ALLOYCE NATAYANI ANOTH VS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (ARUSHA SUB-REGISTRY) AT ARUSHA (PC) CIVIL APPEAL NO.28385 OF 2024 (C/F Civil Appeal No. 53 of 2022 District Court of Arusha, Original Civil Case No.39 of 2022 Them! Primary Court) ALLOYCE NATAYANI.................. 1OT APPELLANT PETER CHACHA.............................................................................. .....2ndAPPELLANT GAIN CO. LIMITED........ ................................................. 3RD APPELLANT VERSUS MBOYOO JUMA MOLLEL............................................. .....RESPONDENT JUDGMENT 01/08/2024 & 18/09/2024 KIWONDE,J.: This is the second appeal. The appellants, Alloyce Natayani, Peter Chacha and Gain Co. Limited successfully sued the respondent in Themi Primary Court claiming for payment of an outstanding debt of TZS 16, 500, 000/=. The suit was determined in their favour. The respondent was condemned to pay TZS 15,541,000/= as outstanding debt and TZS 500, 000/= general damages. The respondent, Mboyoo Juma Mollel appealed to the District Court which reversed the decision of primary court. The i appellants being aggrieved by such decision pf the first appellate court (H. M. Marando, SRM) dated 6th September 2023, have appealed to this court based on six (6) grounds of appeal below: (1) That the first appellate court erred in fact by holding that there were doubts as to who initiated the business transaction between the first appellant or the respondent. (2) That the first appellate court erred in law and fact by holding that the appellants failed to prove delivery of 30 tons of maize to the respondent. (3) That the first appellate court erred in law and in fact in holding that the appellants failed to prove payment of TZS 10, 000, 000/= as part payment from the respondent after doing maize business (sic) with the appellants. (4) That the first appellate court erred in law by failure to hold that an adverse inference was drawn against the respondent for failure to call one Tina Mollel whom he admitted to be his sister as his witness before the trial court. (5) That the first appellate court erred in law and fact by holding that it was mandatory for the second appellant to tender certificate of registration of the third appellant to prove its 2 existence and the first appellant to prove his title as an agent of the third appellant facts which were never (sic) in issue between the parties before the trial court. (6) That the first appellate court erred in law and fact by holding that the appellants failed to prove their case at the required standard by law which is at the balance of probabilities before the trial court. The appellants prayed that the proceedings and judgment of the first appellate court be nullified for being predicated on a total misconception of law, that this court step into the shoes of the first appellate court and determine the grounds of appeal based on the arguments advanced by the parties and give an order reinstating (sic) the judgment and orders of the trial court and cost of the appeal. On 3rd April 2024, by leave of this court, the appeal was ordered to be argued by way of filing written submissions. The counsel for the appellants filed them but the respondent did not. The counsel for the appellants, one Willson Ezekiel abandoned the third ground of appeal and he started his submissions by arguing that the first appellate court raised new issues and determined the matter based on them while they did not feature at the trial. 3 In supporting the first and second grounds of appeal, the counsel submitted that the first appellate court erred in law by not considering the entire evidence on record including the exhibit HT2, the pay-in slips made by Tina Mollef on behalf of the respondent. He argued that these grounds of appeal are merited. As to the fourth ground of appeal, the learned counsel said the exhibit HT2, pay-in slips were admitted at the trial and therefore, the fact was proved. The fifth and sixth grounds of appeal were argued together. The counsel said the issue of proving existence of the third appellant, Gain Co. Ltd by tendering certificate of registration or business licence and the requirement that the first appellant had to prove that he was an agent of the company were not in issue. The counsel for the appellants added that the evidence proved their claims at the required standard and he cited some case laws which I find not imperative to reproduce here. He argued that there was misdirection by the first appellate court. From the petition of appeal, written submissions and the lower courts' records, the main issue for determination is whether the appeal finds merit or otherwise. 4 In the first place I should state that the first appellate court in determining the appeal before it raised some new matters suo moto in the course of composing the judgment, discussed them and decided the appeal on such basis without affording the parties the right to be heard. In law, the appellate court if discovers some matters when composing judgment, has to recall the parties to address on the matter. This is due to the fact that right to be heard is fundamental. In Chistina Makondoro Versus Inspector General of Police and another, Civil Appeal No. 40 of 2019 [2021] TZCA 30 (22nd February 2021) it was held inter alia that it is a cardinal principle of natural justice that no person should be condemned unheard. The first appellate court raised the issue of variation of time of business contract. It went on to find that at the trial the claim form filed in court indicated that the business of selling maize was done in the year 2019, but the parties said the agreement was entered on 21/01/2020. So, the claims based on the said agreement of 21/01/2020. The first appellate court referred to Rule 15 of the Magistrates' Courts (Civil Procedure in Primary Courts) Rules to show the legal requirements when instituting civil claims in primary courts. It is true that the evidence and pleadings filed in the trial court differed in terms of when the agreement to sell 5 maize was entered. Thus, the first appellate court had to invite the parties to address it on the fact. By failure to do so, it deprived their right to be. heard. Apart from that, the first appellate court did not determine the grounds of appeal. In law, the appellate court is duty bound to decide all grounds of appeal unless one of them is sufficient to dispose of the same and the reason for not deciding the rest of the grounds must be reflected on record. In NIC Bank Tanzania Limited and another Versus Samora Mchuma Samora Co. Limited, Civil Appeal No.340 of 2020 [2023] TZCA 76 (28th February 2023) where it was held inter alia that the appellate court must determine all grounds of appeal unless there are circumstances which would not require so, for instance, where a single ground of appeal suffices to dispose of the entire appeal. In deciding the appeal, the first appellate court was of the stand view that the claims lodged by the appellants were not proved at the balance of probabilities at the trial. The reasons for such holding include; that there were some doubts as to who initiated the business transaction between the first appellant and the respondent, that the appellants failed to prove the mode of delivery of the 30 tons (though, the evidence showed 31 tons) of maize in question, that there was no certificate of registration of 6 the third appellant (Gain Co. Ltd) and that the first appellant did not manage to prove that he was the agent of the third appellant. But the available evidence on records, such as that of the witness, whom at the trial was referred to as SM2, indicate that it is the first appellant who called Justine Lengeteu saying he was selling maize, so, the latter connected him to the respondent. The respondent agreed that the maize be sent to him. The witnesses, Sml and SM2 said they sent to the respondent 31 tons and 640 kilograms worthy TZS 29, 741, 000/=. Also, SM2 and SM4 testified that Justine Lengeteu and the respondent, Mboyoo Juma, bought the maize on credit (matt kauli) for the respondent did not pay the value of the maize but promised to do so after three days. However, the evidence of these witnesses show that the respondent and Justine Lengeteu sold the maize to Boogaloo flour milling factory located at Njiro and the respondent was paid all money at TZS 29, 000, 000/=. Apart from that, the witness, SM3, Peter Mtera Chacha said at the trial that he is the company director of Gain Co. Ltd and Alloyce Natayani Mollel is his agent. He added that the company owns bank account No. 32320000113 in which payments were done. So, from such evidence, it is obvious that the one who initiated the business transaction with the respondent is the first appellant Alloyce Natayani Mollel, that the maize 7 was delivered to the respondent who then sold to Boogaloo factory, that the third appellant, Gain Co. Ltd existed for it could not have bank account without being registered and the company director proved that the first appellant is his agent. Had the first appellate court closely analysed the evidence, the said matters would not be used as the basis of rejecting the appeal. The first, second and fifth grounds of appeal find merits. Therefore, the first appellate court did not properly re-evaluate and analyse evidence. This misdirection of evidence led to injustice on the part of the appellants that is why this second appellate court interferes with the decision. For the reason that the first appellate court raised new matters suo moto in the course of composing judgment without affording the parties opportunity to be heard and that it abdicated its duty to determine the grounds of appeal, the irregularity is fatal. Consequently, the appeal is hereby allowed. The proceedings of the first appellate court are nullified, the judgment is quashed and any subsequent orders are set aside. The records be remitted to the first appellate court so that the appeal can be heard and determined by a different Magistrate with competent jurisdiction. 8 Under the circumstances of the case, each party shall bear own cost. Dated at Arusha this 18th September 2024 F. H. KIWONDE JUDGE 18/09/2024 9