19711117 TZHC Mwanza2

• . insi*. :Ø Ii* E)* -. - \\ ç- Ih Ti- HIGH COURT OP TANZANIA AT iPddTZA (pC) CIVIL APPEAL No. 90 OP 1971 (ra.a the decision of the District Court of is.igoua at Kigona in Civil Appeal No. 4 of 1970) 1. IIAJABtJ CHOBAUGA 2ANASABIATSI ... APPANTS versus mxouI........... PPOIT -. .. . . GH.NT ]—KI11DY, T.: - The appeils, Rajabu Chobanka and his wife Hanasa ci/o 'B±tsi; wbro sued in the PrnT Court? at Mviendiga, in respect of throe bul1 worth She. 9Oq/=i by the respondent Nyaraaa Bukotaeye. The trial c't ondorci that theappollont Hanasa d/o Biatsi to restore 3 'bls or pay Shs. 900/= to the respoudei± and to 'pay costq anounting to She. 34A. Hanasa took her appo:l to thd District Court of Room where she was not successful. She appacied t this Court joining her husband with her, although I do not understand \ihy sho did so no judgeuent As extered eainst lain. The appellants were precent inperson and the respondent was orosent. I heard all the sides on the natter. The facts in this case do not appear to be indispute at all. The appellant 1-lonasa No Biatsi sued one Rajabu Haxigara in in Civil Case 4 of 1965 and she was successful. The High Court in its judgenent delivered on the 18th of October, 1967 u5held the judgenents which were in favour of Hana.:. Biatsi (see MZA PC Civ. App4 No. 59 of 1965 liajabu Hangara v. Hanasa Biati) Following this decision, the appellant Hanasa d/o Biatsiexecuted the decree when shèttced 12 heads of cattle fran various people' nong these 12 9 were 3 bulls which were taken frora the respondent. dien those bulls were seized in execution, the respondent end 2 others went to the District Court of Ihao]lu where they filed an - applibation (Mis. Civil Appeal No. 1 of 1969 or hic. Cur. Application ITo. 13 of 1971)claining the return of 'the 12 heads of' o:htlu. The three applicots were Nyarena Bukaneye, the respondent, Kaboncize TTgaza an Ndehakati Llfunya, filed affidavits and on the strength of these af:idrvits th: court awarded the 12 heads of cattle including thd' 3 bulls to the' applicants, The two apnollants were not aware of the application proceedings hart later tia Y 7. saw a Polioc Officer at their house, and this Police Officer took away 9 liende -, of cattle strictly speaking from the appellant Hanasa as the uppellant Ihijabu wasçnre husband and he had no cl5in to the heads of cattle. Later the app1ints' discovered that there was a court decision in which they. had not been heard. As the respondent did not have back his three bulls, he cormenced this suit against both the appellants. As I have said the trio]. court hold that thethrce bulls belonged to tho respondent as it had already been 03ided by Ksulu Civil Appeal No. 1 of 1969 which was decided on the 6th of Decor 1969. Now the appeal, befoie this court is against the decision in Knoulu Civil Appeal No. 1 of 1969 as well as in this case4 The above rianed one (herein after rofor2'ed to as the "Kasulu Appeal") has been attachedae being uost irregular and aIOinst natural justice. As I have already snid tiaa;t this Kasulu appeal was dotominod in the absence of the appellants, and there- fare they were not heard. The proceedings appeared to be by any of objection to attachucait in respect of H.C. L. Civ. App. No. 59/1965 and if so then thu appellants should have been heard. There is a proper procedure set for naking and deteruining such objections, and therefore tl -iip .pr.oc 9dure should have boon followed, but becouno it wes not follQwed, and was Pollow ihe appellants, in partitaar the appellant Hanasa, were depr,vod of the right of being hoard on a ratter for which phe has been in various courts since 196bt I / I fins ofcforo vicjs a serious niscarriage of ihatice, and I do accordis')-y allow the oppe'1 onsi the Kasulu appeJ-. The heeds of cttl€, if they nacL nlre, dy hee handed over to hyar:ia Butoneyc, Kabonetze Ugeza au Ndehakati Ufunyashauld be returned to the appellant lianasa and if those people wish to mice any obection, ven at such late stage, they can lodge a proper oojection inthe coUi't of conpetent jriodiction which would then hear both sides on the aeetter The second iound ws tie tii District Court crcc in tcirisg o CJ the decision of Kesulu case as the ratio decideridi for the decision in this case. Asouuing for the nanent that the decision in the Kasulu auuec-1 sound, i- was binding, in ny view, to the Prmoxy Cour -c Uwanaigo. n C. lb of 197 0 of vznich appeal is before sic now. The trial court could nou:.emcicmo, deal witl'l the issue of ov;-:iershijp of the 3 bulls as this was rcsjudic eta, but it could deal nitla the secondexy issue of poseseion, but in this case the respondens sued for ovsaership of the 3 bulls. Such being the case, nne ITrisiary Court coulc eat ad3udicatc 0 1 the issue 9 . as it die s cc the isooe d cli been..deônuind by its siperior court. Its judgaient to this enteart vJcos null and void But as I have already said the judgeoae.nt in the Kasulu case uao legally unsupportable, and tbere±'oe it did not detemine the issue of owner- ship of the 3 bull (111nd9 others), the Prinary Court was in a position to adjudicate on the natter. However, its decision was based entirely on the decision of the Kasulu appei1 and therefore its judgaaent too cannot bu u ld by this Court. The Distriet.Court saw no reason to disagree wiii: the jud1geEat of the Frienaiy Court. Por the reasons explained above, the appellate qourt--- erred in failing to revrse the trial courts decision. DER: This appeal, on both uatters, is allowed. The jud -euerrts of the • District Courts are set aside. The appellants, should have their full costs. If there is any dispute as to the esiount of caste, the District Court should ad.judic ate on the natte. • Delivered on thelith I1.ch 1972. .: Z.N. El—Kindy 11th Parch, 1972. •. JDGE Mr. H.P. Kca1i - present for. appellant Respondent - absent. In 140ij Court of Taxinia at Mwanza 41' (nc) Civil Appeal No. .91 of 1971 (From the decision of the District Court of N. tIara at Tarime in Civil Appeal No. 193 of 1970) Before: S. N. Kaji District Magistrate Waigoge Ithyita • •o • • • • • • • • • 0 ••0 • • , . . e . .Appellant Versus: Matiko Magoko. . . . . • .... .. ... . ... ... 0. 0*0.0 •Rcsperioent JUDGIIiBJNT ElKindy, J.— In this case, the appellant was sued inrespeot of one head of cattle worth 200/—. and she was ordered to pay the amount claimed or a bull. Her appeal was dismissed because she did not attend the date fixed for hearing. She appealed against the dismissal of her appeal. Her main ground was that she was not notified of the date of i1Oariilg The appellate court held, that the appellant could not be traced to be served, with the notice and therefore it proceeded to hoar her appeal in absentisa, The course taken appear to be erroneous. There is no:!record in the case file of the alleged information. In normal circstancos, a process server would swear an affidavit to that effect. In this case, there is no such affidavit. Secondly, it is provided for that when personal service cannot be effected, substituted service can be effacted. This was not done. In •the circumstances, it cannot be said that the appellant was given a fair chance of presenting her appeal to the District Court s In the result, the order for dismissal of the appeal is set aside and the case remitted back to the District Court for readmittanco and hearing according to law. The ccsts of her appeal are fis:ed at shs, 32/—. Neither party appeared as they indicated thet they did not wish to attend. Delivered on the 17th November, 197, Ale Z. l. 1—Kindy Judge jUJ4