Amanzi Mohamedi vs

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA MOROGORO DISTRICT REGISTRY AT MOROGORO PC CIVIL APPEAL NO.4302 OF 2024 (Appeal from the decision of the District Court of Morogoro at Morogoro in Civil Appeal No 14 of 2023 of Morogoro District Court, Original Civil Case No 40 of 2023 of Kihonda Primary Court) BETWEEN AMANZI MOHAMED APPELLANT VERSUS OSCAR KEFA MAZENGO RESPONDENT JUDGMENT MRUMA,J This is the second appeal. It arises from the decision of the District Court of Morogoro at Morogoro sitting as the first appellate court in Civil Appeal No 14 of 2023 which originated from Civil Case No 40 of 2023 of Kihonda Primary Court wherein the Appellant Amanzi Mohammed had successfully sued the present Respondent Oscar Kefa Mazengo for payment of shillings 7,820,000/= being unpaid amount for maize flour supplied to him under an agreemGnt entsred betwGen the parties. Under the said agreement the Appellant was supplying maize flour to the Respondent on credit and upon selling to customers would remit the agreed percentage of sale price to the Appellant. It was the evidence of the Appellant at the trial that on 21^ January 2023 he supplied 440 bags of maize flour weighing 25 kilograms each to the Respondent but the later failed to remit the amount payable to him under the arrangement. In addition to that amount claim the Appellant told the trial court that there was an outstanding amount from previous transactions which was payable at the time of Instituting the suit. In his defence the Respondent denied the Appellant's claims and put him to strict proof of the same. To prove his case together with himself, the Appellant called one witness Juma Wazir Ramadhan who testified as PW2. The Defendant testified for himself and didn't call any witness to support his defence. After hearing evidence from both sides, the trial court In a poorly composed judgment which was In a narrated speech form, entered judgment for the present Appellant Amanzl Mohammed. The Respondent herein was dissatisfied and successfully appealed to the District Court In Civil Appeal No 14 of 2023. In its judgment the District Appellate court found that the trial court did err in law in relying on documents which were not properly tendered and admitted in evidence and also that the trial court lacked jurisdiction to deal with electronic evidence as it did. The Appellant was aggrieved and hence this appeal which is based on three grounds namely:- 1. That the appellate court erred in law and fact in failing to re evaluate and consider the evidence adduced during trial as a result of which accessioned to unjust decision. 2. That the appellate court erred in law nad fact in failing to consider other evidences for reasons that some of the evidence was electronic evidence. 3. That the appellate court decision is ambiguous as it decree varied from its judgment. 4. That the appellate court misdirected itself for allowing the appeal without giving directions as to the decision of the trial court. At the hearing of this appeal, parties were represented. The Appellant was represented by Mr Gabriel Kitungutu while the Respondent was represented by Mr Derick Vincent both learned advocates. The Appeal was argued by way of written submissions. Arguing in support of the first ground of appeal, Mr. Kitungutu submitted that it is the principle of law that the first appellate court is bound to re evaluate the evidence of the trial court, he referred the court to the case of Registered Trustees of Holy Spirit Sisters Tanzania vs. January Kamali Shayo, Civil Appeal No 193 of 2016, and stated that the first appellate court did not adhere to the stated principle and caused injustice to the Appellant. On the second ground the learned counsel submitted that in the appellate court judgment at page 5 the court was of the view that the primary court has no jurisdiction to try any case which the nature of its evidence is electronic, the Appellant's complaint is that the first appellate court didn't bother to see that the trial court had no jurisdiction to deal with electronic evidence. Responding to the submissions of the counsel for the Appellant, Mr Derick Vincent for the Respondent submitted that power of tany court to do or not to do any act is vested by the law and not by wishes of the parties. The learned counsel contended that pursuant to the provisions of Section 64A (3) of the Evidence Act, primary courts are barred from dealing with cases which involve electronic evidence. He emphasized that the big chunk of evidence that was adduced during the trial was electronic evidence and the trial court dealt with it without having jurisdiction to do so. The learned counsel contended that following the finding of the District appellate court that the trial court dealt with the matter without having jurisdiction the remedy available to the Appellant was not to lodge an appeal but to file a fresh case in a court vested with jurisdiction to deal with it. I have carefully gone through the records of both courts bellow, the grounds of appeal and the submissions of the learned counsel for and against the appeal, and I find that this appeal has substance and should be allowed. As intimated in the course of this judgment the findings and decision of the trial court were based on electronic documents purportedly relating to the transactions and deposits in connection with the business that was done between the parties based on their agreement. Although copies of the said documents are on the records but the proceedings do not show how they found their way into and formed part of the court's proceedings and records. The documents were neither attached and properly identified to the Appellant's complaint (plaintO lodged in court at the time of filing the suit nor were they tendered and admitted in evidence during the trial. Although there is no specific provision of the law that governs tendering and admission of exhibits but the Exhibit Management Guidelines issued by the Chief Justice in 2020 shades some lights of what should be done. The guidelines aims at offering concise transparent and easy to follow principles and processes in tendering and admitting exhibits in court. Exhibits may be tendered in court during preliminary hearing/or trial by a maker thereof, the custodian of the documents, addressee of the exhibit, the actual owner and/or any person with the knowledge of the exhibit. Upon admission of the exhibit it must be marked and endorsed for identification purposes. In terms of Rule4 of Order XIII of the Civil Procedure Code [Cap 33 R.E. 2019], only exhibits which have been tendered, admitted, marked and endorsed form part of the record of the court. In the case at hand exhibits which were relied by the trial court were not tendered, admitted, marked and endorsed therefore they do not form part of the records of the trial court. A document which does not form part of the records of the court cannot be considered in composing judgment of the case concerned. It was therefore wrong for the trial court to take into consideration documents which did not form part of the records of the case. This makes its judgment to be a nullity. The question is what should be the remedy in such a circumstance? In my view taking into consideration the fact that at the trial parties were not represented, this is fit case to apply the overriding objective principles embodied under section 3A and 3B of the Civil Procedure Code [Cap 33 R.E. 2019], and make an order for retrial of the case in a proper forum and different magistrate. Accordingly I dismiss the appeal, however I make an order quashing all the proceedings, findings, decisions and orders of the trial court and that of the District appellate court and in my considered view I think in the interest of justice the Appellant should be at liberty to reinstitute his claims by way of a fresh suit in an appropriate forum. I make no orders as to the costs. 0^ "IP ' a.r: mruma c :2r JUDGE UJ X 23. 12. 2024.