Adam hiris vs vijana wabunifu usanda

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB-REGISTRY) AT SHINYANGA PC. CIVIL APPEAL NO. 202406111000013772 (Arising from Civil Appeal No. 647 of 2024 District Court of Shinyanga and originating from Civil Case No. 97 of 2023 at Mjini Primary Court) ADAM HIRIS……………………………………………………….….……. APPELLANT VERSUS VIJANA WABUNIFU USANDA (MUSA GESA DOTO) …...………..RESPONDENT JUDGMENT Date of Last Order: 24.09.2024 Date of Judgment: 18.10.2024 MWAKAHESYA, J.: The appellant, Adam Hiris, is seeking to overturn the decision of the District Court of Shinyanga which confirmed an earlier decision of the Shinyanga Primary Court where the respondent successful sued the appellant for a sum of TZS 950,000/= being the value of a printer, make Epson, that the respondent had delivered to the appellant for repairs the latter being a computer repairman. The brief background of the matter is that, the respondent is a group comprised of young entrepreneurs located in Shinyanga. In July 2023 its printer malfunctioned prompting the same to be delivered to the appellant for troubleshooting. It is on record that the same could not 1 be fixed despite various attempts and the appellant was still in possession of the printer. On 17.08.2023 a mass brawl between the appellant and members of the respondent occurred with the latter seeking restoration of their printer or its equivalent cash value. Later on, the respondent filed a civil case at the Shinyanga Primary Court (the trial court). At the trial the appellant did not deny working on the respondent’s printer in the year 2023, however he was adamant that he returned the said printer to the respondent. The trial court decided in favor of the respondent and ordered the appellant to hand over a working printer or its cash equivalent of TZS 950,000/=. Aggrieved, the appellant appealed to the District Court of Shinyanga District (the first appellate court) challenging the decision of the trial court. At the first appellate court it was the appellant’s contention that the summons issued to him at the trial court had shown that he owed the respondent TZS 950,000/= but to his surprise during hearing evidence was adduced that he owed the respondent a printer. He was thus confused and the trial court had failed to properly evaluate the evidence adduced. 2 The first appellate court was of the view that during trial the respondent had proved her case on the balance of probabilities and therefore dismissed the appeal. Undeterred, the appellant has now preferred this second appeal on the ground that: “The first appellate court potentially erred in law and in fact when failed (sic) to re-evaluate properly the evidence of the trial court by both parties, thus leading to incorrect decision.” At the hearing of the appeal, the appellant appeared in person, unrepresented, while the respondent was represented by one Mussa Gese Dotto, holding a special power of attorney. Hearing of the appeal proceeded orally. In a brief submission in support of his appeal, the appellant was adamant that the lower courts erred and he was charged with owing the respondents TZS 950,000/=, but to his surprise the court held that he was to return a printer or TZS 950,000/=. He rounded off by submitting that he did not owe the respondent anything. He prayed for his appeal to be allowed. In reply, on behalf of the respondent, Mr. Mussa submitted that, the appellant was sued for both the printer or the cash equivalent which is TZS 950,000/= and that the decisions of the courts were right. It was proved that the appellant took the respondent’s printer. 3 In a brief rejoinder, the appellant submitted that he did not have the respondent’s printer and prayed for his appeal to be allowed. Having gone through the record, ground of appeal as well as the rival submissions, this court is now in the position to determine the appeal. The record before the trial court show that the appellant was informed that he should appear before the court on 11.12.2023 at 8:30 am to answer a claim of TZS 950,000/= “ or a printer”. The appellant coming to this court, in a second appeal, claiming that he was surprised during trial to be told that he should deliver the printer or pay cash whilst he had been summoned to deliver a printer only seems to be an afterthought. It was made clear to him that the claim was for either cash or a printer and there was nothing surprising about the claim. The learned Resident Magistrate who presided over the appeal properly re-analyzed the evidence adduced during trial and the same can be seen from page 4 to 7 of the judgment of the first appellate court. Like the learned trial magistrate, the first appellate magistrate was convinced that the respondent had proved to the required standard that her printer, worth TZS 950,000/=, was delivered to the appellant and the same had not been returned since. 4 Since both courts below made concurrent findings of fact that the respondent was owed by the appellant a printer worth TZS 950,000/= and the appellant was obligated to return the same or pay up its cash equivalent, this being a second appellate court cannot interfere with those findings unless the same seem outright erroneous. In Abubakar Msafiri v. The Republic, Criminal Appeal No. 378 of 2017 (unreported), the Court of Appeal held that: “…the concurrent findings of facts by the two lower courts, can rarely be interfered with unless the decision is clearly wrong, unreasonable or where there is a misdirection, nondirection or misapprehension of the nature, substance and quality of evidence on record…” Also, in Wankuru Mwita v. Republic, Criminal Appeal No. 219 of 2012 (unreported) it was held: "The law is well settled that on second appeal the Court will not readily disturb concurrent findings of facts by the trial court and first appellate court unless it can be shown that there are perverse, demonstrably wrong or clearly unreasonable or are a result of a complete misapprehension of the substance, nature or no-direction on the evidence; a violation of some principle of law or procedure or have occasioned a miscarriage of justice." I see nothing out of the ordinary in the record to vitiate the findings of the two lower courts. In the end I find that the appeal lacks merit and thus dismiss it altogether. The respondent is to have her costs. 5 It is so ordered. DATED at SHINYANGA this 18th day of October, 2024. N.L. MWAKAHESYA JUDGE 6