20161213 TZCA Dar es salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: KAIJAGE. J.A .• MMILLA. J.A .• And MUGASHA. J.A.) CIVIL APPEAL NO. 74 OF 2016 NATIONAL MICROFINANCE BANK .............................................. APPELLANT VERSUS AUGUSTINO WESAKA GIDIMARA T / A BUILDERS PAINTS & GENERAL ENTERPRISES ......................................... RESPONDENT (Appeal from the judgment and decree of the High Court of Tanzania at Dar es Salaam) (Bongole, J.) Dated the 12th day of December, 2014 In Civil Case. No. 8 of 2008 JUDGMENT OF THE COURT 30th November, 2016 & 20th December, 2016 KAIJAGE, J.A.: The appellant was a losing party in Civil Case No. 8 of 2008, a suit instituted by the respondent, a successful party, in the High Court of Tanzania at Dar es Salaam (the trial High Court). Aggrieved by the judgment and decree of the trial High Court dated 12/12/2014, the appellant instituted the present appeal predicated upon grounds 1 comprised in the memorandum of appeal appearing on page 3 of the record as follows; 1. That the trial judge erred in law in ignoring the facts that the respondent, Augustina Wesaka Gidimara was not one of the partners of Builders Paint & General Enterprises and thus had no locus standi to institute the suit 2. That the trial judge erred in law and fact in holding that the respondent on 1717 Septembe~ 2007 deposited Tsh. 60,. 000,000/ into account No. 2033500023. 3. That the trial judge erred in law and fact in granting special damages of Tsh 49,000,000/- to the respondent without any proof. 4. That the trial judge erred in law and fact in decreeing the appellant to pay interest of Tsh. 3,000,000/- upon a 30,000,000/ contract of money. 5. That the trial judge erred in law and fact in decreeing the respondent to be paid Tshs 2 2,500,000/- per month for failure to conduct bee~ soda and general merchandize store, general damages of Tshs 20,000,000/- for strss and Tshs 40,000,000/ for breach of confidentiality. 6. That the trial Judge erred in law and fact in failing to analyze the evidence before him. Before us, Mr. Daibu Kambo and Mr. Chacha Werema, both learned advocates, represented the appellant and the respondent respectively. When the appeal was called on for hearing, we tasked both counsel to give their respective comments on a jurisdictionail issue which, in our opinion, affected the competence of the present appeal. The issue we raised was whether or not in the light of the provisions of Order XVIII Rule 10 (1) of the Civil Produce Code, Cap 33 R.E. 2002 (the CPC), Bongole, J., a successor judge, had jurisdiction to take over the trial High Court's proceedings and deal with the evidence, as he did, taken before Munisi, J., his predecessor, without there being 3 any reason or reasons assigned and put on record as to why the latter did not bring the trial to completion. Addressing the issue we raised, both counsel underlined a conspicuous absence, in the record of the trial High Court proceedings, of the reason/s surrounding the re-assignment to Bongole, J., of a case which was partly tried by Munisi, J. They maintained that Bongole, J., had no authority to take over, continue and act on the evidence recorded by Munisi, J., his predecessor, without any reason/s explicitly shown in the trial High Court's record of proceedings as to why the latter judge was unable to complete the trial. Upon this procedural shortcoming, we were invited to revise and proceed to nulUfy the proceedings taken before Bongole, J., a successor judge. Having given due consideration to the submissions of both counsel, we hasten to say that we are in full agreement with them. We propose to begin our brief discussion by examining the instructive relevant provision of Order XVIII of the CPC, particularly Rule 10 (1) which reads:- 4 "10 (1). Where a judge or magistrate is prevented by death, transfer or other cause from concluding the trial of a suit his . ~ successor may deal with any evidence or memorandum taken down or made under the foregoing rules as if such evidence or memorandum had been taken down or made by him or under his direction under the said rules and may proceed with the suit from the stage at which his predecessor left it. " [Emphasis supplied]. A discussion on the true import of Rule 10 (1) of Order XVIII of the CPC is not a virgin territory, it has been traversed before. In the recent past, this Court in M/S GEORGES CENTRE UMITED Vs THE HONOURABLE ATTORNEY GENERAL AND M/S TANZANIA NATIONAL ROAD AGENCY, Civil Appeal No. 29 of 2016 (unreported), construed the same provision of law and had this to say; "The general premise that can be gathered from the above provision is that once the trial of a case has begun before one judicial officer that judicial s officer has to bring it to completion unless for some reason he/she is unable to do that The provision cited above imposes upon a successor judge or magistrate an obligation to put on record why he/she has to take up a case that is partly heard by another. There are a number of reasons why it is important that a trial started by one judicial officer be completed by the same judicial officer unless it is not practicable to do so. For one thing, as suggested by Mr. Maro, the one who sees and hears the witness is in the best position to assess the witness's credibility. Credibility of witnesses which has to be assessed is ve,y crucial in the determination of any case before a court of law. Furthermore, integrity ofjudicial proceedings hinges on transparency. Where there is no transparency justice may be compromised." We share and fully subscribe to the sentiments contained in the above extract. In the case at hand, the trial High Court's record of proceedings lays bare the fact that initially, Munisi, J., heard and recorded the 6 evidence of three (3) witnesses who testified for the respondent's/plaintiff's side, but for no apparent reason/s she was unable to bring the trial to completion. Nevertheless, the triail was continued before Bongole, J., who heard and recorded the evidence from a sole witness who testified for the appellant's/defendant's side, received counsel's final submissions and composed and delivered the judgment now appealed against. Admittedly, it is legally permissible under Order XVIII Rule 10 (1) of the CPC for a successor judge or magistrate to take over, continue with the trial and act on the evidence recorded by the predecessor judge or magistrate provided any of the latter judicial officers is for any reason, to be explicitly shown in the trial court's record of proceedings, unable to complete the trial. In this case, after Munisi, J., had failed to bring the trial to completion, Bongole, J., the successor judge, lacked authority to entertain further trial proceedings in the absence of duly recorded reason/s explaining the inability on the part of Munisi, J., to complete the trial. 7 The need for putting on record the reasons for re-assignment of a partly heard matter was further amplified in FAHARI BOTTLERS LTD AND ANOTHER V's THE REGISTRAR OF COM:PANI:Es AND ANOTHER; Civil Revision No. 1 of 1999 (unreported) where this Court had this to say, among other things:- "Three judges were involved at various stages of the proceedings... Moreover, no reasons are given on the record to explain the changes of judges, especially when the individual calender system requires that once a case is assigned to an individual judge or magistrate, it has to continue before that particular judge or magistrate to its final conclusion, unless there are good reasons for doing otherwise. The system is meant not only to facilitate case management by trial judges or magistrates, but also to promote accountability on their part. The unexplained failure to observe this procedure in this case is certainly irregular, to say the least. Such irregularities and the accompanying confusion in our view are not amenable to the appellate 8 process for remedy. They are amenable to the revisional process. " Be that as it may, on the basis of our recent decision in M/S GEORGES CENTRE'S case (supra) which was followed in KAJOKA MASANGA V's ATTORNEY GENERAL AND ANOTHER; Civil Appeal No. 153 of 2016 (unreported), we firmly hold that Bongole, J., had no jurisdiction to take over, continue and bring the trial High Court proceedings to completion in the absence of duly recorded reasons explaining his predecessor's inability to complete the trial. Both the proceedings taken without jurisdiction and the resultant judgment are, inarguably, a nullity. In the exercise of our revisional jurisdiction under section 4 (2) of the Appellate Jurisdiction Act, cap 141 R.E. 2002 we nullify, quash and set aside the trial High Court's proceedings taken before and the judgment composed by Bongole, J. We further hereby order that the record be remitted back to the trial High Court for Munisi, J., to complete the trial of a suit from the stage she had left it. If, for any 9 reason/s, it transpires that Munisi, J., has ceased to have jurisdiction, the trial of the suit be commenced afresh before another judge of competent jurisdiction. We make no order as to costs. It is so ordered. DATED at DAR ES SALAAM this 13th day of December, 2016. S. S. KAIJAGE JUSTICE OF APPEAL B. M. MMILLA JUSTICE OF APPEAL S. E. A. MUGASHA JUSTICE OF APPEAL I certify that this is a true copy of the original. ----~ .......... ~... s~::) PEAL 10