PC CIVIL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

ARUSHA SUB REGISTRY

AT ARUSHA PC CIVIL APPEAL NO. 5659 OF 2024 (C/F Arusha Urban Primary Court Civil Case No. 296/2021 before JM Keraryo RM: Civil Appeal No. 01 of 2024 Before Hon DJ . Msoffe (PRM)) MOHAMED SELLY MALLEY...................................................... 1st APPELLANT JACKLINE BENEDICT MAGOYA............................................... 2ndAPPELLANT

VERSUS BENEDICT PIUS MOREMBWA....................................................RESPONDENT

JUDGMENT 25/06/2024 & 30/07/2024 NDUMBARO, This is a second appeal from the decision of the District Court of Arusha at Arusha in Civil Appeal No. 01 of 2023, whereby on first appeal before the District Court was lodged by the respondent herein and this second appeal herein is lodged by the respondent in first appellate court who is appellant herein. i Primarily, the appellant filed a suit Civil Case No. 296 at Arusha Urban primary court against the respondent on the claim that the 1st appellant herein entered into a motor vehicle sale agreement with the 2nd appellant who is a daughter to the respondent. The moto vehicle Land Cruiser No. T624 AHZ was with ownership of the second appellant as the registration card holding the name of Jackline Benedict Mangoya. The sale agreement was concluded by paying the agreed sale amount which was TZS 9,000,000 (nine million). When the car was in the process of changing ownership from the 1st appellant to the second appellant herein, it was attached by police on the claim that the car belongs to the respondent herein who is a father to the 2nd appellant. The appellant herein filed a case before Arusha Urban Primary Court which decided in his favour as a lawful purchaser therefore lawful owner. Dissatisfied with the decision, the respondent herein appealed to the District Court of Arusha claiming that the car belonged to him and among others

faulted that, the exhibit or documentary evidence was admitted contrary to the principle of admissibility and pray to vary the decision of trial court. The District Court upheld that ground and allowed the appeal in favour of the appellant who is the respondent herein. Dissatisfied by the decision of the District Court of Arusha at Arusha in Civil Appeal No. 01 of 2023, the respondent in the first appellate court who is the appellant herein filed this appeal with the following 6 grounds; 1. That, the appellate court erred both in law and fact by quashing the judgment of the trial court.

2. That, the appellate court erred both in law and fact by ruling that respondent was not given the right to cross-examine while on page 3 of judgment, the respondent cross-examined the appellant.

3. That, the appellate court erred both in law and fact holding that exhibits PI, P2, P3, P4, P5 and P6 were neither admitted nor tendered before the trial court.

4. That, the appellate court erred both in law and fact by quashing the decision of the trial court for reasons that were improper 5. That, the appellate court erred both in law and fact by entertaining the appeal without having typed proceedings of the trial court.

6. That, the appellate court erred both in law and fact by not affording the said Jackline Benedict Magonya a right to be heard. 3 The appellant is seeking this court to allow an appeal with costs and quash the decision of the District Court of Arusha and uphold the decision of the trial court. When this appeal was called on for hearing, the appellant was represented by Ms Fatma Amir Advocate, the respondents on the other hand were under the legal representation of Ms Leticia Leonard advocate and in the written submission enjoyed the service of advocate Arnold A. Tarimo. With the leave of this court, the appeal was disposed of by way of written submissions. Submitting in support of the appeal, Ms Fatma combined the 1st and 4th grounds; 2nd and 3rd grounds because are interrelated. On 1st and 4th grounds submitted that the trial court judgment was quashed by the reasons that it was improper. Argued the judgment can only be quashed if irregularity leads to injustice by the parties, as it was stated in the case of Cooper Motors (T) LTD Vs AICC (1991) TLR 165 that procedural irregularity cannot vitiate proceedings if parties are not prejudiced. Argued further, in the trial court proceedings the appellant had the opportunity to cross-examine the appellant, it cannot be said that the 4 exhibit was not cross-checked. And made a prayer that these grounds of appeal be allowed. On the

2nd and 3rd grounds argued, the contention that exhibits PI, P2, P3, P4, P5 and P6 were not tendered nor admitted, and the respondent was not given right to cross-examine is misconception, at page 3 of the trial court judgment shows, respondent herein cross-examined the appellant and the exhibits PI, P2, P3, P4, P5 and P6 were properly tendered and admitted and marked accordingly, it was not objected by the respondent. On the 5th ground argued, the appeal was entertained without the typed proceedings hence prejudicing the right of the appellant. On the 6th grounds argued, the 2nd appellant Jackline Benedict Mangonya who was considered to be a necessary party was not heard, as he was not joined as a necessary party in civil appeal No. 1 of 2023. Faulted that, failure to join undermined her right. Supported her argument in the case of Mohamed Jaward Mrouch Vs Minister for Home Affairs 1996 TLR 142, that the right to be heard needs to be adhered to. Further argued, nonjoinder of the necessary part is fatal as it was started in the case of Abdullatif Mohamed Hamis Vs Mohamed Yusuph & another Rev. 6 of 2017 (CAT unreported). Finally, pray this appeal be allowed with costs from the trial court to this court and the decision of the first appellate court be quashed. In reply, Mr Tarimo initially raised the objection that the appeal is hopelessly time barred, contrary to section

25(l)(b) of the Magistrate Courts Act, Cap 11 RE 2019, that the appeal should be filed within 30 days from the date of judgment. Argued the judgment of first appellate court was delivered on 28 July 2023 and the appeal was filed on 8th September 2023, instead of 27 August 2023 or before. The appellant delayed for 11 days and no leave of the court was filed for an extension of the time to that effect. Therefore, this court has no jurisdiction to determine the case. Argued that it is the position of law that, when the matter is time-barred court lacks jurisdiction to entertain, in support of the argument cited a case of Lameck Maduka Vs Maganga Njile Pc Civil Appeal No. 25 of 2021 (CAT) Unreported, whereby the appeal was lodged out of time and it was dismissed with costs. Therefore, pray this appeal be dismissed with costs. 6 Argued there was no misjoinder to the 2nd appellant in this appeal, she was not part in the first appellate court and, therefore has no right to appear in this court On the 1st and 4th grounds, claimed irregularity that the respondent was not given the right to crosscheck the exhibit before they were admitted before the trial court was not fatal and the appellant was not prejudiced and cannot vitiate proceedings. In support of the argument cited a case of Cooper Motors Corporation LTD Vs AICC (1991) T.L.R 165. In the 2nd and 3rd grounds argued, the exhibit

was admitted contrary to admissibility law that a copy is not admissible unless it is either in possession of the opposite party or being lost or destroyed. No evidence tendered to show that the document was lost contrary to Rule 11(1) of the Magistrate Courts rules of evidence in primary courts) Regulations G.N No. 22 of 1964. On the 5th ground faulted that there is no law requiring the proceeding of the lower court need to be typed, and this was not raised in the first appellate court, argued the appellant was not prejudiced in any way. On the 6th ground, the 2nd appellant was not a party in the first appeal no way she can be joined in this appeal. The cited cases of Mohamed Jaward Mrouch Vs Minister for Home Affairs 1996 TLR 142, and Abdullatif Mohamed Hamis Vs Mohamed Yusuph & another Rev. 6 of 2017 (CAT unreported) not applicable in this appeal as 2nd appellant was not a necessary party. Therefore this ground has no merit appeal be dismissed with costs in this court and two courts below. In rejoinder the appellants faulted that, the matter is not time-barred and argued, that the court records show the judgment and decree were supplied on 25/08/2023 the time for awaiting of decree or order appealed is excluded as per section 19(2) of the law of limitation Act RE 2019. The position is supported by the case of Bukoba Municipal Council Vs New Metro Merchandise Civil Appeal No.

374 of 2021 on Page 10. That, the time for obtaining a copy of the decree or judgment is excluded automatically without application of extension time before the court. The appellant pray to adopt the content of the submission in chief and further argued that the respondent failed to join the second respondent in the trial court as part of the first appellate, she considered the second 8 appellant as a necessary party and no degree can be passed by the court in her absence. The cited case of coopers Motors Corporation LTD Vs AICC supra (1991) TLR 165, not relevant to cross-checking, faulted that the applicant did not particular what has been stated in that case, the judgment is all about breach of contract and awarding of damages. The respondent submission has no merit and pray this appeal is allowed with costs. Having summarized the parties' rival submissions, it is now time for this court to determine whether the appeal before this court is meritorious. Nevertheless, as the respondent herein objected that this appeal was filed out of time, I shall start to determine it before going to the merit of this appeal. It is the argument of the respondent's counsel that this appeal was filed out of time for the reason that the impugned decision was delivered on 28th July 2023 while this appeal was filed on 8th September 2023, the appellant delayed for 11 days and no leave of the court

filed to seek an extension of time on that effect, therefore this court has no jurisdiction to determine the case. 9 The appellant's counsel on the other hand submitted that the appeal was filed on time, argued the court records show, that the judgment and decree were supplied on 25/08/2023 the time for awaiting of decree or order appealed is excluded as per section 19(2) of the Law of Limitation Act RE 2019. Cited a case of Bukoba Municipal Council Vs New Metro Merchandise Civil Appeal No. 374 of 2021 to support the argument I had time to go through the court file records. I am inclined to join hands with the appellant's counsel that indeed judgment was delivered on 28 July 2023, but the decree of the said judgment was issued on 16th of October 2023. Based on the fact that a decree is a necessary document for appeal and as per section 19(2) of the law of Limitation Act RE 2019 there is an exclusion in the computation of the time awaiting for necessary documents as follows; "19 (2) In computing the period o f limitation prescribed for an appeal, an application for leave to appeal, or an application for review o f the judgment, the day on which the judgment complained o f was delivered, and the period o f time requisite for obtaining a copy o f the 10 decree or order appealed from or sought to be reviewed, shall be excluded." In the above premises, since the decree of the said

judgment on which no appeal is preferred on its absence was delivered on 16th October 2024 and the appeal was lodged on 8th September within 23 days, therefore, this court satisfied that the appeal was lodged within the prescribed time. The above said, I now turn to determine the merit of this appeal. I consider 1st,4th 2nd and 3rd grounds addressing the same issue as procedure illegality on inspection of exhibit before tendering and admission of a copy of motor vehicle registration card instead of original card. The appellant faulted that, the judgement of the trial court was quashed on the reasons that it was improper, and argued, that the irregularity cannot vitiate proceedings if the party is not prejudiced. Further argued, the appellant had the opportunity to cross-examine the respondent in the trial court. The right was prejudiced on failure to cross-check the exhibit before it was admitted in the trial court. Cited case of Cooper ii Motors Corporation LTD Vs AICC (1991) T .LR 165, that failure to cross-check the exhibit vitiate proceedings. Going through the trial court proceedings on pages 28 and 29 the appellant was given a sale agreement to inspect and was invited to raise objections if any. And the court admitted the exhibit as PI thereafter. However, Exhibits P2, P3, P4, P5 and P6 were not inspected by the defendant to ensure the authenticity and relevance of the

exhibit tendered to enable to cross-examine. I am of the considered view that, the omission constituted a fatal irregularity. I therefore thus expunge Ext. P2, P3, P4, P5 and P6 from the record which afe motor vehicle cards, newspaper advert on the loss of the card, lost repcjrt, payment receipt for legal services, and police inspection report. Despite expunging exhibits P2, P3, P4, P5, and P6 it is the position of the law to consider other pieces of evidence if are sufficient to prove the case as per Section 178 of the Evidence Act Cap 6; - "The improper admission or rejection o f evidence shall not, o f itself, constitute grounds for a new trial or reversal o f any decision in any case if it appears 12 to the court before which such objection is raised that, independently o f the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that the rejected evidence, had it been received, the court would not have varied the decision". The question is, as to whether exhibit PI and the oral testimonies of SMI, SM2, SM3, and SM4 are sufficient to prove the case on the balance of probability. Exhibit PI prove the sale agreement of the motor vehicle with registration Number T 624 AHZ Land Cruiser between the 1st and 2nd appellants. The testimony of SMI that, have bought the said motor vehicle from the 2nd appellant herein, who also agreed to have

sold the said car and the said car belongs to her, the sale agreement was testified and witnessed by the SM4. SM4 testified to prepare and witness the sale agreement between the 1st and 2nd appellant with consideration of Tsh 100,000 service fee, she satisfied herself that the seller was a competent person to enter into the sale agreement because she was above 18, and owned the motor vehicle, and a copy of motor vehicle registration card was with a lost report of the original card. SM2 testified to witness the sale 13 agreement. SM3 who is a Police officer on pages 32-33 testified, that they searched and seized the motor vehicle with registration Number T 624 AHZ Land Cruiser from Mohamed Selly Malley who is the appellant herein and the car was given to the respondent herein. In cross-examination, SM3 testified thereafter got to know the car belonged to the 2nd defendant who is the second appellant herein, and the Motor vehicle card had the name of Jackline Mangoya, it was confirmed that the motor vehicle belonged to Jackline Mangoya, and she is the one sold to the 1st appellant herein. I am of the considered view that based on the above analysis exhibit PI and oral evidence of PW1, PW2, PW3 and PW4 in the absence of expunged documentary evidence P2, P3, P4, P5 and P6 (the motor vehicle card, newspaper advert on loss of the card, lost report, payment receipt for legal services,

police and inspection report) are sufficient to warrant this court to rule out that are sufficient to proof the case on the balance of probability, therefore the irregularity has not caused any substantial harm or prejudice to respondent in this case. I would wish to apply the doctrine of "no harm, no foul" as since procedural irregularity does not 14 cause any harm or prejudice to the respondent herein, the irregularity is not sufficient to invalidate the proceedings. That is, procedure irregularities would not vitiate proceedings if the rights o f a party are not prejudiced. It is my view that the first appellate court could consider the testimony of respondent witnesses on proving the case on balance of probability before embarking on quashing the judgment on the ground that exhibits were not properly tendered. On the 5th grounds, the argument by appellants that, there were no typed proceedings and the right of the appellant herein was undermined. I agree with the submission by the respondent that, there is no law requiring typed proceedings for the party to proceed with the case before the court. I therefore find this ground to have no merit. On the 6th ground, the argument of appellants that, the first appellate court failed to join the 2nd respondent in the trial court, who was a necessary party and therefore denied her right to be heard, in opposite the respondent

faulted that the 2nd respondent was not a necessary party to be 15 joined as she was not aggrieved by the decision of trial court. Considering the submission of both parties on non-joining the 2nd appellant herein, I join hand with the appellant that, the second appellant Jakline Benedict Mangoya was a necessary or indispensable party in the first appellate court. It is my view that the Court may proceed without necessary party only if the right of third party may not be prejudiced. The Jakline interests are closely tied to the appeal in the execution process. Since she was a party in the trial court, I found it was an omission by the first appellate court not to join her. I therefore found this ground to have merit. Based on the analysis above it is my view that this appeal has merit. Above said, this appeal is allowed to the extent that the decision of the first appellate court Arusha District Court Civil Appeal N o.l of 2023, is quashed and the decision of trial court Arusha Urban Primary Court Civil Case No. 296/2021 is restored with cost. It is so ordered.. , / i j \ D. D. NDUMBARO

JUDGE 30/07/2024 16