IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA
IN THE DISTRICT REGISRTY OF SHINYANGA
AT SHINYANGA
PC. CIVIL APPEAL NO.55 OF 2022
(Originating from the decision in Civil Appeal No. 19 of 2022, before
Shinyanga District Court, the same originating from Civil Case No. 137 of
2021 before Kizumbi Primary Court)
ANNA KUDILILWA MALI APPELLANT
VERSUS
MARIA KAHOLWE RESPONDENT
JUDGMENT
2nd June &11 th August 2023
MASSAM, J.:
The appellant sued the Respondent before Kizumbi Primary Court
claiming Tsh. 4,500,000/= which the respondent borrowed it from the
appellant for business purposes. After a full determination, the trial Court
granted the claim and ordered the respondent to pay Tsh. 4,200,000/=.
The respondent was aggrieved with the trial Court judgment, she then
appealed to Shinyanga District Court where the matter was heard inter
parties and the District Court allowed the appeal and ordered retrial of the
matter.
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Being dissatisfied with 1st appellate court decision, the appellant
preferred this second appeal blessed with three grounds of appeal;
L That the 1st appellant court erred in law and fact in holding that,
failure by trial court to comply with rule 46(3) of the Magistrate's
Court (Civil procedure in primary court) Rules, GN No. 310 of
1964 in respect of evidence adduced by PW~ and that of
appellant occasioned failure of justice.
2. That, the I" appellate Court erred in law for ordering retrial of
Civil caseNo. 137of 2021 before KizumbiPrimary Court de novo.
3. That, the 1st appellate Court erred in law and fact for failure to
determine CivilAppeal No. 19 of 2022 on merit
At the hearing, the appellant enjoyed the legal service of Mr. Audax
Constantine learned advocate while the respondent had service of Mr.
Phares Malengo learned advocate.
Mr. Audax urged his grounds of appeal jointly. He started by referring
this Court at Pg. 8 and 9 of the trial record where by the 1st appellate court
ruled that, "the act of Primary Court not to comply with Rule 46(3) of the
Magistrate Court Act, creates failure of justice because the amount of
money was canceled from 1,000,000/= to 1,500,000/= and 1,500,000/=
was canceled and put 1,000,000/=. "
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st
According to this, all proceedings were nullified by 1 appellant Court
something which was not right because, not every irregularities of
Primary Court occasioned failure of justice as it is supported by Section
37(2) of The Magistrate's Court (Civil procedure in Primary Court )
Rules, GN No. 310 of 1964, which stated that, ''proceedingsin Primary
Court under District Court shall be revised or altered on appeal or revision
on any error, omission, or irregular any process or charge in the
proceedings before or during hearing or in such decision or order or in
account of improper admission or rejection of any evidence, unless such
error omission or irregularity or improper admission or rejection of
evidencewas in fact occasionedfailure of justice"
In the trial Court proceedings, nowhere the Respondent claimed that
there was something wrong to be corrected, either by arguments, words
nor evidence showing non compliance with Section 46 (3) of MCA affected
the respondent.
He then said that the canceling of the figures could affect the
appellant as per the case of Titus Mwita Matinde Vs. Danif J, Singulile
(unreported }PCCivii Appeal No.3 of 2021,where by rule 46(3) was
discussed, and pointed out that, the substance of such evidence shall be
recorded in Kiswahili by a Magistrate and shall read over his evidence to
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him and shall record any amendments or corrections, and the Magistrate
shall certified at the foot of such evidence that he has complied with the
required law.
Argued that, because the issue did not go to the root of the matter
the 1st appellant Court was supposed to deal with the appeal on merit
hence was not right to order retrial.
In reply, Mr Malengo agreed partly on the submission of the
appellant counsel, that, not all irregularities make the nullification of
proceedings, as it was pointed out by Mkwizu J, in her decision that, in
order for the court to nullify rule 46(3) of MCA, that failure must cause
injustice. He differed with this position because the respondent did not
complain about that.
His complaint based on ground number 3 of appeal, where the 1st
appellate Court find out that, it was improper for the trial Magistrate not
comply with the law which is Rule 46(3) of MCA and Section 210 (3) of
CPA. Court of appeal pointed out that, failure to comply with those
Sections is fatal if that omission causes miscarriage of justice.
This was well elaborated in the case of DPP Vs. Hans Ainganya
Macha, CA No. 499 of 2016, where it was held that, this requirement is
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intended to insure that every testimony is properly recorded and that it
guarantees against distortion, prevention and suppression of evidence.
Further submitted that, as per evidence of PW1, PW2, PW3, PW4 and
PW5, differed in mentioning amount of money in different occasion. PW1
evidence shows that, the amount mentioned was 2,000,000/= but was
canceled and trial Magistrate put 1,000,0000/= without giving any
explanation the same cause failure of justice. Again, PW5 said that he
received Tsh. 4,500,000/= but zero was canceled hence the court failed to
understand which was the right figure if it is 4,500,000/= or 450,000/= all
this are against the provision of Section 210(3) of the Criminal Procedure
Act.
It was very important for the trial magistrate to reads the evidence
and satisfy and amend at foot of every testimony as required by law, and
failure to do so, occasional miscarriage of justice, see the case of Bryon
Mbadime V, Helen Daud Silwamba, PC, Matrimonial Appeal No.2
of 2022, sited Rule 46(3) that in order to succeed justice must be proved.
Therefore the 1st Appellant court find that irregularities was fatal hence
nullify all trial court proceedings and order retrial.
He again claimed that, the matter was filed out of time because, as
per evidence of Appellant they had a business of timber and she started to
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claim her money, on August 2021, the conflict stated on 15 December
2021, is almost 107 days which is equivalent to 15 weeks. As per item II
of MCA (Limitation of Proceedings under Customary Law) Rules GN, 311 of
1964, the Law of Limitation Act in Primary court provide time limit of three
weeks to recover money which landed, hence this matter was filled out of
time and the judgment, proceedings and orders emanated from
proceedings was nullity which can also affect the proceedings and
Judgment from 1st appellant Court.
Regarding to the second ground of appeal, he complained about
failure of the court to order costs as per Section 30 (1) of Civil Procedure
Code, CAP 33 R;E 2019, which gives court discretion to grant costs, he also
sited Section 30(2) (supra) which provides that, "where the court fail to
award costs, must give reasons. This position was directed by Court of
Appeal in the case of Njoro Furniture Mart Ltd Vs. Tanesco, TLR
1995 at Pg. 2005.
Therefore, District court did not exercise its discretion judicially by
providing no reasons to deny her costs. He then prays this court to dismiss
the appeal and allow the counter appeal.
In rejoinder, Mr. Audax stated that, the complain about non
compliance with Section 46(3) of MCA was properly complied with as the
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respondent did not complain about the evidence testified by appellant's
witnesses, hence they don't see any contradiction.
Regarding the issue of counter appeal, he submitted that, the matter
was brought on 2/03/2023 while the decision from District Court was dated
on 12/07/2022, and according to Section 20(3) of the MCA, that Section
was not complied with as the limitation date was supposed to be brought
within 30 days hence this appeal is time barred.
Concerning ground No. 1 of counter claim, which complain that, the
claim at Primary court was filled out of time, as per item II of MCA
(Limitation of Proceedings under Customary law) rules GN 311 of 1964, he
said that, as per the evidence adduced by the appellant, her claim was not
of lend of money to respondent but it was claim of business of timber, and
this was Governed by item V of GN 311 1964 which was of breach of
contract and not of lend of money.
About the issue of costs, he submitted that, in the Judgment, there
are some grounds which was ordered in favour of appellant, therefore the
court could not order costs to the respondent but rather each party to bare
its own costs as the appeal was not allowed in its entirely against the
appellant, also the appeal was on ground that, there was fault in trial court
hence nullification of judgment and proceeding. This ground has no merit.
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Having heared both sides, I have now to determine the appeal and
the issue for considerate is whether this appeal has been brought
with sufficient cause.
st
To start with the 1st ground of appeal as to Whether the 1 appellant
court erred in law and fact to order that, rule 46(3) was not complied with,
Section 46 (3) of the Magistrate Court Civil Procedure in Primary Court rule
GN 310 of 1963 provides that,
"The substance of such evidence shall be recorded in
Kiswahili by the magistrate, and after each witness has given
evidence, the magistrate shall read over his evidence to him
and shall record any amendments or corrections. The
magistrate shall certify at the foot of such evidence, that he
has complied with this requirement. "
As per the proviso herein above, the Primary Court Magistrate, after
had received the evidence, was bound to read and explain it and certify at
the foot of the evidence, that the said law was properly complied with.
After going through the Trial Court proceedings, I find out that, this
Section was not complied with, as per the evidence of PW2, PW3, and PW4
and that of the respondent, Nowhere in their evidence shows that, the trial
magistrate signed the evidence adduced by witnesses. The trial magistrate
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only complied with the evidence of the appellant. With this finding there is
no dispute that, trial Court Magistrate violated the mandatory procedural
rule.
That being the case, this court come up with another issue as to
whether violation of the said Section has effect. Court of appeal in regard
to issues like this, provide some numerous of cases, discussing the
consequences of non-compliance with an identical provision under the
Criminal Procedure Act, Cap 20, which is Section 210. In the case of
Mussa s/o Abdallah Mwiba & Two others V. Republic, Criminal
Appeal No. 200 of 2016 (CAT)unreported, was held that,
''Non compliance with Section 210(3) of CPA was tetet".
Also in the case of Flano Alphonce Masalu @ Singu Vs. R.
Criminal Appeal No. 366 of 2019 (tanzili) the Court of Appeal held
that, if Magistrate fails to read the evidence to the witness as required by
Section 210(3) tnet; omission may be fatal or otherwise depending on
whether the omission occasioned discourage justice or not
The above requirements was intended to insure that, every testimony
is properly recorded by Trial magistrate, failure to do that, it guarantees
against distortion, perversion and suppression of evidence. See the case
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of DPP Vs. Hans Aingaya Macha, Criminal Appeal No. 449 of 2016
(unreported) .
Therefore, I entirely agree with advocate of respondent that, Primary
court magistrate did not record the evidence of the witnesses correctly as
he kept on canceling the amount stated by the witnesses without any
explanation on it, hence it is doubtful whether the substituted amount was
the one which stated by the witnesses or not.
Trial court records shows that as per evidence of PW1, PW2, PW3,
PW4 and PW5,it mention different amount of money which the magistrate
later on cancel the same. For instance, Pw1 evidence shows that, the
amount mentioned was 2,000,000/= but was canceled and the trial
Magistrate by put 1,000,000/= without giving any explanation on it. Again,
PW5 said he received Tsh. 4,500,000/= but zero was canceled hence this
court fails to understand if the right figure was Tsh 4,500,000/= or
450,000/=.
All these create failure of justice. See the case of Bryson
Mbadime VS, Hellen Daud Silwambe, Matrimonial Appeal No, 02 of
2022.
Having so observed I find no reasons to differ with the findings and
decision of the 1st appellate court. And therefore, I finds no merit in his
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appeal, and hereby dismiss the same and order the original file be
remitted to the trial Court and the matter be tried afresh before different
magistrate.
It so ordered.
R.B.Massam
JUDGE
11/08/2023
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