20160531 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM PC. CIVIL APPEAL NO. 66 OF 2010 (Originating in the Magomeni Primary Court, Matrimonial Cause no. 86 of 2006 and Kinondoni District Court in Civil Revision no. 27 of 2008) DR. CONRAD V. MROSO ........................... APPELLANT VERSUS IBRAHIM PIUS MAPUNDA .................. 1ST RESPONDENT ND · CHEKA MFINANGA ........................... 2 RESPONDENT TANGANYIKA AUCTION MART ........ 3RD RESPONDENT JUDGMENT MURUKE,J. In this appeal, the appellant Dr. Conrad V. Mroso was advocated for by Mr. Ntagara learned advocate. The respondents did not enter appearance and defend themselves in this appeal despite substituted service by way of publication of summons at page 8 of the Mwananchi Newspaper dated 5/4/2011 and at page 15 of the Uhuru Newspaper dated 5/4/201 L The appeal was therefore determined ex-parte . . Cheka Mfinanga, the 2 nd respondent, successfully sued Ibrahim Pius Mapunda, the 1st respondent, for divorce in the Magomeni Primary Court. It was declared by the Primary Court that the house at Mbezi Luguruni, which is central in the instant dispute, was the jointly acquired st matrimonial property of the 2 nd respondent and the 1 respondent thus 1 .... subject to division after divorce. The trial court found that the 2 nd respondent was to get one third share of the value of the house for her contribution towards acquisition of the said matrimonial property. The Primary Court's judgment delivered on 22/4/2008 reads in part as follows: "Kwa vile hakuna ubishi kwamba ndoa hii imejaliwa kupata mali ambayo ni nyumba moja iliyoko Mbezi Luguruni mahakama hii inaona kuwa mdaiwa amfzdie mdai 1/ 3 ya thamani ya nyumba hiyo baada ya kuthaminiwa na Mthamini wa Serikali Wilaya ya Kinondoni iwe ndio mchango wake katika ujenzi wa nyumba hiyo." It appears that the original Primary Court File no. 86 of 2006 was lost or misplaced hence the execution process could not proceed. On 25/8/2008, the 2 nd respondent requested the trial Primary Court to reconstruct the lost file so as she could continue with the execution process. The prayer was granted and the court made further orders that: "Katika jalada hili la temporary file, leo hii tumepokea barua kutoka kwa Tanganyika Auction Mart Co. Ltd kwamba nyumba ya mdaiwa imekamatwa tangu tarehe 25/7/2008 na mdaiwa mpaka leo hii hajafika mahakamani. Hivyo basi, ili haki itendeke na ionekane kuwa imetendeka, nyumba ya mdaiwa iuzwe kwa mnada wa hadhara ili wanaodaiana kila mmoja aweze kupata haki yake ... Hati ya kuuza mali (nyumba) wanaodaiana iliyopo Mbezi Luguruni itolewe kwa dalali . wa mahakama Tanganyika Auction Mart Co. Ltd auze kwa mnada wa hadhara. Mdai aarifiwe." Following the above referred orders, on 7/9/2008 and by way of public rd auction, the house at Mbezi Luguruni was sold to the appellant by the 3 respondent and eventually a certificate of sale of the said house dated 20/10/2008 was issued to the appellant by the Magomeni Primary Court. The 1st respondent was not happy with the stated sale of the house and through an application for revision -Civil Revision no. 27 of 2008, he asked the Kinondoni District Court to call for the Primary Court's records and revise the same. He contended that the Primary Court 2 mistakenly and unlawfully endorsed sale of the matrimonial property during execution contrary to its previous orders in the judgment dated 22/4/2008. He as well complained that the sale was conducted fraudulently. Later, the buyer of the house Dr. Conrad V. Mroso successfully applied to be joined in the revision proceedings before the District Court as the 3rd respondent -intervener. When going through the District Court's records, I came across a death certificate of Ibrahim Pius Mapunda (the 1st respondent herein and the applicant in the revision proceedings before the District Court) indicating that he died on 10/11/2009 before his application for revision had been fixed for hearing. That notwithstanding, the 1st respondent was represented in court by Mr. Jamhuri advocate on 10/12/2009 when the application for setting aside the dismissal order was scheduled for ruling; on 17/12/2009 when the said ruling was delivered; and on 21/12/2009 when the application for revision was heard by the District Court. It is on records that when the matter came before the District Court for hearing of the application for revision on 21/12/2009, Mr. Mosha who represented the appellant reminded the court that the 1st respondent was dead and there was doubt regarding Mr. Jamhuri' s instructions to represent the 1st respondent who was dead. In its ruling on the application for revision, the District Court quashed the whole sale process as regards the disputed property. It further ordered that before the 2 nd respondent could be compensated 1/ 3 of the value of the house by the 1st respondent, valuation of the disputed matrimonial property should be conducted in terms stated in the Primary Court's judgment dated 22/4/2008. The District Court directed that the appellant having incurred some costs already, he should be considered first after valuation of the house if he is still minded to retaining the house. The District Court's decision has aggrieved the appellant who, in 3 an endeavor to· challenge it, is armed with the petition of appeal containing .the following grounds: 1. That the District Court erred in law in quashing and setting aside the order of the Primary Court directing sale of the matrimonial property. 2. That the District Court erred· in setting aside the sale without having regard to the interest of the purchaser who was a bonqfide purchaser for value without notice. 3. That the District Court erred in law and in fact for failure to make a finding that the application before it had been overtaken by events following the death of the 1st respondent and for failure to satisfy itself on the locus of the counsel for the 1st respondent·who had died already. 4. That the District Court erred in law and in fact by its failure to make a finding that the order that the 2 nd respondent be compensated 1/ 3 of the value of the house acquired by the couple (1 st respondent and 2 nd respondent) jointly during the subsistence of their marriage could also be executed by ordering public auctioning of the said house in the event the 1st respondent was not cooperative to have the evaluation done and compensate the 2nd respondent her 1/ 3 share of the house. 5. That the District Court erred in law and in fact by failing o make a finding that the application for revision was not properly before it. 6. That the court made a serious error of law and fact when it ordered the appellant to be given first consideration after valuation without considering the fact that the appellant had a certificate of sale and was already a bona.fide purchaser, a third party without notice and who had done nothing remotely wrong and without addressing the Tshs. 32,000,000/- already paid by the appellant. The appellant has therefore requested this court to allow the appeal and set aside the ruling and order of the District Court; to declare that sale of the matrimonial house through public auction was proper; a declaration that the appellant is the rightful owner of the matrimonial house; and that costs be provided for by the 1st respondent. As regards the 1st, 2nd , 4th and 6th grounds of appeal which challenge the setting aside of the sale conducted by way of public auction on 7/9/2008, 4 Mr. Ntagara, the appellant's counsel, submitted that the said sale was a result of the lawful sale order issued by the trial Primary Court on 25/8/2008. The Primary Court's decision was not challenged by any one, he said. He maintained that the appellant paid Tshs. 32,000,000/- to acquire the said property and a certificate of sale was accordingly availed to him. The counsel argued that the appellant was a bonafide purchaser for value who had no notice whatsoever regarding any irregularity in the court order or sale process. He insisted that the appellant purchased the house at issue on belief that there was a lawful court order, thus, in law and practice, he is supposed to get court's protection even if the sale order is reversed. In support of his argument, Mr. Ntagara referred this court to the case of PETER ADAM MBOMETO v ABDALLAH KULALA & MOHAMED MSEKE [1981] TLR 337. He insisted that the sale price was not challenged by the 1st respondent and there is no-indication that the sale price was below the market value, hence, it was improper for the District Court to nullify the sale thereby disentitling the appellant of his lawfully acquired title to the disputed land. The appellant's counsel contended further that it was wrong for the District court to order that the appellant be considered first after valuation of the house in dispute without regard being had to the fact that the appellant was a bonajide purchaser of the suit land in a properly conducted public auction, and without addressing the issue of Tshs. 32,000,000/- paid by the appellant in purchase of the matrimonial house sold to him. He was of the opinion that the sale of the matrimonial house through public auction was proper and it was the only way the 2 nd 1 respondent could get her cut of / 3 of the value of the house. The counsel maintained that valuation of the house could not in any way add the value of the house and moreover it would have delayed the process 5 thereby delaying justice to the 2nd respondent. In Mr. Ntagara's view, the ·sale in public auction did not prejudice the 1st respondent rather it hastened the process for the sake of justice. The appellant's complaints covered under grounds number 1, 2, 4 and 6 of appeal raise two important questions which need to be addressed; one, whether the sale order dated 25/8/2008 by the trial Primary Court and the subsequent sale of the disputed matrimonial property to the appellant was proper; and two, whether the District Court was justified in quashing or setting aside the said sale of the matrimonial property to the appellant. As already outlined above, on 22/4/2008, the trial Primary Court declared the 2 nd respondent entitled to 1/ 3 share of the value of the disputed matrimonial house at Mbezi Luguruni. The Primary Court ordered in no unclear terms that "mdaiwa am[idie mdai 1/ 1 ya thamani ya nyumba hiyo baada ya kuthaminiwa na Mthamini wa Serikali Wilaya ya Kinondoni" which literally meant "the respondent (now t'1 respondent) to compensate the petitioner (now 2 nd respondent) 1/ 3 of the value of the house after valuation of the house to be conducted by the Kinondoni District Government Valuer". The applicable law governing execution proceedings in Primary Courts is the Magistrate's Courts (Civil Procedure in Primary Courts) Rules, GN 310 of 1964, and in the instant case the relevant rules are rules 56 and 85. Rule 56 reads: "When a court has made an award or order for the payment of money and such money has not been paid, the award or order may be enforced by the court by attachment and sale of the property of the judgment debtor." In my view by this rule, an order for payment of money may be enforced by the Primary Court through attachment and sale of the property of the judgment debtor only when such money was not paid as ordered by the 6 court. It follows that the above quoted Primary Court's order could only be executed through valuation of the disputed matrimonial house by the Kinondoni District or Municipal Valuer and then compensation or st payment of 1/ 3 of the value of the house to the 2 nd respondent by the 1 respondent. Sale of the said matrimonial house could only be ordered under rule 56 of the Primary Courts is the Magistrate's Courts (Civil Procedure in Primary Courts) Rules if there was proof that such valuation was conducted as ordered and the 1st respondent had refused to compensate the 2 nd respondent 1/ 3 of the value of the house as it was ordered on 22/4/2008. Unfortunately, there is no record indicating that valuation of the disputed st matrimonial house was carried out as ordered and the 1 respondent refused to compensate the 2 nd respondent 1/ 3 of the value of the house. It is clear that the sale order dated 25/8/2008 was issued in violation of rule 56 of the Primary Courts is the Magistrate's Courts (Civil Procedure in Primary Courts) Rules. The Primary court was incompetent to upset its own orders issued on 22/4/2008 and in so doing it actedfunctus officio and it prejudiced the 1st respondent by denying him the opportunity and his right to. compensate the 2nd respondent and retain the disputed matrimonial house. In SCOLASTICA BENEDICT v MARTIN BENEDICT [1993) TLR 1, the Court of Appeal held at page 4-5: "The first point for consideration and decision in the case before us is a procedural one, and it is whether the decision of the Urban Primary Court of Bukoba, in the earlier administration proceedings, can be overturned in subsequent proceedings other than by way of appeal to or revision by a higher court .... As a general rule, a primary court, like all other courts, has no jurisdiction to overturn or set aside its own decisions as it becomes functus officio, after making its decisions .... The only exceptions to this general rule includes the setting aside of ex-parte decisions, and reviews of decisions induced by fraud or misinformation." 7 Under rule 85(l)(a) of the Magistrate's Courts (Civil Procedure in Primary Courts) Rules, the Primary Court has powers to set aside the sale it ordered if it is found that there had been material irregularity in the proceedings leading up to the conduct of the sale. The Primary Court is also empowered under rule 85(3) of the Rules to order refund of the money paid by the purchaser where the sale has been set aside. The rules provide: 85(1) On application made within thirty days by any person affected or of its own motion, the court may set aside a sale of immovable property if it is satisfied- (a) that there has been fraud or material irregularity in the proceedings leading up to, or in the conduct of, the sale ... (3) Where a sale has been 'set aside under this rule, the purchaser shall be entitled to receive back any moneys paid by him. In my view, considering the observations and authorities above, the Primary Court's sale order was faulty in the initial place and the subsequent sale incompetent due to material irregularity in issuing the same thus the District Court was justified in setting the sale aside. In setting aside the sale, the District Court rectified the error committed by the trial Primary Court which had powers to set aside the disputed sale. However, I concede to Mr. Ntagara's view that the District Court was wrong in not addressing the issue of Tshs. 32,000,000/- paid by the appellant. An order had to be issued that the same be refunded to the appellant. With regard to the 3 rd and 5th grounds of appeal, Mr. Ntagara contended that the District Court was at fault in not finding that the application before it was overtaken by events following the death of the applicant (now the 1st respondent). He submitted that the District Court failed to satisfy itself on the locus standi of the 1st respondent who was the applicant and his counsel. Citing Order XXII rule 3( 1) and (2) of the 8 Civil Procedure Code, Cap. 33 R.E. 2002, the appellant's counsel argued that it was wrong for the District Court to ignore information on the 1st respondent's death and therefore it irregularly proceeded with determination of the application before it despite knowledge of the 1st respondent's death. In the first place, it is important to point here that what was before the District Court was the matrimonial matter from the Primary Court called to the District Court for the purpose of revision. Therefore, the provisions of the Civil Procedure Code cited to me by the appellant's counsel cannot be applicable in the circumstances because the Civil Procedure Code does not apply in matters arising from the Primary Court. In the case of AGNESS SIMBAMBILI GABBA v DAVID SAMSON GABBA, Civil Appeal no. 26 of 2008 (unreported, DSM), the Court of Appeal held: "In any case, even if, for the sake of academic argument, it were assumed that the pending suit was the probate matter from the Primary Court, then section 79 of the Civil Procedure Code would not have applied because the CPC does not apply in matters arising from Primary Courts." The above notwithstanding, the general rule as stated by the Court of Appeal in the case of SAIDI KIBW ANA AND GENERAL TYRE E.A. LTD v ROSE JUMBE [1993] TLR 175 at page 178 is that: ". . . all rights of action and all demands existing in favour of or against a person at the time of his death survive to and against his representatives, except those rights which are tied up with the individuality of the deceased, ... " In the present case, it is evident that the 1st respondent died on 10/11/2009 before his application for revision was heard or disposed of. st The 1 respondent's claim in the District Court related to nullification of sale of the matrimonial house at Mbezi Luguruni to which he had ownership interest. This ownership interest and the right to sue on it forms part of the estate of the 1st respondent thus it's not a right tied with 9 the individuality of the deceased to be caught up in the maxim - actio persona/is moritur cum persona i.e. a personal right of action which has to die with the person. In the circumstances the right to continue with the proceedings in the District Court after death of the 1st respondent survived to the 1st respondent's legal representative or the administrator of his estate who could stand in the shoes of the deceased. st The District Court was informed of the 1st respondent's death and the 1 respondent's death certificate is among the papers found in its records. st There is no entry in the District Court's records showing that the 1 respondent's legal representative was made a party in the proceedings. st In such situation, it is hard to apprehend why Mr. J amhuri, the 1 · respondent's counsel then, decided to continue with the case despite the st 1 respondent's death and absence of the appointed legal personal representative of the deceased 1st respondent. I agree with Mr. Ntagara' s st view that after death of the 1st respondent and in the absence of the 1 . respondent's representative or administrator of his estate, Mr. Jamhuri st had no locus standi to appear and purpo11 to represent the deceased 1 respondent. The proper course was for the District Cou11 to satisfy itself on the death of the 1st respondent and cease the proceedings of the matter before it st until such time the administrator of the estate of the 1 re~pondent is st appointed and applies to the court to step in the shoes of the 1 respondent, of course, subject to the law of limitation. In the case of SONI v MOHAN DAIRY [1968] 1 EA 58 at page 67 the court held: "The plaintiff clearly could not proceed with his suit until a legal representative was appointed ... " I find that to be good law and the procedure the District Court ought to follow. Since hearing of the application in the District Court was conducted while the 1st respondent was dead and his legal representative 10 had not been appointed and endorsed to represent the deceased in the application, the proceedings and the decision of the District Court are null and void and are accordingly quashed and set aside. In the result the appeal must succeed. However, this court being conscious of the irregularity committed in the sale of the disputed matrimonial house as observed when dealing with the 1s1, 2 nd , 4 th and 6 th grounds of appeal; and aware of this court's supervisory powers under the Magistrates' Courts Act, Cap. 11 R.E. 2002, hereby make the following orders and directives which I am firmly of the view will meet justice of this case: (1) The trial Primary Court's execution proceedings and decision dated 25/8/2008 are quashed and set aside. (2) Sale of the disputed matrimonial house at Mbezi Luguruni following the Primary Court's order dated 25/8/2008 is set aside. (3) The administrator or executor of the estate of the late 1st respondent to be appointed for the purposes of execution of the Primary Court's order dated 22/4/2008. (4) Any amount of money paid by the appellant in purchase of the disputed matrimonial house and received by the 2 nd respondent as 1/ 3 share of the value of the house; or received by the 3 rd respondent as her commission; or which was deposited in court for collection by the 1st respondent to be refunded to the appellant. (5) Failure to refund the purchase price within 60 days from today's order, appellant shall sell the disputed matrimonial house located at Luguruni - Kibamba to recover his purchase price. 11 (6) The remaining amount if any to be handled over to Richard Mapunda an administrator of estate of 1st respondent Ibrahim Pius Mapunda. (7) Given the nature of this appeal, parties shall bear their own costs. Z. G. JUDGE 02/09/2014 Judgment delivered in the presence of Appellant in person and in the presence of Richard Mapunda administrator of 1st respondent and 2 nd respondent Cheka Mfinanga in person. z. . JUDGE 02/09/2014 12 IN T~fE HIGH COURT OF TANZANIA. ' {DAR ES\S~i.Af-tM DISTRICT REGISTRY) . . AT DAR ES SALAAM CIVIL CASE NO. 145 OF 2010 TANZANIA FORESTRY RESEARCH INSTITUTE ........... HPL4IN1rIFf .VERSUS NATIONAl MICROfINA~~CE BANK PUBLIC '' LI r~ITED cor~PANY ................•................................. DEFENDANT 26/02 8:31/05/2016 JUDGMENT MWANDAMBO, J The parties to the suit are customet and banker respectively for a considerable period of tlme. The· plaintiff, which is a Government insUtution, is headquartered in Morogoro where it opened several bank accounts with the defendant at one of its Branches known as V\/arni in that ,,.: region. A dispute has arisen in relation to certain of the plaintiff's debit transactions in its special Account which it (the plaintiff) alleges that it did not authorise resulting into a loss of Tshs~ 364,677,874/=. The instant suit vvhich is founded on negligence seeks to recover not only the said loss but also damages for breach of dut;, interest a"hd costs: The facts material to the dispute are as follows. Sometime on 27 January, 2002, the piaintiff opened an t\ccount with the Defendanfs \Narni 1 branch in Morogoro styled as TAFORI Special Account No. 6801044597. The account number was later changed to SA 2212505652. That account , was in addition to other accounts already in existence specifically TAFORI General Account No. 22111000010. To operationalize the Account, the plaintiff fulfilled certain conditions notably filling in of a specimen signature card (exh. Pl) containing names and specimen signatures of officers authorised to sign documents for the purpose of withdrawals from the Account. These were in tvvo categories namely; A and B. In addition, the 1 Defendant issued an identity card affixed with the A.ccount signatories photos and signatures in each category (exh. P2). According to exhibit Pl, any withdrawal from the ft.ccount would be honored by way of filling a withdrawal form bearlng one signature from each category. It is common ground that the account was at all material times operated smoothly per the instructions contained is exhibit PL It is equally not in dispute that the key person in the operation of the Account was Astophei Buja Mwakalasya, as the ptalntiff's ,.l\ccountant also a signatory in category B. The name of this gentleman features predominate!y in the saga reading to the suit. Sometime on 12 November, 2009, the said Astophel Buja Mwaka!asya tendered a letter of termination of his employment on a short notice and this aroused suspicion on the Chief Executive Officer of the plaintiff (PW1) who, on 13 November, 2009 sent a team of his staff to enquire with the defendanfs Wami branch about the status of the special ~.ccount. The enquiry entailed, amongst others; asking for the supply of a bank statement of the said Account. Contrary to the plaintiff's expectations, the printed staternent supplied by the defendant indicated that the Special 2 I~ J, Account had a paltry bafance of Tshs 20, 883r 239/= much less than the arnoun~ which ought to have been available in the Account. After considerabie engagement with the defendant, the plaintiff demanded to be supplied with copies of all withdrawal forms and statements between the date of opening the Account and 13 November 2009 but the defendant 1 was able to supply only some of them. Having examined the copies supplied, the p[aintiff convinced itself that a number of the withdravvats from the Account vvere suspicious in that they were contrary to the "conditions for operating the Account/Fin several respects including forgery ' in signatures of the authorised signatories as well as wlthdrawa!s above agreed lin1its. There being no solution to the dispute, the plaintiff instituted the suit which is strongiy resisted by the defendant. Before the trial commenced for hearing 1 my predecessor (Sheikh, J) adopted issues proposed by counsel and recorded them as follows: 1. Whether on the 11 th May, 2009 the defendant bank did provide the plaintiff with a Bank statement indicating that the plaintiff special Bank Account No. SA 22 12505652 had a balance of Tsh. 542,302,411/32. 2. Whether on the 16th September, 2009 the defendant bank did provide the plaintiff with a statement indicating that the plaintiff special Account No. SA 2212505652 was worthy TZS 454, 561, 1152 (sic!) as at the close of business on 14th day of Septernber 1 2009. 3 3. Whether the Defendant bank operated/ managed the plaintiff's TAFORI Special Bank Account No. SA 2212505652 as per and in accordance with the plaintiff's mandate as supplied to the defendant bank. 4. VVhether the defendant bank acted negligently to wit, no authority from the plaintiff) to authorise unauthorized payment and thus loss of TZS 364,672,897/= to the plaintiff. 5. In the alternative to issue No. 4 above whether the defendant was negligent in management of the plaintiff's special Bank Account No. SA 221505652. 6. Whether the plaintiff has suffered has any loss as a result of the defendant1s negligence. 7. To what relief are the parties entitled to. The plaintiff who is represented by Mr. Joseph Sang'udi learned Advocate from R. K. Rweyongeza & Co. Advocates fielded three witnesses in proof of its case. Two of the witnesses were signatories to the speda! Account in category A whilst PVV3 testified in his capacity as the plaintiff's Director of Finance and Administration. Dr. Ladis!aus Nshubemuki was the first witness for the plaintiff. This had been a Director General of the plaintiff for eight years betweep April, 2002 and January 2010 when he retired from service. This witness (P\N1) testified that he remembered to have requested the defendant bank to open a special account in which he was a signatory to it in category A together with Evarist Sabas Kessy PVv2. He (PVv'l) produced in evidence a 4 ,r 11 l' showing a credit balance of Tshs 454,561,113/32 as of 16 September, 2009 and the Court admitted them in evidence as exhibits P4 and PS respectively. However, PVV1 got shocked when on 13 November, 2009 he received a bank statement indicating a credit balance of Tshs 20,883,239 which meant that more than Tshs 303,000,000/ = was missing from the Specral Account. As a result of the loss of money from the said Account, PVV1 caused enquiries to be made vvith the defendant's Branch Manager demanding to be supplied with full bank statements as we!I as all withdrawal forms but managed to get only some of them in several batches rather be!atedfy after several reminders through a covering letter admitted in evidence as exhibit P7. Copies of withdrawal forms were tendered by PVvl and the court admitted them as exhibit P6 1 through 32 inclusive. PV\11 identified each of the copies of the withdrawal forms with mixed feelings ln that that according to hlrn while some of them appeared to be genuine others were not. The latter had forged signatures purporting to be his whilst in fact they were not. He blamed the defendant for honoring requests on forged signatures and for lack of cooperation. To prove requests to the defendant to be supplied with copies of withdrawal forms and tetters for transfer of money from the special A.ccount to the generat Account, PVV1 produced in evrdence letters written to the defendant's \Nami Brach which were admitted in evidence as exh. P. 8 collectively. At the end of his testimony, P\l\fl prayed for judgment by way of refund of the amount withdrawn from the Speclat Account without authority as well as damages, interest and costs. 6 ', I ,._ 'I , "" I In cross examination by Mr. D. Kambo learned Advocate for the defendant, PWl reiterated that the bank statements ( exh. P4 and PS were brought to the plaintiff by Astophel Mwakalasya but was unable to tell whether the stamps thereon were genuine or not altriough I see nothing unusual for him to say as he did. He also told the court that forgery of the signatures on the withdrawal forms were not confirmed by handwriting experts besides casual signature comparison. The second witness (PW2) was Evarist Sabas Kessy who, like PWl had already retired from the service of the p!ainttff where he was a director of Research Production till 2011. PW2 was a signatory to the special Account together with PVVl in category A. This witness repeated most of what PvVl had stated in relation to the operation of the Special Account. In addition, PW2 stated that the Special Account was operated in such a way that there were no cash withdrawals from it rather transfers to a genera! Account according to an agreement with the Defendant. However he did not recall having seen the said agreement. Similarly, PVV2 could not recatl instances where the plaintiff instructed the Defendant to transfer the funds from the Special Account to a general Account and the amount involved (if any). This witness could not tell the amount the plaintiff deposited into the Special Account and like PW1, he disowned some of the signatures in the withdrawal forms (exh.P6) saying that they were forged and blamed what he and PVVl called suspicious transactions on the plaintiff's own Accountant (Astophel Buja Mwakalasya) as well as the defendant saying that it acted beyond its mandate. PVV2 could not however confirm having seen any 7 I 1~ j other instructions in relation to the operation of the Special Account other than exhibit Pl. The last witness for the plaintiff was Kaisi Ambindwile Mwaikambo (P\N3). Unlike PW1 and PW2, he was still in the service of the plaintiff having been employed in the year 2008 as its Drrector of Finance and Administration. Similarly, unlike P\Nl and PW2, this witness was not a signatory to the Special Account but he was aware of its existence upon joining the plaintiff on 1 August, 2008. P\1\/3 who boasted himself as a holder of MBA and CPA testified that his duties included supervision of the preparation and finalization of the plaintiff's final accounts for audit and coordination of Finance and Human Resources functions. Like PWl and P\N2, this witness narrated the purpose of the Special Account and identified the signatories to it which included Astophel Buja Mwakalasya ln category B who 1s said to have left employment on a short notice on 13th November, 2009 in a mysterious manner. PW3 told the court that the sudden departure of his subordinate who had all along been responsible for preparation of the plaintiff's books of Account and operation of the special 1-\ccount excited the plaintiff's management curiosity. As it were, upon enquiry with the Defendant's branch Manager whom he went to see personally on 13 November, 2009, revealed that the Special Account had been heavily overdrawn leaving a balance of Tshs 20,833,000/= an amount which was too insufficient to clear a cheque they had earlier drawn but not yet deposited by the said Mwakalasya. Upon being supplied with a bank statement up to 13 November, 2009, P\Jl/3 and his team came to 8 learn that the special Account reflected withdrawal transactions on that very date and two days earlier. That revelation led to a request for photocopies of all withdrawal forms and a detailed bank statement from the date Account was opened to 13 November, 2009. P\/1✓3 stated that despite the promises made by the Defendant's branch manager, the requests were not promptly acted upon neither did the Defendant supply ai! copies of the withdrawal forms. Having examined the bank statement supplied on 13 November 2009, PVV3 stated that the bank balance differed with the plaintiff's balance in its books of Account on the same date which indicated a credit balance of Tshs 385,561,113/52 per exhibits P4 and PS. Hovvever, PW3 did not produce in evidence any books of account to back up his statement. PJI in all, PW3 told the court that an examination of the copies of documents supplied by the Defendant's branch revealed that there were departures from the standing instructions for the operation of the Specia! Account in that tn some cases payments were made without genuine signatures in category "AFI while in others payments exceeded sanctioned limits. Commenting on exhrbits P6, P\N3 stated that there were several shortcomings \Nhich suggested that the defendant acted beyond the mandate given to it exemplified by frequent withdrawals from the Special Account in some cases more than one withdrawal per day. The witness impressed upon the court to find that the Defendant was in breach of the agreement resulting into a loss of Tshs 364,677,874/52 which the plaintiff unsuccessfully demanded for a refund and hence the institution of the suit. In cross examination, PW3, stated that the plaintiff's accounts were audited annually and during the process, the plaintiff through his 9 department used to ask confirmation of the account's balances from the Defendants and specifically, the Defendant confirmed that the special Account had a balance in excess of 500,000,000/= as of 30 June, 2008 but he did not produce any documentary proof in court. Likewise, apart from making reference to audited accounts, PW3 did not tender copies of said audited accounts in his evidence. Like PW1 and PVV2 this witness attributed the blame on the loss to Astophel Buja Mwaka!asya's mysterlous departure and the bank but could not tell if there was any employee of the bank who had been implicated in a criminal case involving the loss. With that, the plaintiff's case came to an end. The defendant called only one witness one Emmanuel Bushirl (DVl/1) who was the defendant's branch Manager at VVami Branch between March, 2008 and March, 2013. DW1 was aware of the Special Account as wen as the mandate contained in exh. Pl. He denied knowledge of any other mandate or agreement for the operation of the special Account than exhibit PL In relation to exhibits P4 and PS, D\Nl stated that the Defendant never issued any bank statements to the plaintiff in May and September, 2009 by way of exhibits P4 and PS. According to DVV1, exhibits P4 and PS had severa! shortcomings distinguishing them from genuine bank statements issued by the bank in tile ordinary course of business. Such shortcomings include the type of rubber stamp impressed on the exhibits quite alien to the bank, unknown signatures in the exhibits, font size and format of the transactions being in sharp contrast with the genuine bank statements per exhibits D1, D2, D3, D4 and D5 he tendered in his evidence. 10 'As regards frequencies of withdrawais from the Special Account, DWl . told the court that the plaintiff was free to withdraw cash from the Special Account on demand through duly filled in and signed withdrawal forms in as much it could transfer money to another account. Regarding supply of . certificate of account's position for audit purposes, DV\/1 confirmed that the bank supplied such certificates one of which showing the special Account position as of 30 June, 2009 but the plaintiff did not express any disagreement or complaint with it prior to institution of the suit. As to failure to act on the plaintiff's request for supply of copies of withdrawal forms, DWl toid the court that the plaintiff was given enough copies for her to verify its Account's position while waiting for the rest. AH in all, DVvl was adamant that the Defendant was not negligent in any way in operating the plaintiff's Special Account but acted within the parameters of the mandate cont?ined in exh Pl. In cross examination, D\tV1 reiterated that there was only one set of instructlons in relation to the operation of the Special Account per exhibit Pl. In relation to the commission charged on withdrawals in excess of 2,000,000/= without notice DVV1 stated that the Bank was entitled to charge that commission regardless of any standing instructions from the plaintiff. At the end of his testimony, D\Nl prayed for the dismissal of the suit with costs. That marked the end of the Defendant's case and conclusion of the trial. At the closure of the trial, the court ordered counsel to make their final submissions in writing. The !earned counsel duly filed their respective vvritten submissions on the date ordered and I am grateful for their 11 industry in addressing the court on their respective positions. Whilst I will try to pay regard to their submissions, for obvious reasons I will not touch on each and every argument counsel covered in their submissions. With that I now move to make my determination on the issues framed in the light of the evidence adduced and counsel's submissions. The ieaned Advocates argued issues No. 1 and 2 together and I think t·ightly so due to their interrelation. The !earned Advocate for the plaintiff urged the Court to answer both of them in the affirmative because, according to him, PW1, P\N2 and PW3 had adduced sufficient evidence to prove that the Defendant supplied bank statements by way of exhibits P4 and PS. It was Mr. Sang'udi s submission that the credit balances on the 1 respective dates tallied with the Plaintiff's books of accounts. It was the learned counsels' further submission that the defendant's attempt to disovvn the said exhibits was of no avail because it had not led any evidence to distinguish the font size in exhibits P4 and PS from the ordinary font used by the Defendant At any rate, the learned counsel argued, the Defendant faifed to cooperate with the Plaintiff in supplying bank statements despite several requests and reminders as evidenced by exhibit PS. Not unusual, Mr. Daibu Kambo, !earned Advocate for the defendant urged the Court to answer both issues against the Plaintiff. The learned Advocate submitted that exh. P4 and PS did not originate from the 1 Defendant according to DW1 s testimony. It was the learned counsel's submission that the testimonies of PWland PVV2 polnted clearly that it was 1-\stophel Buja Mwakalasya who brought the said documents to the 12 Plaintiff's management rather than themselves obtaining them personally from the defendant. The learned Advocate submitted further that the Plaintiff had a duty to call its former Accountant to explain the source of the said exhibits and the fact that it did not call such an important witness entitled the court to draw an adverse inference against the Plaintiff on the authority of Hemed Said V. Mohamed MbHu [1984] TLR 113. There is no gainsaying that the Plaintiff's case is largely hinged on exhibits P4 and PS. As the pleadings and evidence will bear testimony, there is a huge dispute on the veracity of the said documents based on the evidence of DW1. Before I consider the probative value of the said documents, I find it necessary to address my mind to their propriateness in the light of the issues under consideration. There 1s no doubt that exhibits P4 and PS purport to be computer printer outs of TAFORI special Account No·. SA 2212505652. They are, for that matter part of banker's books governed by section 76 of the Evidence Act, (the Act) Cap 6 R.E 2002 as amended by the \Nritten Laws (MlsceHaneous Amendments) Act (Act No. 15 of 2007). Such documents can only be received as evidence when supported by proof as stipulated under sections 78 (2) of the Act that it was made in the usual ordinary course of business and that the same are in the custody of a bank (see section 78A of the Act as amended by Act No. 15 of 2007). In terms of section of 78 (2) of the Act, proof may be given by a partner or officer of the bank ora!ty or by an affidavit. Short of meeting the preconditions set out under the aforesaid provisions a bankers book cannot be received (admitted) in evidence. I take note that exhibits 13 P4 and PS were admitted as part of the Plaintiff's evidence without any objection from the defence. However, their admission does not make them to be conclusive proof of the contents of what they purport to be. Accordingly, much as I cannot at this stage disregard themr I will not attach much weight to them because their evidential value has been seriously diluted by lack of proof that they were made in the usual ordinary course of business iet alone the proof as required by section 78(2) of the Act that they were in the custody of the Defendant. Indeed, there is sufficient evidence through the Plaintiff's own witnesses that the exhibits P4 and PS were at all material times not in the custody of the Defendant but in the Plaintiff's custody having been brought by to the plaintiff by a person who has not been called to give evidence to prove the source thereof. That evidence gives credence to DVV1's testimony who denied having issued such documents to the Plaintiff on the materiai dates or at all. To put it differently, the Defendant has disowned the existence of exhibits P4 and PS as part of its banker's books and thus there is no probative value in the said documents to prove that the Plaintiff's special account No. SA 2212505652 had any credit balances on the amounts indicated therein. At any rate, the Plaintiff who had the burden to prove on both issues did not produce in evidence its own books of Accounts to match with exhibits P4 and PS but worse still, it did not call its erstwhile Accountant to explain how and where he obtained those exhibits which the Defendant denied supplying in its written statement of defence. As rightly. submitted by the !earned Advocate for the Defendant in the absence of palpable explanation from such a material witness as Astophe! Buja 14 .. - Mwaka!asya who is said to have brought exhibits P4 and PS, the court will be justified in drawing adverse inference against the Plaintiff on the authority of Hemed Said V. Mohamed MbHu (supra) which I am in entire agreement with. Unfortunately, even PW3 who boasted to be coordinating finances functions with the Plaintiff did not make any credible evidence in support of the cred_ibility of exhibits P4 and PS. The !earned Advocate for the plaintiff has impressed upon me that that I should find that PWl and PVJ2 were credible \Nitnesses who had faithfully worked with the Government to their retirement who had no interest in making lies to the Court. VVhilst one may be tempted to go ._ along with the submissions by the plaintiff's learned Advocate, the circumstances of this case dictate a different approach. VVithout saying much about any lie, there is no dispute that both PWl and P\N2 were senior officers of the Plaintiff until their retirement. It ls equally common ground that the duo were signatories to the special Account in category A and furthermore there is !ittie or no doubt at all that the funds ,n the speciai Account were public funds some of which allegedly withdrawn in mysterious circumstances during their tenure of office. The two gentlemen had interest to serve in order to save their faces and thus if credibility has anything to go by, it is highly doubtful that their credibility vvould be free from suspicion. In the upshot, having regard to the shortcomings ln exhibits P4 and PS as well as the unsatisfactory oral testimony from the Plaintiff's witnesses, I find and ho!d that the Plaintiff has not discharged its burden to prove its case in issue No. 1 and 2 which I answer in the lS negative. I now move to issue No. 3 which seeks to enquire whether the Defendant operated the special account in accordance with the mandate. It is noted that the third issue was framed on the understanding that the plaintiff supplied to the defendant instructions for the operation of the special Account over and above those contained in exhibit Pl. The determination of the issue will therefore depend on the existence of the said instructions. Noncompliance with instructlons in exhibit Pl is dea[t with separately in lssue No 4 and 5. The learned Advocate for the plaintiff has invited the Court to ho!d that the plaintiff has proved both the existence of the said instructions and breach of it regardless of its failure to tender it in evidence. The lea~ned Advocate took the view that the fact that the Defendant did not deny the contents of para 7 of the amended plaint was sufficient proof of existence of the mandate. It was the learned counsel's submission that there was proof regarding requirement of seven days' notice for an withdrawals in excess of Tshs 21 000,000/= as weil as a commission of 1% of the amount in excess of 2,000,000/= \Nhere no prior notices were given as evidenced by para 7 of the amended p[arnt which stands undisputed in the Defendant's written statement of defence. Further proof according to the learned Advocate· was through withdrawal forms (exh. P6) showing frequent withdrawals and ln many cases beyond 2,000,000/= contrar; to the mandate. The learned counsei for the Defendant submitted that the evidence of PW1 supported by exhibit Pl indicate that no other mandate was given to the Defendant by the Plaintiff other than exhibit P'i which the Defendant complied with to the letter. It is 16 .,, - common ground that all witnesses for the Plaintiff made reference to an agreement for the operation of the Special Account but no such agreement or mandate was tendered in evidence containing terms and conditions for t!1e operation of the Special Account other than exhibit PL This the Plaintiff's Advocate readily acknowledge in his submissions. Notwithstanding the absence of the said agreement/ mandate apart from exhib1t Pl, the !earned Advocate invites the Court to infer existence of additional mandate from the pleadings1 exhibits P6, DI, D2, D3, D4 and 05. V\Jith respect, I do not think that there is any merit ln the Plaintiff's suggestion as I will endeavour to explain shortly. To start with., the Defendant denied categorically the existence of any conditions stated in para 6 of the amended plaint requiring the plaintiff to provide strict proof. It is, in my view highly inconceivabie that the defendant who had denied the existence of the said conditions could suddenly admit of their existence in the next paragraph of its defence. Secondly, the withdrawal forms ( exhlblt P6) by themselves cannot establish that there were any special conditions for the operation of the Special Account including limits in the withdrawals and the amount permitted for each day or month. According to the evidence of D\J\/1 which remains uncontroverted, the plaintiff was entitled to withdraw money from its account on demand upon filling in and sigrdng withdrawal forms per exhibit Pl and the defendant was contractually bound to honour fts customer's instructions. D\/Vl 's evidence is consistent w1th the generally accepted principles governing banker customer relationship one being that there ls an implied term in the contract between the banker and its customer that the former promises to 17 -~;: . 4 ..; repay the latter a sum equivalent to that paid into his hands- see: Sheldon and fidler's Practice and Lart1v of Banking 11th Edition at page 25. In the absence of any terms to the contrary, one cannot successfully argue as the plaintiff does that defendant acted beyond the mandate by allowing cash withdrawals as it did provided the instructions in exhibit Pl were met. Thirdly, charging commission on excess amounts through exhibits Dl, D2, D3, D4 and DS cannot serve as evidence of the existence of special conditions in the light of the evidence of DV\/1 who stated that the Defendant was entitled to charge the commission regardless of the existence of the alleged mandate. In the absence of specific instructions, it will be unsafe to re[y on the transactions in exhibits D1, 02, D3 and D4 and D5 as proof of the existence of such instructions. Consequently, since the plaintiff has not discharged its burden to prove the existence of any mandate or instructions apart from exhibit Pl, I will answer the third issue against the piaintiff. In other words, the defendant was under no obligation to comply with non existing instructions in the operation of the Special Account. Issues No 4 and 5 are dedicated to an enquiry on negligence that is to say; did the defendant act negligently in operating the Special Account leading to a loss of Tshs 354,672,897/=? The learned counsel for the plaintiff preface his submissions on 'the issue by reference to the definition of neg!igence from Black's Law Dictionary 7th edition referred to in The Loans And Advances Realisation Trust (LART) v. Bardays Bank Tanzania limited, Commercial case No 54 of 2005(unreported) in which 18 Massati, J (as he then was) articulated the ingredients of negligence in the context of the banker customer relationship. There is no doubt that the case reflects a sound and correct position of the law but its relevance to the instant suit is a different matter altogether. The learned advocate for the plaintiff invited me to hold that the defendant acted negligently by authorizing cash withdrawals from the Special Account beyond agreed limits. I have already held in the preceding paragraphs when dea!lng with · the third issue that the existence of limits in withdrawals from the Special Account has not ·been established and I would thus agree with the defendant's leaned l\dvocate that there can be no basis upon which the defendant could be held liable in negligence ln the manner submitted by the plaintiff's counsel. The learned Advocate for the pfaintiff submitted further that the defendant breached its duty of care to the plaintiff by authorizing cash withdrawals on forged signatures of the signatories ln category A per the testimonies of PV\/1 and PW2. The learned Advocate urged me to find that forgery was sufficiently proved by both witnesses who stated in their respective testimonies that their signatures in some of the withdravval forms and letters for transfer of funds from the special Account were a forgery. Despite the absence of proof of forgery by an independent evidence, the !earned Advocate would me find that proof by the persons who disowned their signatures in the disputed withdrawal forms was enough relying on commentaries from The Law of Evidence, 3 rd !Edition by Professor I. H Dena1!s at page 506, para 12.12 dealing with 19 proof of handwriting and signature. The learned advocate invited me not to believe the evidence of DVv'l in relation to the genuineness of the signatures in the withdrawal forms because he did not personally examine the signatures at the bank's counter at the time. the withdrawals were being made. According to the !earned Advocate, the best persons to prove that the signatures in the withdrawal forms matched with specimen signatures in exhibit Pl should have been the bank tellers or at best their supervisor and the fact that none was called to give evidence spoke volumes of unfavourable evidence against the defendant. The learned advocate for the defendant submitted that the plaintiff has not discharged its onus of proof of forgery and thus the two [ssues ought to be answered , negativ~!y. It is common ground that forgery a serious allegation as it were was not pleaded as such by the plaintiff. It just featured in the testimonies of PVV1 and PVV2. But even if it was p!eaded 1 it required strict proof to be sustained. There is sufficient authority for that proposition from case !aw a few of whrch will suffice for the purpose of this judgment. In Omary Yusuph V Rahma Ahmed [1987] TLR 169, the Court of Appeal hetd that the law was already settled that when the question whether someone has committed a crime is raised in civil proceedings that allegation need be established on a higher degree of probability than that which is required in ordinary civil cases, the logic and rationality of that rule being that the stigma that attaches to an affirmative finding of fraud justifies the imposition of a strict standard of prooL Earlier, the defunct Court of 1\ppea! 20 t ~ . . - for East Africa expressed similar stand discussing standard of proof in cases involving fraud holding that allegations of fraud must be strictly proved though the standard of proof may not be so heavy so as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required- see RatHal Gordhanbhai Patel V lalj; Makanji [1957] EA 314 at p 317. Admittedly the two cases involved proof of fraud but I see no difference in the application of the rule in both cases which are criminal in nature. With respect the plaintiff has not discharged its standard of proof not only on a higher standard but also on mere balance of probabilities. VVhilst the two witnesses claim that their signatures were forged, the defendant through DWl claims that the signatures in the withdrawal forms are genuine and match with the signatures ln exhibit Pl and thus the defendant cannot be taken to have acted neg[igently in authorizing cash withdrawals from the special Account. The learned advocate for the piaintiff would have me find that since it is the same persons who say their signatures were forged they must be believed because they are the best persons to say so rather than the defendant's witness who did not witness the signing. That argument assumes that the signing of the withdrawal forms was done by the signatories at the bank's counter in the presence of the tellers which is not supported by any evidence on record and I propose to attach no weight to it. Be it as it may, the reliance on the commentaries in the book above cited has no much assistance to the plaintiff ln the context of the facts in this suit because such commentaries could only be relevant if the witnesses were being called to prove their signatures rather than disowning what the defendant 21 ,. ' ~·'i ,.-:- • ~ ,Ir ·. - says it is their signatures. In my view, in cases such as where there is a dispute as to the genuineness of the signatures the plaintiff ought to have led sufficient evidence through independent witnesses specificaily a handwriting expert for the court to form an opinion on the claim of forgery and if credible contradict DW1 's version. Such independent evidence was more relevant since it is clear that the withdrawal forms vvere presented by the plaintfff's own Accountant whose signature is not disputed. It would have been a different matter altogether had there been evidence that the withdrawal forms were not authored by the plaintiff's authorized accountant and this is where the failure to call hirn as a witness attracts more questions than answers. In the circumstances, I am unable to agree with the learned counsel that forgery has been proved to exist in exhibit Pl thereby justifying making a flnding that the defendant was negligent in the management and operation of the special Account. Lastly on the issue of pattern of withdrawals as a reason for the defendant to be suspicious of the transactions. The learned advocate for the plaintiff has invited me to hold that the pattern was too suspicious to have eluded the defendant's curiosity to alert the plaintiff on the authority of The loans And Advances ReaHsation Trust (LART) v. Bardays Bank Tanzania Urnited (supra). That case has little application here for two reasons. One~ I have already accepted the evidence of D\IVl above that the plaintiff was entitled to draw funds from its account on demand provided that there \Nas sufficient ba!ances but subject to fu!filllng the requirements contained in exhibit Pl. Two, unlike in LART's case, there is sufficient evidence in this case that the person who presented the ,rvithdrawa! forms and coi!ected 22 cash from the defendant's counter was no other than its own Accountant who was a signatory to the Speciai Account. Unlike in LART's case in which the amounts were fairly large and for that matter attracting cause for alarm , in the instant case the pattern of cash withdrawals were in the region of Tshs 21 000,000/= and these would not have constituted an act of negtigence on the part of the defendant thereby causing loss to the plaintiff. In the upshot, having regard to the evidence on record I answer issue 4 No and 5 in the negative. Since I have found no evidence to hold the defendant Hable in negiigence when dealing with issue No 4 and 5 above, the answer to issue No 6 which seeks to determine whether the plaintiff suffered any loss as a result of negligence must be an obvlous one that is to say; no loss could have been sustained ln the absence of negligence. At any rate even if I were to find the defendant liable in negligence, I would be reluctant to say that the plaintiff suffered any loss by way of the amount of money atteged to have been withdravvn from the Special Account .This is because, as the learned advocate for the defendant has rightly submitted such !oss has not been proved by the evidence on record. ,l.\ccording to the plaintiff, the on[y basis for establishing existence of funds in the specia! account is no other than exhibits P4 and PS but as I have already held that the said exhibits have no evidential value worth of belief to sustain the claim for ,oss. That takes me to the last issue dedicated to reliefs. 23 -.- I I Having regard to the findings on the issues framed, rt is obvious that the plaintiff has not discharged its burden of proof on the standard required in civil cases. Consequently, I dismiss the Plaintiffs suit in its entirety with costs. Order accordingly, 31/05/2016 Delivered in court in the presence of Joseph Sang'udi counsel for the Plaintiff and Daibu Kambo counsel for the Defendant this 31 st day of May 2016. 24 I