jumanne zirira vs registered trustees of evangelical lutheran another 2007 tzhc 334 25 july 2007

IN THE HIGH COURT OF TANZANIA , AT MOSHI (DC) CIVIL APPEAL NO. 2 OF 2006 [C/F DC MOSHI CIVIL CASE NO. 29/2004] JUMANNE ZIRIRA------------- ----------- APPELLANT VERSUS 1. THE REGISTERED TRUSTEES OF EVANGELICAL LUTHERAN CHURCH (T) NORTHERN DIOCESE ] 2. UMBURI SECONDARY SCHOOL ] - RESPONDENTS JUDGMENT HON. JUNDU, J. The Appellant, was the Headmaster o f Umburi Secondary School, which is managed by the Respondent. In the trial court, the Appellant together with two other teachers had jointly and together sued the Respondent for unpaid salaries totaling shs. 1,524,730/=. The Respondent had admitted the said claims but not amounting to shs. 1,524,730/= as claimed by the Appellant together with the two other two teachers. On the other hand, the Respondent had counter-claimed for shs.521,870/=. The record o f the trial court and its Judgment thereof show that at the commencement o f the trial, the parties had framed the following agreed issues:- (1) W hether the Defendant as the employers o f the Plaintiffs were the cause o f the Plaintiffs unpaid salaries. (2) W hether Plaintiffs as the employees o f three Defendants have claims o f Defendants amounting to shs.521,870/=. (3) What the parties are entitled to. 1 In his Judgment, the trial magistrate stated as follows in resolving the above issues - “ The evidence also shows that the Plaintiffs resigned themselves and for that reason cannot claim that the Defendants were the cause o f their unpaid salaries. That issue No. 1 is not established. Issue No.(2) has been established to show that the counter claims o f the Defendants have been established to each o f the Plaintiffs. N ow I come to Issue No. 3 to satisfy m yself on the agreed claims to be paid to the Plaintiffs as follows: - 1st Plaintiff deserves shs. 161,491 /- after all deductions - 2nd Plaintiff deserves shs.229,731/= after all deductions - 3rd Plaintiff (Lightness Laizer) deserves shs. 145,000/= after all deductions. The Plaintiffs do not deserve interest or devaluation o f the currency as there was no deliberate negligence o f the Defendant established in the Plaintiffs j case. Thus judgm ent is hereby entered in favour o f the Plaintiffs to the tune as follows:- The defendants to pay them as follow s:- - 1st Plaintiff (Jumanne Zirira) - shs. 161,491 /= - 3rd Plaintiff (Lightness Laizer) - shs. 145,000/= - 2nd Plaintiff (BETRAM JULIAN M USHI) - shs.229,73 \/= 2 That is to be paid without any order to costs. Each party to bear its own costs.” Having been aggrieved by the decision o f the trial court, the Appellant has appealed to this court listing four (4) grounds o f appeal, namely:- (1)That the learned District Magistrate faulted in law and fact in denying costs to the Appellants without affording reasons thereon. (2) That the learned District Court having found that the Respondent did admit the A ppellant’s claim partially per their written statement o f Defence ought to have awarded Judgment and decree to the extent admitted in favour o f the appellants. (3 )That the learned District Magistrate failed to evaluate the whole evidence tendered before him, and no reasons were advanced by the court allowing the Respondent’s counter claim. (4) That the learned District Magistrate failed in law for not grasping the nature o f the claim which was before him so much so that he ended at an erroneous conclusion. Based on the said grounds o f appeal, the Appellant has prayed to this court to allow the appeal. j On 28/5/2007, by consent, this court ordered the parties to argue the appeal by way o f written submissions. The parties have so complied. The Appellant argued the appeal on his own while Mr. Maruma, learned counsel advocated for the Respondent. The Appellant, in his submission abandoned grounds two and four in the M em orandum o f Appeal. He canvassed grounds one and three only. In the first ground o f appeal, the Appellant contends that the trial magistrate erred in law and fact in denying costs to the Appellant without assigning any reasons thereon. He contends that it is a trite law that costs are awarded at the discretion o f the court and that where a successful party has not been awarded 3 costs, reasons must be stated. He further contends that in the trial court, the Appellant succeeded but was not awarded costs nor were reasons given by the trial magistrate for such denial. He contends that the discretion in awarding costs must be exercised judicially after considering the circumstances o f the case. He further contends that it is a trite law that once a trial court has exercised its discretion on the question o f costs, an appellate court will not interference unless it is shown that the trial court acted on a wrong principle or unjudicially (citing Kiska V.De Angelis [1969] A.E.6. He therefore argues that since the trial court did not give reasons in denying costs to the Appellant, then in his view, this is a fit case in which this court as an appellate court to interfere as its hands are not tied up. He prayed for the said costs to be awarded because he simply incurred the same in prosecuting the said case in Moshi while he was staying in Dar es Salaam. Now, how does Mr. Maruma, learned counsel for the Respondent respond on the issue o f costs? First, in his submission, he concedes as argued by the Appellant that costs are awarded at the discretion o f the court. However, Mr. Maruma, contends that it is erroneous and misleading for the Appellant to assume that he wholly won the case in the trial court hence entitled for costs. He argues that the proceedings in the trial court were a cross - suit in which the Respondent j had raised a counter - claim and won it substantially thereby reducing the decretal sums due to the Appellant hence the present appeal. He contends that as there was partial win by both parties no costs was due. In other words, Mr. Maruma contends that no cost was due to either party and that the trial magistrate had only to give reasons for denying costs when due and not otherwise hence the complaint by the Appellant has no merit. Further, it is the submission o f Mr. Maruma that the dispute that the A ppellant had filed in the trial court was a labour matter for which under Section 143 o f the then Employment Ordinance, Cap. 366 then still in force do not attract costs. 4 I have carefully read the submissions o f both parties on the first ground o f appeal on the issue o f the trial court not awarding costs in its Judgment. First, I am in fully agreement with the submission o f both parties that a successful party in a case is entitled to costs. Secondly, I further agree with them that costs are awarded at the discretion o f the court and that discretion should be exercised judicially. Thirdly, I agree with the submission o f the parties that where a successful party is not awarded costs, reasons must be stated. In the present case under appeal, the trial magistrate in his Judgment made no order as to costs. Was it a misdirection in the said specific case? The said Judgment (page 3) shows that the Appellant and his fellow two Plaintiffs won some reliefs among the reliefs they had prayed for in the trial court and were also denied others. Further, the said Judgment shows that the Respondent had also won its claims in the counter —claim against the Appellant. Let me demonstrate the whole scenario from the findings o f the trial magistrate him self as far as the Appellant and the Respondent were concerned. The trial magistrate stated as follows on page 3 o f his Judgment “ Thus judgm ent is hereby entered in favour o f the Plaintiffs to the tune as follows - 1st Plaintiff (Jumanne Zirira) - shs. 161,491/=” But the said victory o f the Appellant was a partial victory only as the Respondent had won in its counter - claim as stated by the trial magistrate in his Judgment that “ Issue No. (2) has been established to show that the counter - claim o f the Defendants have been established to each o f the Plaintiff.” 5 The said finding o f the trial magistrate had the effect o f reducing the A ppellant’s claim in the trial court. This is gathered from the said Judgm ent when the trial magistrate stated “Now, I come to issue No. 3 to satisfy m yself on the agreed claims to be paid to the Plaintiffs as follows - 1st Plaintiff deserves shs. 161,491/= after all deductions” . There other claims by the Appellant which the trial magistrate dismissed. The trials magistrate in his Judgment stated as follows - “ The Plaintiffs do not deserve interest or devaluation o f the currency as there was no deliberate negligence o f the Defendant established in the Plaintiffs case” Therefore, it is clear, in my considered view, that the case in the trial court was a cross suit. The Appellant had to some extent won in his claims in the main suit. However, he was not a sole successful winner in the suit. Some o f his claims were dismissed. It was a partial win only, because the Respondent had also won in its counter - claim against the Appellant. In the circumstances, there was no need on the part o f the trial magistrate to state reasons for the order he had made with regard to costs in the trial court. I so hold. Therefore, the first ground o f appeal has no merit. I so find. In the third ground o f appeal, the Appellant contends that the trial magistrate erred in law in ruling in favour o f the Respondent on the counter - claim which was allegedly not supported by sufficient evidence. The Appellant, in his submission contends that the trial magistrate in granting the counter - claim in favour o f the Respondent, he mainly based his decision on the evidence o f D W .l and DW.2 and the various defence exhibits tendered by the said witnesses and 6 admitted by the trial court to wit Exhibits D l, D2, D3, D4, D5, D6 and D7. However, the Appellant in his submission contends that these exhibits were nothing but mere fabrications aimed at depriving his claims in the trial court. He has demonstrated, in his submission, what in his view were the defects or contradictions in the said exhibits which the trial magistrate did not apply his mind when evaluating the evidence. On the other hand, Mr. Maruma, learned counsel, in his submission has vehemently opposed the A ppellant’s contention in the third ground o f appeal. He argues that the question raised by the Appellant over the lower court evaluation o f evidence o f exhibits would have been conclusively handled by cross - examination by the Appellant in the trial court. He further contends that, in his view, in case the Appellant did not effectively conduct his cross - examination when the opportunity arose in the trial court, it is now too late in the day. I have carefully considered the submission o f the parties on the third ground o f appeal. The issue is whether the trial court erred in evaluation o f the evidence o f the Respondent hence wrongly deciding the counter - claim in the favour o f the said Respondent. The Appellant in his submission has mainly tried to demonstrate that the Respondent’s exhibits (D l, D2, D3, D4, D5 and D6) were a fabrication j story full o f contradictions hence the trial magistrate erred to grant the counter - claim in favour o f the Respondent while the evidence on record was insufficient to show that the Respondent had any justified claim against the Appellant. Mr. Maruma, learned counsel for the Respondent in his submission argued and I fully agree with him that the question o f the defence exhibits being a fabrication story or contradictory would have been conclusively handled by the Appellant in the trial court by way o f cross - examination. This in my considered view, would have enabled the trial magistrate to have in mind the alleged fabrications or contradictions in the defence exhibits when evaluating the evidence. As stated by 7 Mr. Maruma in his submission quoting Justice (Rtd) Chipeta in his took titled “A Magistrates M anual” that “The object o f cross - examination is two fold to weaken, qualify or destroy the case o f the opponent and to establish the party’s own case by means o f his opponent’s witnesses. The objects are to impeach the accuracy, credibility and general value o f the evidence given in chief.” Having read the record o f the trial court, I am satisfied that the Appellant him self did not in the first place during trial in the lower court, effectively raise the alleged fabrications or contradictions in the alleged defence exhibits by way o f cross - examination to bring them to the attention o f the trial magistrate to enable him to consider them during evaluation o f evidence. It is therefore too late to canvass the said matter on appeal. As is the practice, the trial magistrate was satisfied with the evidence adduced and the credibility o f the witnesses based on their demeanor before him hence resolving the counter - claim in favour o f the Respondent. The trial magistrate in his Judgm ent stated as follows having considered the evidence adduced before him - “ Issue No. (2) has been established to show that the counter - claims o f the Defendants have been established to each o f the Plaintiffs” . I need not speak it further or emphasize it. I hasten to state that the third ground o f appeal by the A ppellant has no merit. I so hold. In the premise, I find that the appeal filed by the Appellant has no merit. The same is hereby dismissed with costs. I uphold the Judgm ent and Decree o f the lower court. It is so ordered. F.A.R. JU N D U JU D G E 25/7/2007 Right o f Appeal Explained. \ F.A.R. JU ND U JU D G E / 25/7/2007 25.7.2007 Coram: F.A.R. Jundu, J. For the Appellant: present For the Respondent: Mr. M aruma, Advocate C/C: Muyungi. C o u rt: Judgment delivered in the presence o f the Appellant and in the presence o f Mr. M aruma, learned counsel for the Respondent. F.A.R. JU N D U JU D G E 25/7/2007 AT M O SH I 9