CIVIL APPEAL NO

IN THE HIGH COURT OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA CIVIL APPEAL NO. 26 OF 2023 REFERENCE NO. 20231031000537261 (Arising from the decision of Resident Magistrate Court in Civil case 05 of2022) BETWEEN CATHERINE ALFRED MASEKE ..................... APPELLANT VERSUS SWEETHBERT PORTINO GOYI....................................................................... 1stRESPONDEN ROSALINA JUMA.................................................................... 2nd RESPONDENT RAHELI MONGI...................................................................... 3rd RESPONDENT JUDGMENT 2(f & 28™ June 2024 M. L. KOMBA, J. This appeal traces its origin from the decision of Resident Magistrate Court of Musoma in Civil Case No. 05 of 2022 where the appellant herein had a claim against all respondents for the total of Tsh. 200,000,000/= of which, Tsh 180,000,000/= was the debt form the loan and Tsh. 20,000,000/= for loss of business. In a nutshell, as captured from plaint, plaintiff claimed that defendants jointly visited her home on 15/09/2020 and borrowed Tsh. 180,000,000/= with a promise to pay back after expiration of three months. Again, in the same date, that is 15/09/2020 defendants jointly borrowed 4,000,000/ Page 1 of 10 from the appellant and promised to settle but in vain. Plaintiff demanded the whole amount but defendants did not honour their promise and decided to took them to court of law. When the claim was presented, all defendants file WSD disputing the loan and stated that plaintiff willingly joined Q-net as the Independent Representative (IR) she sends Tsh. 4,000,000/= to the 1st defendant so that she can got USD and enable the plaintiff to be registered and be able to purchase some services where the receipt was issued. Following the denial by defendants, the case was heard on merit where plaintiff had three witnesses including herself and defendants had four witnesses. After hearing the parties and analysis of evidence, the trial Magistrate was satisfied that plaintiff failed to prove the case to the required standard and dismissed the same. Discontented by dismissal order, appellant is here before this court with four grounds of appeal as follows; 1. That the court errored in law and in fact for failure to properly analyse the evidence. 2. The trial Magistrate errored in law for admitting evidence contrary to the procedures on tendering evidence. 3. The trial Magistrate errored in law admitting exhibits without been read to the opposite side hence failed to cross examine on the admitted exhibits. Page 2 of 10 V. That trial court errored in law and fact in delivering the judgment and decree of the suit when the suit had already over lived its life span in the court as per the assigned track without amending or rescheduling the speed track of the suit. Basing on the registered ground, the appellant prayed this court to allow the appeal by quashing the trial court decision, order respondents to pay Tsh. 4,000,000/= to the appellant, respondent to pay costs of the case and any other order as this court may deem fit. In the course of preparation for hearing 1 and 3rd respondents were nowhere to be traced hence they were served with summons through substituted service via Mwananchi newspaper of 08/05/2024 issue No. 8669. Regardless of such advertisement they refrain from defending the appeal and they were dully notified the hearing and judgment date. At the hearing date, both parties stood solo without representation and were ready for submission. In her submission on the first ground appellant faulted the trial court failure to analyse evidence properly. She said she had two exhibits including deposit slip for Tsh. 4 million the form has names of depositor and receiver and the second was loan form while respondents had books and a bag and she was not given time to cross examine about exhibits tendered by respondents and which were admitted unprocedural. Page 3 of 10 On 3rd ground appellant complained of the failure by the trial court to order exhibits to be read after admission, to her that failure implicate biasness on the side of the trial Magistrate. On the last ground it was her submission that trial Magistrate delayed to issue copy of judgment after it was delivered and she assigned no reasons for that. She prayed her appeal to be found with merit and this court order respondents to pay appellant Tsh. 4,000,000/= and costs of the case. Resisting the appeal, second respondent submitted that the trial Magistrate was correct to decide what she decided and the appellant agreed of what the respondents did as her money amount of Tsh. 4 million were exchanged to e-card so that appellant can purchase some items electronically. Respondent further clarified that the referred books was appellant books which she was recording training courses and which has names of people whom she was inviting to join Q-net was written in those books. She went on submitting that the books were stored in Q-net offices as the appellant was afraid of her husband who she did not want him know her undertakings with Q-net so books were stored at Q-net offices. It was the second respondent submission that so far as the appellant joined Q- net, she was supposed to have ecard for her to purchase some items. Page 4 of 10 On uncertainty of the claim by appellant, the second respondent submitted that appellant started to claim Tsh. 4,000,000/= at the Primary court then she claimed 100,000,000/ at the Resident Magistrate court and in this appeal, she has a claim of Tsh. 4,000,000/= it was respondents' opinion that appellant don't have any claim to respondents. Submitting on the procedural irregularity, second respondent submitted that the proceedings was conducted in open court and no procedure was skipped. She then lamented that the appeal was filed out of time as the decision was delivered on July 2023 but appellant filed appeal in February 2024 and wonders if that was right. She prayed the appeal to be found lack of merit and dismissed it with costs. In rejoinder the appellant clarified that she claimed 4,000,000/- at the Primary court because she had evidence that the second respondent borrowed from her by using another person account and denied to join Q- net activities. Having carefully considered the submission, I will now embark on determination of the grounds of appeal fronted by the appellant. This being a first appeal, I will preface my determination with the position of the law as to the duty of the first appellate court as held in The Registered Page 5 of 10 Trustees of Joy in The Harvest vs Hamza K. Sungura, Civil Appeal No. 149 Of 2017, CAT at Tabora (Unreported) thus; it is part of our jurisprudence that a first appellate court is entitled to re-evaluate the entire evidence adduced at the trial and subject it to critical scrutiny and arrive at its decision. This court is also the final court of facts as was elaborated in Firmon Mio we vs Republic, Criminal Appeal No.504 of 2020. Starting with the 4th ground of appeal the appellant is complaining that the case was entertained out of the agreed time on speed truck. From the record the case was assigned to speed track II which is ten months from mediation, the mediation was marked failed on 16/06/2022 and hearing started form 15/06/2023/. I have read the record and find the plaintiff case started on February, 2023 and defendant case was closed on 9th May, 2023. There after trial Magistrate ordered the final submission to be filed within 21 days which ends on 30 May, 2023. Tenth months expires on 15th April, 2023. From the first PTC at trial the case was supposed to complete 15th April, 2023 but it completed 9th May, 2024, less than a month from the targeted time. The spirit embraced in assigning a suit to a certain speed track as provided under Order VIIIA is only to facilitate the expeditious disposal and management of the case. It is thus not expected that failure to adhere to a Page 6 of 10 scheduled speed track will have serious consequences of having a suit struck out. It is for the presiding Magistrate to make sure that substantive justice is done to the parties by affording them opportunity to be heard and the matter to be determined on merit. Knowing of that right, Order VIIIA did not directly impose any legal consequence in the event the scheduled speed track expires. See National Bureau of Statistics vs The National Bank of Commerce and Another, Civil Appeal No. 113 of 2018 CAT at Dar es salaam. So far as it was less than a month, I find non adherence caused nor injustice to any side. Respondent raised issue of time which is jurisdiction of this court to entertain the matter. I have considered it and find that limitation of appeal of this nature is 90 days and the appeal was filed within time serve that, respondent was late served with petition of appeal which is not fatal in law. The 1st ground the appellant is complaining of analysis of evidence that she had deposit slip and loan form. I have read judgment at 20 the trial Magistrate analyzed the evidence of plaintiff and noted that there is no doubt that plaintiff deposited Tsh. 4,000,000/=. She went further explain that the plaintiff willful joined online marketing as per testimony of defendants. I find the evidence was analyzed and the amount of Tsh. 4,000,000/= has clarification. Page 7 of 10 On the 2nd and 3rd grounds the appellant is complained of the procedures in tendering and admission of exhibits that exhibits were not read after its admission and denied the right to cross examine over exhibits. This ground may only be verified by reading proceedings. I read hand written and typed proceedings both show that when DW4 tendered exhibits, counsel for plaintiff did not object some of exhibit but were not read out in court. Page 43 to 46 of the typed proceedings show that exhibits were tendered and admitted without being read out loud. The significance of reading out a document which has been admitted in evidence has been explained in a number of decisions of this Court. In the case of Joseph Maganga and Dotto Salum Butwa vs Republic, Criminal Appeal No. 536 of 2015 (unreported) for example, the contents of the cautioned statement were not read out to the accused person. The Court stated as follows on the effect of the omission: 'The essence of reading out the document is to enable the accused person to understand the facts contained [therein] in order to make an informed defence. Failure to read the contents of the cautioned statement after it is admitted in evidence is a fatal irregularity.' Similarly, in the case of Robert P. Mayunga and Another vs Republic, Criminal Appeal No. 514 of 2016 (unreported), the Court had this to say. Page 8 of 10 'Failure to read out to the appellant a document admitted as exhibit denies [him]the right to know the information contained in the document and therefore puts him in the dark not only on what to cross-examine but also how to effectively align or arrange his defence.' Also, in the case of Bulungu Nzungu vs The Republic, Criminal Appeal No. 39 of 2018, the Court of Appeal decided that; 'It is now a well-established principle in the Law of Evidence as applicable in trial of cases, both civil and criminal, that generally once a document is admitted in evidence after clearance by the person against whom it is tendered, it must be read over to that person.' I am on the same line the appellant that exhibits which were admitted without following procedures denied her right to know what was the content to enable her or his counsel to cross examine witness. From the record, exhibit DI, D2, D3, D4, D5, D6, D7, D8, D9, DIO, Dll and D12 were not read out after submission. The effect of wrongly admitted exhibits is to be expunged as I hereby do. see Geophrey Jonathan @ Kitomari < / vs Republic, Civil Appeal 237 of 2017. What next, after removing exhibits from court record there remains testimony of witness. All DW1, DW2, DW3 and DW4 has similar testimony that they know plaintiff via online business and Marketing (Q-net) where Page 9 of 10 she voluntarily joined. They know her under different status but it was the same company which is doing online business and there was a need of having electronic card. I find the remaining evidence is stable to prove that the plaintiff was a member of online business and marketing as the testimony of all defendants show and that she failed to explain she gave that huge amount of money to 1st defendant for what purpose bearing in mind that she did not knew the 1st defendant before the transaction. All defendants knew each other via online business and therefore from the same business they came to know the plaintiff. Generally, I find the appeal lacks merit to the extent as analysed above. Due to the nature of this suit, I make no order to costs. M. L. KOMBA Judge 28th June, 2024 Page 10 of 10