Makwaluzi v. Mulemela Civ. 14-M-70; 14/5/71; El-Kindy Ag. J.

Makwaluzi v. Mulemela Civ. 14-M-70; 14/5/71; El-Kindy Ag. J.

            The appellant was the successful party in the district court where he had claimed a total of Shs. 1,000/- as damage resulting from respondent’s action in setting fire to his house. He was awarded Shs. 150/- as damages and now claimed that the trial court erred in awarding that small amount. At the trial, the respondent had denied setting fire to the house. The learned magistrate on his own motion examined a case file to a criminal case in which the respondent was alleged to have been convicted and stated; “The plaintiff (appellant) did not produce a copy of the judgment but I have thrown overboard this procedural irregularity and subscribed to the substance of the suit. I have therefore perused the file and I am satisfied that the defendant did set fire to the house and was accordingly convicted by Brother Tegamaisho on the 14/2/69.” That judgment was taken as conclusive that the respondent had set fire to the house.

                        Held: (1) “With due respect to the learned magistrate, he misdirected himself in this age on an important matter of admissibility of evidence. As he is well aware, the fact that a person had been convicted in a criminal case does not mean that there was no needs of proper proof it the victim is sued in civil case. In this case, apart from his own statement, the appellant led no evidence even to prove that the appellant was convicted let alone proof of liability in tort. The criminal case was improperly admitted as it was not properly proved that it was the criminal case file in which the respondent was convicted. In this suit, it was not only necessary to prove that there was a criminal case file with a name like that of the respondent, but that the respondent was the one involved in that case.” (2) “He also misdirected himself as to the admissibility of previous proceedings set out in section 35 of the Evidence Act, 1967. that section reads as follows: -) the learned judge then set out the provisions of the Act and continued) clearly therefore, evidence recorded is only admissible under certain circumstances, and these have been enumerated above (a) to (d). In this case, there was no indication why the appellant could not call the witnesses who gave evidence in the previous proceeding. These conditions have to be satisfied by the party who seeks the admission of evidence under section 35(1) of Evidence Act 1967. If that is not done, evidence of previous proceedings is inadmissible. In my view the evidence was wrongly admitted, and therefore, in the circumstances the appellant did not prove his case before the trial court. For these reasons, he judgment and decree of the District Court is accordingly set aside with costs.” (3) Appeal allowed.