shabani ally ambangula vs saidi hamisi 2007 tzhc 43 20 may 2007

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM PC. CIVIL APPEAL NO. 148 OF 2005. SHABANI ALLY AMBANGULA................. APPLICANT VERSUS SAIDI HAMISI............................ RESPONDENT Date of last Order 20/3/2007 Date of Judgment 20/3/2007 JUDGEMENT MLAY, J. The appellant sued the respondent in the Prim ary Court for the sum of Shs. 1,776,260/=, being the proceeds of business carried on by the respondent on the appellants behalf. The Primary Court gave judgment to the appellant for the sum of shs. 1,318,490/=. Being aggrieved he respondent appealed to the District Court on three grounds, namely: 1. That the trial Magistrate erred in law and in fact in deciding the matter in the favour of the respondent without considering the evidence adduced by the appellant. 2. That the trial Magistrate court erred in law and infact by reaching the decision without considering that the respondent was supposed to check the balance every month with is proper procedure done by any business person. The appellant sought legal aid assistance to argue the appeal and obtained the services of the Legal Aid Unit Magomeni, of the Legal and Human Rights Centre, who wrote to the District appellate court seeking leave to file written submissions on the appeal. Both parties duly filed written submissions and the District Court (F. A Kaniki SDM) delivered the following judgment: ‘JUDGMENT The respondent Ally Ambangulu claimed T. Shs. 1,110,260/= fo r causing loss to the shop of Shaban Ally Ambangulu then her loss shop attendant respondent. In 1/7/2003 the appellant state to run the shop with the above complaint on 1/1/2004 the Respondent 2 The appellant o f 800,000/= by giving him commodities o f that value. I have gone through the trial court and discovered that the evidence adduced by the respondent during the trial is not in conformity with the plaint To my view I order the case to be heard de-nove before another magistrate and another panel o f court assessors. I to so ordered” Being aggrieved by the judgment of the District appellate court, the appellant as appealed to this court on the following grounds: “1. That the Honourable Magistrate misdirected himself in his failure to consider and/ on comment on the merits o f the written submissions by the parties. 2. That the Honourable Magistrate erred in holding that the evidence adduced by the appellant (who was the respondent in the District Causes Appeal) was not in conformity with the plaint. 3. That the Honourable Magistrate erred in invoking revisional power sua moto instead o f dealing with the appeal on merits. 4. That the Honourable Magistrate erred in quashing the proceedings o f the trial court by ordering the matter be 3 heard denovo before another Magistrate and court assessors At the hearing of this appeal the Appellant and the respondent appeared in person without assistance of counsel. The appellant submitted that witnesses adduced evidence in the Primaiy Court which determined the case justly. He stated that the respondent was dissatisfied and appealed to the District court to which they filed written submissions and he was surprised by the decision that the case should be heard afresh. He contended that he does not know the reasons as the evidence was complete and assessors were present. The respondent replied that the District Court decided the case to start afresh and he agrees with the decision because there was insufficient evidence to prove the respondents case that the respondent was liable. In the first and fourth grounds of the appeal, the appellant a criticized the judgment of the District Court on that the Magistrate failed to consider the appeal on it merits. Judgment relating to appeals originating from the Primaiy Court are governed by the provisions of Rule 16 of the Civil Procedure (Appeals in Proceedings originating from the Prim ary Courts) Rules GN 312 of 1964, which state: 4 “16. The Judgment of the appellant court shall be in writing, and shall state. a) The points for determination. b) The decision thereon c) The reasons for the decision, and d) Where the decision appealed from is reversed or varied, the relief to which the parties may be entitledn. The judgment of the District Court as set out above in this judgment, does not “set out the points for determination”, “The decision thereon” and “the reasons fo r the decision” infact, the issue of the evidence not being “in conformity with the plaint”, which was the sole reason for ordering that the case to be heard de - novo, was not one of the grounds of appeal. It is no wonder that the appellant thought in ground No. 3, that the appellate District Magistrate had exercised revisional powers in making such an order. The appellant had set out two grounds of appeal which the District Magistrate did not consider at all and both parties had filed written submissions which also were completely ignored. In the circumstances, there was no judgment written on the appeal within the meaning of Rule 16 of GN 312/1964. 5 As there was no judgment on the appeal, the appeal is allowed and the proceedings in the District court quashed and they are accordingly set aside. It is ordered that the appeal be heard and determined according to law before another district Magistrate. Each parly to bear own costs in this appeal. Delivered in the presence of the appellant and the Respondent this 20th day of March, 2007. JUDGE. 20/05/2007. Words: 864 6