AMSON INDUSTRIES CO LIMITED V

THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM P.C. CIVIL APPEAL NO. 25879 OF 2023 (Arising from the Judgement delivered on 09/2/2023 by Hon. J.A. Kaluyenda, PRM in Civil Appeal No. 50 of 2022 in the District Court of Kinondoni at Kinondoni) AMSON INDUSTRIES (T) LTD ..................................................... APPELLANT VERSUS MANDELA 03 LIMITED ............................................................ RESPONDENT JUDGMENT Date of Last Order: 04/03/2025 Date of Judgment: 14/03/2025 B. E. K. Mganga, J . On 30th November 2021, Mandela 03 Limited, the abovenamed respondent, filed Civil case No. 248 of 2021 before the Primary Court of Kinondoni District at Kawe alleging that she paid TZS 23,500,000/= to the appellant so that the latter can supply cement but that was not done. Based on the foregoing, respondent filed the said Civil case praying the court to order the appellant to supply him 1800 bags of cement valued at TZS 23,500,000/=. On 28th June 2022, Hon. Tamambele, RM, having heard evidence of the parties delivered the judgment in favour of the respondent and directed appellant to pay TZS 23,500,000/= and bonus. Appellant was dissatisfied with the said 1 judgment, as a result, she filed Civil Appeal No. 50 of 2022 in the District Court of Kinondoni District at Kinondoni. On 9th February 2023, Hon. J.A. Kaluyenda, PRM, having heard submissions by the parties and considered evidence that was adduced before the trial court, quashed the order relating to bonus but upheld the award of TZS 23,500,000/= to the respondent and dismissed the appeal for want of merit. Further aggrieved, on 22nd November 2023, appellant filed this 2nd appeal faulting the judgment of the 1st appellate Court on the following grounds: - 1. That, the Learned Magistrate erred both in law and fact by holding that respondent proved his case without taking into consideration the evidence of SM1 and SM2 is contradicting each other hence there is no any clear evidence or proof to that effect. 2. That, the trial magistrate erred both in law and fact by failure to evaluate evidence in the record properly hence leading into wrong decision. 3. That, the learned Magistrate erred both in law and fact by failure to admit properly the documents which were tendered as exhibits. When the matter was called on for hearing, Mr. Omary Abubakar, advocate, appeared and argued for and on behalf of the appellant whereas Ms. Ms. Sikujua Clement, advocate, appeared and argued for and on behalf of the respondent. 2 At the time of hearing, counsel for the appellant abandoned the 1st and 3rd grounds and argued only the 2nd ground. Arguing in support of the 2nd ground which after abandoning other grounds, remained to be the only ground of appeal, counsel for the appellant submitted that, respondent purchased cement from the appellant and paid cash TZS 23,500,000/=. He added that, respondent paid the said money to Maliki Shaibu, the latter being an employee of the appellant. He went on that, respondent thereafter paid TZS 23,000,000/= in bank account of the appellant but the latter said there was outstanding loan of the said amount and tried to offset the said amount. Based on that, respondent filed a case at Kawe primary court that decided in her favour. Counsel for the appellant further submitted that, both the trial court and the 1st appellate court failed to evaluate evidence because, two witnesses of the respondent stated orally that they gave Maliki Shaibu TZS 23,500,000/=. He added that, there was no documentary exhibit that was tendered on behalf of the respondent as proof that Maliki Shaibu acknowledged to have received the said amount from the witnesses of the respondent. When probed by the Court, he readily conceded that, it is not a requirement of law that oral evidence must be supported by documentary evidence. 3 Mr. Abubakar further submitted that, it was not disputed by the parties that, appellant delivered to the respondent cement worth TZS 23,500,000/=. He also submitted that, evidence of the appellant was that, cement cannot be delivered unless payment has been done. In his submissions, counsel for the appellant further conceded that, in her evidence, appellant did not give circumstances that justified cement to be delivered to the respondent prior to payment of TZS 23,000,000/= that appellant later sought to recover when respondent paid for the second time as an order to be supplied with cement. With those submissions, counsel for the appellant prayed the appeal be allowed by quashing and setting aside the judgment and decree of both the trial court and the 1st Appellate Court with costs. Resisting the appeal, Ms. Clement, counsel for the respondent submitted that, both the trial court and the 1st appellate court evaluated evidence of the parties. Counsel for the respondent further submitted that, SU2 for the appellant testified that, in order cement to be delivered to the client, the latter must have made payment. She added that, SU2 also testified that, TZS 23,500,000/= were paid by the respondent to the appellant in cash through Maliki Shaibu on 6th June 2021. Brief as 4 she was, Ms. Clement concluded that respondent proved her case against the appellant and prayed this appeal be dismissed with costs. In rejoinder, Mr. Abubakar for the appellant submitted that, SU2 Maliki Shaibu testified that all payments are done through bank account. He added that, there is no witness on the record who testified that cement cannot be delivered prior to payment. At the time of composing the judgment, I noted that, on 25th January 2022, SM1 testified in chief on behalf of the respondent. On the same date SM1 was cross examined by the appellant. After cross examination by the appellant, the court sought some clarifications from SM1. At the time SM1 was asked questions for clarification by the Court he prayed time to bring documentary evidence in Court. Based on that prayer, the case was adjourned to 27th January 2022 with an order that SM1 should bring documents in court. On 27th January 2022 when SM1 appeared in court, he tendered exhibits, but appellant was not asked to comment prior to admission of the said documents. In addition to that, appellant was not afforded right to cross examine SM1 on the said exhibits. With those observations, I summoned the parties and asked them to address the Court whether, proceedings were properly recorded and whether, exhibits were properly admitted, if not, the effect thereof. 5 Responding to the issues raised by the Court, Mr. Abubakar, advocate for the appellant admitted that proceedings of the trial court shows that SM1 tendered exhibits after being cross examination by the appellant. Counsel submitted that, it was not proper for the Court to allow SM1 to adduce more evidence including tendering exhibits after being cross examined by the appellant. He added that, it was not proper for the court not to allow appellant to cross examine SM1 after tendering exhibits. He went on that, what was done by the trial Court was in violation of Rule 47(2) of Magistrate's Court (Civil Procedure in Primary Court) rules, which provides right to cross examine a witness called by the other party. Mr. Abubakari further submitted that, the omission by the trial court not to allow appellant to cross examine SM1 after tendering exhibits was a fatal irregularity. With those submissions, counsel for the appellant prayed that proceedings of the trial court be nullified, the judgment and decree of both the trial Court and the 1st appellate Court be quashed and set aside and order retrial before a different Magistrate. On the other hand, responding to the issues raised by the Court, Ms. Clement, counsel for the respondent conceded that, trial court proceedings shows that when SM1 testified for the second time and 6 tendered exhibits he was not cross examined by the appellant. Counsel was quick to submit that, both the trial court and the 1st appellant court did not consider exhibits in holding in favour of the respondent because, the said exhibits were not mentioned in the judgments of both courts. When probed by the court, counsel conceded that, cross examinations touch natural justice principle of the right to be heard and that, a decision arrived at but in violation of natural justice principles cannot stand. Despite the foregoing submissions, counsel for the respondent maintained that proceedings were properly recorded, and exhibit were properly admitted. I have considered submissions of the parties and examined evidence in the record of both the trial Court and the 1st appellate court. In disposing this appeal, I wish to start with the issues that I raised suo mottu and asked the parties to make submissions thereon. It is undisputed by the parties and the trial court record shows clearly that, SM1 gave his evidence in chief without tendering any exhibit and was thereafter cross examined by the appellant. It is also undisputed as the record of the trial Court shows that, after cross examination by the appellant, the trial Magistrate sought clarifications from SM1 by asking him a question. It was at this stage, SM1 stated that he did not have 7 documents and prayed to be allowed time to bring the documents in Court, as a result, the case was adjourned to another hearing date. As pointed out hereinabove, when the case was called on for hearing on the 27th of January 2022, SM1 started to testify and tendered exhibits. The record does not show that appellant was afforded right to comment whether she has objection or not for the exhibits to be tendered. As pointed out shortly a while hereinabove, the record of the trial court does not show that appellant was thereafter afforded right to cross examined SM1 in relation to exhibits he tendered. It is my view that, appellant was denied right to be heard because he was not afforded right to cross examine SM1 on the exhibits that were tendered. As pointed out hereinabove, proceedings of the trial court shows that, on 27th January 2022 SM1 tendered tax invoice exhibit K-1), customer statements dated 1st September 2021 to 16th September 2021 (exhibit K-2 and K-3), and customer statement showing the amount he was liable to pay the appellant (exhibit K-4). Proceedings further shows that, soon after SM1 has tendered the aforementioned exhibits, SM2 testified and there was no room for the appellant to cross examine SM1 in relation to exhibits he tendered. I should point out that, initially SM1 testified in chief on 25th January 2022 and on the same date he was 8 cross examined by the appellant. In my view, what was done by the trial magistrate for not asking appellant to comment whether she had objection for the aforementioned exhibits to be admitted or not and by denying appellant right to cross examine SM1 after tendering the said exhibits, violated fair hearing and natural justice principles. It has been held several times by this Court and the Court of Appeal that, a decision reached but in violation of natural justice principles is void and of no effect. See for example the case of Mbeya-rukwa Autoparts & Transport Ltd. vs Jestina George Mwakyoma (Civil Appeal 45 of 2001) [2001] TZCA 14 (9 August 2001), R.S.A. Limited vs Hanspaul Automechs Limited & Another (Civil Appeal No. 179 of 2016) [2021] TZCA 96 (6 April 2021) and Kcb Bank Tanzania Limited vs Exim Bank Tanzania Limited & Another (Civil Application 331 of 2018) [2022] TZCA 480 (26 July 2022) to mention but a few. It was submitted by counsel for the appellant that, rule 47(2) of the Magistrates' Courts (Civil Procedure in Primary Courts) Rules was violated during hearing the case at the trial court. I entirely agree with him because, rule 47 of the said rules provides: - “47(1) A witness shall first be questioned by the party who called him. (2) Each party shall be entitled to cross-examine the witnesses called by the other party. 9 (3) The court may question any witness at any time.” (Emphasis is mine). As pointed hereinabove, appellant was denied right to cross examine SM1 after the latter has tendered exhibits on 27th January 2022. That denial was in violation of the above cited rule and the principles of fair hearing and natural justice. Since there was violation of natural justice principles, the decision of the trial Court cannot be left to stand. The violation of natural justice principles vitiated the whole proceedings of the trial Court. That said, I hereby nullify proceedings of the trial Court, quash the judgment and decree of the trial Court and first appellate court and order retrial before a different Magistrate. Since what I have discussed hereinabove has disposed the whole appeal, I will not discuss grounds of appeal that were raised by the appellant. Dated at Dar es Salaam on this 14th March 2025 B. E. K. Mganga JUDGE 10 Judgment delivered on 14th March 2025 in chambers in absence of both the Appellant and the Respondent. B. E. K. Mganga JUDGE 11