Judgment Appeal Kassanga 1

THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA CIVIL APPEAL NO. 2279 OF 2024 (Arising from the Judgement of Ilemela District Court in Civil Case No. 10 of 2022) KASSANGA H. KASSANGA ……………………………………….………… 1ST APPELLANT ERNEST MWITA ………………………………………………………………. 2ND APPELLANT VERSUS STEPHEN WANDWI CHACHA …………………………………………………. RESPONDENT JUDGEMENT 11th July &9th August 2024 CHUMA, J. The appellants preferred this appeal after being quite uncomfortable with the decision of Ilemela District Court in Civil Case No. 10 of 2022 which ordered the 1st Appellant to pay the respondent the sum of TZS. 9,409,500/- as compensation for unreturned properties; and interest to a tune of 7% and TZS. 3,000,000/- as general damages. The appeal is based on the following points which are found in his amended memorandum of appeal; - i. That the honorable trial magistrate erred in law and fact for holding in favour of the respondent based on documentary evidence which was illegally collectively admitted as exhibit P4 and was not read by PW1 after being admitted contrary to the command of the law 1 ii. That the honorable magistrate erred in law and facts for holding that the first appellant had to pay the respondent TZS. 9,405,500/= as compensation for unreturned attached properties without having a proper valuation report iii. That the honorable magistrate erred in law and fact for holding that the testimony of the respondent was not challenged for want of inventory iv. That the trial court erred in law and in facts for failure to properly consider the question of legal capacity of the 1st appellant v. That the trial magistrate erred in law and facts for failing to evaluate properly the evidence adduced by the 1st appellant the fact compelled the same court to come up with the judgment that favored the respondent At the hearing of this appeal, both parties were represented by Learned Advocates, the appellants were represented by Ditrick Ishabairu while the respondent was represented by Joseph Madukwa, As per the 1st ground of appeal, Mr. Ditrick submitted that the trial court erred in relaying to the exhibits collectively admitted and was not read as per the dictate of law. The referred documents are exhibit P4 containing 29 documents in the court proceedings. He stated that the law requires that exhibits should not be admitted collectively and after admission, the same has to be read in court he referred to the position stated in the case of Christina Ugbechi Vs. 2 R, Criminal appeal No 274 of 2019, and the case of Antony M Masanga Vs. Penina (Mama Mgesi) and Another, Civil Appeal No 118 of 2014 (both unreported) where the court held that the documents collectively admitted and not read denies the right to be heard by the adverse party and the remedy is to expunge them. He further submitted that the evidence of exhibits collectively admitted is contrary to order XIII Rule 4 (1) of the Civil Procedure Code, Cap 33 R.E 2019 (herein the code) which makes it mandatory for the admitted document to be endorsed. Arguing grounds 2 and 5 of the appeal jointly, Mr. Ishabairu submitted that the District Court failed to evaluate the evidence on record hence reaching to unreasonable decision by ordering compensation without having a proper valuation report as in the respondent’s evidence he alleged that some of his properties attached by the 1st appellant was not remitted back to him, properties worth TZS. 9,405,500/= While there is nowhere in his evidence the value of the alleged properties claimed unreturned was proved and at the same time, the respondent admitted that some of the properties were remitted back though he did not identify them nor mention them save for only television. Mr. Ishabairu stated that the respondent's argument based on the fact that the properties were taken by three motor vehicles (Fuso) but were returned by only two 3 vehicles one being empty is baseless because he admitted that the properties were kept separately hence even on return it was not possible to return them at once, but also Mr. Ishabairu argued that the evidence of the respondent contradicts with the evidence of PW1 who in his evidence stated that the properties were carried out with Fuso while PW2 said Canter as the vehicle that carried those properties. He said these are two contradicting statements and failure by the respondent to mention unremitted properties specifically devalued his evidence and the court was wrong to simply rely on the weakness of the defence side while it is the duty of the claimant to prove the submitted claims in court and cited the case of Paulina Samson Ndawavya Vs. Theresia Thomasi Madaha Civil Appeal No 45 of 2017. As to the 3rd ground, Mr. Ishabairu submitted that the trial court reached its final verdict only because the appellant failed to tender inventory before that court. He argued that there is no dispute that the appellant's properties were attached in execution of the Primary court decision and according to the first appellant, all properties were remitted to the respondent save for the Television, therefore, it was then the duty of the respondent to establish and prove the unreturned properties the second last pages of the trial court reflects that its decision was founded on the failure of the appellant to file inventory which is 4 contrary to what was stated in the case of Paulina (supra). Arguing on the 4th ground, Mr. Ishabairu submitted that the trial court erred in law and fact for failure to consider the legal capacity of the 1st appellant. He stated that the 1st appellant is a Director of the Company of Rock City Takers Limited appointed by the court as Court Brokers and since Rock City is a legal person, the 1st appellant was wrongly sued he then prays this court to allow the instant appeal by Quashing and setting aside the trial court decision dated 24 July 2023 with costs and any other relief this court deems fit to grant. On his part, Mr. Madukwa challenged this appeal beginning with the 4th ground that in the trial court proceedings issues were framed and there is nowhere the legal capacity of the first appellant was challenged therefore it cannot be argued at the appeal stage as it is an afterthought. As to the third ground of appeal, in which the trial court finding alleged to have been founded on the failure by the appellant to tender inventory, he argued that the lower court proceedings show that evidence of DW1 was objected for being a copy and section 67 and 68 of Tanzania Evidence Act, Cap 6 R.E. 2019 was not complied with, hence the lower court cannot be blamed on its findings. Moreover, Mr. Madukwa decided to combine the first, second, and fifth grounds and argued them together and he stated that the judgment and 5 proceedings of the lower court indicate that the court considered whether the properties of the respondent were attached to satisfy the decree and whether the same was remitted back to the respondent, in his submission he stated that the properties were attached and the evidence of DW1, DW2, PW1 and PW2 indicates that properties were taken. Exhibits P1, P2, P3, and P5 prove that the decree originating from Civil Case No 64 of 2021 was satisfied at Nyamagana Primary Court and the respondent settled the debt together with the court brokers fee and thereafter the attached properties had to be remitted back to respondent. Mr. Madukwa stated that DW1 admitted to have taken properties and remitted some and that only TV was not remitted, Mr. Madukwa stated that the unremitted properties including TV and the rest mentioned in PW1 evidence and the inventory bearing the attached properties under the custody of DW1 who was assigned the duty of execution by a court. Concerning exhibit P4 being collectively tendered, Mr. Madukwa was of the view that the appellant was never denied the right to be heard because they did cross-examine and that the case of Antony Masaga (supra) is not relevant in this case and the case of Christina Ugbechi (supra) which indicates that collectively admitted exhibits have to be expunged the same court on page 20 considered oral evidence in its decision. 6 On the issue of burden of proof, Mr. Madukwa submitted that in civil cases the standard of proof is on balance of probability as indicated by Mr. Ditrick. Regarding two contradicting statements, he said that he still cannot do away with the fact that properties were taken and were not fully returned and it is not true that the plaintiff won the case on the weakness of the defence case and he does agree with the trial court's findings that the case was proved on the balance of probabilities as can be seen on page 13 of the lower courts judgment that the court broker exceeded the limit when acting on the orders of the court he, therefore, prays this court to dismiss this appeal with costs. In his rejoinder, Mr. Ishabairu made it clear that as he submitted earlier the duty of the first appellant to submit inventory comes after the respondents prove his case by naming the attached properties and the ones returned thereafter it is when the burden can then shift to the appellant and the objected inventory does not do away with the respondents' duty to prove his case. About the second and fifth grounds, Mr. Ishabairu stated that it is true that the properties in issue were taken however the dispute is on remission of the said properties and it was the respondents’ duty to prove the unreturned properties and exhibit P3 does not indicate the unreturned properties. He further said that the argument of Mr. Madukwa that inventory was under the possession 7 of DW1 who is the first appellant, by recognizing it and to prove his allegation he had a duty to ask for the very document in line with the law under section 67 and 68 of TEA. But he did not bother to follow that procedure. Mr. Ishabairu also stated that Mr. Madukwa admitted the issue of collective admission of documents and he therefore insisted they be expunged. As for the issue of the right to be heard, Mr. Ishabairu rejoined that failure to read the admitted exhibits in court and said that the oral evidence in cross- examination suffices has limits and it is applicable where the claimant proves its claim and as for this case the respondents’ advocates admits that some properties were not remitted back and his concern is on the burden of proof and not standard of proof as submitted by the respondent's advocate. He also stressed that the contradiction of PW1 and PW2 on types of vehicles is fatal because what is in dispute is on unreturned properties and Canter and Fuso are two distinct vehicles. Regarding the issue of excessive power by the court broker, Mr. Ishabairu submitted that it is not true because he exercised his powers according to the court order. Having considered the grounds of appeal and lengthy submissions of both parties this court will start to determine the admissibility of exhibits as argued 8 as the first ground of appeal. It is not disputed that exhibit P4 which contains 29 documents was collectively admitted without being read in court. The issue is whether such practice is acceptable. Mr. Madukwa argued that the same is not fatal as the appellants were given a chance to cross-examine while Mr. Ishabairu viewed it as a denial of the appellant's basic right to be heard. Section 4 (1) of the Civil Procedure Code, Cap 33 R. E. 2019 provides the following; - “Subject to the provisions of the sub-rule (2), there shall be endorsed on every document which has been admitted in evidence in the suit the following particulars, namely- (a) the number and title of the suit; (b) the name of the person producing the document; (c) the date on which it was produced; and (d) a statement of its having been so admitted; and (e) the endorsement shall be signed or initialed by the judge or magistrate” The same is also elaborated in the case of Bulungu Nzungu Vs. Republic, Criminal Appeal No. 39 of 2018 (unreported) the Court of Appeal had the following to say; - “It is now a well-established principle in the law of evidence as applicable in the trial of cases, both civil and criminal, that generally once a document is admitted in evidence after clearance by a person with whom it is tendered, it must be read over to that person” 9 This position is also well stated in the case of Mwinyi Jamal Kitalamba @ Igonzi and Others Vs. Republic Criminal Appeal No 348 of 2018 the Court of Appeal had held that, “(iii) Failure to read the exhibit after being admitted, the omission is fatal as it contravenes the fair right of an accused person to know the content of the evidence tendered and admitted against him. It was wrong and prejudicial” I am in line with Mr. Ishabairu that what transpired in the trial court in admitting collectively evidence P4 which had 29 documents in it without reading them was improper and contrary to the law and as correctly stated by Mr. Ishabairu with reference to the case of Anthony M. Masaga (supra) the same deny the adverse party the right to know its contents and cross-examination alone cannot cure the defect. A similar stance was also stated in the case of Joseph Maganga and Dotto Salum Butwa Vs. Republic, Criminal Appeal No. 536 of 2015 (unreported). It was stated that the essence of reading out the document is to enable the accused person to understand the facts contained [therein] in order to make an informed defence. See also Robinson Mwanjisi & Others Vs. Republic [2003] T.L.R 218 and Robert P. Mayunga and Another Vs. Republic, Criminal Appeal No. 514 of 2016 (unreported). That being said and in line with the above quoted provision of law and 10 decided cases it is unfortunate that the only remedy available is to expunge exhibit P4. Secondly, as to the 4th ground concerning the legal capacity of the 1st plaintiff, I have examined the trial court records and the issues raised by both parties were not among the issues to be determined before the trial court. However, since the capacity to sue or to be sued is on locus standi, it was rightly raised before this court because the court of appeal in the case of Peter Mpalanzi Vs. Christina Mbaruka, Civil Appeal No 153 of 2019 (unreported) held that the issue of locus standi touches jurisdiction of the court. It is also cardinal law that matters of jurisdiction can be raised at any stage even in appeal, see the case of R.S.A. Limited Vs. Hanspaul Automechs Limited & Another, Civil Appeal No 179 of 2016 (unreported). Rules 2 and 5 of the Court Brokers Rules, Cap 358 R.E. 2019 defines the word “court broker” to mean a person appointed under Rule 5, and Rule 5 clarifies the qualifications a court broker must attain and there is nowhere that shows it to be a company, a court broker is appointed in person. Therefore, this ground is devoid of merit. On the 2nd, 3rd, and 5th grounds of appeal which were argued together, the issue for determination is whether the plaintiff now respondent was able to prove his case to the required standard. Records through exhibit P1 show that the 11 ruling was delivered by Mwanza Urban Primary Court at Nyamagana on 28/09/2021 whereas the court ordered attachment of the respondent’s properties in Civil case No. 64 of 2021 and the court broker who is the 1 st appellant through Exhibit P2 was ordered by the court to execute the same. After the attachment of the respondent’s properties on 23.12.2021 he then settled the decretal amount on 31.12.2021 and the Mwanza Urban Primary Court ordered the court broker to return the attached properties, and this is where the core of the dispute stands. The respondent’s evidence in trial court stated that all the attached properties were worth TZS. 46,700,000/-, and he knows the value as he kept the record in counter books, as for unreturned properties respondent submitted exhibit P3 which is a counter book for December 2021. However, the same does not show the value of the properties worse still, exhibit P4 is already expunged and Mr. Ishabairu argued that his client only had not returned one television which was broken. By observing the evidence in the trial court, PW2 who according to page 39 of the proceedings was present at the scene mentioned the properties that were carried which were the ones identified by DW1 in his evidence except PW2 mentioned goat meat In my view the fact that PW2 was present and witnessed the properties being attached and what he stated that took this court by surprise is the goat 12 meat. This is a second property according to the respondents’ evidence which has to be returned. Other properties that were mentioned were the ones which according to the evidence of DW1 and DW2 were returned. The issue of not notifying a leader on the exercise, exhibit D2 shows that the officer of Kirumba was notified and the same was received and stamped. Being absent could not stop the execution because the evidence indicates that there were police officers. As a general rule, in civil cases, the one who alleges must prove the case on the balance of probability, this was elaborated in the case of Godfrey Sayi Vs. Anna Siame as legal Representative of The Late Mary Mndolwa, Civil Appeal No. 114 of 2012 (unreported) where the CA held that; - “It is similarly common knowledge that in civil proceedings the parties with legal burden also bear the evidential burden and the standard in each case is in the balance of probabilities” According to both counsels 1 television set is unreturned and the available evidence of counter books and PW1 do not state the value and proof of what was not remitted back save for goat meat however, Mr. Madukwa submitted that vehicles used to carry the properties were 3 at the beginning while in return they were 2. This fact was contested by Mr. Ishabairu for want of proof as other properties were stored at Usagara and others at Rock City Mall. About the 13 testimony of DW1 the pool tables took up a large space at Usagara hence some properties had to be stored at Rock City Mall and as Mr. Ishabairu submitted on the contradiction of vehicles in respondents’ evidence, it is this court finding that this point lacks merit. Notably, the value of unremitted properties worth TZS. 9,405,500/- has not been adequately proved. Save for the goat meat that was erroneously taken, other properties were in the court order of which according to the evidence DW1 and DW2 were remitted back except for the broken television which both parties do not contest. I am satisfied that on balance of probability, the respondent was able to partly prove his case to the extent that only two things were unremitted that is 55 inches of television and goat meat. Consequently, I allow the appeal to the extent discussed above. I order a remittance of one television with a sum of TZS. 200,000 for the goat meat. It is so ordered. DATED at MWANZA this 9th day of August 2024. W.M. CHUMA JUDGE 14 Judgment delivered in court before Mr. Ditrick, Advocate for the appellant, Mr. Madukwa, Advocate for the Respondent and respondent in person this 9th day of August 2024. C. KISONGO DEPUTY REGISTRAR 15