Theresia Beatus Mwambaya vs Diamond Trust Bank (T) Limited (Civil Appeal No. 610 of 2022) [2025] TZCA 1000 (26 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA f CORAM: KOROSSO. J.A.. RUMANYIKA. J.A.. And ISSA. J.A.l CIVIL APPEAL NO. 610 OF 2022 THERESIA BEATUS MWAMBAYA (the administratrix of the estate of the late GODSON RICHARD MMANGA) ............ APPELLANT VERSUS DIAMOND TRUST BANK (T) LIMITED ......................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of the United Republic of Tanzania at Dodoma) fMaruma. 3 .^ Dated the 24th day of May, 2022 in Commercial Case No. 15 of 2020 JUDGMENT OF THE COURT 19th March & 26th September, 2025 KOROSSO. J.A.: The appellant herein, sued the respondent in the High Court of Tanzania, Commercial Division sitting at Dar es Salaam claiming Tshs. 284,500,000/= for the loss incurred and damages from what he alleged was the respondent's negligence and mishandling of his value savings account. He claimed that the loss incurred was elicited by unlawful authorization and transfer of Tshs. 84,500,000/= from his account number 7900569001 to bank account number 0172015247 with the name i

Haji Abdallah Ka pi lima at ABSA Bank Tanzania Limited. The appellant's claim therefore was for reimbursement of Tshs. 84,500,000/=. Briefly, the background giving rise to the appeal before us is that the appellant operated bank account number 7900569001 in his name at the respondent bank, Dodoma branch. The evidence of the appellant (PW1) reveals that on 23/7/2020, having transferred Tshs. 15,000,000/= from his account at the respondent's bank to purchase a car truck, he proceeded to go over his statement of account upon his request, and it revealed a balance of Tshs. 86,383,522.57. The said bank statement further revealed there having been another transaction dated 15/7/2020 that transferred Tshs. 84,500,000/= from his account to another account No. 0172015247 at ABSA Bank Limited, Tanzania with the name Haji Abdallah Kapilima, which he had neither initiated nor approved. This prompted the appellant to orally notify the respondent bank on the said unsanctioned transfer of funds which he later followed up with letters to the respondent bank on the subject. Furthermore, the appellant visited the respondent bank branch office where his account was to follow-up his report, the letters and action taken if any. Moreover, the appellant also reported the matter to the Police to initiate investigations on the matter and thereafter followed up on initiated processes to recover the unsanctioned transferred funds. In view of the lack of response on the 2

issue from the respondent bank, on 24/10/2020, the appellant served the respondent with a demand notice dated 9/9/2020. The respondent denied responsibility prompting the appellant to institute Commercial Case No. 15 of 2020 against the respondent seeking the above-mentioned reliefs. On the part of the respondent bank, through their written statement of defence and testimonies of witnesses, while acknowledging that the appellant had an account at the bank, denied claims advanced in the appellant's pleadings and evidence adduced in court. Aneth Manyanga Mbawala (DW1), a respondent's employee testified that on 15/7/2020 she saw and attended the appellant at the Arusha Moshi branch office. That while assisting him she handed him the telegraphic transfer form, which he filled out and signed to transfer Tshs. 84,500,000/= from his account No. 7900569001 to account No. 0172015247 belonging to Haji Abdallah Kapilima held at ABSA Bank, Tanzania Limited. DW1 also testified that the appellant filled in and signed the telegraphic transfer form (exhibit P7) which showed the purpose of the transfer to be the purchase of a farm and his telephone number as 0754490097. Additionally, it was DWl's evidence that upon receiving the filled telegraphic transfer form from the appellant, she compared and verified its contents and signatures with those in the identity card handed by the

appellant. She stated that upon being satisfied that the signatures and details filled in exhibit P7 and the information generated from the stored computer software database were identical and similar, she then processed the transfer of funds as requested. When cross-examined by the appellant's advocate, DW1 was adamant that the person who appeared before her and filled in exhibit P7 for the transfer of funds in issue was none other than the appellant. Lora Narcis Mkunde, a Senior Manager of Cellulant Tanzania Limited (DW3) testified on the printouts of the text messages sent by respondent on 15/7/2020 to number +255 754490097 which was the number she believed belonged to the appellant. She was adamant that the appellant had been informed about the transfer of funds/debit transactions of Tshs. 84,500,000/= through the said number and that the notification attracted outward T1SS transfer and charges of Tsh. 10,000/=. She contended further that the communication system shows that the relevant messages were duly delivered to the said number at 16:16.47 and 16:16.49. After a full trial, the judgment of the trial court favoured the respondent by dismissing the suit with costs. Aggrieved, the appellant is now before us on appeal premised on six grounds that fault the trial court, which paraphrased are: One, failure to consider the plaintiff's testimony

that proved that the respondent bank unauthorized transaction of transfer of funds required proper verification of the plaintiff's signatures and interpretation of the concept of bank negligence; Two, failure to property evaluate and assess authenticity and relevance of the document used to transfer funds; Three, relying on the expert opinion evidence of the Forensic Bureau Criminal Investigation Officers without considering apparent errors therein; Four, failure to consider that the admission in the agreement that the transfer of funds was processed by a person not the plaintiff is proof of negligence; five, failure to determine the respective duties of each party in proving claims including that the plaintiff's duty was limited to prove the negligent acts of the defendant and not to identify the unknown person to transfer the funds; six, in the alternative, impropriety in the transfer of trial judges as the successor judges did not provide reasons for the transfer. On the day the appeal was scheduled for hearing, Messrs. Stephen Mosha and Renatus Lubango Shiduki, learned advocates, represented the appellant and the respondent, respectively. Both parties had filed written submissions. At the commencement of hearing, the learned counsel for the appellant informed us of the demise of the appellant on 13/4/2024 and

that Ms. Theresia Beatus Mwambaya was duly appointed as the administratrix of the deceased appellant by the Mabogino Primary Court in Probate and Administration Cause No. 8 of 2024. He thus prayed for Ms. Theresia Beatus Mwambaya to be substituted as a party in place of the deceased appellant under rule 105 (1) and (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules). We granted the uncontested prayer in terms of rule 105(2) of the Rules. In consequence, Theresia Beatus Mwambaya became a party to the instant appeal taking the place of Godson Richard Mmanga, the deceased appellant. Taking into account that the sixth ground of appeal addresses a point of law on impropriety in the conduct of the trial caused by failure of the successor trial judge to provide reasons for the failure of the predecessor trial judge to finalize the conduct of the trial and its import, we are of the view that it will be in the interest of justice to first consider and determine this ground. Expounding on this ground, the learned counsel for the appellant prayed to adopt the filed appellant's written submission and implored us to find that there was improper transfer of the trial judge as seen at page 192, without any reasons having been provided for the transfer as can be discerned from the record of appeal. According to him, in the

circumstances of this case, such unreasoned transfer was prejudicial to the rights of the appellant and thus urged us to order a retrial from the time of recording DW2's evidence. In response to this ground, Mr. Shiduki began his submission by adopting the filed written submission for the respondent and alluded that the appeal was resisted. Regarding the sixth ground of appeal, the learned counsel urged us to find the arguments by the appellant's side to lack substance as there is nothing in the conduct of the case which can be said to have been prejudicial to the rights of the appellant. According to him, the trial court properly analyzed the evidence on record and that even if a retrial is ordered the evidence will remain the same, and the death of the original appellant should also be borne in mind, and for his evidence to be relied upon, will be dependent on invocation of rule 58 of the Commercial Court Rules or relevant provisions of the Evidence Act on evidence of a dead witness, where prescribed conditions have to be fulfilled. He reiterated his prayer for the dismissal of the appeal. The rejoinder by the learned counsel for the appellant on this ground was brief, reiterating his earlier submission on the issue.

We have examined the rival submissions from the counsel of the parties on ground six that faults the failure of the successor judge to give reasons for the transfer of predecessor judge and urging us to find the trial vitiated and order a retrial. We have noted that the said position was vehemently resisted by the learned counsel for the appellant. Having perused through the record of appeal it is on record from page 155 of the record of appeal, that the trial commenced on 11/11/2021 before Hon. Mteule, J. and three witnesses testified before her: Godson Richard Mmanga (PW1), E.9145 D/Sgt Fredrick (PW2), Aneth Manyanga Mbawala (DW1). From 3/3/2022, Hon. Maruma J. took over the hearing of the trial and proceeded with presiding of the testimonies of two witnesses for the defendant, Maria Tryphone Njega (DW2); and Lora Narcis Mkunde (DW3). The record further is absent of any reasons given by the successor Judge (Maruma, J.) on the whereabouts of the predecessor Judge (Mteule, J.). The learned counsel for the appellant has urged us to find the trial vitiated and order a retrial while the appellant's counsel beseeched us to find that this was not prejudicial to the rights of the parties as all the witnesses were cross-examined and the appellant has not shown how he was prejudiced with the said anomaly. He implored us to invoke the oxygen principle on substantive justice so that we determine the appeal on merit.

Certainly, in civil proceedings, Order XVIII rule 10 of the CPC grants powers on a magistrate or Judge to consider the evidence taken by another Magistrate or Judge who either by reason of death, incapacity or transfer to another duty station, fails to conclude the trial. However, the successor Magistrate or Judge is required to give reasons for taking over the conduct of the said case from his or her predecessor. The transfer process is legal, and the record should bear evidence of such. As held in the case of Mariam Samburo (Legal Personal Representative of the late Ramadhani Abas) v. Masoud Mohamed Josh and 2 Others [2019] TZCA 541, TANZLII where the Court stated that: "The above quoted extract provides for a clear interpretation and the rationaie behind existence of Order XVIII Rule 10(1) o f the CPC in the effect that, recording of reasons for taking over the trial of a suit by a judge is a mandatory requirement as it promotes accountability on the part ofsuccessor judge. This means failure to do so amounts to procedural irregularity..." Similarly, in the case of M/S Georges Center Limited v. The Honourable Attorney General and Another [2016] TZCA 629, TANZLII at pages 5-6, discussing the import of Order XVIII rule 10(1) of the CPC, the Court held that:

"The general premise that can be from the above provision is that once the trial of a case has begun before one judicial officer that judicial officer has to bring it to completion unless for some reason he/she is unable to do that The provision cited above imposes upon a successor judge or magistrate an obligation to put on record why he/she has to take up a case that is partly heard by another. There are number o f reasons why it is important that a trial started by onejudicial officer be completed by the samejudicial officer unless it is not practicable to do so. For one thing, as suggested by Mr. Maro, the one who sees and hears the witness is in the best position to assess the witness's credibility. Credibility o f witnesses, which has to be assessed, is very crucial in the determination o f any case before a court of law. Furthermore, integrity of judicial proceedings hinges on transparency. Where there is no transparencyjustice may be compromised." In the instant case, plainly/ the record of appeal shows that upon Maruma, 1 taking over the hearing of the case, there were no reasons provided why Mteule, J., the predecessor Judge did not finalize the conduct of the trial. In view of the settled position of the law on compliance of Order Order XVIII rule 10(1) of the CPC, clearly, the overriding principle cannot cure the anomaly, as the Court cannot 10

disregard a jurisdictional matter going to the root of the case such as the failure to give reasons for the failure of a judge to finalize the conduct of a case. Since it is upon being assigned to preside over a case where a judge is clothed with authority to entertain it, we are guided by our proposition in the case of Mariam Samburo (Legal Personal Representative of the late Ramadhani Abas) (supra). Furthermore, as held in Mondorosi Village Council and Two Others v. Tanzania Breweries Limited and Four Others [2018] TZCA 303, TANZLII, the overriding objective principle should not be blindly applied against the mandatory provisions of the procedural law which goes to the very foundation of the case. (See also Njake Enterprises Limited v. Blue Rock Limited and Another [2018] TZCA 304, TANZLII. Therefore, we decline the invitation by the learned counsel for the respondent and are of the view that the overriding principle cannot be applied in the instant circumstances for reasons stated. For the foregoing, we are settled that, failure by the said successor judge to assign reasons for the reassignment means she lacked jurisdiction to take over the trial of the suit. Therefore, the proceedings from the stage of hearing the testimony of Maria Tryphone Njega (DW2) on 3/3/2022 as well as the judgment and decree are a nullity. i i

All in all, determination of this ground is sufficient to dispose of the appeal without determining the other grounds of appeal. In view of our finding above, what remains is the way forward. In that regard, we set aside the judgment and decree. The file is remitted back to the High Court for retrial before another Judge in accordance with the law, from the stage of hearing the testimony of Maria Tryphone Njega (DW2) on 3/3/2022. We make no order as to costs. DATED at DODOMA this 19th day of September, 2025. W. B. KOROSSO JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 26th day of September, 2025 in the presence of the Mr. Renatus Lubango Shiduki, learned counsel for the Respondent and holding brief for Mr. Stephen Mosha, learned counsel for the Appellant connected via video conference and Ms. Regina Komba, Court Clerk, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL