PC Civil Appeal 17 of 2023 Judgment Mrisha J

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA PC CIVIL APPEAL NO. 17 OF 2023 (Arising from District Court ofSumbawanga at Sumbawanga in Civil Appeal No. 02 of2023 and originated from Sumbawanga Urban Court in Civil Case No. 103 of2022) JUMA OSCAR KIWAILE................................................................... APPELLANT VERSUS JACKSON WALUYE....................................................................... RESPONDENT JUDGMENT 2nd September & 29th November, 2024 MRISHA, J. This is a second appeal. The appellant preferred this appeal following his dissatisfaction with the decision of two lower courts which were Civil Appeal No. 02 of 2023 before the District Court of Sumbawanga at Sumbawanga and Civil Case No. 103 of 2022 before Sumbawanga Urban Primary Court. 1 Simply, the facts of this case can be narrated thus, the respondent filed a Civil Case No. 103 of 2022 before Sumbawanga Urban Primary Court, (the trial court) claiming of Tshs 5,000,000/= as a debt against the appellant. The respondent lent the appellant the said sum of money with an agreement to pay debt and 25% interest within six months after receiving the money. In the event, the appellant did not appear in court and the matter was heard ex-parte and on 27th June, 2022 Ex-parte judgment was delivered against him. The appellant decided to file an application to set aside ex-parte judgment, but while the said application was lodged, the main file in Civil Case No. 103 of 2022 went missing in Court registry and had been thoroughly searched, but in vain. After a long delay of finding the main case file, the Magistrate In-charge of Primary Court sworn an oath to affirm that the said file had not been found and decided to open a new file in order to proceed with the matter. Moreover, the application was heard as a result of which the ex parte judgment was set aside and, the matter heard inter partes. On 28th December, 2022 judgment was delivered and the appellant was ordered to pay a total sum of money at the tune of Tshs 5,000,000/= being the principal sum, 15% of the principal sum being general damages, and costs of the suit. 2 Aggrieved by the decision of the Sumbawanga Urban Primary Court, the appellant challenged the said decision and filed an appeal to the District Court of Sumbawanga in Civil Appeal No. 02 of 2023 (the first appellate court) which after considering the grounds of appeal and rival submissions between the parties before it, upheld the decision and findings of the trial court, hence this appeal was lodged as a second bite. At the outset, I endeavor to demonstrate primarily that the appellant had raised six grounds of appeal before the first appellate court. However, in the instant appeal (second appellate court) the appellant raised seven grounds of appeal, but not all of them are the same, they are as follows: 1. That, the first appelate court magistrate misdirected herself in both law and fact by not considering that proceeding at the trial court was against the requirement of law if that could be done could come with different result. 2. That the exhibits tendered at the trial court was defective and was wrongly admitted, the author of it had no authority to witness. 3. The exhibit tendered was not certified as a true copy of original hence miscarriage ofjustice. 3 4. The first appellate court erred in law and facts by not considering that unlicensed person cannot lend money. 5. That, during the trial I never observed the original exhibit as prior to that the case was heard ex parte hence lacked proof. 6. That, both the subordinates 'trial magistrates favored the respondent in all circumstances. 7. That, I was not fairly treated in all circumstances in all subordinate court. When this appeal came for hearing, the appellant appeared in person, unrepresented, while the respondent absented himself without notice. Henceforth, the appellant prayed to this court to proceed with hearing as the court scheduled, in absence of the respondent, whereby the court granted the prayer and the matter was heard ex-parte. In the course of submitting in support of the appeal, the appellant adopted his petition of appeal filed in this court in order to form part of his submission in chief. Hence, he called upon this court to allow his appeal, nullify proceedings and judgment of the District Court, with costs. 4 I have dispassionately considered the grounds of appeal in the light of the appellant submission. Having stated the above, I should now be in a position to confront the issues of contention in this appeal. As stated earlier, this is a second appellate court; the Civil Case originated from Primary Court, the appellant appealed to the District Court after being dissatisfied with the decision of the Primary Court. He was aggrieved with the decision of the District court thus, appealed to this court as second bite. The issue for determination is whether the appeal has merit. Before embarking on the determination of the ground of appeal, I wish to note that, the law is settled that second appellate court should not interfere with concurrent findings of the two courts below unless it is satisfied that the finding is based on misdirection or misapprehension of evidence or violation of some principle of law or procedure or has occasioned a miscarriage of justice. This was clearly stated in the case of Neli Manase Foya v Damian Mlinga [2005] T.L.R 167 in which the Court of Appeal stated inter alia that: "...It has often been stated that a second appelate court should be reluctant to interfere with a finding of fact by a trial court, more so where a first appellate court has concurred with such a finding of fact. The District 5 Court, which was the first appellate court, concurred with the findings of fact by the Primary Court. So did the High Court itself, which considered and evaluated the evidence before it and was satisfied that there was evidence upon which both the lower courts could make concurrent findings of fact." Indeed, it is a principle of law that, a matter which was not raised and determined by the first appellate court cannot be entertained by the second appellate court unless it involves a point of law. See Abdul Athuman v Republic [2004] T.L.R. 151 and Samwel Sawe v Republic, Criminal Appeal No. 135 of 2004 (unreported). In Hassan Bundal @Swaga v Republic, Criminal Appeal No. 385 of 2015, the Court of Appeal held that: "It is now settled that as a matter of general principal this Court will look into matters which came up in the lower court and were decided; and not on new matters which were not raised or decided by neither trial court." The above exposition applies to the situation in the present case in which ground 4 and 5 are new grounds of appeal. The remaining grounds 1, 2, 3, 6 and 7 are grounds raised in first appellate court. Therefore, ground 4 and 5 have been 6 improperly raised because they are new and based on facts, they are accordingly dismissed. On the first ground of appeal, the appellant contends that the proceedings in respect of the present before trial court were against the requirement of the law. As a layman, the appellant did not demonstrate how he was prejudiced by the trial court. I have gone through both records of trial court and first appellate court and it is clear the records disclose that, the appellant filed an application to set aside ex-parte judgment at the trial court. Whereas, the application was heard and the court grant his prayer and ordered the matter be heard inter partes. More so, when the matter was about to takeoff, the main case file in Civil Case No. 103 of 2022 went missing in court registry; efforts were made to find the said file, but did not bear any fruits. Alternatively, the magistrate in-charge of the trial court swore an affidavit to prove that the main case was in vain. Henceforth, the new file was opened and the court heard the matter inter partes. On 28th December, 2022 the trial court decided the matter in favor of the respondent. Since, the magistrate in charge suggested the way forward plan on how to proceed with the hearing of the matter inter partes, by opened a duplicate 7 casefile and swore an affidavit to prove that the main case was nowhere to be found. In my view, that helped the matter to proceed without wasting a time of the court and parties. This reminds me of the legal maxim that justice delayed is justice denied. In the case of Said Shaban v Republic, Criminal Appeal No. 175 of 2011, the Court of Appeal cited with approval the case of Pieter Davids v S (A571/12) [2013] ZAWCH that the circumstances of each case may vary widely. In Pieter Davids (supra) the Court held that: "The court mustn't prescribe a uniform course of conduct in matters involving missing records since the circumstances of each case may vary widely." From the above position of the law, I am fortified with the position of the first appellate court that the first ground of appeal is devoid of merit since no procedural irregularity was conducted by trial court in dealing with the matter. Thus, in that regard I find the first ground of appeal to have no merits and the same is hereby dismissed. Next, I will deal with grounds two and three of appeal simultaneously. The two grounds deal with exhibits tendered at the trial court whereby it has been argued that were defective, uncertified and wrongly admitted. The appellant contended 8 that, the trial court admitted a secondary document without considering that the said document was not certified as a true copy of the original, thus, it occasioned a miscarriage of justice. As previous stated, the records reveal that the trial court heard Civil Case No. 103 of 2022 ex-parte and the trial court delivered ex-parte judgment, but upon application against that the said ex parte judgment, the same was set aside. During hearing of inter partes trial, the respondent tendered copy of agreement between the appellant and respondent to prove that the appellant did lend some money to the respondent. In his testimony, the respondent testified that the original document was lost in the original file. This is evidenced at page 18 of the trial court typed proceedings which shows that SM1 testified that: "...nina kielelezo cha mkataba ambao tuliandikiana, niliyonayo ni nakala kivuli, nakala halisi ilibaki kwenye jalada la mahakama lililopotea, naomba kutoa mkataba huu kama ushahidi na kielelezo. ”' The above passage shows the reasons of tendering a photocopy or uncertified document is due to the loss of the original file with the original copy of the contract which was tendered and admitted by the court when the case was heard ex-parte. In spite of that, the law allows a copy of documentary evidence 9 to be admitted in court as an exhibit in primary court, under special circumstances. The law sets a condition that the original document must have been proved to be either lost or destroyed or in the hands of the opposing party. This position is stated under Rule 11 (1) (a) of the Magistrates’ Courts (Rules of Evidence in Primary Court) Regulations GN No. 22 of 1964 (the Rules). At this juncture, I find it appropriate to appreciate what the provisions of Rule 11(1)(a) of the Rules provide. It reads: "))) The original document must always be produced. Exception: (a) A copy of the original document may be proved if the original has been lost or destroyed or if it is in the hands of the opposing party and he will not produce it, but (unless paragraph (b) of this exception applies) oral evidence must be given that it is a true copy of the original. ”' [emphasis is mine] Reverting back to this case, it is on record that the trial court admitted a photocopy of agreement on the ground that the said document was lost with an original case file. Nevertheless, the trial court took a judicial notice on the fact that the original document was admitted previously by the trial court before the 10 original file was lost. Therefore, admitting a copy of document on the ground the original document was lost, is in my considered view proper and admissible in law. Thus, the second and third grounds of appeal lack merits as well. As regard to ground six and seven of appeal, the two grounds are similar and will be discussed together. In ground six the appellant contended that the two lower courts favored the respondent in all circumstances. Again, in ground seven, the appellant claimed that he was not fairly treated by both courts below. These two grounds of appeal will not labor me much time in addressing them because it is obvious that the appellant did not demonstrate how he was treated unfairly by the said courts. The records of the trial and first appellate courts depicts that at no point in time, the appellant was treated unfairly. More so, had he been treated negatively as he would want the court to find, his application to have the trial court ex parte judgment be set aside, would not be granted and, the records of the two courts below would bear him out regarding his complaint. I thus, concur with the findings of the first appellate learned magistrate that nothing from the records indicates that the appellant was treated unfairly. The foregoing reasons make grounds six and seven to crumble as well. 11 Thus, owing the above reasons, I find and hold the appeal at hand is without merit and proceed to dismiss it with costs. Consequently, I uphold the decisions of the two courts below. It is so ordered. A.A. MRISHA JUDGE 29.11.2024 DATED at SUMBAWANGA this 29th day of November, 2024. A.A. MRISHA JUDGE 29.11.2024 12