Athuman Ally Mwiniko vs Ramadhani H. Ntunzwe (PC Civil Appeal No 29 of 2000) [2000] TZHC 370 (25 October 2000)

(y , IN THE HIGH COURT OF TANZANIA AT TABORk (PC) CIVIL APPEAL NO, 29 OF 2000 (Original Civil Case No.- 39 of 1999

• Urban Primary Cöi.rt Urambo and Ur ainbo District Couit Civil Appeal N. 'rnl- of 2000) ATHUMAN ALLY T"Mfl'TIKO a. .. .. - APPLANT VERSUS RPJ'IADHANI H. N'3XJNZWE • • ..: - RESPONDENT J U D G M E N T This is an appeal by a persnca11ed AthimanAlljMwiniko, against the decision ofthe District Court of Urambo (P S. K. Lwilla, S.D.M.) in which the District Court has upset the deision ofthe Urban Court Urambo. The Urban Court had given judgment for the present appellant. The facts of the case which were established in the Primary court were that the appellant and respondent Rarnad.hani Ntmizwe were good friends. They are all businessmen 4 They had a business habit of lending to each other shop good and later paying for the dame. The evidence also reveals that they sometimes used an exercise book in which the lender wrote what was lent and the borrower aclaiowledged receiving, the goods by signing a signature.: This exercise book which they used in thhê±r'; business transaction was tendered in Court as &iübit D,l. On 6/4/99 however., the appellant Athuman Ally Mwiniko' was approached at his shop by the respondnt Ramadhani Nturzwe'. and there the respondent asked to be supplied with 100 bags of sugar of 50 Kilograms each, and 80 catons of' sôap called Konma. It was, indeed, at 9:00 a.m. s these were no new

(C).Civ4p.29/2000 0 — 2 tellowto each Ither, the appellant Tedily accepte& to supply to the respondent these iterns. indeed, a person called Saidi Yasini, P.W.2, a rShOp attendant..of the plaintiff witnessed the transaction. Shaibu Om..: :..PW.3 another worker of the appellant who is actually a cleaner was also called to assist and witness the transaction. Yes, thdiuiter of the appellant AbeliSaidi, P.W.4 with the turnbey Ally Nasoro P.W,5 drove the gocds to the shop of the respondent. Besides that trpe of evidence, there is. evidence, again, which shews that this time the appellant decided that they write a chit depicting this transaction. The chit was written (chibit P.1) which, in short, showed that the respondent had taken these goods and both the, appellant and respondent signed. Two other people also signed, Now after signing this document it appears the .reøpoxident decided to ake it away so that he produces a hotocopy of it. The respondent went with it. When later the appellant asked to be given backthe original copy, the respondent averred that it had got. lost. phntocopy, however became avai1iöl? and the appellant went away with it. The respondent never paid back either the goods 3xe had.. taken or the rnney equivalent to it. He started asserting that therewas no evidence to prove that there had been any transaetior, between the two of He insisted t on seing the original copy which, of course, could not be available because he had hidden it. The appellant went to Court. In Court the appellant• brought all the witnesses who witnessed the transaction. The respondeith's story that the appellant had loked for the signature of the respondents somewhere, takenit, phtographed it against the do cunient in

(PC).C±v2/2000, - 3 Court to show fraud was thrown overboard.: Th Court held that the respondent indeed took these items and should pay fotibm. The rësondent then appealed to the District Court where the deciion of the P±iaxr Court was reversed. I have read the judgi.éit of first appellate level which has upset the unanimouS - decision of the Primary Court. I see no good as.n for the first appellate Court reversing that decision There is no basis for holding that the appellant hrorged the signature 6ftfte respóndent. These are cenjecibs of the first appellate Court. There were just so many witnsse who witnessed the transaction. The respondents talks of the witiesses being related in one way or atiother to the appeliant There is nothing wrong with that There is no law in this Country which says that witnesses in a case who are related to the complainant gA claimant will have their evidence discounted because of that relaionship0 There is no such law (see the case of R. v: Lutaknmb6: s/c Nil (1936) 3 LAC.AO 43, see also the observations, of Samatta J,, as he then: was, in the case of :.2ia Onrari...and. Anothërv: R. ' H.C. Criminal Appeal No. 10 of 198 (Dodoma). In Lutakomba's case, for example, Sir Sidney Abrahain& CJ said: "There is ho.. rule of law or practice which permits the evidence of near relatives to be discounted because"of their relationship to the. accu"sed't•, .The'ê bser a,tions were made in a Criminal 0ase The 'o; C observations, in fact', becOme more relevant in a Civil Case, where as we allknow, the standard of proof is on a, balance of probability.

L. JE,. C, MASANCHE, JUDGE, At Uraxnbo. 25thOctbe,900. Appellant: present in persona Mr. Kwikima for respondent. Respemdent: present in prson.