Abubakary Abdallah vs Mohamed Shaban

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKO BA SUB-REGISTRY

AT BUKOBA PC CIVIL APPEAL NO. 9314 OF 2024 (Arising from Civil Appeal No. 15 of2023 District Court of Muieba and Originating from Muieba Urban Primary Court in Civil Case No. 149 of2022) ABBAKARY ABDALLAH...... .................................... ....... APPELLANT

VERSUS MOHAMED SHABAN........... ............................... .................. RESPONDENT

JUDGMENT 26th August and 13th September, 2024 BANZL J.: This is a second appeal tracing its root from Muieba Urban Primary Court (the trial court) where the appellant instituted a civil suit against the respondent claiming for his motorcycle make Kinglion worth TZS 2,500,000.00 which he pledged as security for TZS 850,000.00 he borrowed from the respondent. The brief facts giving rise to the instant appeal reveal that, on 20/11/2020, the appellant approached the respondent seeking to be given TZS 850,000.00 and pledged his motorcycle as security. The duo signed an agreement which was witnessed by Johansen John (SU2). In that agreement, it was agreed that, the appellant would return the borrowed Page l of 9 money by 20/01/2021 and in default, the appellant would hand over the registration card and the motorcycle to the respondent to become the latter's property. According to the appellant, after two months, he wanted his motorcycle back but it was nowhere to be found. He went to police but he could not find his motorcycle. In effect, he had never returned the borrowed money to the respondent. According to the respondent, soon after concluding their agreement, on 24/11/2020 he was arrested on allegation of possession of stolen motorcycle. He told them how he possessed it. Nevertheless, the motorcycle was taken by the alleged owners. Later, the parties went to police where they

were told that, it was a civil case. Thereafter, the respondent successfully filed the civil case before the trial court claiming for his money. The appellant was given three months to pay his money but he had never paid it. According to the testimony of SU2 who witnessed the agreement between parties, the motorcycle in question was seized four days later when the respondent was arrested for possessing the stolen property. SU2 further testified that, the one who took the motorcycle told them that, the appellant owed him money and he pledged his registration card as security but he had never repaid. After hearing the evidence of both parties, the trial magistrate was satisfied that, the appellant had failed to prove his claims on the reason that, Page 2 of 9 he was the one who breached the terms of their agreement. Aggrieved with such decision, he appealed to the District Court of Muleba (the first appellate court) where his appeal was dismissed with costs. Still aggrieved, he came before this court armed with three grounds of appeal thus: 1. THAT, the trial court (sic) seriously erred in law by denying right to be heard for failure to determine the first and third ground.

2. THAT, the trial court (sic) seriously erred in law and in fact by not considering that both parties did not dispute on the contract made hence it was a wrong decision reached by the court that the appellant did not prove his case.

3. THAT, the primary court erred in law and in fact for failure to reach the decision that the appellant was time barred to institute the case claiming his motorcycle without considering that there was still pending case No. 4/2021 on the application for execution made by the respondent in which the respondent failed in that case involved both parties claiming on the same issue. At the hearing, both parties appeared in person, unrepresented. The appellant briefly contended that, he filed this appeal because he was dissatisfied by the decision of District Court. He then prayed to adopt the grounds of appeal as his submission and urged this court to do justice to Page 3 of9 them according to their contract. In reply, the respondent submitted briefly that in both courts, they were heard and the courts decided justly. He further prayed for the court to evaluate their contract. Having considered the brief submission of parties in light of records of the lower courts, the main issue for determination is whether the appeal has merit. Upon examining the grounds of appeal, it is clear that, the appeal at hand comprises of matters of facts and law. The principle on matters of fact on second appeal is well settled that, a court of second appeal will not routinely interfere with the findings of the two courts below except where there has been non-direction or a misapprehension of evidence

causing injustice or violation of some principles of law or procedure. See the cases of Amratlal Damodar Maltaser and Another t/a Zanzibar Silk Stores vs A. H. Jariwalla t/a Zanzibar Hotel [1980] TLR 31 and Bomu Mohamedi vs Hamis Amiri (Civil Appeal No. 99 of 2018) [2020] TZCA 29 TanzLII. Considering the fact that, the appellant is faulting the findings of the lower court on facts, this court is enjoined to consider whether there was misdirection, non-direction or misapprehension of the evidence on the findings of the lower courts before reaching into their findings. Starting with the second ground which revolves around the agreement in question, it is undisputed that, on 20/11/2020 the appellant borrowed TZS Page 4 of 9 850,000.00 from the respondent whereby, he pledged his motorcycle as security. According to the terms of their agreement, the appellant was supposed to repay the borrowed money within two months, i.e,f by •20/01/2021, failure of which, the respondent would confiscate the secured motorcycle. The agreement also reveals that, the appellant did not hand him over the registration card contending that, he would hand it over to him in case he fails to pay that money. It is also evident that, four days later after the appellant had handed over his motorcycle to the respondent, the respondent was arrested for possessing the stolen motorcycle. When the respondent

informed him of what had happened, they went to Police Station where they were told that, it is a civil case. Then the respondent filed Civil Case No. 4 of 2021 which on 20/04/2021, the trial court decided in his favour ordering the appellant to pay back the borrowed money within three months. The appellant did not honour the decision of the trial court, hence, the respondent successfully, applied for execution. Later, the appellant complained before the trial court that, the procedures were flawed in effecting that execution because he was not aware of the order of the court as he was not served. On 21/10/2023, the trial court rescinded the execution order and advised the respondent to look for another property to furnish execution. After that decision, the Page 5 of 9 appellant filed Civil Case No. 149 of 2022 claiming for his motorcycle which he had pledged contending that, the respondent had to return his motorcycle so that he would pay his money in exchange. From the evidence of both sides, it is clear that, those who took that motorcycle were known to the appellant as there were other business going on between them. That being the case, it was not stated what prevented him from making follow ups so as to resolve the matter against those who took that motorcycle. On his party, the respondent should not be blamed for anything considering that, when he was arrested, he

informed the appellant of what had happened and the local leaders were involved in that issue. Therefore, as the appellant was aware of what happened, it was his duty to take action against those who took the motorcycle to claim his property or prove that he was its real owner. Staying mute, connotes that, the appellant was aware about the problems of his motorcycle. Apart from that, it is clear that, the appellant had never returned the borrowed money to the respondent. Hence, the appellant is still indebted to the respondent and the latter was entitled to be paid as per their contract. Considering that the motorcycle was taken by its owners and the appellant had riot taken any action, in my view, the appellant had no any colour of right to re-claim the motorcycle from the respondent. Page 6 of 9 Therefore, considering the terms of their contract and the above explanations, it goes without saying that, the lower courts rightly reached into the conclusion that, the appellant had failed to prove his claims against the respondent. Thus, it is my finding that, the appellant opted to file the case against the respondent as technical delay, after he was ordered by the trial court to pay back the respondent the money which he borrowed from him. In that regard, the second ground lacks merit. In respect of the first ground, the appellant claimed that, he was denied with right to be

heard as the first appellate court failed to determine the first and third ground. It is apparent from the record that, the District Court was dealing with appeal as the first appellate court. It is settled principle that, as the first appellate court, it has a duty of re-evaluating the evidence adduced before the trial court and where possible, arrives into its own decision. However, in doing so, it is expected to address the grounds of appeal before it either generally or by addressing the decisive grounds only as it was stated in the case of Francis Mtawa vs Christina Raja Lipanduka (Civil Appeal No. 15 of 2020) [2022] TZCA 719 TanzLII that: "In the first place, an appellate court is not expected to answer the issues as framed at the trial. That is the role of the trial court. It is, however, expected to address the grounds of appeal before it Even then, it does not Page 7 of 9 have to deal seriatim with the grounds ofappeal as listed in the memorandum of appeal. It may, if convenient, address the grounds generally or address the decisive ground of appeal only or discuss each ground separately. "(Emphasis supplied). Apart from that, looking at the first and third grounds raised by the appellant before the first appellate court, they all fell into one issue concerning evidence. The learned magistrate before dismissing the appeal, he analysed and evaluated the evidence of the

trial court and arrived into his own conclusion which as a matter of law, he was exercising his duty as the first appellate court. In that regard, by addressing the grounds of appeal generally in the course of re-evaluating the evidence on record, the first appellate court did not deny the appellant with right to be heard. Therefore, the first ground also lacks merit. The last ground need not detain me. The appellant in the third ground contended that, the trial court failed to decide that, the appellant was time barred to institute the case claiming his motorcycle. A thorough perusal of the records of two courts below reveals that, the issue about the appellant being time barred to institute the case claiming his motorcycle was not raised by either party before the trial court or first appellate court. Likewise, that issue was not decided by either of the two courts below. In that regard, it is Page 8 of 9 a new issue and this court being the second appellate court, cannot decide on it considering that, neither the appellant nor the respondent submitted on that. This concludes the third ground which is also dismissed for being unmerited. That being said, I find no reason to disturb the concurrent findings of the lower courts. Consequently, I find the appeal without speck of merit and it is hereby dismissed with costs. It is accordingly ordered. I. K. BANZI

JUDGE 13/09/2024 Delivered this 13th day of September, 2024 in the presence of the appellant and the respondent both in person and Ms. Mwashabani Bundala, RMA. Right of appeal duly explained. I. K. BANZI

JUDGE 13/09/2024 Page 9 of 9