jabil kausaral vs turabali kaini nyigu 2020 tzhc 3250 19 october 2020

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (IRINGA DISTRICT REGISTRY)

AT IRINGA CIVIL APPEAL NO. 09 OF 2020 (Arising from Civil Case No.05 of 2019 ( at Resident Magistrate's Court of Njombe at Njombe) JABIL KAUSARAL TURABALI ................ APPELLANT

VERSUS KAINI NYIGU ......................................... RESPONDENT 22/9/2020 & 19/10/2020

JUDGMENT MATOGOLO.

3. In the Resident Magistrates court of Njombe the appellant Jabil Kausaral Turabali was successfully sued by the respondent Kaini Nyigu for payment of Tshs. 50,000,000/= as a specific damages. The historical background of the dispute is that it is alleged, the appellant reported the respondent to the police station on allegation that he committed a criminal offence. As a result the respondent was arrested and curtailed or detained in custody. It is upon such alleged of confinement the suit arose. Page | 1 The appellant was aggrieved with the findings of the trial court thus has appealed to this court in which he filed Memorandum of appeal with a total of seven grounds of appeal as follows:- 1. That, the trial court erred both in law and fact to decide against the appellant while the respondent had failed to prove his claims on the required standards considering the appellant totally denied his involvement in the arrest and/or knowing anything on the detention if any.

2. That the trial magistrate erred in law and fact to decide against the Appellant basing on assumptions rather than evidence in the record.

3. That, the trial magistrate erred both in law and fact to decide the matter in favour of the respondent herein by holding that the Appellant gave false information to police at Songea while the respondent had failed to prove so even he had failed to call key witnesses to prove such fact if any.

4. That, the trial magistrate erred both in law and fact by decide against the appellant by relying on Exhibit PI which did neither show the connection or involvement of the appellant in the arrest of the respondent nor the reasons for the arrest of the respondent nor reasons for the arrest, furthermore, it was not read over after admission of the same contrary to the law. Page | 2 5. That, the trial magistrate erred both in law and fact by failure to address all issues as framed especially the one which carries the plaintiff cause of action in his plaint contrary to the law.

6. That, the trial court erred both in law and facts by awarding damages to the tune of 50,000,000/= without assigning the reasons which are backed by positive evidence in the records.

7. That, the trial court erred both in law and fact in entertaining and deciding the matter contrary to the law. At the hearing of this appeal the appellant was represented by Mr. Raphael Matola learned advocate and the respondent enjoyed the services of Mr. Octavian Mbungani the learned Advocate. The appeal was argued by way of written submissions. In support of the appeal Mr. Matola argued grounds No. 1,2 and 3 together, he submitted that, the respondent in his entire evidence had failed to prove his allegations as against the appellant and as a result the trial court was wrong to decide in the respondent's favour by basing on the assumptions of facts rather than evidence. He went on submitting that, it is trite law that, whoever alleges must prove, to support his argument he cited section 110(1) of the Law of Evidence Act Cap 6 R.E 2019 of which imposes a duty of proof to whoever alleges the existence of facts which he asserts to exist, that he or she must prove that those facts exist, he contended that in the trial court the respondent asserted in his evidence that it was due to the appellant's Page | 3 instruction, that the respondent was arrested by two police officers one being Rashid from Njombe Police station, those police officers who had informed him that his arrest was due to the criminal case reported by the appellant at Songea Police Station on money debt owed to

the respondent. As a result the respondent was arrested and put into Police custody at Njombe and thereafter at Songea Police station. He submitted further that, false imprisonment or unlawful detention is conditioned upon two basic elements, that is the complainant should be able to prove that he was detained and that, it was the defendant who authorized that detention. He argued that looking in the entire evidence, there is no evidence proving that the appellant had reported a criminal case at Songea Police Station out of which the respondent was arrested. He was of the considered opinion that, it was from this lack of evidence the trial court has based its decision on the assumption. At page 4 of its typed judgment, the defendant (Appellant) has a complaint against the plaintiff who has not yet paid for his plastic goods up to now. Defendant must be the one who told the police to go and arrest the Plaintiff. He contended that it is against the law of this land for a court to base its findings on assumptions rather than evidence. In proving the allegation that it was the appellant who had reported a criminal case at the police station one could expect a proof by evidence to the existence of such fact by producing before the trial court a complaint statement from the police station or even by bringing in court the alleged police officers who are said to have done the arrest

under the Appellant's report. Page | 4 But nothing was produced to implicate the appellant with such allegations, neither the complaint statement nor the said Rashid or Hemed who was being brought before the court to prove and /or corroborate such allegation as key witnesses in this matter, something which raises an adverse inference that would them be called they would disprove the respondent allegation and hence the benefit of doubt should be on appellant's favour. To bolster his argument he referred the case of H em ed s a id ve rsu s M oham ed M b ilu (1984) TLR 133. With regard to ground No. 4, he submitted that, the trial court was wrong to rely on exhibit PI which neither showed involvement of the appellant in the said arrest, showing cause of arrest nor disclosing the appellant's name as a complainant. The trial court needed another witness to connect the appellant with the said exhibit, especially after the trial court had well found that the respondent was told by the police officers whose names were mentioned by the respondent, these police officers who had told the respondent were clearly very important witnesses rather than the said exhibit. Mr. Matola submitted that the respondent failed to bring the writer of the Exhibit whose office is just less than a hundred meter from trial court premises to clarify on his letter before the trial court. He contended

that, exhibit PI is self- expressing that Njombe Regional Crime Officer knew nothing about the reasons for the arrest as per the last paragraph of the exhibit reads:- "N ikushauri uende p o lisi Mkoa wa Ruvuma ndio watakupatia taarifa za kukamatwa kwako kw ani jalada lililopelekea kukamatwa, nakuatakia kazi njem a" He contended that, the respondent failed to bring the police officers mentioned in exhibit PI to prove his allegation, this meant nothing than drawing an implication that, had these police officers brought before the court they could have told the trial court an adverse testimony. He submitted further that, there is another legal irregularity that necessitates the expunging of the said exhibit PI, on that it was admitted but its contents were not read in court. It is a cardinal principle in our jurisprudence and there are number of authorities emphasizing on this, he cited the case of R o b in so n M w a n jisi a n d 3 o th e rs ve rsu s R. (2 0 0 3 ) TLR 218, that prohibits courts to act upon a documentary evidence which was not read over after it was admitted as exhibit so as to enable the adverse party to know the contents thereof as the exhibit PI was not read after it was admitted, therefore it has to be expunged from the records. With regard to the 5th ground of appeal, Mr. Matola submitted that it is trite principle of pleadings in our jurisprudence that, each

issue framed must be definitely resolved contrary to what had been done by the trial court as it only resolve the first issue and did not bother to resolve and/or make findings on the remaining issues contrary to the law as per O.XX Rule 5 of the Civil Procedure Code (Cap 33 R.E 2019) which has a mandatory requirement for the court to state its findings or decision, with the reason Page | 6 therefore, upon each separate issue. He contended that, upon looking at page 5 of the typed copy of judgment it is crystal clear that the trial court after making findings on the first issue never discussed and/or made findings and give reasons on the remaining issues, he quoted the said paragraph as follows; " The next issue is accordingly answ ered' He contended that, as per the issues framed it was necessary for the trial court in order to do justice to make definitely findings or decision and reasons for the remaining issues as the second issue is the one which carries the cause of action of the respondent against the appellant before the trial court and is what can establish the legal rights between the parties, however it was not covered in anyhow by any other issues. Regarding ground No.6, Mr. Matola submitted that, the trial court was wrong when it awarded Tsh. 50,000,000/= as general damages, without assigning reasons as required by the law and in absence of evidence. He said, it is

a settled law that general damages are awarded after consideration and deliberation on the evidence on record and be able to justify the award. He contended that, the court has discretion in the award of general damages, however the magistrate must assign a reason. The trial court at page 5 of the typed judgment only granted general damages to the respondent by noting that the respondent was humiliated at his house which is an irrelevant and that he suffered torture at the Police station, but there is no single piece of evidence that proves that the respondent was humiliated at his house, and that he was put in police Page | 7 custody and so, there is no any justification on evidence for the trial court to award general damages to the respondent. With regard to the 7th ground of Appeal, he submitted that the successor magistrate, M.J Kayombo, RM. having taken the matter from Mhanusi, RM. was duty bound in law to assigned the reasons for taking over. The law requires the successor Magistrate to assign reasons and not the magistrate incharge. He contended that the successor Magistrate had not done so, this is a fatal irregularity that vitiates the entire proceedings from when the successor magistrate took over. To support his argument he referred the case of M ariam Sam buro (le g a l p e rso n a l re p re se n ta tiv e o f La te R am adhan A b a s) ve rsu s M aso u d M oham ed J

o s h i a n d A n o th e r, C iv il A p p e a l N o. 1 0 9 /2 0 1 6 C A T at Dare es Salaam (unreported). He went on submitting that, it is apparent from page 20 of the typed proceedings that the Resident Magistrate in charge one Hon. H.A Makube, SRM on 04/12/2019 made re- assignment of the suit. However, this is not what the law requires, as re- assignment and giving reasons for taking over are two distinct matters, the latter is a legal requirement/ judicial function which gives jurisdiction to a successor magistrate where as the former is an administrative function of a magistrate incharge that function, as the case at hand whereby the magistrate incharge was performing his administrative function but the successor magistrate was legally required to state reasons for taking over, something which was not done. He cited the case of M ich a e l S /O P a u l M w a lik o ve rsu s The R e p u b lic Criminal No. 422 of 2016 (unreported) for emphasis. Mr. Matola concluded by praying for this court to re- evaluate the evidence and allow the appeal with costs by quashing the entire proceedings and decision of the trial court for lack of evidence or alternatively quash and set aside all the proceedings before Hon. Kayombo, RM and order retrial before another Magistrate for failure to assign reasons. In reply Mr.Mbugani submitted that, it is true as per the cited provision of the law

that the one who alleges has to prove. The Respondent proved his case in the required standard of balance of probabilities, the doubt raised by the appellant doesn't hold water in civil case rather in criminal cases. To support his argument he cited the case of A lb e rt M iito Vs M w a ka lika n o Civil Appeal No. 01 of 2015 (Unreported). He contended that during trial the respondent told the court that the police officer asked the respondent whether he knows JABIL KAUSARAL and answered in affirmative and that he took some plastic material from the respondent's shop. He went on submitting that, there is direct evidence in the trial court record that the person who made a criminal complaint in Songea is the appellant, the arresting officer one Hemed Mbonde the police officer and the respondent is the one who took some materials for his shop in the appellant shop at Songea. The appellant has never disputed the fact of business relationship between the two and exhibit PI was even not objected by the appellant. He submitted that, during hearing of the case, the Respondent pointed the Appellant to have committed tortuous act and under cross examination, appellant admitted that "/£ is n o t b a d fo r a p e rso n to go a n d in fo rm th e p o lic e h is cla im a g a in st a n o th e r p e rso n ," this appears at page 16 of the typed proceedings. He contended further that, this

signifies that the appellant reported the respondent to the police as result he was arrested and detained, that is why he was asking if it is bad to report the matter to the police. He submitted that, respondent further added that "Ja b il was required to go to court and not to po/icd' He said, in cross-examination found at page 15-17 of the typed proceedings, indicate that there high probative value that the appellant reported the respondent to the police which resulted to his arrest and detention. The learned counsel contended that appellant admitted that he knows the respondent as they had business relationship and he gave him some properties for the purpose of returning money to him after selling them. He further admitted that the respondent was arrested; the question is how could he know these facts if he did not initiate criminal allegation out of civil claim which resulted into respondent's arrest as claimed by the respondent owed him seven million? Page | 10 He submitted that, the appellant denies to have caused the arrest of the respondent and further says it was not him but someone else but without mentioning the name as shown at page 23 of the typed proceedings. In his defence the appellant admitted the facts adduced by the respondent in examination in chief. He contended that, the appellant at this juncture strive to escape liabilities of what he committed. Mr.

Mbugani submitted further that, the appellant submitted that the trial court was wrong in relying on exhibit "PI" without calling other witnesses to collaborate its evidence that he was arrested and detained on appellant's instructions. Mr. Mbugani was of the considered opinion that, the trial court was. satisfied with the evidence adduced by the respondent at trial. It was undisputed fact that he was arrested and detained through the Appellant's instructions due to claims of the money Tshs. 7 Million and the Appellant himself admitted the fact that respondent owed him the said amount. That evidence by the respondent is supported by exhibit "PI" which was not objected by the appellant. Section 143 of the Evidence Act Cap 6 R.E 2019 provides that no particular number of witnesses required to prove the case on any fact, even a single witness is enough like in the case at hand. The strong evidence and exhibit "PI" adduced by the respondent during trial was enough to hold the Appellant liable for his tortuous act. He contended that, the quoted paragraph from exhibit "PI" that:- "nakushauri uende p o lisi mkoa wa Ruvuma ndio watakupatia taarfia za kukamatwa nakutakia kazi njem d' proves that the respondent was really Page | 11 arrested and detained, the fact which also proves that the appellant lives in Ruvuma and is where he does his business and is where the respondent got

materials for the sale so that he could sent the money, but he defaulted to pay the seven million. These facts are heavy and strong evidence against the appellant. There was a good business relationship between the appellant and the respondent before the default but later the respondent defaulted, he reported him to the police so as to enforce the payment through criminal proceedings. He submitted further that, the appellant argues that there were irregularities that necessitate expunging exhibit PI for the reasons that it was not read so the appellant couldn't know the contents in the exhibit PI. For this, Mr. Mbugani was of the considered opinion that, appellant is just struggling to escape liability, he said it is not true that exhibit PI was not read to enable him understand the contents. Exhibit "PI" was read over, the appellant knew the contents therein, he even managed to cross-examine the respondent as appears at page 16 of the typed proceedings. He said the letter does not state clear the offence he committed. That in the exhibit "PI" there is no name of Jabil the defendant but there is the name of Hemed and he is the one who mentioned Jabil". With regard to the case cited by the appellant, he said that does not apply in this circumstance of the case at hand. Page | 12 He went on submitting that, the appellant complaint that the issues raised by the trial court were

not all resolved hence contrary to Order XX Rule 5 of Cap.33 [R.E. 2019]. He said that is not true as the issues raised were resolved as per the cited order, for clarity the order provides also that the court shall state its finding or decision, with the reasons thereof upon each separate issue unless the finding upon any/on or more of the issue is sufficient for the decision of the court. On the first issue raised by the trial court whether the plaintiff was unlawfully detained by the police under the instructions of the defendant, he said was answered in affirmative and hence was sufficient for the decision of the suit holding the defendant liable for the tort as per the cited Order Rule 5 of the Cap. 33 R. E. 2019 and the trial Magistrate elaborated further that the next issue is accordingly answered as shown at page 5 paragraph 3 of the typed Judgment. On the awarded general damages in absence of the evidence, he said it is a settled law that general damages are awarded after consideration and deliberation of the evidence so as to be able to justify the award. There is no law which provides for what has been submitted by the appellant, he said general damages are awarded depending on the discretion of the trial court after accessing damages suffered by the plaintiff and the evidence adduced in court. The appellant has not cited any law which provides for what he has

argued. Page | 13 He went on submitting that, the appellant has submitted on the 7th ground of appeal that there was no reason advanced for the reassignment of the case file from Mhanusi, RM to Kayombo RM. Hence renders the proceedings to be fatal. He said the reason for the re-assignment is recorded that it was due to the transfer of the trial magistrate Mhanusi, RM. as can be seen at page 20 of the typed proceedings, therefore he said this ground is baseless. Mr. Mbungani concluded by praying to this court to dismiss the appeal with costs, the decision and orders of the trial court be upheld. In rejoinder, Mr. Matola reiterated what he submitted in submission in chief but he added further that, with respect to the issue of proof of the case, the respondent has pointed that, since the appellant has admitted knowing the respondent and that they had a business relationship whereby the respondent is owed Tshs, Seven Million and further that, as the appellant has said during cross examination that it is not bad for a person to go and inform the police his claim against another person and more, during cross- examination the appellant failed to mention the name of the person who could have reported the respondent to the police at Songea. He contended that, the reasons adduced by the respondent in his submission are nothing but assumption of facts, the respondent was duty bound by

the law to prove by evidence that it was the appellant who had authorized the arrest. The fact that the appellant has a business relationship with the respondent and that the respondent is indebted to the appellant and that the appellant lives at Songea cannot by itself be said to Page | 14 be proof that it was the appellant who had reported the criminal case against the respondent, had it been so, exhibit D1 could have indicated to that effect and the respondent being the plaintiff at the trial court could have made follow up at Songea to have full evidence, or even could have brought one of the mentioned police officers who alleged to have arrested the respondent but worse enough, the trial court, at page 4 of its typed judgment found the appellant liable by virtual of him having a complaint of money against the respondent. He went on submitting that, the need to have even one of the said police officers who are alleged to have made the arrest is not on making a great number of witnesses, but it is on the need to prove if the arrest was made following the appellant's report at the police station, and it was required following the tendered exhibit D1 to have lacked some materials information and there was no any follow up by the respondent to Songea as was advised in exhibit D l, had this been done, the trial court could not have relied on assumptions of facts which is very

wrong in law. With regard to the issue of admission of exhibit D l, the respondent submitted that, since the appellant had some questions on the said exhibit, it means that he knew the contents of the exhibit and that the exhibit was read. And that, there is nowhere throughout the proceedings reflecting that the said exhibit was read in court after it was admitted. He contended that, the law requires an exhibit after being admitted, its contents to be read out and satisfy this requirement, failure to which means that the said legal Page | 15 requirement was not satisfied by the trial court whose effect is to expunge the exhibit. With respect to the issue of making findings to all issues, page 5 of the typed copy of judgment speaks loud that only the first issue was discussed and that there is no reasons given for leaving the other issues undetermined, he contended that, if the trial court found that the determination of one issue suffices, it could have recorded to that effect. And even if it was reflected in the records, the determination of only the first issue was not sufficient as the other remaining issues were necessary as they were the ones determining the rights of the parties. With regard to the issue of general damages, he submitted that, it is not disputed that the award of general damages is on the discretion of the court, however, the discretion should be exercised

judicially. And the magistrate must assign reason, but in the instant case the trial magistrate only granted general damages by noting that the respondent was humiliated at his house and that he suffered torture at the police station, but there is no single piece of evidence for the trial court to award general damages to the respondent herein. With regard to the 7th ground of Appeal, he submitted that, the law requires the successor magistrate to assign reasons and not the magistarate incharge as it was done in the instant case, it was the magistrate incharge who was performing his administrative duties who had assigned reasons. But the successor magistrate had not done so, this is a Page | 16 fatal irregularity that vitiates the entire proceedings from when the successor took over. Hence, he insisted for this court to re- evaluate the evidence and allow the appeal with costs by quashing the entire proceedings and decision of the trial court for lack of evidence or alternatively quash and set aside all proceedings before Kayombo RM and order retrial before another magistrate for failure to assign reasons. Having read the rival submissions by both parties, and upon going through the grounds of appeal and the reply thereof and the trial court records, the main issue for determination is whether this appeal has merit. Grounds of appeal No. 1, 2 and 3 relate, I will discuss them

jointly. The complaint here is that the trial magistrate erred both in law and fact to decide against the appellant basing on assumptions rather than evidence on record and the respondent had failed to prove, even to call key witnesses to prove such fact if any. In the instant case the appellant was sued by the respondent for false imprisonment and the trial magistrate decided in favour of the respondent and awarded general damages in the sum of Tshs. 50,000,000/= as claimed by the respondent. In tort of false imprisonment, there are factors to be considered in order to prove the case. In the case o f M o ris A . S asaw ata ve rsu s M a tia s M a iie k o [1 9 8 0 JJU K 158 the Court held that:- (i) To constitute false imprisonment there must be restraint of the plaintiff's liberty. Page | 17 (ii) The actual perpetrator of an act which in law turns out to be a tort is personally liable for damages. (iii) In a suit for false imprisonment the plaintiff can recover damages for loss of reputation. (iv) It is a duty of the court in civil proceedings to draw the attention of the parties to some ambiguity factual error or omission in their pleadings. In this case the respondent failed to call witnesses to prove that he was falsely imprisoned, as when testified he informed the court that on 14/03/2019 two police officers invaded him and he managed to mention those police officers to be

Hemed Mbonde and Rashid, but he failed to bring those police officers before the trial court to testified in order to corroborate his evidence that he was arrested and detained in the police custody and the one who put the law into motion is the appellant. Failure by the respondent to summon those key witnesses this court is entitled to draw adverse inference that if those police officers were called would have given evidence contrary to the respondent's interest as it was held in the case of Hemed Said versus Mohamed Mbilu (supra), in which it was held:- "(iii) Where, fo r undisclosed reasons, a party fa ils to ca ll a m aterial w itness on h is s id e , the court is entitled to draw an inference that if the witnesses Page | 18 were called they would have given evidence contrary to the party's interests. It is my considered opinion that, the police officers who were alleged to have arrested the respondent were material witnesses to prove that the respondent was actually arrested basing on the report by the appellant. But there is no evidence in the trial court proceedings to prove that the respondent was falsely imprisoned due to the information given to the police station by the appellant, in addition to that, there is no evidence in the record to prove that the respondent suffered reputation damages. Thus I agree with Mr. Matola that, the trial court had based its decision

on the assumption, and the fact that the appellant has a business relationship with the respondent and that the respondent is indebted to the appellant and the fact that the appellant lives at Songea cannot by itself be said to be a proof that it was the appellant who had reported the criminal case against the respondent. It is my considered opinion that, there is no evidence adduced by the respondent to prove that the appellant is the one who reported the criminal case at the police station which led to the respondent to be arrested and detained. The conditions set out in M o rris S asaw ata case must be fulfilled cumulatively. But the respondent failed to fulfill them. For that reason these grounds have merit. With regard to ground No.4 the appellant complaint is that exhibit PI has no connection with the involvement of the appellant in the arrest and the same was not read after being admitted contrary to the law. Having gone through the trial court record regarding the complaint, the same Page | 19 reveals that on 31/10/2019 when the case came for hearing, the Plaintiff now respondent tendered the letter from the Police office Njombe, the letter with reference No. NJR/CID/C.5/4/4/VOL VIII/190, the same was admitted as exhibit "PI" as revealed at page 14 of the typed proceeding, then the trial magistrate recorded as follows:- Court: The letter from police office Njombe No.

NJR/CID/C. 5/4/4/VOL VIII/190 received, admitted and marked Exhibit PI. Sgd. J. J. Mhanusi, RM 31/10/2019 After that the record is silent whether or not the said exhibit was read in court to enable the appellant know its contents. Since the trial court record is silent as to whether the said letter was read in court or not, it is my considered opinion that this is fatal and the trial magistrate was wrong to rely on the said exhibit while the same was admitted contrary to the requirement of law in tendering documentary evidence. In the case of R o b in so n M w a n jis a n d Three O th e rs ve rsu s R e p u b lic (supra) it was held:­ " (vi) W henever it is intended to introduce any docum ent in evidence, it should first be cleared Page | 20 fo r adm ission ; and be actually adm itted, before it can be read out, otherwise it is d ifficu lt for the court to be seen to have been influenced by the sam e" In the instant case after the letter was admitted it was supposed to be read aloud in court to enable the appellant to know its contents, failure to do so is fatal and the same cannot be acted upon by the court, the only remedy is to expunge it from the court record, the same is hereby expunged. Hence this ground of appeal has merit. As to ground No.5 that the trial court failed to address all issues framed. At the commencement of the trial, the trial court by assistance of the

parties framed three issues, the trial court record specifically the typed judgment reveals that, the trial magistrate addressed all issues framed, for that reason this ground of appeal has no merit the same must fail. With regard to ground No. 6 of appeal, the appellant complained that, general damages in the tune Tshs. 50,000,000/=was granted to the respondent without assigning the reasons which are backed by positive evidence on the record. Mr. Matola submitted that, the trial magistrate erred to award damages without assigning reasons of awarding the same, and there was no evidence to prove that, the respondent was humiliated at his home and he suffered torture at the police station. Page | 21 There is no dispute as submitted by the counsel for the respondent that, general damages are warded on the discretion of the trial court after accessing damages suffered by the plaintiff and the evidence adduced in court. In the instant case the respondent sued the appellant for false imprisonment and claimed to be paid Tshs. 50,000,000/= as general damages for false imprisonment and the trial court awarded him the amount he claimed. I have gone through the trial court proceedings, there is no evidence to prove that the respondent was falsely imprisoned and the one who put the law into motion leading to such false imprisonment was the appellant. Further there no evidence offered by

the respondent before the trial court to prove that, the respondent was humiliated and tortured to entitle him be awarded the general damages. For that reason it was wrong for the trial court to award the respondent the sum of Tshs.50, 000,000/=as general damages in absence of evidence tendered before her. This ground has merit. With regard to the 7th ground of appeal, the main complaint is that, the successor magistrate Kayombo RM. having taken over the matter from Mhanusi, RM did not assign reasons for her taking over the matter, although the same was assigned by the Magistrate in charge Makube, SRM. I had an opportunity to go through the trial court proceedings concerning the complaint, the trial court record reveals, specifically at page 20 of the typed proceedings on 04/12/2019 I quote:- Page | 22 "COURT: Re- assigned to Hon. Kayombo RM follow ing transfer o f tria l m agistrate. Sgd. H. A Makube, SRM 04/12/2019 The record reveals further at page 22 of typed proceedings when the case came on for the defence, the successor magistrate Kayombo, RM. didn't record the reasons for taking over the matter. I agree with what was submitted by Mr. Matola that, Makube SRM as a magistrate in charge was performing his administrative duties, the successor magistrate Kayombo RM was duty bound to assign reasons for her taking over the matter but she did not do so. The law is settled with

regard to the succession of Judges and Magistrates with partly heard cases, it gives power to deal with the evidence taken before another Judge or magistrate where the predecessor Judge or Magistrate is prevented by reasons of death, transfer or other causes from concluding the trial of a suit, the same is stipulated under Order XVIII Rule 10(1) of the Civil Procedure Code [Cap 33 R.E 2019] which provides:- "Where a judge o r m agistrate is prevented by death, transfer o r other cause from concluding the tria l o f suit, h is successor m ay deal with any evidence o r memorandum taken down or Page | 23 made under the foregoing rules as if such evidence or memorandum has been taken down o r made by him or under h is direction under the said rules and m ay proceed with the su it from the stage a t which h is predecessor le ft it" The provision was interpreted in the case of N a tio n a l M icro fin a n ce B a n k ve rsu s A u g u stin o W esaka G id im ara T/A B u ild e rs P a in ts a n d G e n e ra l E n terp rise s\ Civil Appeal No. 74 of 2016 in which the Court quoted with approval its earlier decision in M /S G eorge L im ite d versu s The H o n o u rab le A tto rn e y G e n e ra l a n d A n o th e r, Civil Appeal No. 29 of 2016(unreported) at pages 5-6, where it was held:- "The general prem ise that can be from the above provision is that once the tria l o f a case has begun

before one ju d icia l officer has to bring it to com pletion unless fo r some reason he/she is unable to do th at The provision cited above im poses upon a successor judge o r m agistrate an obligation to p u t on record why he/she has taken up a case that is partly heard by another" This ground has merit and is hereby allowed. Page | 24 Having decided as herein above, also taking into account failure by a trial magistrate as a successor magistrate to indicate in the court record the reason for taking over and finalize the case I would order for a retrial. However, as there is no sufficient evidence in the court record warranting retrial, ordering a retrial would tantamount to giving the respondent who was the plaintiff opportunity to organize himself and send before the trial court sufficient evidence than what he did before. I'm of the considered opinion that retrial is not fit in the circumstances of this case. Instead I allow the appeal with costs. DATED at IRINGA this 16th day of October, 2020.

JUDGE 16/ 10/2020 Date: 19/10/2020 Coram: Hon. F. N. Matogolo - Judge Appellant: Absent Respondent: Present C/C: Charles Page | 25 L COURT: Judgment delivered this 19th October, 2020 in the presence of the respondent but in the absence of the appellant. F. N. MATOG^DLO

JUDGE 19/10/2020 Page | 26