PHOENI1

THE UNITED REPUBLIC OF TANZANIA

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY)

AT DAR ES SALAAM CONSOLIDATED CIVIL APPEAL NO. 16702 & 16908 OF 2024 (Arising from the Judgment issued on 27th June 2024 in Civil Case No. 12 of 2023 at the Resident Magistrate Court of Dar es Salaam at Kisutu)

PHOENIX OF TANZANIA ASSURANCE COMPANY LTD ................ ………………………APPELLANT/2ND RESPONDENT

VERSUS NURU KIBWANA MOHAMED ..............................................1ST RESPONDENT SAMSON JAMES MILLINDE .................... 2ND RESPONDENT/2NDAPPELLANT CRDB BANK PLC ………………………………3RD RESPONDENT/1STAPPELLANT

RULING Date of Last Order: 14/02/2025 Date of Ruling: 04/03/2025 B. E. K. Mganga, J. Brief facts of this consolidated appeal are that, on 30th January 2023, Nuru Kibwana Mohamed, herein referred to as the individual, filed Civil case No.12 of 2023 before the Resident Magistrate’s Court of Dar es Salaam Region at Kisutu against Samson James Millinde, hereinafter referred to as the driver, CRDB Bank Public Limited Company, hereinafter referred to as the bank and Phoenix of Tanzania Assurance Company Ltd hereinafter referred to as the insurer. It was pleaded by the individual in her pleadings at the trial court that, on 8th June 2021, along Kenyata Road at Igombe stand area within Nyamagana District in Mwanza 1 Region, the driver drove motor vehicle with registration number T.225 DWC make Toyota Landcruiser hardtop carelessly without considering other road users as a result, he knocked motorcycle with registration Number MC. 847 CHE make King lion thereby causing bodily injury to the individual. It is said that, the said motor vehicle is owned by the bank and that, it was insured by the insurer. It was also pleaded by the individual that; she was firstly attended at Bugando Hospital in Mwanza Region and thereafter at Muhimbili Orthopaedic Institute (MOI) in Dar es Salaam and Elidad Hospital at Dar es salaam. It was further pleaded by the individual that, due to the said accident,

she completely lost her right leg as the leg was amputated. Based on the foregoing, in her pleadings, the individual was claiming to be paid (i) TZS 24,839,500/= as special damages being the actual amount she incurred from medical treatment, accommodation(food and lodging), transport allowances(local and upcountry) and TZS 16,200,000/= being loss of wages and earnings(salary of TZS 450,000/= per month for three(3) years from her employment which was terminated in July 2021, (ii) TZS 500,000,000/= being general damages, (iii) interest of the special damages at court rate of 12% per annum from the date the cause of action arose to the date of judgment, (iv) interest at commercial rate of 21% from the date of judgment to the date of payment and (v) costs. 2 Having heard evidence of the parties, on 27th June 2024, Hon. A.T. Millanzi, PRM, delivered the Judgment and Decree awarding the individual to be paid (i) TZS 25,267,200/= as medical treatment costs, (ii) TZS 16,200,000/= as loss of wages and earnings (iii) TZS 100,000,000/= as general damages and (iv) costs. The insurer was aggrieved with both the Judgment and Decree of the trial court as a result, she filed Civil Appeal No. 16702 of 2024 against the individual, the driver and the Bank. On the other hand, the Bank and the driver were aggrieved by the said Judgment and Decree as a result, they filed Civil Appeal No. 16908 of

2024 against the individual and the insurer. When the two appeals were called on for hearing, Julius Manjeka, advocate appeared for the insurer, George Masoud, advocate appeared for the individual while Denis Ignas, advocate appeared for both the driver and the Bank. Being aware that the two appeal arose from the same proceedings, Judgment and decree; after being addressed by the parties, I issued a consolidated order hence this Consolidated Civil Appeal No. 16702 & 16908 of 2024. Prior to allowing the parties to submit on the grounds raised in the said two appeals, I perused proceedings of the trial court and find that, initially the matter was tried by Hon. P.S. Mazengo, PRM and that, the 3 said Magistrate recorded evidence of PW1 and thereafter she was transfer to another duty station. Due to the said transfer, on 18th January 2024 the matter was assigned to Hon. A.A. Magutu, SRM but no evidence was recorded by the said Magistrate. In the attempt to clear backlogs, the matter was assigned to Hon. A.T. Millanzi, PRM on 28th February 2024. I also noted that, when the matter was called on for hearing on 7th March 2024 before Hon. Millanzi, the trial Magistrate notified the parties the reason for reassignment and thereafter proceeded to record evidence of the parties to conclusion of the case but parties were not addressed as to whether, they were ready to proceed with hearing

of evidence from where Hon. Mazengo, PRM ended or not. I further noted that, exhibits were tendered but there was no endorsement thereon. Instead, yellow stickers were pinned to the documents that were prayed by the witnesses to be tendered. The said yellow stickers were stamped and marked as exhibit and the number thereof. There was no initial or signature of the magistrate. With those observations, I asked counsel for the parties to address the court whether, all what I pointed out was proper or not, and the effect thereof hence this ruling. 4 Responding to the issues raised by the Court, Mr. Manjeka, advocate for the insurer, concurred with the observations made by the court and submit that, proceedings were not properly recorded. On failure of the trial magistrate to ask the parties to comment whether trial should commence from where it ended prior to taking over and record responses of the parties by the successor magistrate, he submitted that, that was an error on part of the trial magistrate and the same vitiated proceedings. On whether exhibits were properly admitted or not, counsel for the insurer submitted that, what the witnesses tendered does not qualify to be exhibits for lack of endorsement and initials or signature of the trial magistrate. Counsel concluded that, the pointed-out omissions vitiated the whole proceedings. With those submissions he prayed

that proceedings be nullified, the judgment and decree thereof be quashed and set aside and order trial de novo before a different magistrate. On his part, Mr. Masoud, advocate for the individual while responding to the 1st issue, he submitted that, for the sake of fairness during trial, the trial Magistrate was supposed to address the parties as to whether they should start afresh or not. He added that, what was done by the trial Magistrate was not proper. 5 On the 2nd issue relating to admission of exhibits, counsel for the individual submitted that, Order XII Rule 4(1) of the Civil Procedure Code, [Cap 33 R.E.2019] requires all documents tendered as exhibit to be endorsed by the trial Magistrate or judge. He added that, the omission by the trial Magistrate offended this provision hence documents were not properly admitted. With those submissions, he concurred with submissions by counsel for the insurer and prayed trial court proceedings be nullified, the Judgment and Decree be quashed and set aside, and a retrial be conducted before a different Magistrate. Mr. Ignas, advocate for the driver and the Bank, whole subscribed to submissions made by learned counsel for the insurer and the individual and the prayers thereof. I have considered submissions by counsel in relation to the issues that I raised suo mottu. It is undisputed by the parties that, Hon. P.S. Mazengo, PRM

recorded evidence of PW1 and thereafter she was transfer to another duty station as a result, the matter was heard and concluded by the successor Magistrate. It is also undisputed by the parties that, on the date the parties appeared before the successor Magistrate who on the same date recorded evidence of the parties, they were not afforded right to comment whether, the case should start 6 afresh or continue from where it ended prior to taking over by the successor Magistrate. It is my view that, as matter of procedure and fairness of trial, parties were entitled to that right. It is evident from the record as I have highlighted and submitted on behalf of the parties that, the witnesses requested to tender documents as exhibits, however, the trial magistrate marked yellow stickers instead of the documents that were tendered by the witnesses. In my view, there was no prayer by the witnesses to tender yellow stickers that were marked by the trial Magistrate. In fact, it was correctly in my view as it was submitted by both counsel that, the trial Magistrate mistakenly marked the yellow stickers as exhibits showing the name of the witness who tendered them. The record shows that the trial Magistrate neither signed or initialled on the said yellow sticker or the documents that witnesses prayed to tender. I therefore entirely agree with submissions by counsels that there were no

exhibits that were properly admitted as evidence because, what was admitted is the yellow stickers and not the documents the witnesses prayed to tender. The trial Magistrate was supposed to admit and endorsement on the documents the witnesses prayed to tender and not the said yellow stickers, which after all, there was no prayer by the witnesses to tender them and it is 7 unknown as where they came from. It is my view that, what was done by the trial Magistrate was in contravention of the provisions of Order XIII rule 4(1) of the Civil Procedure Code, [Cap. 33 R.E. 2019] which provides: - “4(1) 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 initialled by the judge or magistrate.” It is my view that, the bolded words in the quoted rule are clear that, endorsement must be done on the document that was admitted and not otherwise. In the appeal at hand, it is the yellow stickers that were marked and not the documents witnesses prayed to tender. It is clear therefore that, endorsement of the yellow stickers by the trial Magistrate and

implies that it is the said yellow stickers that were admitted as exhibits and not the documents witnesses prayed to tender. In my view, the requirement of a trial judge or Magistrate to initial or sign on every document that has been admitted as evidence is intended to give assurance as to what was tendered and maintain integrity of the 8 said exhibit. From where I am standing, it cannot be said that documents that are in the trial Court record are the ones the witnesses prayed to tender. It cannot also be said with certainty that; those documents are the same documents that were received on the said date by the trial Magistrate. It is my opinion that, integrity of exhibits was affected by what was done by the Trial Magistrate for violation of the above cited provision of Order XII rule 4(1) of Cap. 33 R.E 2019(supra). The Court of Appeal was confronted with a similar issue of improper admission of exhibits and reliance thereof in the case of Zanzibar Telecommunication Ltd vs Ali Hamad Ali & Others (Civil Appeal 295 of 2019) [2020] TZCA 1919 (18 December 2020), M.S Sdv TRAnsami Limited vs M.S Ste Datco (Civil Appeal No. 16 of 2011) [2019] TZCA 565 (18 June 2019), Mhubiri Rogega Mong'ateko vs Mak Medics Ltd (Civil Appeal 106 of 2019) [2022] TZCA 452 (20 July 2022) and Total Tanzania Ltd vs Samwel Mgonja (Civil Appeal No.70 of 2018) [2021] TZCA 265 (25 June 2021) to mention but

a few. In all these cases, the Court of Appeal held that, the irregularity was fatal and vitiated the whole proceedings, consequently, nullified proceedings and ordered retrial. 9 Guided by the above cited Court of Appeal cases, I hereby nullify proceedings of the trial Court, quash and set aside the judgment and decree arising therefrom and order retrial before a different Magistrate without delay. Dated at Dar es Salaam on this 4th March 2025 B. E. K. Mganga

JUDGE Ruling delivered on this 4th March 2025 in Chambers in the presence of Julius Manjeka, Advocate for Phoenix of Tanzania Assurance Company Limited, Meshack Mwanasenga, Advocate for Samson James Millinde and CRDB Bank PLC, but in absence of Nuru Kibwana Mohamed. B. E. K. Mganga

JUDGE 10