20161201 TZHC Arusha

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [IN THE DISTRICT REGISTRY] AT ARUSHA CIVIL APPEAL NO. 28 OF 2016 (Originating from the decision of the Resident Magistrates' Court of Arusha at Arusha in Civil Case No. 147/2013) THE REGISTERED TRUSTEES OF THE AFRICA MISSION EVANGELISM CHURCH .................... APPELLANT Versus BALTAZARI KAAYA ...........................•.......................... RESPONDENT Date of last Order: 17/11/2016 Date ofJudgment: 01/12/2016 JUDGMENT MASSENGI, l The Appellant named above being aggrieved by the decision of the Resident Magistrate's Court of Arusha at Arusha in Civil Case No. 147 of 2013 dated 18th day of May, 2016 appeals before this court basing on the following grounds; 1. That the Honourable trial Magistrate erred both in law and in fact by failing to analyze and compare the exhibits tendered in court. 1 2. That the Honourable trial Magistrate erred both in fact and in law holding that the plaintiffs/appellants no longer had locus standi to sue as the registered trustees of AMEC. 3. That the Honourable trial Magistrate erred both in law and in fact by inviting extraneous matters while deciding the case. 4. That the Honourable trial Magistrate erred in fact and in law by failing to discover that it was the office of the Administrator General (RITA) which had confused the parties. Before this court the Appellant was represented by Mr. Lundu learned Advocate while the Respondent was represented by Mr. Lubyama learned Advocate. This court ordered the hearing of this appeal to be conducted by way of written submissions where by the Appellant was ordered to file submissions in chief by 14/9/2016, the Respondent to file reply submissions by 21/9/2016 and rejoinder if any to be filed by 28/9/2016. Both parties filed their submissions accordingly. Before this appeal could be determined on merits, while going through the proceedings of the trial court I observed that there was change of trial magistrate without compliance with the law. Proceedings of the trial court show that the case was previously heard by Hon. Ngoka RM to the stage of hearing Defence witness No. 2. Thereafter, Hon. Ndaweka took over and proceeded with the hearing of Defence witness No. 3, 4 and proceeded to compose a judgment without adducing the reasons for such a change of magistrate (see from page 66 - 85 of the typed proceedings of the trial court). There are a lot of authorities on that respect; that where 2 there is change of magistrate or reassignment, it is necessary to record the reasons for such change or reassignment. In the case of Priscus Kimaro vs. R, Criminal Appeal No. 301 of 2013, CAT at Arusha (unreported) it was stated that; "................ w;here it is necessary to re-assign a partly heard matter to another magistrate, the reason for the failure of the first magistrate to complete the matter must be recorded If that is not done it may lead to chaos in the administration of Justice. Anyone, for personal reasons could Just pick up any file and deal with it to the.detriment ofJustice. This must not be allowed " Also in the case of Omary Juma vs. R, Criminal Appeal No. 413 of 2015, Court of Appeal (unreported), it was held that; ''In the absence of reasons for the change of the trial Magistrate, the successor magistrate, was in our view, not vested with Jurisdiction to proceed with the trial, consequently, the proceedings before the successor magistrate without reasons being· assigned for the takeover, were a rendered a nullity. " Although the cited cases above are criminal cases, but its reasoning applies even in civil cases as stated in the case of M/S Georges Centre Limited vs. The Hon. Attorney General and another, Civil Appeal No. 29 of 2016, CAT at Arusha (unreported). The Court of Appeal in the above case, while interpreting the provision of Order XVIII rule 10 of the Civil Procedure Code, Cap. 33 R.E 2002 stated that; 3 "The general premise that can be gathered from the above provision is that once the trial of a case has begun before one judicial officer that judicial officer has to bring it to completion unless for some reason he/she is unable to do that. The provision cited above impose a successor judge or magistrate an obligation to put on record why he/she has to take up a case that is partly heard by another. "(emphasis is mine) For the foregoing reasons, since the successor magistrate proceeded with a case without adducing reasons for doing so, I therefore nullify the proceedings of the successor magistrate (Hon. Ndaweka) for lack of jurisdiction to take over the matter which was partly heard by Hon. Ngoka. As well his judgment and decree are declared a nullity. Before concluding, I would like also to comment in regard to the difference of parties contained in the memorandum of appeal with that contained in the judgment and decree of the trial court. The judgment and decree show the following parties are; ''AFRICAN MISSION EVANGELISM CHURCH........ PLAINTIFF VERSUS BAL TAZARI KAA YA & OTHERS...................... DEFENDANT" While the Memorandum of Appeal reads that; 4 "THE REGISTERED TRUSTEES OF THE AFRICAN MISSION EVANGELISM CHURCH........................ PLAINTIFF VERSUS BAL TAZARI KAA YA ...................................... DEFENDANT" But having gone through the records of the trial court specifically the Plaint, I observed that the error on title of parties was caused by trial court because the Plaint is very clear that parties are; "THE REGISTERED TRUSTEES OF THE AFRICA MISSION EVANGELISM CHURCH..................................... PLAINTIFF VERSUS BALTAZAR KAA YA ........................................ DEFENDANT" Having said so, since the said judgment and decree are already declared a nullity, I therefore advice the Magistrate who will proceed with this case to be vigilant on that respect. Besides the above, I have gone through the records of the trial court; the proceedings show that there is lot of gaps left on the typed proceedings which were handled by Ngoka (I think basing on failure of the typist to read the handwriting of the trial magistrate and failure of the trial magistrate to proofread it) something which cause confusion when reading them. As such I direct the predecessor who was handling this matter (Ngoka, RM) to proceed with it to its completion unless there is some serious and good cause why that magistrate cannot proceed. 5 . '.]. I • ' ' / fn case the predecessor magistrate ,cannot proceed with the hearing ~ and determination of this suit, then the successor magistrate must put in record the reasons for him/her taking over the hearing of the suit. Basing on the above, I therefore remit the matter to the Resident Magistrate's Court of Arusha at Arusha for continuation of the trial in accordance to the law and considering the above direction. Order accordingly. F.H. JUDGE 01/12/20i6 Judgment delivered in Court this 1st day of December, 2016 in the presence of appellants and Mr. Mjemmas holding brief for Mr. Lundu. F.H. MASSENGI JUDGE ' 01/12/2016 - 6 u ,·