germanus zakaria mayemba another vs minael hosanna olesobay mdundo administratrix of the estate of late major general aidan mfuse 2023 tzhc 19320 28 july 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IRINGA SUB REGISTRY) AT IRINGA PC CIVIL APPEAL NO. 2 OF 2022 (Arising from Civil Appeal No. 6/2021 of the District Court of Njombe before Hon. M. J. Kayombo- SRM, Original Civil Case No. 4/2020 of the Primary Court of Njombe District at Uwemba before Hon. J.N Maroda- RM) GERMAN US ZAKARIA MAYEM BA ............................ 1st APPELLANT VITALIA KASIAN MSIGWA ............................ 2nd APPELLANT VERSUS MINAEL HOSANNA OLESOBAY MDUNDO (Administratix Of the estate of the Late Major General Aidan Mfuse)....... RESPONDENT JUDGEMENT 4h May & 2£f" July, 2023 I.C. MUGETA, J: This appeal originates from the Uwemba Primary Court where the respondent sued the appellants claiming Tshs. 3,100,000/= being the value of nine cows. According to the records, Aidan Mfuse had kept his 15 cows with the appellants. Upon the death of Aidan Mfuse, the administratrix of his estate sought to recover the said cows but in vain. Consequently, she instituted a suit before the trial court for the recovery of the said cows. The trial court held that the respondent had proved her claims against the appellants and ordered the respondents to pay the claimed amount. Page 1 of 9 The appellants' appeal to the District Court was dismissed on the ground that it lacked merits. The appellants still believing that justice was not served, they have filed the present appeal challenging the decision of the District Court based on the following grounds:- 1. That, the first appellate court and the trial court erred in law for delivering decision in favor of the respondent while the proceedings of the trial court is flawed with procedural illegalities and irregularities on the opinions of the assessors. 2. That, the first appellate court and the trial court erred in law and facts to give decision in favor of the respondent white the respondent failed to prove the case on balance ofprobabilities. 3. That, the trial and the first appellate court erred in law and facts to decide the case in the favor of the respondent who failed to establish that there is contractual relationship between the appellants and the respondent hence misapprehended the evidence. The appeal was argued by way of filing written submissions. The appellants are represented by Marco Kisakali, learned advocate and the Page 2 of 9 respondent enjoyed the legal representation of Abraham Senguji, learned advocate. Submitting on the 1st ground, the appellant's counsel argued that the trial court admitted documentary evidence illegally as after admission the same were not read out in court. To buttress his argument, he cited the cases of Robinson Mwanjisi & Others v. Republic [2003] TLR 218 and Selemani Selemani Mkwavila (Administrator of the Estate of the late Jafari Juma Budu) v. Agatha Athuman & Another, Land Appeal No. 5 of 2022, High Court - Mtwara Registry (unreported). On assessors' opinion he submitted that the proceedings does not show that the assessors' opinion was read in the presence of the parties and that they were required by the magistrate to give their opinion which contravened section 6(1) (a) and 7 of the Magistrate' Courts Act [Cap. 11 R.E 2019]. To buttress his argument that the primary court proceedings must show that assessors' opinion was read, he cited the case of Mugeta Malago & Another v. Amosi Pamba, PC Criminal Appeal No. 25 of 2019, High Court - Musoma Registry (unreported). Another irregularity which he pointed out is that the court proceeded to fix the matter for judgment while the defence had not closed its case. The learned counsel argued the 2nd and 3rd grounds jointly. The complaint in these grounds is that the trial court failed to evaluate evidence as the respondent failed to prove her claim on the balance of probability. In his view, the respondent had a duty to establish contractual relationship between the deceased and the appellants. He cited the case of Generoza Ndimbo v. Blasidus Yohanes Kapesi [1988] TLR 73 to support his argument that whoever alleges must prove. He complained that, the cowboy who the respondent alleged to have opened an account for was not called to testify thus the court should draw an adverse inference against the respondent for failure to call a material witness as it was held in Hemedi Saidi v. Mohamed Mbilu [1984] TLR 113. Counsel for the respondent opposed the appeal in the order of submission made by the counsel for the appellant. He argued that all the documents were read over as reflected on the trial court's proceedings. He, thus, distinguished the cases cited by the appellants as being irrelevant to the instant case. Regarding the 2nd and 3rd grounds of appeal, the respondent's counsel submitted that the respondent sued as an administratrix of the estate of her late husband. She tendered documents which proved Page 4 of 9 contractual relationship between her late husband and the appellants. Regarding the complaint on failure to summon the cowboy, be argued that he was not a material witness as the evidence showed that the appellants are the ones who advised the respondent to open an account for the cowboy. He, thus, distinguished the case cited by the appellant with the present case as being irrelevant. The appellant did not file a rejoinder. In disposing the appeal, I will discuss the grounds as argued by the parties. In the first ground, the main complaint is that there are illegalities and irregularities in the trial court's proceedings. I will begin with the illegality that the exhibits tendered were not read after admission. The record shows that the documents were shown or read to the parties after their admission. Thus, the appellants knew of the contents of the said documents. This complaint has no merits. As for assessors' opinion not read in the presence of the parties, Section 7(1) of the MCA sets a mandatory requirement that a primary court magistrate has to sit with not less than two assessors. However, the law has not provided the requirement that their opinion be reflected in the Page 5 of 9 court proceedings or be given in writing or be read to the parties. Section 7(2) of the same act only provides that in event of any difference between a magistrate and all the assessors or any of them, a decision is made by majority of votes and in case of equality of votes, a magistrate will have a casting vote. The record shows that through out the trial, the assessors participated fully in the trial by examining witnesses and later gave their opinion before the trial magistrate composed judgment. Such opinions are on record which was unnecessary. In Primary Courts, assessors sit as judges and their opinion is binding. By signing the judgment it means they agree with it unlike in other courts where their opinion is not binding and they do not sign the judgment. In Nelly Manase Foya v. Damian Mligo [2005] TLR 167 which address the status of assessors in Primary Courts the Court of Appeal had this to say: "Since assessors are members of the court and sign the judgment as such and not for the purpose of authenticating it, they are neither required to give their opinion nor to have their opinion recorded by the magistrate". i Page 6 of 9 It follows, therefore, that the decision in Mugeta Malongo case (supra) was decided per incurium of the said decision of the Court of Appeal The appellants' last ground of appeal centers on evaluation of evidence. The respondent's evidence before the tribunal was not direct evidence, it was centered on documents as there was no any witness who testified to have witnessed the deceased handing over to the appellants the said cows. The respondent (PW1) in her evidence testified that after the death of her husband she was appointed the administrator of his estate. In performing her duties, she went to the appellants' home where her husband had 15 cows. Her evidence is supported by PW2, a Village Executive Officer who attended the meeting between the parties to discuss about the 15 cows. On the other side, the 1st appellant (DW1) in his evidence testified that he saw the 2nd appellant bringing cows stating that she was given money by the deceased. He stated and I quote:- "niiikuwa naona mdaiwa wa piii aiiieta ng'ombe hao aiieieza kuwa heia amepewa na mume wa mdai yaani Aidan Mfuse ndiyo aiiyekuwa akimnunuiia ng'ombe." . Page 7 of 9 The 2nd appellant, DW2 testified in her evidence that she was given 800,000/= by the deceased where she went to buy cows as quoted hereunder:- "Mwaka 2013 a/ifika Isdory Mfuse na kukabidhi fedha ya fensi laki tano (5OOfOOO) wachimba mashimo na kupanda laki sita (600,000) na mimi akanikabidhi laki nane (800,000/=) na fedha hizo nikaenda kununua ng'ombe na kuniambia na mimi nitakuwa msaidizi wa mifugo /vya "[emphasis mine]. From the above extracts, there is no dispute that indeed the 2nd appellant was given money by the deceased Aidan Isdory Mfuse to buy the said cows and assigned to care for them. The respondent, thus, proved her claims. In totality, I dismiss the appeal for want of merit. I make no order as to costs as the parties are relatives. I.C. MUGETA JUDGE 28/7/2023 Page 8 of 9 Court: Judgment delivered in the presence of Marco Kisakali, learned advocate for the appellants, 2nd appellant in person and in the absence of the 1st appellant and the respondent. Sgd: I.C. MUGETA JUDGE 28/7/2023 Page 9 of 9