ZAKAYO SANGA Ruling

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 321 OF 2023 GRACE ZAKAYO SANGA………………………………………………………PLAINTIFF VERSUS ELIMU DAUDI SANGA………………………….……………..…………1ST DEFENDANT EQUITY BANK(T) LIMITED…………………..………………………...2ND DEFENDANT AMIYE ELISHA SANGA..………………………………………...………3RDDEFENDANT MBUZAX AUCTION MART & COMPANY LIMITED………………....4THDEFENDANT RULING 29th March,2025 L.HEMED,J DW3, one MICHAEL MBUZA, the witness of the 4th Defendant’s case, led by Mr.Kalori Tarimo, learned advocate was about to tender into evidence copies of publications in Zanzibar Leo News Paper of 3rd July 2023 and 9th August 2023. It is when the learned counsel for the Plaintiff and 1st Defendant, Mr. Freddy Kalonga and Mr. Simon Emmanuel, respectively, objected admission of the same on the ground that they were presented in court contrary to Order XIII Rule 1 and 2 of the Civil Procedure Code [Cap.33 R.E 2019] which requires all documents intended to be relied upon to be produced in court on or before the hearing date. 1 In their submissions to resist admission of the said documents the learned counsel were of the view that receiving of the said documents will be prejudicial to the Plaintiff’s and the 1st Defendant’s case as the same were filed after the closure of their cases. Mr. Kalonga, fortified the argument by citing the decision of this court in Chintan Maganlal Kakkad vs Magdallena A Orwa & Another, Land Case No. 381 of 2014 in which the documents which were produced after the commencement of hearing were rejected. Mr. Emmanuel, advocate of the 1st Defendant also raised concern that the said documents were not even served to the 1st Defendant and thus they have been taken by surprise. He insisted further that in view of Order XIII Rule 2 of the Code, the 4th Defendant ought to have presented an application to produce the said document after the commencement of hearing by showing good cause which prevented it from filing timely. According to him, such application has not been made and thus the 4th Defendant cannot be permitted to tender the said documents into evidence. In response to the objection, Mr. Tarimo, learned senior advocate was of the view that the 4th Defendant has complied with the provision of Order 2 XIII Rule 2 of the Code as the witness has laid a foundation that the said documents could not be produced during pleadings stage as they could not see the importance of it. According to the learned counsel, the need to produce them was found when the Plaintiff and 1st Defendant raised the question of notice in their evidence. Mr. Tarimo, contended further that in view of section 51(1) of the Land Disputes Courts Act, [Cap.216 R.E 2019], this court is not bound by laws governing production and admissibility of evidence in accepting evidence and proof which appears to be worthy of belief. The learned senior counsel was of the view that the documents which the witness is attempting to tender are worthy of believe and not prejudicial to the other parties. He admitted the documents to have not been served to the 1st Defendant but in his opinion, that cannot bar admission of same as the 1st Defendant will have time to cross-examine on them. He distinguished the decision of this court in Chintan Maganlal Kakkad(supra), saying, the circumstances in the said case are quite different from the instantaneous matter. Having heard from the rival submissions, the question for determination is whether the documents which were filed in court on 13th 3 December,2024 after the closure of the Plaintiff’s and the 1st Defendant’s case are admissible at this stage. I have opted to start by stating the general rule regarding production of documentary evidence in court. The rule requires all documentary evidence intended to be relied upon, must be pleaded and annexed thereto the pleadings. This is pursuant Order VI Rule 9 and Order VII Rule 14(1) & (2) of the Civil Procedure Code(supra). The law further allows a party who, by any cause, failed to file documentary evidence at the pleadings stage to do so before or on the final pre-trial settlement. This is pursuant to Order XIII Rule 1(1) & (2) of the Code as amended by Government Notice No.821 published on 4th October, 2024 providing thus: - “1. -(1) The parties or their advocates shall produce, at on or before final pre-trial settlement and scheduling conference, all the documentary evidence of every description in their possession or power, on which they intend to rely and which has not already been filed in court, and all documents which the court has ordered to be produced. (2) The court shall receive the document so produced provided that they are accompanied by an 4 accurate list thereof prepared in such form as the High Court directs.” [Emphasis added] From the above cited provision, those documentary evidence which was not filed together with the pleadings have to be produced accompanied by an accurate list of those documents. The effect of non- production of documentary evidence on or before the final pre-trial conference is that they cannot be received at any subsequent stage unless good cause has been shown. This is provided under Order XIII Rule 2 of the Code, thus: - “2. No documentary evidence in the possession or power of any party which should have been, but has not been, produced in accordance with the requirements of rule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the court for the non-production thereof; and the court receiving any such evidence shall record the reasons for so doing.” [Emphasis added] The rationale of the requirement to present documentary evidence by the final pretrial conference is to ensure fair trial by allowing all parties to 5 see the intended evidence and respond to it accordingly. The rule also aims at preventing fraud by late production of suspicious documents which may not be contested by the other parties for having been taken by surprise. By this reason, the above provision requires a person producing documentary evidence at a stage subsequent to the final pretrial conference to give good cause to the satisfaction of the court. The production of documentary evidence subsequent to the final pretrial conference must be by the leave of the court. The leave has to be sought by a party seeking to produce the said documents by presenting an application in which he/she will be obliged to demonstrate good cause for failure to produce the said documents timely and the other parties will have the right to counter it. Upon successfully applied for leave to produce the document subsequent to the date of final pretrial conference, is when the said Party will have the right to parade a witness to tender the said documents into evidence. In other words, the cause for the late production of the document is not advanced during tendering of the document into evidence rather, prior to filing it. In the instant case, the 4th Defendant did not seek for leave of this court prior to filing the additional list of documents which was presented on 6 13th December, 2024 after the Plaintiff and the first Defendant having closed their cases. My firm view is that this was not proper as it denied the right of the other parties, the Plaintiff and the first Defendant in particular to oppose the filing of the said documents. In his submissions to oppose the objection, Mr. Tarimo, learned advocate who is representing the 4th Defendant has relied on the reasons for delay stated by DW3 that the documents were not filed timely because they did not find to be important in the matter. They came to realize such importance when the Plaintiff and the 1st Defendant raised the issue of publication of notice. The foundation laid down by DW3 implies that if the 4th Defendant did not think of the importance of documents to the case, then they could not even plead them in their written statement of defence. I have gone through the WSD which cover the 4th Defendant’s case, I could not find the said documents being pleaded. It is settled that parties are bound by their own pleadings as stated in plethora of decisions including that of Barclays Bank(T) Ltd vs Jacob Muro, Civil Appeal No.357 of 2019 thus: - “We feel compelled, at this point, to restate the time-honored principle of law that parties are bound by their own pleadings and that any evidence 7 produced by any of the parties which does not support the pleaded facts or is at the variance with the pleaded facts must be ignored.” In the light of the above authority, the documents intended to be tendered are worth to be ignored for not being pleaded. Additionally, and without watering down the foregoing, the reason advanced by DW3 that they realized the importance of the said documents following the issues raised in the course of the trial cannot be a good cause at all. The fact that the 4th Defendant deliberately opted not to present them during pleading and on or before the final pretrial conference stages, cannot be permitted to bring them at this stage especially after the Plaintiff and the 1st Defendant having closed their cases. I am of the firm opinion that, even if the said documents would have been properly produced, then it would have been dangerous to receive them at this stage as the same were not even served to the 1st Defendant. Receiving and admitting the said documents will amount to creating an unfair environment of the trial of this matter on the part of the Plaintiff and the 1st Defendant who will have no room to bring evidence to counter or contradict the said documents. 8 The learned counsel for the 4th Defendant also relied on section 51(1) of the Land Disputes Courts Act(supra) in an attempt to persuade this court to admit the documents tendered into evidence. The learned counsel was of the view that the court can admit the documents regardless of the laws governing production and admissibility of evidence provided the document is worth of belief. I had an opportunity to read the said provision and found it providing as follows: - “In the exercise of its jurisdiction, the High Court shall apply the Civil Procedure Code and the Evidence Act and may, regardless of any other laws governing production and admissibility of evidence, accept such evidence and proof which appears to be worthy of belief.” [Emphasis added] The above provision has two parts where the first part requires the High Court to apply the Civil Procedure Code and the Evidence Act in the exercise of its jurisdiction. The use of the words “shall apply” implies the mandatory application of the said two pieces of legislation by the High Court. The second part allows the Court to accept evidence and proof which appear to be worthy of belief regardless of any other laws governing production and admissibility of evidence. In the second part of the 9 provision, the drafter used the words “and may” which gives the discretion power to the court to receive document which appears to be worthy of belief. The guiding principle from the above provision is that, the High Court will always bound to apply the Civil Procedure Code and the Evidence Act while exercising its jurisdiction. However, in rare circumstances it will apply its discretion power in receiving evidence/proof worthy of belief regardless of the laws governing production and admissibility of evidence. It should be noted in the exercise of discretion power the court is bound so to do judiciously, that is not to prejudice the other parties. Having scrutinized the circumstance of the instance case, I find that applying the descretionary powers under section 51(1) of the Land Disputes Courts Act (supra) will prejudice the other parties who have already closed their cases. The documents are also not worth to admit into evidence as they have not even been pleaded and have been presented contrary to Order XIII Rule 1 and 2 of the Civil Procedure Code(supra). 10 In that regard, I find the documents intended to be tendered not meeting the required legal standard for admission. They are rejected accordingly. It is so ordered. DATED at DAR ES SALAAM this 29th March, 2025. L.HEMED JUDGE 11