20181219 TZHC Mwanza2

IN THE HIGH COURT OF TANZA~JIA MWANZA DISTRICT REGISTRY. AT MWANZA. CIVIL APPEAL NO. 34 OF 2017. (ARISING FROM CIVIL CASE NO 26 OF 2014 FROM SENGEREMA DISTRICT COURT SENGEREMA/DISTRICT COUNCIL ............................ APPELLANT.

VERSUS NYALWAMBU INVESTMENT CO LTD .................. 1 ST RESPONDENT. VALENCE MAKAGA .......................................... 2ND RESPONDENT. NATIONAL MICRO FINANCE BANK (NMB) ... ~ .... 3Ro RESPONDENT. Date of last order: 10/12/2018. Date of the Judgement: 19/12/2018. JUDGEMENT. f',1AGOIGA, J. The appellant, SENGEREMA DISTRICT COUNCIL aggrieved by the decision of Sengerema District Court has come to this court by way of appeal faulting the findings of the trial court armed with six grounds of appeal ' ! I· I couched in the following language: 1. That the lower court below erred in law and fact to hold in favour of the respondent by not admitting secondary evidence tendered contrary to section 68 of Tanzania Evidence Act, [Cap 6 R.E. 2002].

2. That the lower erred in law to hold. in favour" of the respondents against the weight and principles of evidence that the appellant's 1 " cashier was negligent and that that the appellant's negligen act could 0 not make respondents found with liabilities.

3. That the lower court below erred in law and fact to hold in favour of the respondents by reason that the appellant produced the photocopies of the pay in slip which in fact are the document which the appellant was supposed to produce as per banking procedures.

4. That the trial magistrate erred in law and fact to hold in favour of the . respondents while the issues which were to be determined were not resolved/determine by the court. - 5. That the trial magistrate erred in law and fact to hold in favour of the respondents by directing itself to the issues which were not in dispute.

6. That the lower court below erred in law and fact to hold in favour of the respondi;:mts by delivering the judgement without determining the status of the first and second respondents. . . The facts of this are that sometimes in 2012 the appellant floated a tender for collection of councH rates and other revenues by inviting the general public suitable to apply for the job. The first respondent was among the ,.,I (. applicants and eventually won the tender and signed a written contract, among others, with a condition to deposi~. Tshs. 4,550,000/=only at the 2 • i!_, end of each month on 30 th or ·31 st of each month for duration of eleven .\..J~)' months. The said contract was signed on 4th August 2012. One of the notorious condition was the first respondent through second respondent to · remit the agreed amount into the account of the appellant operated in the bank of the third respondent with no. 31601200125 in the names of the appellant. The facts go further that upon remittance of the aforesaid amount, the second respondent was to present the said bank pay in slip to the cashier of the appellant for issuance of official receipt. It was further alleged that in between .August, 2012 and May 2013 the first respondent through the second respondent remitted five different cheques amounting to Tshs. 23,400,000/=as part of the-contractual sum. Upon presentation of the 3rd

respondent bank pays in slips _as stated above, the appellant issued official receipt to the first respondent throug~ the first respondent to signify payment. Upon getting the bank statement from the 3r~ respondent who was the agent of the first and second respondent it revealed that the allegedly credited -amount was not credited to the appellant's account. Besides the above amount allegedly credited but not deposited in the . account of the appellant, the first respondent had some arrears of Tshs. · 15,550,000/=· being part of contractual amount. Despite demands to make good payment of the money the first and· second have declined, refused .. i . 3 ; • and failed to pay the money plus interests which is to the tune of Tshs. 41,947,500/= which act is breach of the contract affecting the appellant's performance of her duties and obligations as planned. The dispute sailed through to the Sengerema District Court for adjudication. The respondents upon served with the plaint filed their respective Written Statement· of Defences and disputed everything. After full trial, the trial court decided in favour of the respondents, hence this appeal and so is this judgement. When this appeal was called for hearing the appellant was represented by the Mr.· Serapian Matiku, learned council solicitor and was ready for hearing. On the other hand, the second respondent appeared in person and for

the first respondent but unrepresented and was ready for hearing. The third respondent was enjoying the legal services of Dr. George Mwaisondole, learned advocate .from Mwanza based legal clinic of GALATI LAW CHAMBERS and was ready for hearing too. Mr. Matiku informed .the court that they preferred six grounds of appeal but r. . he prayed to consolidate grounds number 1 and 3 as one, and ground 4 and 5 as are and argue them jointly. Grounds number 1 and 3 complaints . . was that the trial court erred to reject the admission of secondary evidence despite the appellant complied with the provisions of section 68 .of the 4 . Tanzania Evidence Act, [Cap 6 R.E.2002]. Matiku submitted that their Gl documentary evidence was mainly and wrongly rejected on reasons that the appellant did not state the reasons why they are tendering the secondary evidence. It was the strong submission of Mr. Matiku that they complied with the law and the that the trial magistrate misdirected herself to reject to admit the exhibits so long as the law was complied with and it was stated the custodian of the original is dead. Mr. Matiku prayed to tender the alleged documentary evidence under Order XXXIX Rule 27(1) (a) read together with Rule 28 to enable justice to be done. Unfortunately, Mr. Matiku informed the court that he does not have them before the court and left his prayer hanging with no direction

and jumped into the second ground. On the second ground which was all about the trial magistrate erred to hold in favour of the r:espondents against the weight and principles of evidence that the appellant's cashier was negligent and that act of negligence could not m·ake the respondents liable. According to Mr. Matiku I f the negligence of the cashier was not one of the issues framed and the bank statement tendered as exhibit Pl was enough to show ~hat no money was deposited in to the account. 5 Next was in respect of grounds number 4 and 5 whose main complaint was that the trial magistrate did not address and consider issues framed. Mr. Matiku submitted that at the trial level they had agreed nine issues but the first issue was not determined which was to the effect that whether the first and second respondents did not deposit the money to the appellant1s account. Also it was the submission of Mr. Matiku that the second issue which was to the effect that whether issue number one is answered in the affirmative, some money was deposited into the account of the appellant. Accordin_g to Mr. Matiku the evidence on record as to the first issue was answered in the negative and by tendering receipts of the council against the oral evidence by the parties. Another issue taken by Mr. Matiku was the pay"ment of Tshs. 15,550,000/= which was not paid and this issue according to Mr. Matiku

remained unanswered to date. Failure of the trial magistrate to determine these issues .occasioned failure of justice to the appellant, bitterly lamented Mr. Matiku. Next was six ground which its main complaint was that the trial magistrate erred in law and fact for failure to determine the status of the first and second defendant qn the amount unpaid as per contract of Tshs. 15,550,000/=. According to Mr. Matiku this issue in . respect of· issue number 8 in the trial record and issue together with issue no .? were not 6 9etermined. It was the strong submissiqn of Mr. Matiku that this court step into the shoes of the trial court and analyze evidence in order to do justice by allowing this appeal with costs. On the other hand, the first and second defendant through Mr. VALENCE MAKAGA submitted in reply to this appeal admitting that it is true they entered with written contract with the appellant for collection of rates and was to pay Tshs.4.5 million per month. According to him he was paying the money by cash and by cheques and according to him he paid all monies and the appellant failed to prove any unpaid money during trial. The · receipts I paid for were correct and were tendered as evidence in court .~ save three receipts which got lost. To him ~he cashier was not negligent. As to the Tshs. 15,550,000/= it was the submission of Mr. Makaga that I paid all. To conclude his

reply Mr. Makaga prayed that this appeal be dismissed for want of merits with costs. Next in reply was Dr. Mwaisondole for the third respondent who submitted that g~ounds number 1 and 3 are baseless as the trial magistrate· was justified not to admit them because they did not comply with the law. Accordi~g to Dr. Mwaisondole they strongly obj"ected the tendering of - . . . documents not annexed in the plaint and without being brought to court at 7 least as list of documents to be relied upon. It is best practice that you tSJ cannot bring documents not annexed in the plaint nor brought by notice to produce and serve_ the other party, submitted, Dr. Mwaisondole. Dr. Mwaisondole submitted, therefore, that section 68 has to be read together with section 67 (1) (a} of the Tanzania Evidence Act, [Cap 6 R.E 2002]. Dr. Mwaisondole replied that the contents of at paragraph 9 of the plaint was strongly disputed in paragraph 6 of the WSD. So section 67 (1) (a) of TEA applies in the circumstances when the original are in the possession of the person against whom are to be proved and in their defence they clearly stated they are not in the possession of the originals. According to Dr. Mwaisondole the applicable provision was section 67(1) (c) which must be supported by loss report and not notice to produce. In the event the trial · magistrate was justified to reject all the documents not

annexed and not in th.e list of documents to be relied. As to the prayer of Mr. Matiku to tender the rejected documentary, evidence under Order 39 Rule 27 and 28 it was the strong submission and reply by Dr. Mwaisondole that these provisions cannot help the appellant . . I now. According to Dr. Mwaisondole a rejected documentary evidence , . . should be endorsed .and remain within the file to help the appellate court 8 to !<now exactly which documents were actually rejected. Under Order 13 Rule 6 of the CPC once this process is not done it is very dangerous to u attempt to admit any evidence now. The endorsement according to Dr.Mwaisondole helps the appellate court to know which documents were the subject of rejection and it is not enough to bring any documents at this stage because that will amount to open the prosecution at appellate level. \,_ It was the strong submission of Dr. Mwaisondole that this was not done in this case, hence Order 39 Rule 27 and Rule 28 cannot apply in the absence of such endorsement and in the fine finds ground number 1 and 3 baseless and prayed the same to be dismissed. i ' As to -the second ground it was the reply and submission of Dr. Mwaisondole that the trial magistrate was justified to make that statement by the way as an o~biter given the circumstances of this case. -According to Dr. Mwaisondole the one who. deposited the money is the

second respondent so any corresponding duty was to go to him but who has never complained ·to the third respondent showing, he never deposited the money to the bank, hence making this ground as against the third respondent baseless. 9 Next was grounds number 4 and 5 it was the reply of Dr. Mwaisondole that all issues were answered and pointed out that at page 4 of the judgement u issue number one was answered in the negative and automatically it extinguished issue number 2. Issue number 3 was answered in the negative at page 5 of the judgement, issue number six was answered in the negative and the answer extinguished issue number 7. It was the submission of Dr. Mwaisondole that as against the 3rd respondent all issues Were answered in her favour and that the trial magistrate was right to hold as she did. As to the last ground of appeal it was the submission in reply of Dr. Mwaisondola that he has utterly failed to grasp what the appellant meant in this ground. Dr. Mwaisondole concluded by humbly praying that the instant appeal be found baseless as against the 3rd respondent and same be dismissed with costs. In rejoinder, Mr. Matiku replied that the 1st and 2nd respondent said some receipts were at police but according to him the police case ended earlier than this why not bring them. As to the argument that using secondary documentary evid~nce it was the reply of Mr. Matiku

that the argument is not supported by the law. as all rejected documents were annexures in the 10 plaint. As to the issue of failure to endorse it was the reply of Mi. Matiku that it was the duty of the court and not of the appellant,hence appellant cannot be denied ju·stice for a duty not to be performed by the court. As to the issue of negligence, it was the strong submission of Mr. Matiku that it was not a statement by the way but was a holding of the trial court, hence wrong. Mr. Matiku concluded by humbly praying that this appeal be allowed with costs. This marked the end of hearing of this appeal. The task of this court now is to determine the merits or otherwise of this appeal. Let me point out that from the parties, pleadings, trial court l . 1 ' ' proceedings, judgement and the .oral submission of the parties herein in support and against this appeal, this court has noted some of the salient feature not in dispute in this appeal and which will at the end help to resolve the issue at hand in just ·way. One, there is no dispute that the appellant and the first and second respondent signed a written contract on 4th August 2012 for collection of council rates and other revenues at ZILAGULA FISH MARKET. Two, there is no dispute that in that written contract, the second respondent for and on behalf of the first resp?ndent was obliged to deposit in the account of· the

appellant with number 11 31601200125 maintained in the branch of the third respondent on monthly basis to the tune of Tshs, 4,550,000/=. Three, there is no dispute that the said contract was for eleven months starting from the date of signing it. What is in dispute in this appeal is whether there was a breach of the contract and the respondents breached the terms and condition of the agreement and to what tune. I have seriously and keenly traversed the pleadings, the proceedings and judgement of the trial court along with the oral submissions well submitted before me and am constrained without much ado to hold with a firm considered opinion that that the appeal against the third respondent is without any useful merits. My reasons are not far to fetch. One, apart from paragraphs 9 and 15 of the plaint which by themselves were not enough. no other paragraph refers to the 3rd respondent to constituted a cause of action against the third respondent in the circumstances of this appeal. Two, the appellant called- one witness to testify Mr. PAULO NDEGE MHOJA SWEYA nowhere in his testimony ever testified that the third respondent was a part to the contract and was in a way acted injurious to the interest of the appellant. At best, the third . i ! respondent was the best and materiai witness who could stand between J. ; the two· litigants at least to reconcile· the two. Three, even the

issues '. framed against the third respondent were uncalled for in the circumstances 12 and as the third respondent was in no way an agent but was custodian of the account of the appellant who had duty to deposit cheques and cash had and receiced. In the totality of the above I hereby without much ado hold that the appeal against the third respondent is without any useful merits and proceed to dismiss it. Mr. Matiku in his conclusion when submitting in chief urged this court being first appellate court to enter into the shoes of the trial court and analyze evidence on record and make its own findings by allowing this appeal with costs. In the case of DEEMAY DAR ART AND TWO OTHERS v REPUBLIC (2005) TLR 132 it was held that an appellate court can interfere with the · trial court findings were there is misdirection or non-direction on the evidence or where the trial court has misapprehended the nature and quality of the evidence. ~uided by the above holding am inclined to test if in this appeal there was misdirection, or non-direction or misapprehension ,. f of the quality and nature of evidence in the circumstances. I i i The appellant alleges that the first and second respondent did not deposit ; . the money as greed in the account designated to, but presented bank pay i . in slips from the .third respondent which .enabled him to get the official· receipt~ from the appellant's

office. This was along with the first issue th~t 13 was framed at the trial. The trial magistrate rejected some of the bank statements which the appellant sought to tender and prove that no money was deposited in the account on reasons that were not annexed to the plaint. I have gone through the plaint and annexures thereto and I have found that in deed part of the rejected bank statements were annexed into the plaint starting form 1st August 2012 up to 30 th May 2013 and therefore were wrongly rejected and according to Mr. Matiku failure to admit them it occasioned failure of justice on their part. Dr. Mwaisondola objected in reply that in order for provisions of Order XXXIX Rules 27 and 28 ·to apply · same must have been endorsed under Order XIII Rule 6 which requires · · that same to be endorsed first. I have read the cited provision of the law as cited by Dr. Mwaisondola carefully with a legal mind but have failed to see that in order for additional evidence to be takeri then same must have been endorsed so. Is my considered opinion that had the parliament intended so then they could have couched the provisions of Order XXXIX Rule 27 and 28 to be read subject to Order XIII Rule 6~ After all the rationale of endorsement is to avoid tampering with exhibits. In the case of . A. A. R. INSURANCE (T) LIMITED V. BEATUS KISUSI, CIVIL APPEAL NO. 67 . OF 2015 (MWANZA) CAT

(Unreported) it was held. that the function of ~dmissibility of documentary evidence exhibits is in the domain of the trial .. 14 court and· not the parties to the proceedings. In this appeal had the ·counsel for the appellant went ahead and tried to tender .the wrongly rejected bank statement, I bold say this was a fit case I was ready to use my discretion to admit them under Order 39 rules 27 and 28 because even without endorsement but the record is clear they are easily identified as the statement starting 1st August 2012 but since the counsel for appellant left his prayer hanging I close the discussion and call it a closed chapter. However, the question I asked myself is that is there no other evidence left to prove that the money was not deposited? So going by the record the only statement that was rejected was the bank statement in the month of August 2012 but the rest of the bank statements were admitted collectively as exhibit P3. And all these shows were the statements during the contractual period and the_ alleged deposited money by the first and the second respondent. I have gone ·through them one after the -other but have utterly failed to see a single deposit by the first and second respondents be it cash deposit or by cheque. I have as well traversed the sworn oral testimonies of PWl and DW2 - Mr. BARNABAS MGANGA who under oath categ9rically testified and stated

that: 15 "as a senior manager I made the documents and bank statement of the plaintiff. I did not find the money and I did not see the deposit slip deposited the said money." This piece of evidence had a lot to say it all. Dr. Mwaisondola in exonerating the 3rd respondent from liability on this matter submitted that the first and second respondent have never complained that they deposited their money with the 3 rd respondent but is nowhere to be seen, according to Dr. Mwaisondola this is a clear conclusion that the money was not deposited nor be it cash or by cheque. I have equally traversed the testimony of the second respondent on this issue and denied to allegations and said he had no debt with the appellant. But when cross examined he testified that he paid through cheques ·and by cash, and was doing the deposits by someone Musa and for the bank the money was given to James Lupiano . .But acc;:ording to DW2 James lupiano was loan officer and not a bank teller. This clearly indicates that the respondents' money lost between Musa and James Lupiano who were not truth worth from both ends. Moreover, no reasons whatsoever was given why the defence never caUed Musa to tell who took the money. Failure to call Mus~ on the part of st the.1 and 2nd respondent cannot_ be by design otherwise the court is to draw an adverse inference on their part. 16 With all these and for the reasons

I have demonstrated above I hereby hold that the appellant proved her case to the standard required in civil \.J cases. That said done I hereby find the evidence on record suffices to hold issue number one in the negative that the first and second respondents did not deposit the money into the plaintiff's account. The holding in· issue number one extinguishes issue number two as well. I further hold that in deed the trial Magistrate misapprehended the quality and nature of evidence on record and therefore was wrong to hold that the case was not proved. I overrule her holding on the reasons stated above. The third issue was whether the first and second defendants/respondents presented to the plaintiff deposit slips purported to have been issued by the third defendant. This issue need not detain this court any more. The second defendant testimony .is clear on this issue and it is the very pay in slips that enabled the second respondent to be issued with the official receipts of the appellant. The official receipts were received by the court as · ·exhibits Dl. Since there is proof that the alleged money was not deposited then the said pay in slips were obtained and calculated to defraud the appellant but the ?ecdnd respondent forgotten that at the end· the bank statement will reveal the truth as it has. On the basis of the above reasons 17 ~~-~ I hold that the purported deposit

slips were not genuine and were as evidenced intended to defraud the appellant. Having hold that the 3rd respondent not liable to this appeal, I find no reasons to analyeze evidence as against issues number 5, 6, and 7. Next now is issue number eight which is to the effect that whether the first and second defendants/respondents failed to remit Tshs. 15,550,000/= being part of the contractual amount to the plaintiff. The second respondent testimony says he paid all the money and was in no debt. The appellant testimony is that apart from the money purported to be deposited in the account the first and second respondents were in arrears · of Tshs. 15,550,000/=. T~e conduct of the second respondent on this issue and failure to produce receipts from the appellant evidencing payment is other than. this money remains unpaid. This brings ·me to reject a bare statement that I paid all· money by the second respondent but payment which cannot be evidenced by any documentary evidence. It seems the second respondent was aware of what was going as to what Musa did and got a bank pay in slip from a loan manager who is not a bank teller. In the fine I this issue in the affirmative and hold thatthis money was not paid ·at all. 18 :, . ~ 4, In the fine and for the reasons above the holding of the trial court is hereby overruled and set aside. Next is what reliefs parts are entitled to. From the

above analysis I hereby allow this appeal with costs in this appeal and the lower court and the appellant is entitled his payers as contained in the plaint. Thelst and 2nd respondent shall pay Tshs. 5 million as general damages The second respondent should also shoulder the costs of the third respondent for mudsling her reputation by using his fake slips that he deposited the money while knowingly- that he did not. The 3rd respondent to be paid the costs of this appeal and that of the lower court by the second respondent. It is so ordered. Dated at Mwa.nzat~is 19 day of December, 2018.

JUDGE 19/12/2018. 19