EDITED COMMERCIAL CASE NO 9 OF 2019 MR JOSEPHAT

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA COMMERCIAL DIVISION AT MWANZA COMMERCIAL CASE NO. 09 OF 2019/ 17742 OF 2024 MR. JOSEPHAT MUNIKO MWITA (Suing under the constituted Special Power of Attorney conferred to him by MR. MWITA MAKINDYA AND MRS. MWITA ANTONY WAMBURA)................................................................ PLAINTIFF VERSUS NORTH MARA GOLD MINE LIMITED...................... DEFENDANT RULING Date of Last Hearing: 24/09/2024 Date of Ruling: 24/09/2024 MKEHA, J: The present ruling relates to admissibility of documents containing information and data regarding gold produced and its value, from Nyabirama Pit for the period between years 2013 and 2021. The Additional Plaintiff's witness has sought leave of the court to admit as additional evidence, the said documents in their secondary form. While laying foundation for admission of the said documents, the witness stated in his supplementary witness statement that, the documents sought to be admitted had been earlier on tendered by the defendant in this court through Commercial Case No. 3 of 2020 on 09/06/2022. The witness told the court that, believing the documents to be in the defendant's 1 | Page possession, he served the latter with notice to produce the said documents. The said notice could not yield positive results. The witness therefore, asked the court to admit the secondary evidence into evidence. Soon after recording the prayer for admission of secondary evidence, Mr. Faustine Malongo learned advocate for the defendant, rose to object. The objection was to the following effect: That, the documents sought to be admitted into evidence were in their secondary form. That, the plaintiff had not satisfied the conditions for admissibility of secondary evidence under sections 67 and 68 of the Tanzania Evidence Act. The learned advocate submitted that; the purported notice did not satisfy the conditions under section 68 (d) of the Evidence Act. According to the learned advocate, the plaintiff was required to serve notice upon the defendant requiring her to produce the original documents. And that, upon failure of the defendant to produce the original, that is when the witness would be justified to rely on secondary evidence. The learned advocate was insistent that, the filed notice merely notified the defendant of the plaintiff's intention to rely on secondary evidence. The learned advocate submitted further that, the notice served upon the defendant had been preferred under section 68 (d) of the Evidence Act without proof that the defendant had the documents in court, at a time 2 | Page when the prayer for admission of the said evidence was being made. A number of case laws and literatures were cited in view of strengthening the defendant's line of argument. For reasons which shall become apparent hereinafter, I refrain from reproducing the relevant authorities relied upon in making the arguments supporting the preferred objections. Mr. Heri Kayinga learned advocate for the plaintiff submitted in reply that, paragraph 5 of the supplementary witness statement was indicative that, the original documents were being actually possessed by the defendant. In view of the learned advocate, had the learned advocate considered the notices served upon him to be inappropriate, he would have preferred an objection as the obtaining civil procedures and practices require. A Case law was cited to persuade the court so that it could hold in his path. Mr. Rugemeleza Nshala learned advocate for the plaintiff added the following to the submissions of his brother learned advocate: That, the whereabouts of the original documents was a known fact to both parties. He was insistent that, all what the plaintiff's witness had asked the court was leave to produce what the Court of Appeal asked to be received as additional evidence subject to evidential rules of admissibility. After the learned advocate had ventured to distinguish the case laws cited by the learned advocate for the defendant, he made an alternative prayer that, 3 | Page the documents be admitted relying on the principle of overriding objective, in the event the court finds that, the plaintiff had failed to organize his case properly. On his part, Mr. Nyaronyo Kichele learned advocate for the plaintiff summed up the reply submissions by addressing the court that, the learned advocate for the defendant had not challenged the second notice to produce served upon him on 23/09/2024. He then pressed for dismissal of the objections. To a great extent, the defendant's rejoinder was a reiteration of what had been submitted in chief, by the learned advocate for the defendant. Of relevance, the learned advocate submitted that, the document he filed in court on 09/06/2022 was irrelevant as it was not the document sought to be relied upon by the Additional Plaintiff's witness. The rejoinder submissions recorded the inevitable concession to the effect that, indeed, through Commercial Case No. 03 of 2020, the defendant had filed a report regarding gold extraction from different pits, the contested one inclusive. Ms. Carolyne Kivuyo learned advocate for the defendant finalized the rejoinder submissions by reminding the court that, the overriding principle was not meant to rectify all omissions and non-compliance with clear provisions of the law. She then asked the court to uphold the objections. 4 | Page The only determinative question is whether in the circumstances of this case the disputed documents are legally admissible. I am in agreement with the submissions made by Mr. Faustine Malongo learned advocate for the defendant that, reading from paragraph 5 of the supplementary witness statement there was nothing suggesting that at the time relevant to reception of the contested additional evidence, the disputed documents were in the defendants hands. The supplementary witness statement merely indicates that, the documents had been tendered by the defendant in Commercial Case No. 03 of 2020. This fact was inevitably conceded through rejoinder submissions when it was submitted that indeed, through Commercial Case No. 03 of 2020 the defendant did file a report regarding gold extraction from different pits, the contested one inclusive. It is a fact that the two notices to produce relied upon by the plaintiff contain no express words requiring the defendant to produce the contested documents. Should this lead to a conclusion that the documents are inadmissible for reasons of the said anomaly? I hold in the negative. The following are my reasons for so holding. The proviso to section 68 of the Evidence Act reads as hereunder: 5 | Page Provided that, the notice shall not be required in order to render secondary evidence admissible in any of the following cases- (a) Not applicable (b) When from the nature of the case, the adverse party must know that he will be required to produce it. In terms of the quoted provision of the law hereinabove, notice to produce is unnecessary when from the nature of the case the adverse party must know that he will be required to produce a particular document. What is to be looked upon is the form of pleadings. If the form of pleadings is sufficiently informative to the defendant, to enable him knowing that he would be charged with the possession of a particular document and that he might be called upon to produce such document, there will be no requirement of issuing notice to produce to render the secondary evidence admissible. That is the import of section 68 (b) of the Evidence Act. The foregoing is what is otherwise known as notice by implication. This occurs where by the pleadings of a party to a civil suit, the cause of action or defence, as the case may be, is stated clearly to send unambiguous message to the other party that, the party making the 6 | Page pleading would need to prove as a material part of his case, the contents of a specific document in the opponent's possession. Read: Sarkar Law of Evidence, 19th Edition, Volume 1, at pages 1599 to 1600. The plaintiff's pleadings, particularly, in paragraphs 9 to 15 of the plaint, gave the defendant in this case, notice by implication that the plaintiff meant to charge the defendant with the possession of the disputed documents hence there was no reason for issuing another notice. For the foregoing reasoning, I hold the disputed documents to be admissible. Consequently, the documents are collectively admitted and marked as Exhibit AD- (PW- EVD 1). DATED at MWANZA this 24th d^.of^ TEMBER, 2024. C-^MKEHA JUDGE 24/09/2024 COURT: Ruling is delivered in Chambers this 24th day of September 2024 in the presence of the Additional witness for the plaintiff's case, Messrs Rugemeleza Nshala, Heri Kayinga and Nyaronyo Kichele learned advocates for the plaintiff and Mr. Faustine Malongo and Ms.