Civ. App. No. 185 of 2019, Daniel Apael Urio vs. Exim (T) Bank New
Civ. App. No. 185 of 2019, Daniel Apael Urio vs. Exim (T) Bank New
Civ. App. No. 185 of 2019, Daniel Apael Urio vs. Exim (T) Bank New
AT ARUSHA
VERSUS
[Appeal from the judgment and decree of the High Court of Tanzania
(Commercial Division) at Arusha.]
fMwandambo, J.^
in
MWANGESI J.A.:
The appellant in this appeal was the plaintiff at the trial court.
account for a period of one year, which would mature on the 28th
November, 2013 as per the fixed deposit reference TDR No. EB/97/011148.
a result, he lodged the suit in the trial commercial court, praying to be paid
his amount due and the interest thereto, plus consequential costs.
fact that the appellant, was its customer operating two saving accounts
namely, No. 0031023511 for local currency (TZS), and No. 0031023512 for
United States Dollars (USD), it denied to have ever entered into a fixed
even its number. It was thus prayed by the respondent, that the suit by
To establish his case, the appellant summoned two witnesses that is,
Ibrahim Bipa, who testified as PW2. The attempt by the appellant to tender
(RCO) for Arusha Region, was rejected by the trial Judge. On its part in
defence, the respondent paraded one witness only named Fredrick Robert
Umiro, who testified as DW1. In the judgment that was handed down by
the trial Judge on the 10th October, 2018, the appellant was held to have
instant appeal.
1. That, the honourable trial Judge, grossly erred in law and fact in
not admitting into evidence the certified copy o f the Term Deposit
2. That, the honourable trial Judge, grossly erred in law and fact in
not holding and finding that the oral testimony of PW1 o f the
bank.
3. That, the honourable trial Judge, grossly erred in law and fact in
4. That, the honourable trial Judge; grossly erred in law and fact in
trial Judge, grossly erred in law and fact in not finding and holding
that the appellant had proved his case against the respondent
Court of Appeal Rules, 2009 (the Rules), the appellant on the 29th day of
July, 2019 lodged written submissions in support of the appeal. The same
which was lodged on the 30th August, 2019 in terms of rule 106 (8) of the
Rules.
When the appeal was called on for hearing, Mr. Eliufoo Loomu Ojare,
the respondent had the services of Mr. Denis Maringo, also learned
counsel. On taking the floor to expound the grounds of appeal, Mr. Ojare,
that the learned trial Judge, erred in rejecting to admit in evidence under
section 68 (g) of the Evidence Act, Cap. 6 R.E. 2002 (the TEA), the copy
of the Term Deposit Receipt dated the 28th November, 2012 which had
While the learned counsel was in agreement with the holding of the
trial Judge, that there was failure to serve the Regional Crimes Officer for
Arusha Region, who was in possession of the original copy of the Term
Deposit Receipt and within the court's reach, with either a notice to
produce the original document, or to appear and testify before the court,
the certified copy under section 68 (g) of the TEA, for the reason that the
appellant had taken active steps to procure the original copy of the
document from the RCO vide his advocate's letter dated the 19th April,
2017 (exhibit P2) and the response thereto, dated the 04th Mach, 2017
(exhibit P3). In the view of Mr. Ojare, the trial Judge, adopted a too
the first ground of appeal by reversing the position taken by the trial
Judge.
As regards the second ground of appeal, the trial Judge has been
faulted for not finding that the oral testimony of PW1 in regard to the
agreement with the respondent. This being the first appellate Court, the
learned counsel invited us under rule 36 (1) (a) of the Rules, to re
appraise the entire evidence on record, and come out with our own
principle governing proof of case in civil suits was stated, it was Mr. Ojare's
submission, that even with the absence of the evidence from the contents
rejected, still had the learned trial Judge, objectively evaluated the other
evidence placed before him by PW1 and PW2 against that which was ted
by the sole witness from the respondent, he would have come out with a
36 (1) of the Banking and Financial Institutions Act, Cap. 342 R.E. 2002
duty of fidelity and secrecy on the respondent bank towards the appellant,
who was its customer. Since it was sufficiently established through PWl
and PW2 that, the appellant was a customer of the respondent bank, the
by the learned counsel for the appellant, to uphold the second ground of
appeal.
The complaint by the appellant against the trial Judge in the third
respondent, for its failure to call its pertinent employees that is, Bimal,
Livingstone and Hassan Said to testify in court. Mr. Ojare, argued that the
the appellant, the respondent called one Fredrick Robert Umiro, who knew
nothing about the said transaction and thereby, ending up in giving evasive
In regard to the fourth ground, the learned trial Judge, was faulted
for making a suo motu prejudicial finding against the appellant without
hearing the parties at page 297 of the record of appeal, that the Term
Deposit Receipt annexure, did not contain any conditions overleaf. Since
the law is settled that annexures are not evidence to be acted upon, and
the fact that in the instant appeal, the parties were never accorded
opportunity to address the court on the said annexure, then there was no
way in which the trial Judge, could have made a finding basing on such an
ground of appeal.
8
The totality of what has been canvassed above according to the
learned counsel for the appellant, sufficiently established that the appellant
had entered into a fixed deposit agreement with the respondent. He thus
argued that the trial Judge, was at gross error to conclude in his judgment
at page 305 of the record of appeal, that after the evidence from the term
Deposit Receipt had been discounted, then the entire claim of the appellant
against the respondent crumbled. This was the gist of the fifth ground of
appeal, which he prayed to be upheld on the grounds that the trial Judge,
civil cases.
in detail in the second ground, the learned counsel visited the provisions of
sections 62 and 65 of the TEA which regulate oral evidence, and argued in
9
In response to the submission of his learned friend, Mr. Maringo also
prayed to adopt the contents of the written submission which was lodged
learned counsel submitted that the trial Judge, was justified to reject
reasons were advanced as to why the original copy which could have given
court.
With regard to the contention by his learned friend, that the learned
trial Judge, would have used his discretion under section 67 (g) of the TEA
to admit the copy of the document, Mr. Maringo's view was that, such
provision catering for admission of a document. The fact that in the instant
matter there was specific paragraph for application that is, paragraph (f) of
section 67, there was no way in which the Judge would have gone to the
suggested paragraph (g) of the said provision. After all, the authenticity of
the said document was doubted from the beginning, he argued. In support
Damson Ndaweka Vs Ally Said Mtera, Civil Appeal No. 5 of 1999 and
10
Onaukiro Anandumi Ulomi Vs Standard Oil Company Limited and
document itself. Under the circumstances, the trial Judge, was correct in
agreement was entered between the two disputants, the appellant failed to
On the contention by the appellant that the learned trial Judge, ought
to have drawn an adverse inference against the respondent for its failure
third ground, the response from the learned counsel for the respondent
was that, the respondent categorically denied existence of the alleged fixed
deposit agreement. As such, the need to call the named witnesses did not
arise. If the appellant on his part was of the view that the alleged
ii
them to testify on his side, instead of shifting the burden of proving his suit
to the respondent.
counsel for the respondent, argued that the fourth ground has no any
bearing on the decision of the court, while the fifth ground has been a
mere repetition of what was submitted in the second ground. To that end,
it was his conclusion that the trial Judge, was correct in holding that the
appellant failed to discharge his burden of proving his case on the balance
costs.
appellant in this appeal, there are basically two issues which stand for
the certified copy o f the Deposit Term Receipt This issue arises
Starting with the first issue, it was the argument of Mr. Ojare, that
evidence, the copy of the Term Deposit Receipt, which had been certified.
We wish in the first place, to state the obvious that, a copy of a document
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(d) counterparts o f documents as against the parties who did not
execute them;
or power of-
proved;
(Hi) a person legally bound to produce it, and when, after the
notice specified in section 68, such person does not produce it;
[Emphasis supplied]
14
According to the evidence on record in this appeal, the original copy
in the possession of the RCO for Arusha Region, who was within the court's
reach. In terms of section 68 of the TEA, before the appellant could rely
on the copy of the document there were two options open for him that is,
and testify. Nonetheless, for reasons best known to the appellant himself,
Since it was the appellant himself who failed to comply with the
requirement of law, we fail to find any justifying basis for the appellant, to
shift the blames to the trial Judge, who in refusing to admit the copy of the
The further argument of Mr. Ojare on this point was that, despite the
requirement of law as stipulated in the cited provisions of law, still the trial
Judge, could have used the discretion bestowed on him under section 67
(g) of the TEA, to admit the copy of the document for the interest of
justice. We have had the advantage of going through the copy of the
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document which was intended to be tendered in evidence but rejected by
the trial Judge, as aforesaid. Apart from being a copy, it was also
500 Million in the bank by the appellant on the 28th November, 2012, in the
rejected copy of the Term Deposit Receipt, it is indicated at its top left
corner that on the said date, the bank received from the appellant an
amount of TZS 565 Million. In the same document at its right bottom
corner, it is indicated that the appellant would be paid TZS 565 Million.
When we asked for clarification from the learned counsel for the
unable to clear the mess on us. Under the circumstance, even if the
assistance if any. We therefore uphold the stance which was taken by the
trial Judge. That said, we answer the first issue in the affirmative that,
admission of the copy of the Term Deposit Receipt, was correctly rejected
by the trial Judge, which leads to dismissal of the first ground of appeal.
dealing with this issue, we commence by first acceding to the prayer which
16
was presented to us by Mr. Ojare under rule 36 (1) (a) of the Rules, and
step into the shoes of the trial court and re-appraise the evidence which
was received during trial and come out with our own finding. This is so for
Group (T) Limited, Civil Appeal No. 43 of 2013 (unreported) for instance,
while reversing the finding of the trial High Court, the Court held that:
record and whether it tilts the balance one way or the other.
We note from the pleadings of the suit under scrutiny that, the
17
on the other hand, strongly resisted existence of the alleged agreement
view are the relevant ones in so far as the dispute at hand was concerned,
3. That, I operate a bank account No. 0031023511 for TZS and USD
deposit a term o f one year and the same will mature on 28h day
5. That, I agreed with the defendant that upon maturity, she will pay
565,000,000/=.
The witness statement of the PW2 who was said to be a police officer
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3. That on &h day o f September, 2016 I received a sealed packet
dated 2&h day o f November, 2012 and exhibit GI - GII often sheets
o f paper and one letter dated 2Cfh May, 2010 bearing specimen
Ibrahim 2.
signatures are similar and was signed by one and the same person.
On the other side of the coin, paragraphs 3, 4 and 5 of the witness
3 .1 state that the plaintiff herein on 23d day o f April, 2012 opened a
exhibit EB1.
I state that there are no any documents from either the plaintiff or
and the alleged reference No. marked on the document does not
the defendant
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The question which we had to ask ourselves, is whether on the basis
of the witness statements of the appellant and his witness as quoted in the
paragraphs above, it could be said that the appellant discharged his burden
evidence rule that is, through primary (original) document, which would in
evidence."
which is in agreement with what was submitted by the learned counsel for
the respondent, is that oral evidence cannot be used to prove the contents
agreement entered between the two. The necessity arises from the fact
the written statement, who went on producing exhibit D2 that is, the forms
21
which were filled by the appellant while opening the other accounts, which
Group (T) Limited (supra), where the appellant had tendered in evidence
a dis-honoured cheque. The Court held that the appellant had established
rejection to admit the copy of the Term Deposit Receipt, there was
and the respondent in regard to the alleged agreement for a fixed deposit
account. With such situation, we uphold the position taken by the trial
had entered into a fixed deposit account agreement with the respondent.
And the fact that the existence of an agreement for a fixed deposit
account between the appellant and the respondent bank was the
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which were raised in the memorandum of appeal, become of no use.
Order accordingly.
S.E.A. MUGASHA
JUSTICE OF APPEAL
S.S. MWANGESI
JUSTICE OF APPEAL
This Ruling delivered on 26th day of March, 2020 in the presence Ms.
Winnie Evarist holding brief of Mr. Eliufoo Loomu Ojare, learned counsel for
the appellant and Mr. Lecktony Ngeseyan holding brief of Mr. Emmanuel
B.A. Mpepo
DEPUTY REGISTRAR
COURT OF APPEAL
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