KURINGE REAL ESTATE VS NMB BANK PLC COMM CASE NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL CASE NO. 104 OF 2023 BETWEEN KURINGE REAL ESTATE............................................................. PLAINTIFF VERSUS NMB BANK PLC................................................................................. DEFENDANT RULING Date of Last Hearing: 19/04/2024 Date of Ruling: 19/04/2024 MKEHA, J: The present ruling emanates from a prayer for recalling the plaintiff's witness so as to produce an exhibit which allegedly, came into his possession after the close of the plaintiff's case. The prayer for recalling the said witness by Mr. Francis Makota learned advocate for the plaintiff was objected by Ms. Asia Tokutola learned advocate for the defendant. According to the learned advocate for the defendant, the prayer came as an afterthought in view of responding to questions put to the plaintiff's witness during cross examination. The learned advocate for the defendant was insistent that, as a matter of fact, the prayer aimed at responding to a 1 | Page specific question that had already been answered by the plaintiff's witness to the satisfaction of the learned advocate for the plaintiff; hence he closed his client's case on 17/04/2024. When Mr. Makota learned advocate for the plaintiff rose to rejoin, he put the following on record: That, in terms of section 147(4) of the Evidence Act, the court had powers to recall a witness at any time. Reference was made to the decision in STANBIC TANZANIA LIMITED VS. SUMRY BUS SERVICES AND FOUR OTHERS, MISCELLANEOUS CIVIL APPLICATION NO. 386 OF 2022 where it was held that, a witness can be recalled at any time regardless of the stage, even if the case has been closed. Section 147(4) of the Evidence Act provides as hereunder: 'The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross -examination and if it does so, the parties have the right of further cross-examination and re-examination respectively" 2 | Page No doubt, the object underlying the quoted provision hereinabove is that, there should not be failure of justice on account of bona fide mistakes of either party in bringing the valuable evidence on record or leaving ambiguity in the testimonies of the witnesses examined from either side. The determinative factor in permitting the recall of a witness or not will always be whether the recalling is essential to a just decision of the case. Section 147(4) of the Evidence Act is a general provision that applies to all trials of civil and criminal nature. Whereas the provision confers wide powers on the court to permit recalling of witnesses, the discretion conferred is to be exercised judiciously as the wider the power, the greater is the necessity for application of judicial mind. In conducting trials, the principle is, the best available evidence should be brought before the court. Even when both parties have closed their cases it is open to the court to permit the recalling of a witness if his evidence appears to be essential to a just decision of the case. Indeed, at any stage of a case. Once it is found that the evidence is essential for the just decision of the case the witness can be recalled at any time before pronouncement of judgment. As a matter of fact, through section 147(4) of the Evidence Act, material evidence can be admitted in court upon re- 3 | Page opening of a trial (in exceptional circumstances), even when a case has already been fixed for judgment if the court finds that the examination of the witness is necessary for the just decision of the case. A classic example can be resurfacing of an eye witness thought to be dead up to the time of closure of evidence of either party. I therefore entirely agree with my brother Kisanya, J when he held in STANBIC TANZANIA LIMITED VS. SUMRY BUS SERVICES AND FOUR (4) OTHERS (supra) that, a witness can be recalled at any time regardless of the stage, even when the case has been closed. In P. CHHAGANLAL DAGA VS. M.SANJAY SHAW, 2004 SCC (Cri) 183, the Supreme Court of India held that, though argument was concluded and the case was posted for judgment, since the complainant had moved the trial court for reception of additional material, in exercise of powers under section 311 of the Code of Criminal Procedure, as the materials were necessary for a just and proper decision in that case, it was proper to allow the petition to meet the ends of justice. The objects underlying the enactment of section 311 of the Indian Criminal Procedure Code and section 147(4) of our Evidence Act are similar. 4 | Page However, the general rule that a witness can be recalled at any time regardless stage of a case has exceptions. Firstly, the court should not permit recalling of a witness for the sole purpose of filling up gaps in a case of either party when all the procedures regulating a particular trial have been exhausted. In the present case, an issue regarding the exhibit sought to be produced through recalling PW1 emerged during cross examination of the witness sought to be recalled. Questions on whether there was such evidence were raised and answered. Nevertheless, the plaintiff chose to close her case without tendering the disputed document. Whereas the learned advocate for the plaintiff submitted that the document sought to be introduced into evidence was obtained after close of the plaintiff's case, the plaintiff's own evidence negates this fact. At page 1 of PWl's witness statement, it was indicated that, the said document would be produced in court. No way can one escape a conclusion that, the move seeks to fill in gaps (if any) in the plaintiff's case, which were made known to the plaintiff's advocate before he opted to close his client's case while in possession of the disputed document. 5 | Page Secondly, where recalling of a witness would cause prejudice to the opposite party, the permission should be refused. The submissions by Mr. Makota learned advocate were near to suggesting that, recalling of witnesses have to be freely allowed whenever asked. The section does not confer right to any party to insist on recalling a witness if not for meeting the ends of justice. Given the fact that the parties have already been exhaustively heard regarding the document sought to be brought as additional evidence and since this is not denied by the plaintiff's side, it would be prejudicial to the defendant allowing recalling of PW1 for the purpose explained by the learned advocate for the plaintiff. Thirdly, when a move for recalling a particular witness is considered to be an abuse of the court process, the request for recalling a witness has to be refused. This is normally practiced by those who for one reason or the other would not wish to witness timely conclusion of trials in courts. The learned advocate for the plaintiff did not submit on how relevant the document would be, to a just decision of the case. To avoid permitting the plaintiff to fill gaps in her case and to prevent prejudice on the defendant's side, prayer for recalling PW1 is refused. The case will have to proceed with defence hearing as scheduled. The objection raised by Ms. Asia 6 | Page Tokutola learned advocate for the defendant, is sustained for being meritorious. DATED at DAR ES SALAAM this 19th day of APRIL 2024. JUDGE 19/04/2024 Court: Ruling is delivered in the presence of the parties' advocates. C. P. JUDGE 19/04/2024 7 | Page