. 5,000,000/= as final settlement against the third defendant only. By virtue of this alone Hon. A. A Moshi, RM was not even as matter of law supposed to preside over the matter at dual capacity of mediator and trial magistrate. This was wrong and irregular. For more clarity let the trial court record ·speak by_itself as follows:- Date 5/7/2017, · . Coram: A. A. Moshi;- RM. 7 Plaintiff - present in person Defendants- present and represented. B/CSaada Mrutu for ;rI defendant Banturaki for 1 st and rd defendant. Matter comes for mediation and we are ready for mediation. Mrutu: we have communicated with the plaintiff and agreed to pay him Tshs. 5 million and he agrees. Plaintiff: it is true that we have settled with third defendant and I don't have any interests to sue them if they pay me the said amount but not to 1 st and rd defendants. Banturaki: we never settled ·with plaintiff, we 1 st and rd defendant. So we pray the matter be heard in full Court: the mediation succeeds partly for fd defendant and the plaintiff and the matter be proceeding against the first and second defendant. The third to prepare the deed of settlement before the court and the matter be adjourned before mediator. Mrutu: I pray for short adjournment at 12:00 P.M so we can file our deed ofsettlement. Signed. Court: prayer granted matter.be adjourned until 12:00 P.M. 8 12:00pm. · Mr. Mrutu: I have filed our deed of settlement with plaintiff and U third defendant; Court: Mediation marked succeed between plaintiff and third defendant. So the third defendant and plaintiff is marked settled as per their deed of settlementfiled on 5/7/2017. And the matter to proceed against 1 st and 2"d defendant. Signed. Banturaki: pray for mention before trial magistrate. Order: M. 24/07/2017 before trial magistrate. Signed. 5/7/2017 When the matter was placed before trial magistrate he disqualified himself from the conduct of the matter on 24/07/2017 for Ufldisclosed reasons on record. On 31/07/2017 the matter was re-assigned to Hon. A. A Moshi RM, the then mediator for trial and the file was placed before her on 03/08/2017. Further the record speaks. Date 03/08/2017 Coram: A,,A .. Moshi RM. 9 Plaintiff: Present in person Defendant:1st Represented u 2'd absent. B/CSaada Banturaki adv, for first defendant. The matter comes for review of your order as the first defendant insure his vehicle under third party to jd defendant,, So as the jd defendant settled with the plaintiff therefore. automatically the suit/ the mediation succeed. Court: On 5/7/2017, I mistakenly make an order for suit ·to proceed against 1 st and Z1d defendant after the third defendant settled with the plaintiff. The court make order mistakenly as after the insurance settled with the plaintiffit automatically settled to 1 st and Z'd defendants. Therefore,. for that reason. I hereby vacate the· order of 5/7/2017 and the matter marked conclusively settled. It is so ordered. Signed. 3/08/2017. It wil_l be observed at once from the above that -the counsel for respondents moved the court. on 03/08/2017 that the matter. was for review while as a matter of facts there was no review application at all. With respect to both· 10 the trial magistrate and the learned advocate for defendants the course they took was unwarranted on their part at the detriment of the course of justice on this matter. At first, Hon. A. A Moshi, RM was mediator of this matter as the record is clear as day light. Am of the considered opinion that what Hon. Moshi, Rm, was supposed to do in the circumstances after the matter was re-assigned to her as trial magistrate was to decline the re- assignment because she had mediated the matter before parties and the advocate for defendant who had earlier asked the matter be placed before trial magistrate as an officer of the court, was supposed to remind the court of the situation on the record, but both with due respect to them led one ---another into legal mor~ss afid po-sed ·that the matter was settled against all defendants. This is not true of the record as seen above. Even if that was the case and fo_r the sake of argu~ent, there was no known review in law before the court as envisaged in the Civil Procedure Code, [Cap 33 R.E 2002] under section 78 and Order XLII if the counsel wanted to have the order reviewed, he was· duty bound to make an application according to law. Furthermore, even if Hon. A.A. Moshi, RM was not a mediator and but since she had ordered that the matter was to proceed between the 1st and 2nd respondent she was fu~ctus officio· as - mediator and orders emanating therefrom were concern. In the case of 11 . S1ELA BENEDICT V. MARTIN BENEDICT'[1993] TLR 1 it was held that as a general rule, a primary court, like all other courts, have no jurisdiction to overturn or set aside its own decisions as it becomes functus officio after making its decision. Guided by the above holding, am constrained to hold that the procedure adopted by Hon. A. A Moshi, RM, and counsel for respondents was wrong and under normal circumstances once a magistrate or a judge make an order becomes functus officio save for review where same is to be applied according law. What was done· in this matter was plainly wrong and irregular. This ground is merited and I allow it in its entirety. The seventh ground evolve around the deed of settlement which the .trial magistrate under wrong and irregular procedure ordered that same was covering all defendants. This point as observed above will not detain much this court. The deed of setttement filed on 05/07/2017 was between· the appellant and the third defendant and it was plainly stated so and th_e trial magistrate recorded so on that day. How she came again to say same was meant to cover all defendants is obvious the trial magistrate fell in error by orderinfi that the same was meant to cover all, while the other_ parties to. the suit were not privy to that agreement. 12 . Closely related to the above misdirections is the fact that while the proceedings of the court on 03/08/2017 were conducted in the presence of the appellant the appellant was not availed an opportunity to participate in the proceedings. This to my opinion was not open for trial magistrate to make such orders affecting the rights of the party who was before her without affording him an opportunity to say something. This tantamount to condemning the appellant unheard and is against the rules of natural justice that no one should be condemned unheard. In the case of ROMAN MKINI V REPUBLIC [1980] TLR 148 it was held that right to be heard is natural and even God heard Adam before conviction. On the same vein condemning the -~-appellanrwithout affording_ him an opportunity to be heard renders the whole orders emanating from such proceedings wrong and irregular. This ground is with merits and I allow it in its entirety. It is basically on the basis of the above shortcomings that I allow this appeal with costs and the reject an argument by Mr. Banturaki, learned advocate for respondents that the appeal is baseless untenable and is not supported by the record of the trial court at all. Furthermore, even his argument that the motor vehicle which caused an accident is not the. property of the second respondent is to be ·entertained during trial which . was faulted as noted above. Same is hereby rejected as well. 13 Having- so hold and by allowing this appe~I and under the powers of revision vested in me under the provision of section 44 (1) (b) of the Magis_trate Courts Act, [Cap 11 R.E 2002] I hereby quash and set aside the orders of the trial court dated 03/08/2017 and direct that this file be placed before resident magistrate in charge for reassignment to another magistrate with competent jurisdiction to try the matter. The suit should be tried expeditiously. The appellant will have the costs of this appeal. ·rt is so ordered. Dated at Mwanza this 7th day of December, 2018. ~ IGA. - JUDGE. 07 / 12/ 2_018 14