20141210 TZHC Dar es Salaam

... ,',t, 0 - ··•-·-- - ,;, IN THE HIGH COURT OF TANZANIA . ' , IN THE DISTRICT REGISTRY AT MWANZA (PC) CRIMINAL APPEAL NO. 22 OF 2014 (Arising fto,77 Criminal Case No. 25 ol 2013 at Geita District Court; and Originated frpm Primary Court of Nyankumbu in Criminal Case No. 113 of 2013) MWANAHARUSI SADICK ............... ~ ........................... .APPELLANT VERSUS MARY JUMANNE ..... :................•. ~ ..........·................... RESPONDENT JUDGMENT BUKUKU, J.:. · At the Nyankumbu Primary Court at Geita Region, the respondent herein successfully sued the appellant herein for theft, contrary to section .. 265 of the Penal Code, Cap 16 R.E~ 2002. · Havin~ ·been found guilty, the . . appellant was sentenced to pay a fine of T.shs. 100;000/= or serve a six months jail term 'in default. She.. was further ordered to compensate the respondent T.shs. 1,165,000/= all~gedly to· have been stolen by the appellant 1 Dissatisfied with the judgment. and de.cree. of the trial court, the • .: • : .. - " -<I',,. appellant appealed to the .. District. Court of .Geita. _at eGeita. ' . ~ In its decision handed down on 20 th August, 2013, the District Court, in Criminal Appeal No. 25 of 2013, gave judgment i·n favour of the respondent ·by dismissing the appellants appeal, hence this present appeal. Brief facts of the case are as fqll_ows:The respondent had hired the appellant to work at her saloon and also to transact . M-pesa, . . business. . In ~ ' October 2012, the respondent op~ned another M-pesa business and therefore she entrusted the appellant to continue managing the earlier M- pesa business and the saloon. According to the respondent, she gave the appellant T.shs. 2,280,000/= as opening balance. At one point, the respondent allegedly discovered that the appellant was not banking the monies· from the M-pesa venture as required. As such, she called .the appellant to know what was happening and in response, the appellant told the respondent that she could not go to the bank because she was too busy with M- Pesa customers. It· seems things did not work out well between the two. Upon suspecting that the appellant was doing something 2 fishy, on lS~hJa·n~ary 2013, the respo~dent went into her office where the appellant was working, arid ordered the appellant to account for the monies she got from the M-Pesa business. For whatever reason, the appellant did not comply. · Following the failure of the appellant to submit the M-pesa account to the respondent, the respondent took the appellant to the police, where upon checking the balance of the M-Pesa account at the police, it was found that the balance in the account was T.shs. 900,000/=. When the respondent went to check at the drawers in her office, where the appellant . . ' worked, she found T.shs. 150,000/= ·only, hence this case. On her part,. the appellant .categorically denied stealing the said amount. At the trial court the appellant averred that, they started the M- pesa .business with an opening balance of T.shs. 700,000/=, and the balance rose to T.shs. 1,700,000/= and then T.shs 2,080,000/=. According to the appellant, at one time the respondent had requested to be given T.shs. 600,000/= but returned T.shs. 200,000/= only and T.shs. 400,000/= was still o_utstanding. The appellant also told the trial court that, 3 j . at one time, the respondent ~ad c<?lled her and requested her to credit - .• '* . . ·. . _f ". ' •. • ' Hon. KamugishaT.shs. 120,000/= but the respondent did not top up the •. • t •• ,, said amount in the M-pesa account. Further ~o. t,hat, ·it is th.~ appellant~s averment that, one EdYJin, a relative . of .the respondent had sold CD's .. - to , ' the respondent and the respondent requested the appellant to give Edwin T.shs. 300,000/= to which she did. All in all, it is the appellant's submission . that, she , did not steal the _; ' -· ' ... If • -·!, - money but rather, it was the respon9ent who was ordering ~er to pay the_ ' said monies to different people at different times without ret~rning the ' , monies in the M-Pesa account. ' The appellant's grievances as contained in her petition of appeal are i t. ··1- ,.·"' ' as follows:- 1. That, the learned trial. magistrat~'·:erred in ;both. la\N and fa~t based its decision (sic) on the here say evidence ,, which were· not corroborated ' by any witness at the trial .. ' 'f • ' court. . . .t,. . _, 4 .. ' 2. That the trial magistrate erred i'n both law and. fact based his finding ' ' without assessor's opinion to be recorded in the judgment. ·3. That _the trial magistrate did not adhere to the evidence from the , expert who could produce by printing (sic) real evidence of document through the message used to communicate with the appellant. The appeal was argued orally. Both parties fended for themselves. They did: not have much to argue. The appellant adopted her grounds contained in the petition of appeal and the respondent, similarly adopted. her averments in the reply to the petition of appeal. In this particular case, it is not disputed that, when the parties entered into the M-Pesa · business, nobody witnessed and therefore, one cannot easily tell who is telling the truth about the opening balance. While the appellant maintains that the amount was T.shs. 700,000/= and then rose up to T.shs. 2,080,000/=, the respondent on the other hand told the trial cowt .that she gave the appellant T.shs. 2,280,000/= as opening balance. 5 Let me stprt by exposing the position. of tt1e .law .regarding ~ . . the burden -· ~ of proof. When a person goes· to court,. he relies upoi':l ·a particular rule of • • • 't • • • ·I• ' • •' . • \: •• • • I - ·• ' •~ ' law, set out in a statute or derived fro~ case?, for the Rurpo?e of sayin.g ' • •. , •· 6 ,I ,'. ' , that, he is entitled to a particular right or that the other side is su.bject to a • .• o· ~ duty or a liability. But the rule of law·. applies . only, . in certain . circumstances, ~ . ' ;' - . ,.-. that is, when certain facts exist. One party to the legal proceedings asserts the existence of certain. facts and that he is entitled to .the .right; or that, the other party is subject to the duty or liability. The dthe(party.denies tbe: · existence of some or all facts and says-that, the rule of law does not apply, and thus denies any duty or liability. The question that now. arises is:. should the party asserting the existence of the facts prove their existence . . or should the party denying the existence of fa~ts prove their non existence. I think the question may be. posed in another form: on whom does the burden of proof or "onusprobcJndi" ije? The rules in the Evidence Act relating to burden of proof are set out , ', . . ' ,. . .· . . . . in sections 110 to 113. Section 110 deals with the burden: of proof in the " first sense of establishing the case. It says:- . 6 "110 - (1) Whoever so desires.any '. . court to give Judgment . as·. to. ·any·· . . . legal rights .·or. liability dependent on the . . . . . existence_ of.facts· wh[ch. he .a$serts/ must prove that .·those facts ex/st;·_ (2) I/I/hen a person is bound to prove the existence of any tac~ it is said that· 'the: burden of prdof lies on that person. II . Sections 111 ~ 113 deals with burden of proof in the second sense of '. . introducing evidence. They_provide as here under:- "Jl ). · The burden of proof in a. suit proceeding lies on that . person who would fail if no evidence at all were given on either side. 112. The -burden of proof as to any particular fact lies on that person who wishes ·the court to believe in its existence; unless it is provided by any law that the proof of . that fact shall lie on-any particular . person. 7 113. The burden of proving __ any. fa.c_t ne,ces-?ary . '. . to be ' , proved in order to enable any person to . . give-~. ev(cjen(e of. . , any other fact is on the person who wishes to give such • , ·_r .. _, •:/:';. evidence. " Of course, the burden of proof shifts depending on what is established by a party against the other. Sarkar on Evidence, (17 th Edition), aptly paints the shifting nature of the burden of proof, as follows:- 11 •••••••• .in most cases, the burden of proof is divided according as each party has one or more of the issues cast on him. The party on whom the burden lies in the first instance, may shift it to the other by providing facts giving rise to a presumption in his favour. ...... '' It is trite that, the initial onus is always on the plaintiff and if he discharges that onus and makes out a 'case, which entitles him to :relief, the onus shifts on to the defendant to prove those circumstances; if any, which would disentitle the plaintiff to the same. 8 ,,' I-, \ With. the-above position of the !aw;. now, back·to the facts before us. I have carefully gone through the respondent's version of the story, but with respect, I have not been. convinced, because of the reasons I shall expose herein. · It is trite that, th~. burden of. proof as to any particular fact lies on . that ·person who wishes the court to. believe in its existence, unless it is provided by any iaw that .th'e proof of that fact shall lie on any particular . .. . person. In other words, whoever assets .a particular fact, in whatever form . . it :may be, positive or negative, affirmative or denying, must prove it unless there is a rule of law. either in. the Evidence .Act or in some otlier statute that the burden in that particular case lies- upon· another person. In this particular case, the respondent is the one w_ho alleged to have given the appellant T.shs. 2,080,000/= when she entrusted her with the M- pesa business. The burden was on the respondent of introducing evidence about that allegation. Unfortunately she failed to do so. Under such circumstance, I· find that, no evidence was adduced. The allegation that, 9 the respondent gave the appellant that' amount of money is a fact which .~ :.., was within her knowledge and hence, it was upon the respo.ndent t~ p'rove the said facts, which she did not do so, nor tendered any piece of - •. • i .• ' evidence. For that matter, I answer the first ground of appeal in the affirmative. ,· With regard to the second ground appeal, it is true that the assessor's opinions were, not recorded in the trial co'urt's judgment. The law is very clear on this. Undoubtedly, the judgment of the trial court . . r ·. contained the summary of the evidence of both side of the case, the issues . ' involved and the reasoning of the magistrate. The last paragraph of the judgment reads as follows:- ',,, ".......... Mahakama hii imejiridhisha kuwa anayo hatia na ·_ anata_mbua kufanya kosa hilo kwa makusudt kwa kuwa . ' pesa ana zo dai pia kuwa ndizo alimpatia mlalamikaji zinawiana na kiwango alicho°(<utwa nacho na si kile anachokaidi kushitakiwa nacho. Hivyo ni dhahiri kabisa kuwa mshtakiwa alikuwa· na maandalizi -ya kutosha 10. ,, ,. yenye nia ya kutenda kosa linalomkabi/i na Mahakama hii inamtia hatiani kama alivyoshitakiwa. Hii ni kwa mujibu na kanuni 37 KMM~ SMM2 1984 R.E 2002." Thereift:er, it followed the signature of the assessors and that of the trial magistrate. I think with respect, those signatures are not enough for the purpose intended by the rules. n ··is trite that, where in any proceedings the court has heard all-the evidence or matter pertaining to the issue to be determined·· by the court, the magistrate is required to consult with the assessors present with a view of reaching a decision of the court. The magistrate is not entitled to sum up.to the other members of the court. In my considered opinion, these mandatory procedures are intended · to emphasize the role of the assessors in Primary Courts as members of the court and not just simple assessors assisting the 'court. The magistrate has to consult the assessors and if there is a unanimous decision, his duty . . is to reduce to writing and· call upon the assessors to sign it with him so . . that it becomes the decision or judgment of the court. Where there is a dissent, then the. majority must sign the majority judgment, which . ·11 becomes the judgment of the court, and the magistrate must record the • ' .. • f, 0 dissent and have it signed by the _dissenting- member. · In this particular case, the pr~ceedings_ as well as the judgment are silent as to whether the above procedure was ~,• .. . followed, . . and . whether ': .the . assessor's opinion was taken on board._ In the final result, I find that, the·. second ground of appeal has merit. It is allowed. . .'.. . .~ ' Finally is the third ground of appeal. The appellant has challenged the trial court for relying on evidence of a document through. a message without it being printed and no expert was called. I think this ground of . ' appeal need not detain me. Having gone through the proceedings of the , trial court, I found that there was no eviqence tendered in court and admitted. Surprisingly, both trial _courts relied on _documents in arrivi~g ~t their"decisions. In its judgment, the trial court_ had this to saya,t page 4:- "Mahakama hii inazingatia· maeiezo ya ~ahUsika, katika shauri hili na uhalisia ~a miamala iliyokuwa inafanyika hususani tarehe 15/01/2013 · baada ya mshitakiwa 12_ kufikishwa kituo cha polisi kabla ya kuflkishwa mbele ya Mahakama kwa shitaka linaloinkabili'~ Thereafter, the trial court continued to make its findings by making ' ' .. ~ - reference_to the M..:pesa log book, when iri his judgment, the learned district magistrate said:- "On perusal of evidence on record, I find ·that the transaction of money 'through M-pesa and banking was of the appellant, to put some weight a float account_ statement was tendered in the trial court, where T.shs. 1/165,000/= was seen missing'~ \/'✓ ith greatest respect to both the trial court and the first appellate court. I have gone through the proceedings of the trial court. Both parties did not have any witnesses. The only evidence tendered in court are the two SMS messages sent by the appellant to the respondent, which it is not clearas to whether they were admitted in court or not since · the proceedings are silent. With regard to the M-pesa log book which was relied by the trial courts, I wish to state that, this piece of Exhibit relied 13 upon by both Lower Court was never tendered. in court as . Exhibit. What ' : . happened is that, at the end of. the trjal,. the. respondent requ~sted the court to make _a follow . up on the M-pesa transaction regarding T.shs. 700,000/= made on 15th January 2015, and the:-coL!rt ordered that a letter be wri~en in. order to get the details of· the_ M-pesa ·account. In other words, the M-Pesa details were brought into the cou1t after the· close· .of the trial. It is trite law that, documents not tendered, admitted and tested in court could not from the basis of any decision. As already intimated, from the record, it is clear that, the documents relied upon by both lower courts were received by the trial court subsequent to the dosure of the parties respective cases. It is also clear that, the parties were not accorded an opportunity to comment on them. There is nothing on record suggesting or showing that either of the party in the disput~ was given a·chance to test the documents received by way of/ for 'instance; cross· examination. Yet, . ' . ·.·, :· . . , these documents formed the basis of the decisions of both the trial ·and . : . ' . ; ~ .' .• .. · , t' first appellate courts. ., .·.: '-~. I • •• :, . •. ·14 In the case of Shemsa KhaHfa and two Others V. Suleiman .Hamed Abdalla; Civil Appeal ·No. 82 of 2012, the Court of Appeal of Tanzania,· had an :occasion to state the follo•wing on the consequences of . ' courts relyi11g>orndocuments .not tendered and admitted in evidence:- '1/-lt this juncture/ we think our main task is to examine whether it was proper for ·the ·trial court and other ' subsequent· courts - in appeal to rely upon in their JudgnJents/ the said document which was not tendered and adrnitted in court. We outrightly are of the considered opinion that it was improper and substantial error lor the ·High Court and all other courts below in this case/ to have relied on a document which was neithe,r tender~d nor admitted in court as exhibit. We hold that this led to a grave rniscarriage ofjustice. " I am, with greatest respect,. subscribing to the Court of Appeal's holding in Shemsa's case (supra). In this particular case, I am of the 15 firm view that, determining the rights of the parties on/ the basis of documents which were not admitted in evidence during the course of the trial was fatal to the trial and occasioned a failure of justice. Therefore the ' third ground is answered in the affirmative. I think I need not over emphasize what I take to be trite law that, the judgment of any court or quasi judicial tribunal must be grounded on . evidence properly adduced duri'ng the trial; otherwise it is not a decision at all. The purported decision becomes a nullity. Therefore, the appellate tribunal and /or- the High Court on appeal could not uphold what was a nullity from the beginning. I have seriously considered·whatq:>u~?e of action I should take under the circumstances. In my considered ·opinion lthink the only way out is to quash and set aside the proceedings· and judgment ·of the· trial court Consequently, the proceedings and the judgments of the· first -appellate court based on a null decision are nullified, quashed and set aside. 16 ., ·.. ·.···In the result, this appeal has merit. It is ai'lowed. Each party to bear \.,. its own costs. Or_dered accordingly. A.E. BUKUKU JUDGE .,:.· ,. . iQ.eUvered .atM,wanza · ·.This . i'Oth December, 2014 ' '' ,, .-;ci C 0 -·:.;.;,·_ 17 ' ... ~ :·. ..... ._ --~- . ~ .. ;