MTULYA 1

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY) THE HIGH COURT (MUSOMA SUB REGISTRY AT MUSOMA) CIVIL CASE NO. 399218 OF 2022 1. THE BOARD OF TRUSTEES OF NATIOnXN SOCIAL SECURITY FUND K,.......................... PLAINTIFFS 2. ATTORNEY GENERAL j Versus M/S KIRIBO COMPANY LIMITED................................................. DEFENDANT RULING 03.10.2024 & 03.10.2024 Mtulya, J.: On 1st October 2024, Mr. Khalifa Byemerwa (PW1), Compliance Officer working with the National Social Security Fund (the first plaintiff) - Tarime Branch Office, was summoned in this court to testify in favor of the plaintiffs on allegation that M/S Kiribo Company Limited (the defendant) had declined obligation of payment of statutory contributions. In the course of producing his evidence, PW1 had testified that the first plaintiff and defendant had exit meeting and that the defendant had promised to pay the claimed statutory contributions in instalments, but had declined the promise. According to PW1, the first plaintiff had several settlement procedures and meetings with the defendant on the promised payments, but the defendant had declined the payments hence the first plaintiff had decided to issue two (2) distinct demand notices of i payment on 15th November 2020 and 7th December 2020. In order to substantiate his statement, PW1 prayed to tender the two (2) cited documents. However, one of the documents, dated 7th December 2020 was protested by Mr. Michael Mahende, learned counsel for the defendant for reason that it was a photocopy without any attachment of a notice to produce, as the document was directed to and in possession of the defendant, but the defendant was not asked to produce in court. Mr. Mahende complained further that PW1 was not led to lay foundation on procedures of producing photocopies. In justifying his protest, Mr. Mahende had cited the provisions of sections 66 and 67 (1) (a) of the Evidence Act [Cap. 6 R.E. 2019] (the Evidence Act) contending that PW1 had declined compliance. In replying the protest, Mr. Turoke Kitia, learned Principal State Attorney, submitted that secondary evidence of public document species is permitted to be admitted under section 83 (a) (ii) of the Evidence Act. According to him, secondary evidence of public nature may be admitted, provided that they are certified and stamped by the institution which had produced it. In his opinion, the present demand notice issued on 7th December 2020 is certified and stamped by the first defendant. In a brief rejoinder, Mr. Mahende submitted that the indicated section 83 (a) (ii) of the Evidence Act regulates public documents, and unaware whether the issued demand notice of 7th December 2020 qualifies to be part of the public documents. 2 This court had perused and grasped the submissions of the learned minds and noted that the dispute is based on whether the demand notice of 7th December 2020 is a public document to enjoy the enactment of sections 83 (a) (ii) and 88 (1) (b) of the Evidence Act or mere private document to follow the course enacted in sections 67 and 68 of the Evidence Act. Noting the issue is straight forward, this court had asked the learned minds to bring practice of this court or Court of Appeal regulating the subject or defining the meaning of the words: public document. The learned minds were granted two (2) days leave to consult authorities on the subject. However, today morning the learned officers of this court had entered their appearance and stated that they did thorough research, but could not find any decision regulating the subject or defining the words: public document. In the opinion of Mr. Kitia, the provisions of section 83 (a) (ii) of the Evidence Act recognizes documents produced by official bodies such as the first defendant. In order to substantiate his argument, Mr. Kitia had cited precedents in The Board of Trustees of the National Social Security Fund v. Mara Security Guard, Civil Case No. 1 of 2020 and The Attorney General v. Tanzania Ports Authority & Another, Civil Application No. 267/17 of 2016, which stated that the first defendant is a public cooperation established by an Act of Parliament and its employees are public servants. On the other hand, Mr. Mahende contended that the Evidence Act is silent on both public document and public corporation, and in 3 any case official bodies, enacted under section 83 (a) (ii) of the Evidence Act, and public corporations are two (2) distinct bodies. In such circumstances, according to Mr. Mahende, the cited cases are inapplicable. This court, a day before yesterday, had ordered learned minds of the parties, as officers of this court via section 66 of the Advocates Act [Cap. 341 R.E. 2019] (the Advocates Act), to appear today and produce relevant materials, including precedents of this court or Court of Appeal, on whether the intended exhibit demand notice of 7th December 2020 is a public document to enjoy the enactment of sections 83 (a) (ii) and 88 (1) (b) of the Evidence Act or mere private document to follow the required course enacted in sections 67 and 68 of the Evidence Act. However, as I indicated earlier, the dual learned minds have admitted that they could not find any practice, and decided to let it to this court to have its ruling. In brief, the learned minds have declined to reply the question posed to them in order to assist this court in arriving at justice of the parties. In my considered opinion, I think, the issue is straightforward that the first plaintiff is a public corporation established under the National Social Security Fund Act [Cap. 50 R.E. 2019] (the NSSF Act) and there is no way it can be termed as a private institution. By logic and analog, documents issued by the first plaintiff are public documents. They cannot be, at any rate, be called private documents recognized under section 84 of the Act. That being the case, the 4 demand notice of 7th December 2020 issued by the first plaintiff to the defendant is a public document. It is fortunate that, in the instant case, the defendant is very well aware of the document intended to be produced. The document was stated in the eleventh paragraph of the plaint and its associated attachment in annexture NSSF3. I am aware Mr. Mahende during his submission today he distinguished public corporation and official bodies. In my considered opinion, the distinction does not reply the instant issue on whether the intended exhibit demand notice of 7th December 2020 qualifies to be an official document to enjoy the enactment of section 83 (a) (ii) of the Evidence Act. Similarly, his initial complaint on want of the procedure of certification may be declined as there is already a precedent on record of this court in African Group Tanzania Limited v. David Joseph Mahende, Commercial Case No. 86 of 2013, which had declined the same argument and went further to admit the intended exhibit in the case. It was done so for interest of justice. This court, in certain circumstances, is put into trial to choose whether to follow the course of law or justice of the parties. Much as I am aware each case is decided on its own peculiar merit, the instant case calls for admission of all important materials to assist this court in arriving at justice. That is the essence of the enactment of section 145 (2) of the Evidence Act, which I am inclined to follow. In the indicated section, this court is empowered to admit any evidence of 5 any fact, if it thinks that the fact, if proved would be relevant in resolving cases. Having said so, and considering the nature of this case and want of interest of justice, I am moved to admit the dual documents prayed to be tendered by PW1 to be exhibit in the case and hereby marked as exhibit P.5 collectively. It is so ordered. Judge 03.10.2024 This Ruling was delivered in Chambers under the Seal of this court in the presence of Mr. Kitia Turoke, Ms. Neema Mwaipyana and Ms. Nancy Wanda, learned State Attorneys and in the presence of Mr. Michael Mahende and Mr. Samson Samo, learned counsels for the defendant. _____________ lYft n Judge 03.10.2024. 6