20190412 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA AT MWANZA HC. CIVIL APPEAL NO. 10 OF 2017 {Originating from Sengerema District Court in Civil Case No. 6 of 2010} 1. THE EXECUTIVE DIRECTOR,DISTRICTOF SENGEREMA SENGEREMA 2. THE DISTRICT EDUCATION OFFICER DISTRICT OF SENGEREMA, SENGEREMA PPELLANTS 2. THE HEAD MASTER KILABELA SECONDARY SCHOOL, P.O. BOX 64 SENGEREMA VERSUS J -- ------ 1 M/S Z.M. MULTI TRADES ................................. RESPONDENT JUDGMENT 04/02/2019 & 12/04/2019 Gwae, J. In the District Court of Sengerema at Sengerema, the respondent he.rein above in the 2010 instituted suit against the appellants claiming to be paid Tshs. 8, 047,200/= being special damages arising from alleged supplyf school laboratory equipments and chemicals, interest at the b a n k ~ 1 ~ . • ~Tate from the date of contract up to the payment in full, general damages . u in the tune of TSHS, 2,000,000/ = and costs of the suit. Before Sengerema District Court, the respondent averred that he entered into a contract with the appellants from July 2008 to October 2008 for supply of various materials and instruments for Mock and National Examinations for the year 2009. The respondent, according to the contract, was to supply the materials an_d instruments for examinations to Kilabela Secondary School at Sengerema District Council. The District Court (trial court), through its judgment and decree dated 19th December 2016, granted th~ plaintiff/respondent all the reliefs sought as intimated he·rein with an interest of. 17 % per annum on the ·J decretal sum. ! Dissatisfied with t_he trial court's decision, the appellants joint_ly filed a Memorandum of Appeal comprised of three grounds of appeal, namely; 1. That, the trial court erred in law and fact to hold in favour of the respondent by admitting secondary evidence contrary to section 68 of the.Tanzania Evidence Act, Cap 6 ~ R.E, 2002(TEA). __ _ - _ . 2 .. . ! 2. That, the trial court erred in law and fact to hold in favour of the respondent against the weight and principles of evidence 3 .. That, the trial court erred in law and fact. to hold in favour of the respondent by admitting an invoice as a proof of delivery of goods while in fact there is no proof recognized by the law, was tendered to prove delivery of goods (delivery note) contrary to section (sic) 248 of Public Procurement Regulation, 2013 This appeal was argued by way of written submission after the court's grant of leave to the parties' counsel of so arguing. Mr. Matiku, the learned state attorney stationed at Sengerema District Council and Mr. Kweka·, the learned advocate for the appellants and respondent respectively, duly presented their written submissions in accordance with . the court order dated 18th December 20.18. In determining the appellants' grounds of appeal, I shall take -into consideration of the parties' written .. ·1 submissions. I As to the 1 st ground and 3 rd ground which are centered on the alleged admission of 4 invoices which were not originAL. It is no doubt that the trial court glaringly admitted the respondent's invoices collectively as PE1 on 12.t0.2016 despite the objection rai·sed by Mr. Matiku. 3 j Now therefore this court has to determine if the admission of such ([jj· certified invoices/ documents was proper or improper. The learned counsel for the appellants argued that proof of contents of documents must be by primary evidence pursuant to section 66 of TEA and if there was exceptional ground for not tendering the original invoices, such as original ones being in possession of an adverse party, section 68 of the TEA would come into play by giving other party notice while the learned counsel for the respondent urged this court should not be tied by legal technicalities in defeating ends of justice. As the advocate for the appellants asked this court to consider the . . requirement of section 68 of the TEA, therefore for better ·understanding, section 68 of the Act is reproduced herein under; "68. Se~ondary evidence of. the contents of the documents referred to in paragraph (a) of subsection (1) of section 67 shall not b~. given unless the party proposing to give. such secondary evidence has previously given to the party in whose possession or . power the document is, or to his advocate, such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such· notice as a court considers reasonable in the circumstance of the case": .. 4 Since the wording of the statutory provision cited above coaches to a , u mandatory requirement on a party to a court's proceeding seeking to produce a secondary document to serve other party with a notice to produce before tendering the same. In our case the respondent contended that the original invoices were in possession of the appellants while the appellants absolutely denied to have been aware of the alleged contract and supplies to the 3rd appellant. Examining the trial court record, I have found no notice to produce secondary document was served to the · appellants and filed in the trial court The question that follows is that, if the PEl ·produced and admitted were secondary documents? The answer is 'yes' because the original documents· were said to be in the possessions of the appellants. That means the respondent or his counsel ought to have given mandatory notice to the appellants of his intention to produce secondary documents namely 2 invoices dated 30 th July 2008 and 2 others 15th October 2008 pursuant to section 68 TEA. I am of _the considered view that the respondent's failure to give notice to produce secondary· document' is fatal irregularity which goes to · the foot oqhe case since the appella;ts also ;ught to have been accorded~ · an opportunity by giving them notice to produce. It should also be known 0 that rules of procedure are handmaids of justice that ought to be complied 1. with by each and everybody. Regarding issue of alleged non-compliance with Regulation of 2013 . by the respondent, I hold the view with the respondent's counsel that, since the alleged transactions were allegedly made in 2008/2009, hence the Regulation of 2013 would not retrospectively operate. In the 2nd ground of appeal herein above, I have examined the evidence adduced as well as the trial court judgment and observed that the ___ _;,.;.-~ learned Resident Magistrate mainly directed his mind on the disproof by the defendants that they were not supplied with the laboratory equipments by the respondent, particularly failure to summon the one who was in the . . rd capacity of the headmaster of the 3 appellant. It seems as if the trial court magistrate shifted the burden of proof to the appellants who were merely sued by the -respondent. According to section 110 of TEA, the one who asserts existence of certain facts is the one who is legally bound to establish. existence of such~ 6· · . facts in the required standard, for the sake of clarity provisions of section u 110 are herein below quoted; 110 (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts .exist. (2) When a person is bound to prove the existence of .I any fact, it is said that the burden of proof lies on that _i 'I person. It follows therefore it was the plaintiff now respondent who was duty bound to prove that he entered into the contract with 3rd defendant and he actually supplied the 3rd appellant with the materials and equipments to the 3rd appellant by tendering necessary document, such contract, letter of award of tender, delivery notice local purchase order, delivery notice and . . related documents as well as summoning material witnesses for instance the one who was ·the Headmaster o( the 3rd appellant by then or any person acting as a store keeper or any teacher who received the allegedly supplied materials for examinations. If I were to- assess the PEl yet I find the same could not safely be relied to form basis for the liability on the part of the appellants due. td ~ 7 reasons that the same does not bear seal or and signature of the 3rd u appellant acknowledging receipts of the allegedly supplied examinations' materials nor its indicated/filled Order No. and delivery Note No. In the circumstances of this case, how one can believe that the respondent did supply examination materials and that the same were actually received by the 3 rd appellant for the intended purpose in the absence of delivery notice. In Manager, NBC, Tari~e v Enock m. Chacha (1993) TLR 228, _it was juditially demonstrated that; "It is a cardinal principal of law that in civil cases there must be proof on the balance of the probabilities. In this case, it ·cannot be said that the scanty evidence adduced in this Court proves ·in any way what is alleged in the plaint. There must be proof of. the case on t~e standard set by law which is on the balance of the probabilities In our instant case, it cannot be said that the respondent's· _evidence is sufficient to justify this court to uphofd the trial court's decision taking into_ account that the PEl was unprocedurall_y admitted and even if the same would h.ave properly been admitted · yet the same is not ·self th explanatory. More so the PE2, th~. ~etter dated 28 June 2010 (and n o t ~ ~ 28 th from 1st appellant does not amount to admission in the eye of law but 'j ;'. I ~J' a mere direction as to an authority capable of being sued for the debts .; :1 arising from transactions made prior to placement of the 3rd appellant ~l i' i 11 ;~ under the control, supervision and monitoring of Sengerema District i Council (1st appellant). Worse still, in the respondent's plaint at paragraph 3 of the plaint equally in the submission that the supp_ly of Mock and National Examination materials was for the year 2009 and not 2008 as indicated in the PE1. While it true that justice should not be defeated by legal technicalities as envisaged in our Constitution under Article 107A (2), it should also be -j borne in ~ur minds that courts of law should not ~ct on mere assertions but on the cogent and credible evidence. Worse still how the PEl could be legally certified .on 22/05/2013 while the respondent is· found seriously contending that the original ones was not in h~s possession? It was 1 therefore impossible for the magistrate, Ambilike to certify a copy out of no original document presented original document. In the final result therefore; this appeal is meritorious, the same is _hereby allowed. The judgment, decree and orders of the District Court a r e ~ l • • - :i 9 quashed and set aside. In the circumstances of this case, I refrain from " making an order as to costs in this appeal and in the court below, •.l IN THE HIGH COURT OF TANZANIA AT MWANZA 10