20061207 TZHC Arusha

1 'I IN THE HIGH COURT FF TANZANIA I AT ARUSIHA I . I I (PC) CIVIL APPEAL N©. 25 OF 2002 .: (c/f Arusha District Court Civil Retsion No. 1on1001 Original , I I • Civil C. No. 32B/96 of Usa River Primary ctourt) . I SANGITO TEREVAEL KYUNGAY ...................... .- ......... APPELLANT ·. VERsub I .i NOEL LERAI KITOMARY ... ..................................... ;RESPONDENT. I I JUDGMENT BEFORE:- R. SHEIKH, · This is an appeal against the decision /of the Arusha . . I District Court in the exercise of its revisional/ jurisdiction in Civil Revision No. 10 of 2001 qulshing the proi:eedings of Usa I River Primary Court in Original G:ivil Case No. ~2(8)/1996, and I I particular commencing from 12/3/2001. / The revision I aforesaid was· evidently prompted by a lettJr of complaint dated 18/9/2001 filed in c:ourt bv Noel Lerai Kltomary who the original the defendant in Usa RiJer Primary Cou;rt Civil Case No. I i , I I I I i I ! 2 328/1996 and who is the respondent in the instant appeal. The appellant herein SANGITO TEREVAEL KYUNGAY was aggrieved with the revision aforesaid and the deci,sion of the Arusha District Court, hence this appeal. The petition of Appeal raises five grounds to wit:- 1. "Failure of (RM) F.J. Mushi to trace the suit in an extent to declare to be so confused. 2. (RM) F.J. Mushi proves to be fatally confused as she claimed in her Ruling such that there is no doubt that her Ruling is of no merit. 3. (RM)(F.J. Mushi) deliberately under her own interest nullifies the proceedings contrary to the Revision procedure. 4. The decision of the Court is Unfair and unjustifiable under the Rule of Law. 5. F.J. Mushi had no jurisdiction to nullify the proceedings." The appeal was proceeded with by written submissions and both parties were unrepresented. 3 ... The brief background to this appeal is that in Usa River Primary Court Civil Case No. 328/J 996 the appellant herein sued the respondent in a claim for T. Shs. 4,477,040/= being compensation and Costs incurred by the appellant in west - Meru Primary Court Criminal Case No. 5/1995. This suit was transferred to the Arusha District c;ourt at the instance of the defendant (the respondent herein) who decided to engage an advocate, namely Mr. Kinabo, Makange learned Advocate to represent him in the matter. Thereupon pleadings were duly filed in the Arusha District Court and the case proceeded as Civil case No. 26 of 1998 before Shahidi RM. The record of the Arusha District Court in Civil case No. 26/1998 reveals that after several adjournments when the case came up for hearing on 22/4/99 before Shahidi RM the plaintiff/appellant had the following to say:- 4 "Plaintiff:- There is another case I filed at Usa River Primary , I ; I Court. The case was of the same nature to this one. I was I I I in that case defendant started to pay me." I I I In response Mr. Kinabo who was representing th~ defendant ! made the following prayer. I I I Mr. Kinabo:- "This case is res judicata. Let it b~ dismissed." ' The following order was made:- I , I "Order:- 1. This case is res judicata, we can't proceed with 1 I it. I I 2. Let the plaintiff go to Usa River Primary Court for further I action. I I 3. The case is dismissed as res judicata. I I Sgd:- H. Shahidi, RM I I 22/4/1999." Following this order the plaintiff appeared before Usa I River Primary Court on 9/8/200 0. Apparentlyithe matter was 1 5 • placed before the Court following the plaintiff's letter dated 21/06/2000 titled "KU KAZA HUKUMU LA SHAURI LA MADA! NA. 32/96 LA MAHAKAMA YA MWANZO USA RIVER." This letter was addressed to the Magistrate Usa River Primary Court and by this letter the appellant herein was seeking the execution of the decree in civil case No. 32/96 of Usa River Primary Court. The letter referred to Proceedings/decision in R.M. Civil Case No. 26/98 inter alia. On 17/08/2000 the Primary Court ordered the plaintiff to show how the claim of Tshs. 4,000,000/= had been arrived at. Eventually on 12/03/200 l the plaintiff having apparently failed to satisfy the court regarding his application for execution of the decree the Court gave a ruling dismissing the application on the ground that Civil Case No. 328/96 was never finally determined. The Primary Court made a finding that there was no decree to execute and that the execution proceedings were not lawfully made. It was accordingly ordered that the matter proceed to hearing after the court explained to the appellant his rights to appeal. 6 Thereupon the appellant apparently wrote to the District Court seeking a revisional order. The District Court advised him to await the final determination of the suit and thereafter to appeal if he was to be aggrieved. Subsequent to this the appellant apparently filed a Bill of Costs No 32/96. On 25/9/2001 the Primary Court made an order for remitting the record to the District Court following a call for it made by the said Court. As stated before herein the revisional proceeding Arusha District Court Civil Revision No. 10/2001 was prompted by a letter of complaint dated 18/9/2001 by Noel Lerai Kitomary, the respondent herein in which he states Usa River Primary Court Civil Case No. 32B/96 in which the Appellant herein was the plaintiff and he was the defendant was transferred to the Arusha RM's Court upon his application as he had engaged an advocate, that the plaintiff failed to bring witnesses and the suit was dismissed. The respondent herein in the aforesaid letter complained that the appell'ant had after dismissal of his 7 case by the Arusha RM's Court had filed the same claims based on the same cause of action in the Usa Primary Court. Following receipt of this letter of complaint Arusha District Court Civil Revision No. of 10/2001 was opened and on 22/10/2001 F.J. Mushi Resident Magistrate wrote a Ruling in which she revised and quashed all the proceedings and orders in Usa River Primary Court Civil Case No. 32B/96, in particular the proceedings from 12/3/2001 onwards. The learned Resident Magistrate also made certain findings to the effect that the appellant had deliberately abused the due process of the court, that he had lied before Shahidi RM that Civil Case No. 26/98 was Res Judicata, secondly by saying that the defendant had started paying him, that he had deliberately misled the Primary Court into admitting his claim of shs. 4,000,000/= punportedly in excution of a decree obtained in Civil Case No. 328/96 while knowing fully well that the case had never been fully determined. The learned Resident Magistrate was of the view that the steps taken by the appellant amounted to criminal action. The District Court 8 accordingly made the following order. " The proceedings in the Primary Court, in particular from .12/3/200 .1 on wards are declared a nullity." The appellant herein was aggrieved with the revision aforesaid and the decision of the Arusha District Court, hence this appeal. The appellant's arguments in support of the grounds of appeal were as following:- a). that the District Court had erred in revising and nullifying the proceedings in Usa River Primary Court Civil Case No. 32/96 which had not been finally determined. b). that the learned Resident Magistrate was biased and had acted contrary to the rules of natural justice by condemning him unheard, that he was denied the right to be heard. c). As Civil Case No. 32B/96 had not been finally determined the learned Resident Magistrate had no jurisdiction to nullify the proceeding. . 9 The appellant also contended that the case in Usa River I Primary Court which was originally numbered 32/96 was later I changed to 32B/96. The appeal was strongly resisted by the respondent who I has maintained that the revision/decision cannot be faulted i and that the grounds of appeal are baseless. I have carefully considered the respective submissions and thoroughly perused the relevant records. Apparently the appellant had original!~ sued the respondent vide Usa River Primary Court Civil Case No. 32/96 which was filed on 20/11 /96. At some point (it is not clear I when) the suit number was conve.rted to No. 328/96 as ' I indicated on the relevant records by insetting ,the letter "B" after "32". It is evident also that before the suit came to a hearing, it was the respondent who had on 20/10/97 sought an order for the transfer of the case to the District Court so as to engage an advocate. On 20/10/1997 the orqer transferring • 10 the case to the Arusha District Court was granted. By letter dated 28/01/1998 the Arusha District forwarded the file in respect (Usa River) of Civil Case No. 328/96 to the Principal Resident Magistrate, Arusha. By a letter dated 16/02/1998 from the RM's court the appellant was directed to file in the RM's court a plaint drawn in the English language fo_llowing the transfer of his case to the said court. It is on record that the appellant on 22/06/98 filed a plaint in the court of the RM of Arusha which suit was entitled Civil Case No. 26 of 1998 and a written statement of Defence was duly filed by the respondent on 20/07/1998. As stated hereinabove earlier' the record discloses that this suit i.e. RM Civil Case No. 26 of 1998 was dismissed on grounds that it was res judicata, by Shaidi RM. This led to the filing of the alleged application for· execution in Civil Case No. 328/98 and the alleged irregularities complained about by the respondent in his letter dated 18/09/2001 . It is evident that in revising the proceedings of the Primary Court in Usa River Civil Case No. 328/96 the District Court had relied solely on the allegations in the letter of 11 " complaint in question and the proceedings on record; the parties were not called to a hearing. Now it is a fact that under Section 22(1) of the MCA 1984 a District Court may exercise revisional jurisdiction over a Primary Court within its jurisdiction and may call for and examine the record of any proceedings. And under section 22(3) of the Magistrates' Courts' Act a District Court may revise the proceedings of a lower court by quashing the proceedings thereof without giving the party affected an opportunity to be heard; however no order may be made by a District court in the exercise of its reversional jurisdiction increasing any sum awarded or altering the rights of any party to his detriment other than quashing the proceedings of a lower court or reducing an award, in excess of the jurisdiction of the lower court unless such party shall first have been given an opportunity of being heard. I am satisfied that the District court had jurisdiction under section 22(1) and (3) of the MCA to revise and quash the proceedings of the lower court without giving the party affected/appellant an opportunity to be heard. I I 12 " The question is whether the revision was properly made. I Without much ado I will say that the findings made by the District Court to the effect that the appellant had deliberately ' lied and misled the court to the point of being a criminal are rather serious and exaggerated considering ,' what is I indisputably on record. In my view some of the steps taken by the appellant commencing from 22.4.99 may have been ' misconceived and indeed even improper. However on the evidence I would hesitate to call them criminal or deliberate i deceit. In the suit though indeed on 22/4/1998 it was the appellant who in RM. Civil Case No. 26/98 tola the court( ' Shahidi RM) that he had a case of the same nature,' in Usa River 1 Primary Court and the defendant/respondent ha d started to pay him, it was not he who sought the dismissal of the suit, it. Civil Case No. 26/98. The record shows that it was Mr. Kinabo learned counsel who was then representing the d_efendant who hastened to pray for dismissal of the suit as being resjudicata. Thereupon the Court dismissed the case RES JUDICATA AND ordered the plaintiff " to go to Usa River Primary Court for further action." 13 In my view with respect, the dismissal was e,rroneously made as the plaintiff did not say that the case in the Usa River Ptimary Court had been finalized. He said "There is another case I filed in Usa River Primary Court. There case was of the Same nature to this one. I was in that case one. I was that case and defendant started to pay." In the absence of more evidence to prove that the matter was determined e.g. a copy of the judgment, the RM'S Court ought not to have dismissed the case; the most it should have done was to grant a stay of the suit on the ground that the matter was res judice/pending in another court. However in the instant case the case filed the appellant ·in Usa River Primary Court Civil Case No. 328/96 having been transferred to the Arusha RM's Court there was no suit pending/res judicata on the said Primary Court. The appellant cannot be blamed for the dismissal as it was the defendant's counsel who sought the dismissal of the case as res judicata. Now without • 14 hesitation I will also say with respect that it was improper for the deferndant's counsel to claim that the matter. was res judicata knowing fully well that the suit filed by the appellant in Usa River Primary Court Civil Case No. 32B/98 had been transferred to the Arusha RM'S Court and was Civil Case No. 26/98 in which he was appearing for the defendant. Even the RM'S Court cannot be spared as it was the one that directed the appellant vide its letter dated 16/2/1998 to file pleadings as his case was transferred to the RM'S Court. By reason of the above I hold that the decision of the RM'S Court dismissing Civil Case No. 26/98 as res judicata is totally erroneous as it is evident that Civil Case No. 328/96 had not been determined and that it was transferred by the respondent himself to the RM'S Court where it was freshly filed on the direction of the RM'S Court as Civil Case No. 26/98. The proceedings in the Usa River Primary Court thereafter i.e. commencing after 22.4.99 are totally erroneous and improper. For reasons different from the reasons given by the District Court in its ruling dated 22/10/2001 I hereby accordingly quash the decision of the Usa River Primary Court subsequent to the • 15 . order transferring the case to the District Court made on 20/06/97; in particular the proceedings in Usa River Primary Court commencing from 12/3/2001. In the exercise of the court's revisional jurisdiction under section 44 of the Magistrates' Courts Act 1984 I also quash hereby r:-evise and quash the decision of the RM'S Court in Civil Case No. 26/98 dismissing the suit as res judicata and ordering the appellant to go to Usa River Primary Court for further action. The appeal is allowed to the extent stated herein. For the avoidance of doubts I hold that:- (a) The District Court had jurisdiction to examine the proceedings of Usa River Primary Court to satisfy itself as to its legality, without hearing the appellant but on the evidence the revision was made on the basis of erroneous grounds. (b) The decision of the Arusha RM'S Court in Civil Case No. 26/98 dismissing .the case as res judicata is hereby quashed. 16 • (c) Accordingly the proceedings of the Usa River Primary Court as from 22/04/1999 and the orders arising there from are hereby quashed. (d) The proceedings and decision of the Arusha District Court in Civil Revision No. 10/2001 ar,e hereby quashed. (e) Arusha RM'S Court Civil Case No. 26/98 is hereby restored. In the event I direct that Arusha RM'S Court Civil Case No. 26/98 be heard and c;letermined de novo after giving due notice to the. respective parties. In the result the appeal is allowed to the extent stated. I make no order as to costs. R. SHEIKH, JUDGE 14/11/2006. - ,/ . " 17 I Judgment delivered this 7'h day of Oecemb~r g006 in the presence of the respondent anJ . in the abse~J I i of the ! I ! appe\\ant and Vero 8/C. I I I I i i R. SHEIKH, I I I I I I I 7/12/2006. i I Mk. l II I I I I I I I ! f II I I i i • I I I I I I I I l I ' I I I II - I I I Ii I I I I I ( I I ! I I I l I I i I I I I I I I ! I I l I f I I i l I l I l I ,1:•tt·