ashura Said

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM CIVIL APPEAL NO 14078 OF 2024 (Arising from Civil Appeal no. 15 of 2022 Decision at District Court of Kibaha delivered by Hon. J. Lyimo of 31th day of March, 2023, from original case no. 91/2022 at Mailimoja Primary Court Delivered by Hon. Kimweri on 24/01/2023) BETWEEN ASHURA SAID@MNYEMBWE...................................APPELLANT VERSUS REGINA GALUS@MWINJA..................................RESPONDENT JUDGMENT MKWIZU,J The appellant named above is aggrieved by the decision of the District Court of Kibaha delivered by Hon. J. Lyimo on the 31st day of March 2023. She is now appealing against the entirety of the judgment and decree of the Court, citing the following grounds: 1. The District Court grossly erred in law and fact by holding that the parties did not dispute that they entered into a contract of 1 borrowing and lending money. Yet the District Court proceeded to overturn the decision of Mailimoja Primary Court, which gave the appellant victory. 2. That, the District Court erred in law allowing appeal while the respondent herself in her evidence before Mailimoja primary Court admitted part of claim of appellant though she did admit before primary to recognize all claims of appellant herein 3. That, the District Court erred in law and fact unjustifiable and without any valid reason expunging and refuting the evidence and exhibits (p1 to p16) that the appellant owed money to respondent on account the contracts tendered before trial court were copies while were not rejected before Mailmoja primary Court. 4. That,, the District Court erred in law and fact by wrongly misinterpreting rule 11 (1) a of the Magistrate's Courts (rules of evidence in primary Courts) regulations G.n 66 of 1972. 5. The District Court erred in law and in fact by invoking and applying section 100 (1) of Evidence CAP 6 without taking notice that the Rules of Evidence Act do not cover the primary Court, and even if they could be applicable, the Magistrate wrongly construed the spirit of that section. 6. That. Magistrate erred in law in construing the burden of proof, especially in civil cases. 7. The District Court erred in law and fact in interfering with the finding of Mailimoja Primary Court, while there was no misdirection or non-application of the principle of law. 8. That the magistrate erred the law and in passing the judgment without affording the appellant the right to be heard, referring to 2 the submission of the respondent (now appellant) before the District Court. 9. That, the district court erred in law and fact, quashing decision and proceedings of primary Court without assigning the reason of doing so She argued grounds one, three, and seven together, contending that the District Court was incorrect in accepting the existence of a contract among the parties while expunging from the records exhibits P1 to P16 for being erroneously admitted due to lack of authenticity, claiming that this finding interfered with the Mailimoja Primary Court's ruling, as there was no error in the exercise of discretion by the Primary Court magistrate. She referred the court to the case of Adrian Development Microfinance v. Adayonandori Kakoyo, Pc Civil Appeal No. 06 of 2022 ( Unreported), insisting that in this case, Regulation 45 was adequately followed by the Court. On the second ground, it was argued that the court erred by expunging all contracts, including those not in dispute before the primary court, since the respondent did not object to the agreements. On the fourth and fifth grounds of appeal, she criticises the district court for reaching an erroneous conclusion by asserting that a document copy is only admissible in the event of the original's loss. She stated this 3 conclusion was misguided, as the respondent did not challenge the admitted contracts. She believes that considering the respondent's tacit approval of the contracts' admissibility, the strict rules of evidence should not have applied in this instance. She also further criticised the first appellate court for using the Evidence Act in primary court proceedings, contravening the law. She maintained that through the Evidence Act and the Magistrate's Courts (Rules of Evidence In Primary Courts) Regulations, G.N. 22 of 1964 and 66 of 1972 govern similar situations; the magistrate was wrong to invoke section 100 (1) of the Evidence Act rather than Regulation 14(1) of GN No 22 of 1964 going further that the circumstances did not attract the application of the regulations either because the two laws were enacted to prevent the receiving of oral evidence to vary the terms of a written contract. In her sixth ground of appeal, the appellant argued that the magistrate made errors in both law and fact, asserting that she had not proven her case according to the legal standard outlined in Rule 6 of the Magistrate’s Courts (Rules of Evidence in Primary Courts) Regulations G.N. 66 of 1972 which is explicitly that in civil cases, the courts do not need to be 4 convinced beyond a reasonable doubt but should decide in favour of the party presenting the greater evidence, the threshold that she successfully met. Ground eight is a complaint on denial of a right to be heard. The appellant said, her arguments were not considered, as they were not reflected in the magistrate's judgment, contrary to the principles of natural justice. She cited the long-standing case of The Attorney General v. Philemon Ndesamburo Civil Appeal No. 14 of 1998 asserting that her submissions before the Kibaha District Court should have been duly acknowledged and considered in the court's determinations. On ground nine, she contended that the District Court did not provide reasons for its decision, contradicting the primary court's findings without justification. She cited Rule 7 of the Magistrate’s Courts Regulations, which requires courts to base decisions on proven facts and recognised matters, avoiding reliance on information obtained outside of court. The appellant maintained that the District Court overlooked these rules when it overturned the primary court's decision, which was founded on the evidence from both parties. She urged the court to accept her appeal, annul the first appellate court's decision, and affirm the trial court's ruling. 5 Responding to grounds 1, 3 and 7, the respondent's counsel argues that the trial court failed to follow proper procedure by not reading the exhibits out loud after they were admitted, as required by law. Despite the appellant's request to tender the exhibits, there is no record of them being officially admitted or read to the court, rendering their admission invalid. He cited the case of Bulungu Nzungu versus Republic, Criminal Appeal No. 39 of 2018 CAT (unreported). To him, the Magistrate’s Court rules, especially Rule 11, provide that documentary evidence must be proved by the original document and not a copy, and even when someone wants to tender a copy, it must have been a certified copy. Since no foundation was laid as to why copies of the exhibits were relied upon instead of the original documents, their admissions were irregular and, therefore, were properly expunged from the records. Again, he said, the respondent had appealed because exhibits P1-16 were subject to stamp duty under the Stamp Duty Act and that their failure to be stamped as required by section 47 of the Act rendered them inadmissible. The counsel went further, arguing that the appellant had misunderstood the role of the first appellate court, claiming that it had erred in interfering with the trial court's findings. According to the counsel, the first appellate 6 court has to re-examine and re-evaluate the evidence and reach its own conclusion. On ground two, the respondent's counsel says the exhibits (contracts) were tendered in violation of the law. No court of law can condone such an act as it would be an act of opening Pandora's box. He further addressed the fourth ground of appeal, referring to the reasoning of the first appellate court magistrate for expunging exhibits P1 to P16 from the record on page 11, paragraph 2 of the judgment, stating that the elaboration reflects the proper position of the law. Whether there was an objection to the admission of the said contracts or not, does not detract from adherence to legal principles standards. In addressing ground five, he pointed out that the appellant failed to grasp the essential reasoning of the first appellate court's magistrate regarding the principle stated in section 100 of Cap 345, which is specific that a written agreement takes precedence over any oral accounts as noted in paragraph 4 of page 10 of its judgment. The case of Mathias Erasto Manga vs. Simon Group (T) Limited, Civil Appeal No. 43 of 2013 (unreported) was relied upon, stressing the standard of proof in civil cases, arguing that the preponderance of evidence did not favour the 7 appellant. The parties had no valid contract regarding the alleged advanced 11,350,000 loan; the appellant mistakenly treated various contracts as a single contract executed on one day; furthermore, the contract in question, which was claimed to specify the amount as 1,350,000, had been altered: new words were inserted between "milioni" and "moja" to change the original notation to "Milioni kumi na…", which was not the amount initially stated. In ground six, the appellant was alleged to have attempted to create an assumed fact and impose it upon the first appellate magistrate. However, this was absent from the outset, as the magistrate did not apply the standard of proof required in criminal cases to establish the case beyond reasonable doubt when evaluating the appeal's lack of merit. He observed that there is no indication that the standard of proof in civil cases is beyond reasonable doubt; instead, it relates to the standard of proof necessary in civil cases. In response to ground eight, the respondent's counsel contended that the appellant's assertion of not being allowed to be heard, as a matter of natural justice, was a deliberate misrepresentation of the facts. He 8 underscored that the appellant was permitted to present her arguments, as shown in pages 6 through 9 of the judgment detailing her submissions. Concerning ground nine, the counsel addressed the criticism directed at the first appellate magistrate for purportedly quashing the trial court's decision without justification. He contended that this ground did not warrant extensive examination, as the judgment clearly articulated the reasoning. He refereed the court to paragraph three on page twelve, which indicated that the trial court had neglected to consider the totality of the evidence, implying that had it done so, it would not have arrived at its original decision. The counsel conveyed uncertainty about what additional reasons would satisfy the appellant. In conclusion, the respondent's counsel humbly requested that the appeal be dismissed for lack of merit, with costs to be awarded in accordance with customary practice. Rejoining on Grounds 1, 3, and 7, the appellant contends that the respondent's assertion regarding the improper admission of the exhibits is unfounded. The appellant maintains that the trial court adhered to proper procedures in admitting P1-P16 and challenges the district court's decision to expunge these contracts. 9 On Ground 2, she reaffirms that the Evidence Act does not apply in primary courts, aligning with the case of Bahumi Ntandu vs. Luhende Ntandu, T.L.R 84, which supports the notion that primary courts should prioritise fairness and justice over strict adherence to formal evidence rules. On grounds 4, 5,6,8 and 9, she reiterates the arguments presented in her submission in chief. I have cautiously evaluated the rival submissions, the primary courts’ records and the impugned judgment. The appellant's first complaint lies in the first appellate court's expunged exhibits 1 to 15. The appellant contends that these documents were improperly removed, asserting that strict rules of evidence do not bind the primary court and that Rule 45 of the Magistrate’s Courts (Civil Procedure in Primary Courts) Rules, G.N. 310 of 1964 was duly adhered to. The regulation (Regulation 45) reads : “Order of evidence (1) The evidence shall be given in such order as the court directs, Provided that, unless the court otherwise directs, the claimant shall first state his case and produce the evidence in support of it, and the defendant shall then state his case and produce the evidence in support of it. 10 (2) At the conclusion of the evidence, the parties may, if they wish, address the court: the defendant first and then the claimant. “ This provision outlines the procedural rules for presenting evidence and addressing the court during a trial, described as an “Order of P resentation”. Though the primary court is vested with power to dictate the order in which evidence is presented, the rule is specific that unless instructed otherwise by the court, the standard procedure is for the claimant (the party bringing the case) first to present their case and provide supporting evidence. Followed by the defendant (the party being sued), and at the end, both parties have the option to address the court. In this last stage, defendant should address the court first, followed by the complainant( Mdai), where each party gets an opportunity to summarise his/ her arguments and respond to the evidence and points raised by the other side. And this was, in total, complied with by the trial court. The contention however lies in tendering and admission of documentary evidence, which is regulated by Rule 11(1) of the Magistrate’s Courts (Rules of Evidence in Primary Courts) Regulations G.N. 66 of 1972, which states that: 11 (1) The original document must always be produced. Exceptions: (a) A copy of the original document may be proved if the original has been lost or destroyed or if it is in the hands of the opposing party and he will not produce it, but (unless paragraph (b) of this exception applies) oral evidence must be given that it is a true copy of the original” This regulation specifies the general requirement for presenting documents as evidence in primary court. The general rule is that the original document must always be produced in court when presenting evidence, except in cases where it is established that the original document is lost or destroyed or where the original document is in possession of the opposing party that refuses to produce it. In such cases, a copy of that document may be admitted as evidence, contingent upon the party providing oral evidence to establish that the copy is a true and accurate representation of the original. I have perused the records. Exhibits 1 to 15 are copies of the contracts in question between the parties to this case. However, SM1’s evidence clearly indicates why the original contracts were not submitted. She made it clear, and it was not contradicted, that the respondent destroyed the 12 originals. Under the circumstances, the trial court's admissions were correct, made under the purview of Rule 11(1) G.N. 66 of 1972. In addition to that, it is essential to note that her evidence, SU1, gave very comprehensive evidence, denying some of the documents and raising doubts about a few but expressly accepting some of the contracts in question, indicating an acknowledgement of their validity. Therefore, the sweeping expungement of all tendered exhibits by the first appellate court was not only excessively broad but also directly contrary to Rule 1(2) of GN No. 66 of 1972 stating that : “(2) Where a person makes a claim against another in a civil case, the claimant must prove all the facts necessary to establish the claim unless the other party (that is, the defendant) admits the claim. Exceptions: (a) The claimant need not prove– (i) any fact which the relevant law or rule 2 declares to be the responsibility of the defendant to prove; (ii) any fact w hich the defendant adm its;”( emphasis added) 13 In light of this legal framework, I agree with the appellant’s grounds 1, 2, 3, and 7 but on a different reason that the first appellate court's decision to expunge exhibits 1 to 15 stemmed from improper evaluation of the evidence and a misapplication of the governing law by disregarding the admitted facts and the rational basis for the admission of the copies. This conclusion will also resolve ground 4 in favour of the appellant that though applicable to the situation, the principles under Rule 11(1)(a) of the Magistrate's Courts Regulations GN 66 of 1972 were misinterpreted. Ground five faults the 1st appellate court for misapplying Section 100(1) of the Evidence Act (CAP 6) without acknowledging that the Rules of Evidence Act do not apply to primary courts. This ground should not detain the court; it is a settled law that needs no further elaboration, that the Evidence Act does not apply to the primary court. So, it was an error to have the Evidence Act cited in this matter, originating from the primary court. This grounds also succeed. I have thoroughly absorbed the essence of grounds 8 and 9, which cogently articulate the grievance that the trial magistrate perpetrated a grave injustice by rendering judgment without affording the appellant the fundamental right to be heard and that the District Court's annulment of the trial court's decision was made without assigning reasons. The general 14 assessment of the 1st appellate court's records reveals that both parties’ submissions were considered except that the decision was arrived at in favour of the current respondent after the 1st appellate court had concluded that all relied upon exhibits were fault by contravening the provisions of the law. This finding is reflected on page 11 paragraph 2 of the judgment where it said: “…therefore, speaking of exhibits P1 to P16 which were admitted by the court, I am of the view that, they lack authenticity as they contravene the law as argued by Mr. Mgonja. As it was correctly argued, rule 11 (1) of the MCR is that the original document must always be produced, if not, rule 11 (1) (a) and (b) directs that a copy of the original document may be proved if the original has been lost or destroyed or if it is in the hands of the opposing party who is not willing to produce it and it can be produced if it is certified to be a true copy of the original…I do hold that they were incompliance with the law…” This conclusion also indicates that that decision had reasons in support contrary to the appellant’s contention. Whether the reason was correct or not is another matter altogether, but reasons were provided for. The two grounds, therefore, fail. I will now address the six grounds that challenge the first appellate court's 15 misunderstanding of the burden of proof, particularly in civil cases. It should be noted that the burden of proof in civil cases is always in the balance of probabilities as articulated by Rule 6 of Magistrate’s Courts (Rules of Evidence in Primary Courts) Regulations G.n 66 of 1972. Which is specific that: “In civil cases, the court is not required to be satisfied beyond a reasonable doubt that a party is correct before it decides the case in its favour, but it shall be sufficient if the weight of the evidence of the one party is greater than the weight of the evidence of the other.” As the appellant rightly stated, in a civil case, the court is entrusted only to consider a party with greater weight than the other, meaning that the Court will sustain such proof that is more credible than the other on a particular fact to be proved. See: Court of Appeal decision in Mary Agnes Mpelumbe V.S Shekha Nasser Hamad, Civil Appeal No. 136 Of 2021(Unreported). This is the same principle applied in this matter by the 1st Appellate Court. On pages 10 and 11 of its judgment, for instance, the 1st Appellate Court restated the principle, citing the decision in Mathias Erasto Manga vs. Simon Group (T) Limited (supra), emphasising the standard of proof in civil cases. Lastly, after evaluating the evidence, it was concluded that 16 the appellant failed to establish its case. Consequently, the primary issue is whether the principle was correctly applied to the circumstances of the case, which is the next step I shall consider. I am aware that the third appellate court is generally required to limit itself to matters of law, except in instances where there has been a misapprehension of the evidence or a failure to consider a significant point or circumstance. Given the conclusions reached in grounds 1, 2, 3, and 7, I find it appropriate to examine the authenticity of the plaintiff's claims to determine whether they have been substantiated. This involves evaluating the credibility of witnesses by assessing the coherence of the plaintiff's testimonies in relation to the other evidence on record. This approach aligns with the guidance provided by the Court of Appeal in Shabani Daudi v. The Republic, Criminal Appeal No. 28 of 2001 (unreported), which states that the credibility of a witness can be assessed even by a second appellate court when reviewing the findings of the first appellate court. Undisputed facts disclosed on the first page of the trial court judgment describe the appellant's complaint against the respondents as a total sum of TZS 12,850,000, comprising TZS 11,350,000 given as a loan to the 17 respondent on 12/9/2022, which was to be repaid by 12/10/2022, plus TZS 1,500,000 charged as a disturbance. To prove the claim, the appellant informed the trial court that she had, on several occasions, issued loans to the respondent with a written contract on which the respondent defaulted. While trying to resolve the issue, all the contracts were destroyed, and they agreed to rewrite them. The saga did not end there. On 24/9/2022, in the presence of the appellant’s husband , they again combined all the remaining debts and signed one contract with 11,350,000, destroying all other agreements. Fifteen copies of the contracts were admitted in court as exhibits P1 to P15. The respondent admits to having entered into several loan agreements with the appellant but denies having accumulated the debts to the claimed amount. While admitting to having personally written the contracted exhibit P1, she says the amount was only 1350,000. The rest of the figures in the tendered exhibit were added maliciously. She paid the amount in Exhibit P2 except 200,000/=; She paid 550,000 out of 750,000 in Exhibit P4; she paid the entire amount in Exhibit P7, P11, P12, P15; She has not paid the amount in Exhibit P10. She concedes to have agreed upon exhibits P 13 and 14 without elaboration. 18 I have examined the documents submitted, exhibits P1 to P15. Indeed, the authenticity of some of these documents is questionable. Exhibit P1 is a contract dated 24/09/2022 with a total amount of 11,350,000. The respondent admits to having authored the contract but states that it was originally written on 12/09/2022 with an amount of only 1,350,000 and without the explanations provided at the bottom of the contract, suggesting that the exhibit was modified by annotations to the contract by adding a 1 at the beginning of the original figures to change the mount from 1350,000 to 11,350,000 and adding some other statements by the appellant at the bottom of the contract. No serious examination is required to detect such a forgery concerning the date, where the number 12 was altered to read 24. As explained by the respondent, the original amount reads 1,350,000 in both figures and words, with an added 1 in front of the original figure and words to reflect 11,350,000. Exhibit P3 is not legible. Exhibit P9 has been altered from 600,000 to 900,000. This unexplained alteration raises doubts about the validity of her entire claim. A thorough examination of the record reveals a disturbing pattern of duplicity on the part of the appellant. Notably, she deliberately misrepresented the extent of the debt owed to the respondent, falsely informing the respondent's husband (SU) that the outstanding amount 19 was a mere 1,800,000 just to introduce a significantly larger claim later. She attributes the initial under disclosure to an alleged prohibition by the respondent against revealing the true extent of the debt to her husband. This egregious contradiction undermines the appellant's credibility. Furthermore, the testimony of the appellant's witness, SM3, raises additional concerns regarding the authenticity and reliability of the contractual agreement. Specifically, SM3 posits that the combined contract was initially documented on September 12, 2022, in his absence, and subsequently rewritten on September 24, 2022, in his presence. This anomalous account fails to provide a plausible explanation for the existence of two contracts of an identical nature, executed between the same parties, and on the same amount. This inexplicable discrepancy casts a shadow of doubt over the legitimacy of the contractual arrangement and reinforces the suspicion that the appellant's claims are unfounded and lacking in merit. I would not have accepted the appellant's claim under the given circumstances, save for the admitted claims by the respondent. As previously stated, the appellant acknowledged payment of all amounts specified in Exhibits P7, P11, P12, and P15. She paid all but 200,000 of the amounts in Exhibit P2 and still owes 1,350,000 related to Exhibit P10. 20 Furthermore, she conceded to have spent 550,000 out of the 750,000 indicated in Exhibit P4. The appellant also recognised her agreement to Exhibit P13, totalling 900,000, and to Exhibit P14, which amounts to 450,000, making the total admitted amount by the respondent TZS. 3,100,000, which is permissible under Rule 1(2)(a) of GN No. 66 of 1972. The rest of the claims by the appellant remain unsubstantiated. The appeal is thus partly allowed, as explained above, with costs DATED at DAR ES SALAAM, this 7th FEBRUARY 2025 E.Y. MKWIZU JUDGE 21