Hjordis Fammestad vs ABSA Bank Tanzania Limited & Another (Civil Appeal No. 30 of 2020) [2024] TZCA 829 (28 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: KOROSSO, 3.A. KAIRO. 3.A. And KHAMIS. J.A.^ CIVIL APPEAL NO. 30 OF 2020 HJORDIS FAMMESTAD CROSS APPELLANT VERSUS ABSA BANK TANZANIA LIMITED (Formerly known as BARCLAYS BANK TANZANIA LTD) ..................................... JOSEPH NANYARO ............. . .................. .I st CROSS RESPONDENT 2 nd CROSS RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Commercial Division at Arusha) (Fikirini, 3.^ dated 8th day of October, 2019 in Commercial Case No. 06 of 2018 9th July & 28th August, 2024 KHAMIS, J. A.: By a notice of cross appeal dated 10th March, 2020 brought under rule 94 (1) of the Tanzania Court of Appeal Rules, 2019 (the Rules), Hjordis Fammestad, the cross appellant, assailed the decision of the High Court, Commercial Division, in Commercial Case No. 06 of 2018 whereby her claim against Barclays Bank Tanzania Limited (which is now JUDGMENT OF THE COURT l

known as ABSA Bank Tanzania Limited) and Joseph John Nanyaro, the cross respondents, partly succeeded. Prior to that, the cross respondents had preferred this appeal against the same decision of the High Court, Commercial Division, faulting the trial Judge for misconceiving the forms and procedure for appointing a joint holder in an existing bank account; misconstruing instructions in a letter dated 20th August, 2016; misconceiving what had actually transpired between parties on 16th August, 2016; failure to apply legal principles in taking over the conduct of the case, declining to admit some pieces of evidence, and failure to properly analyse the evidence on record. In a ruling delivered by the Court on 24th May, 2022 the appeal was found time barred on account of an invalid certificate of delay hence struck out with costs. The cross appeal survived and was ordered to proceed. In the High Court, the cross appellant had sued the cross respondents jointly and severally for payment of United States Dollars three hundred and thirty-five thousand one hundred and twenty-one and fifty-nine cents (USD $ 335,121.59) being the amount allegedly 2

withdrawn without proper authorization plus cash withdrawal fees from her personal account no. 7000070 maintained with the first cross respondent. She also claimed interest at the commercial rate of 15% per annum from the due date to the date of judgment, interest at the court rate of 7% per annum on the decretal sum from the date of the decree to the date of full and final payment and costs of the suit. It was her case that, she had a banker-customer relationship with the first cross respondent since 14th July, 2015 when she opened a United States Dollar account which remained active and operational up to the time of filing the suit. On different subsequent dates, she instructed the first cross respondent to add two signatories to the account, Mr. Jaime E. E. Benito who is not a party to these proceedings and Joseph John Nanyaro, the second cross respondent. It was averred that, when adding the second respondent as a co signatory, the cross appellant mandated him to withdraw up to USD $ 10,000 per withdrawal without a second signature. The instruction was observed by the first cross respondent up to the end of April, 2017 when it went sour. Between 1st May, 2017 and 31st December, 2017, the first cross respondent authorised the second cross respondent to withdraw 3

sums of money which allegedly exceeded ceiling of the mandate expressly given by the cross appellant on 16th August, 2016. It was further averred that, the unauthorised withdrawn amounts were misappropriated by the cross respondents which subjected the cross appellant to a great loss. The cross respondents denied the claim and maintained that, the second respondent and Jaime E. E. Benito were not mere signatories but joint account holders with equal rights to act on the account. It was also stated that, the cross appellant was aware of the alleged withdrawals as she allegedly received bank statements and SMS alerts per every debit transaction made from the account which could afford her chance to report to the bank on the suspected transactions. In the further reply, the second cross respondent advanced that, most of the withdrawn sum was used to purchase building materials and paying the architects, engineers, decorators, workers, labourers and other service providers involved in the construction of Sakila Sunrise Boutique Lodge, a property developed by the cross appellant and registered in the name of her company, Sakila Sunrise Limited.

During trial, the cross appellant testified as PW1 and tendered six exhibits (PI, P2, P3, P4, P5 and P6). The respondents called four witnesses: DW1 Neema Justin Kweka; DW2 Noah Daniel Kisenge; DW3 Iman Gratian; and; DW4 Joseph John Nanyaro. Eight documentary exhibits were admitted in support of the defence case (D l, D2, D3, D4, D5, D6, 07 and D8). After considering the evidence presented by both parties, the trial court partly decided in favour of the cross appellant holding that, the cross respondents were liable to pay USD $ 201,072.93 being 60% of the original claim for breach of the duty of care and fraudulent conduct of the second cross respondent on the personal account of the cross appellant. The cross appellant was also awarded interest on the decretal sum at 15% commercial rate per annum from 17th December, 2017 [to a date of filing the suit - 21st November, 2018] and further interest at the court's rate of 12% per annum from the date of filing the suit to the date of full settlement of the decree. The trial court found the cross appellant equally liable for contributory negligence and apportioned her blame to 40% of the claim. It was this part of the decision which triggered the instant cross appeal in which the following ground was set out:

" 1. The tria l court erred in law and fact by awarding the respondent (cross appellant) a paym ent o f USD $ 201,072.934 only being 60% o f the total amount, instead o f awarding USD $ 335,121.59 being the actual loss suffered based on its own im pulse that, the respondent (cross appellant) failed to observe the duty o f care from the fraudulent conduct o f the second appellant (second cross respondent) while the evidence was in fact to the contrary." At the hearing of the cross appeal, Mr. Salimu Mushi, learned advocate, appeared for the cross appellant while Messrs. Mpaya Kamara and Dr. Onesmo Kyauke, both learned advocates, acted for the first and second cross respondents respectively. At the outset and in line with the ruling of the Court delivered on 4th July, 2024, parties addressed us on the preliminary point of law and the cross appeal. The concurrent hearing of the point of law and the cross appeal was set by consent on the understanding that if the objection is overruled, the cross appeal will be determined on merits. The point of law was to the effect that, the testimonies of PW1 Hjordis Fammestad and DW3 Iman Gratian, were received without oath or affirmation contrary to mandatory provisions of the law. 6

In support of the point of law, Dr. Kyauke placed reliance on section 4 (2) of the Appellate Jurisdiction Act, Cap. 141 R.E 2019 (the AJA), the cases of Tanzania Portland Cement Company Ltd v. Ekwabi Majigo, Civil Appeal No. 173 of 2019 [2021] TZCA 443 (2 September 2021); Unilever Tanzania Limited v. Davis Paulo Chaula, Civil Appeal No. 290 of 2019 [2021] TZCA 532 (24 September 2021); Catholic University of Health and Allied Sciences (CUHAS) v. Epiphania Mkunde Athanase, Civil Appeal No. 257 of 2020 [2020] TZCA 1890 (11 December 2020); Joseph Elisha v. Tanzania Postal Bank, Civil Appeal No. 157 of 2019 [2021] TZCA 518 (24 September 2021); and; Iringa International School v. Elizabeth Post, Civil Appeal No. 155 of 2019 [2021] TZCA 496 (20 September 2021). Further reliance was placed on rule 60 (6) of the High Court (Commercial Division) Procedure Rules, 2012, Government Notice No. 250 published on 13th July, 2012 (the Commercial Court Rules) and section 88 of the Evidence Act, Cap 6, R.E 2023. The learned counsel contended that, the testimonies of PW1 and DW3 as reflected at pages 488 and 522 of the record were received without oath or affirmation. According to him, every witness who is competent to testify, must take oath or affirm before his evidence is received. 7

The learned counsel submitted that, any evidence recorded in contravention of that legal stance, becomes invalid and vitiates the proceedings. He urged us to find that a remedy for the offending evidence is not to vitiate the entire proceedings but rather, to expunge the relevant defective pleading or testimony. In the alternative, he moved us to find the testimonies of PW1 and DW3 were defective, and thus proceed to quash the proceedings of the trial court and set aside the impugned judgment and decree and hence order tria l de novo. The learned counsel for the second cross respondent impressed on us that, there are two sets of proceedings on record. According to him, upon perusal of the court file on 29th September, 2022 he found the handwritten proceedings recorded by the trial Judge which were subsequently typed and featured at pages 467 to 530 of the record. Tlie second set of proceedings were referred to as electronic proceedings which were presented in this Court through a supplementary record on 16th November, 2022. He contended that, the handwritten proceedings exhibited the evidence of PW1 and DW3 were received without oath or affirmation. As for the electronic proceedings, he was of the view that, they cannot salvage the situation allegedly because they were not certified by the

Deputy Registrar as the law requires. Further, the learned counsel submitted that, when the handwritten proceedings conflicts with the electronically recorded proceedings, the former must prevail especially if the latter are not certified. Mr. Kamara associated himself with the submissions by Dr. Kyauke and prayed for nullification of the trial court's proceedings. On the other hand, Mr. Mushi strongly differed with the submissions and distinguished the cases cited on the basis that, they were not originating from decisions of the High Court, Commercial Division. He contended that, the disputed testimonies were made under oath and pursuant to rule 48 (1) (a), 49 (1) and 59 of the Commercial Court Rules. He relied on Zanzibar Telecom Ltd v. Petrofuel Tanzania Ltd, Civil Appeal No. 69 of 2014 [2019] TZCA 176 (11 February 2019); Afriscan Group (T) Ltd v. David Joseph Mahende, Civil Application No. 779 of 2022 [2024] TZCA 370 (16 May 2024); and Jovet Tanzania Limited v. Bavaria N.V, Civil Appeal No. 207 of 2018 [2022] TZCA 557 (14 September 2022) to submit that, the electronically (audio) recorded proceedings were deemed official record of the trial court. 9

He contended further that, the cross appellant had invoked rule 99 (1), (2), and (3) of the Rules to file the supplementary proceedings containing the electronically recorded proceedings of the trial court which manifested that, the testimonies of PW1 and DW3 were made under oath. On certification of the electronically recorded proceedings, the learned counsel for the cross appellant asserted that, they were accompanied by a letter of the Deputy Registrar of the High Court, Commercial Division which served to authenticate them as official records of the court. He therefore, moved us to take judicial notice regarding their genuiness in terms of section 89 (a) of the Evidence Act. In the further reply, Mr. Mushi contended that, the witness statements were made under oath before the commissioner for oaths and therefore, when in court, a witness is not required to "repeat the oath or affirm ation" earlier on made. He added that, the Commercial Court Rules were silent on the requirement of a witness to make "additional oath or affirm ation"at the time of cross examination. The learned counsel referred us to rule 56 (3) of the Commercial Court Rules which provides that, if a witness whose statement is on 10

record fails to appear for cross examination, the statement is deemed to be an examination in chief. He moved the Court to find the disputed testimonies were properly made and proceed to determine the cross appeal on merits. On rejoinder, Dr. Kyauke reiterated his earlier submissions and cited rules 48 (1) (a) and 49 (1) of the Commercial Court Rules. He contended that, in the High Court, Commercial Division, testimony of a witness is divided into four stages: one, evidence in chief through filing of a witness statement. This is limited to written witness statement; second, the witness will tender the document(s) as exhibit. He must be under oath or affirmation; third, cross examination; and; fourth, re examination. He contended further that, in examination in chief, the witness is likely to adduce evidence which is not contained in the witness statement and therefore, he/she must be under oath or affirmation. He sharply differed with Mr. Mushi on significance of the electronically recorded proceedings. He maintained that, the requirement of certification cannot be relaxed or cured by a letter of the Deputy Registrar. He reasoned that, since the handwritten proceedings were certified as shown at page 530 of the record, there is no li

justification for non-certification of the electronically recorded proceedings. In the further reply, he contended that, the handwritten proceedings should take over precedence over the electronically recorded proceedings in case of differences. On his part, Mr. Kamara relied on the decision of this Court in Ecobank (T) Ltd v. Future Trading Co. Ltd, Civil Appeal No. 82 of 2019 [2021] TZCA 368 (3 August 2021) and submitted that, a witness statement does not automatically become part of the proceedings until it is adopted by the witness. He invited us to find his rival counsel had failed to address the Court on lack of certification by the Deputy Registrar of the High Court, Commercial Division. Granted leave to respond on the newly introduced argument by Mr. Kamara, Mr. Mushi distinguished the case of Ecobank (supra) on the ground that, it was silent on the procedure of taking oath or affirmation before adopting the witness statement. In the alternative, he invited the Court to grant leave to the cross appellant for the filing of certified proceedings if those on record were found insufficient to address the situation at hand.

We have considered the submissions by the counsel of the parties and refrained from narrating the parties' submissions on the cross appeal for the reasons that will be clear soon. In our view, the issue presenting themselves for our determination in this matter are twofold, whether the cross appeal is competently filed, and if so, whether it is merited. The second issue relates to the merits of the cross appeal whose determination depends on the outcome of the first issue. It is well settled that before an appeal can be decided on merits, it is the duty of the Court to determine whether the appeal is timely and competent. Rule 96 (1) of the Rules succinctly provides that, the record of appeal from the High Court or a tribunal, in its original jurisdiction, shall contain, among others, an index of all the documents in the record with the number of pages at which they appear; a statement showing the address of service of the appellant and the address by the respondent; the pleadings; the record of proceedings; the transcript of any shorthand notes taken at the trial; the affidavits read and all documents put in evidence at the hearing; the judgment or ruling; the decree or order, if any giving leave to appeal; the notice of appeal; and such other documents, if any, as may be necessary for the proper determination of 13

the appeal, including any interlocutory proceedings which may be directly relevant. Rule 96 (7) of the Rules provides that, where the case is called on for hearing and the Court is of opinion that the document referred to in rule 96 (1) and (2) is omitted from the record of appeal, it may on its own motion or upon an informal application grant leave to the appellant to lodge a supplementary record of appeal. According to rule 96 (8) of the Rules, where leave to file a supplementary record under subrule (7) has been granted, the Court shall not entertain any similar application on the same matter. Associated with the first issue is a question whether the record of appeal contain the official record of the trial court's proceedings. The record of appeal at pages 467 to 530 contains proceedings of the trial court starting from 22n d November, 2018 to 8th October, 2019 when the impugned judgment was delivered. The supplementary record of appeal filed on 16th November, 2022 contains proceedings of the trial court commencing on 6th August, 2019 to 7th August, 2019. On comparison, these two sets are distinct. Which of them is an official record of the trial court's proceedings? The rival counsel differed 14

in their response to this question. Whereas Mr. Mushi viewed the electronically recorded proceedings as official, Messrs. Kamara and Dr. Kyauke perceived the hand written proceedings as authenticated record of the court. It should be noted that, this issue is not pristine. In Zanzibar Telecom Ltd v. Petrofuel Tanzania Ltd (supra), this Court took the view that, in the High Court, Commercial Division, the electronically recorded proceedings matters and not the handwritten notes. That legal stance was followed in Afriscan Group (T) Ltd v. David Joseph Mahende (supra) where the Court placed weight on the transcribed electronic recording of the proceedings as opposed to the handwritten notes in which the testimony of PW1 was recorded without an oath. It is worth mentioning that, the law creates a room for the trial Judge in the High Court, Commercial Division, to determine the manner of recording proceedings. Rule 59 (1) (a) and (b) of the Commercial Court Rules provides that, an official record shall be made of every hearing in two ways. Where an electronic recording system approved and managed by the court is used, the audio recorded (electronic recorded proceedings) shall be the official record. Where an electronic 15

recording system is not used, the notes of hearing mechanically recorded by the trial Judge shall be an official record. In the present case, it is not disputed that, the electronic recording system approved by the court was used. Apart from that mode of recording, the trial Judge simultaneously recorded the proceedings by hand. In the circumstances, and mindful of the above cited rule, we are certain that, the electronic recorded proceedings are the official record of the trial court. However, those proceedings were challenged for lack of certification by the Deputy Registrar. The questions to be resolved are, whether the electronic recorded proceedings were certified, and if not, whether this Court can act on the uncertified copies of the trial court's proceedings. The importance of a credible record of the trial court's proceedings cannot be overemphasised. Credibility of the proceedings is indispensable as one of the guarantees to a fair hearing on review, revision and appeal. Proceedings serve as a backbone in the delivery of justice. Accurate proceedings provide complete information on the happenings of the case that helps judges, magistrates and judicial 16

officers confer impartial decision making in court cases. Judicial system may fail to bring justice if proceedings are not presented in a reliable and authentic manner. In view of that, rule 60 of the Commercial Court Rules outlines the procedure applicable for issuance of a copy of a transcript of the official record of the proceedings. Upon conclusion of the case, the court is required to produce an official transcript of the hearing to be provided to the parties simultaneously in soft copy at the parties' costs. Upon receipt of the transcript, parties are required to proof read and make necessary corrections which are tracked or highlighted without altering the content of the proceedings. The corrected transcripts are then submitted to the Deputy Registrar and served on the adverse party within 21 days from receipt of the Deputy Registrar's transcript. Where any dispute arises as to the correctness of the transcripts verified by the parties, the aggrieved party is required to notify the Deputy Registrar within a period of seven (7) days from receipt of the corrected transcript. The rules further provide that, where the Deputy Registrar receives such notification, he/she will invite the parties to resolve any dispute by making reference to the official audio recording and the Deputy Registrar's decision on such dispute shall be final. On receipt of 17

the corrected transcripts from the parties, or upon parties' failure to submit their corrected transcripts, the Deputy Registrar shall certify the authenticity of a transcript of the official record of hearing. We have examined the record of appeal and the trial court's original file in respect of the case. It is not clear if parties in this case were at loggerheads on correctness of the transcripts issued by the trial court. Nonetheless, what is evident is that, upon a request by the counsel for the cross appellant, the Deputy Registrar produced the official transcript of the hearing which was subsequently lodged in this Court vide a supplementary record of appeal on 16th November, 2022. Our close scrutiny of the said electronic recorded proceedings revealed an apparent lack of certification contrary to rule 60 (6) of the Commercial Court Rules. We have equally inspected the letter by the Deputy Registrar of the High Court, Commercial Division appearing at page 7 of the supplementary record of appeal, addressed to the learned advocate for the cross appellant which reads: "Kindly refer to the above captioned subject along with your letter dated 4 h day o f August, 2022. 18

This is to notify you that the copy o f electronic recorded proceedings applied fo r are ready fo r collection free o f charge. Please be inform ed." In our considered opinion, gauging from its contents and the legal requirements, the letter by the Deputy Registrar cannot lend a helping hand to the uncertified copy of the proceedings. It is evident that, the lack of certification contravenes the requirements of rule 60 (6) of the Commercial Court Rules and renders the purported proceedings invalid. In view of that finding, we are satisfied that, rule 96 (1) (d) of the Rules was not complied with and therefore, there is no complete record of appeal before us. The legal effect of such development was given by the Court in Issa N. S. Marombe v. Abderehman S. Mbwana, Civil Appeal No. 46 of 2018 [2019] TZCA 423 (22 November, 2019) thus: "... Nonetheless, with due respect to the stance taken by the respondent, o f recent, the shortcom ing does not necessarily render an appeal incom petent and, on occasion, the Court may, instead, grant leave to an appellant to lodge a supplem entary record o f appeal in term s o f rule 96 (7) o f the Rules." 19

Consequently, we take heed and grant leave to the cross appellant to lodge a supplementary record of appeal to accommodate the certified record of proceedings within sixty (60) days from the date of this decision. Costs to abide the outcome of the cross appeal. DATED at DAR ES SALAAM this 28th day of August, 2024. W. B. KOROSSO JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Judgment delivered this 28th day of August, 2024 in the presence of Mr. Nashoni Nkungu, learned advocate who took brief for Mr. Mpaya Kamara and Dr. Onesmo Kyauke both learned advocates for the 1st and 2n d cross respondents respectively and Mr. Salimu Mushi, learned advocate for the cross Appellant who was linked via Virtual Video Conference from Arusha, is hereby certified as a true copy of the KALEGEYA REGISTRAR OF APPEAL 20