Judgement PC

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI PC CIVIL APPEAL NO. 2810 OF 2024 (C/F Civil Appeal No. 10 of 2023 in the District Court of Moshi at Moshi. Originating from Civil Case No. 34 of 2023 in the Primary Court of Moshi at Moshi Urban) AWADH HASHIMU SWAI........................................................APPELLANT

VERSUS IDDI RAMADHANI JUMA.…………………..….…………… RESPONDENT

JUDGEMENT 13th August & 24th September, 2024 MONGELLA, J. This is a second appeal. The case emanates from the primary court of Moshi District at Moshi Urban (the trial court) whereby the respondent sued the appellant over TZS. 19,000,000/-. In this whole amount, TZS 13,000,000/- was value of the car lent to the appellant; TZS. 3,000,000/- was for advocate’s costs and TZS. 3,000,000/- was for compensation for disturbance the respondent suffered in following up on the matter. In a nutshell, it was alleged that on 07.10.2019, the appellant borrowed the respondent’s motor vehicle make Harrier (new Model) to visit his shamba in Tanga. After a week, when the respondent asked for his car, the appellant said he was in Dar es Salaam and would get back after a week. The appellant later told Page 1 of 16 him that he had used the car as security for the loan he had taken. He thus never returned the car. In 2022, the appellant was arrested at Dar es Salaam for some other case. He admitted to have sold the car. Eventually, on 19.04.2022 he entered into an agreement with the respondent that he would purchase the same model for him or in alternative, he would pay him TZS. 13,000,000/- as purchasing money. The deadline was 19.12.2022. The appellant however, never implemented the agreement something which fuelled the respondent to file the suit in the trial court. When the matter came before the

trial court, the appellant denied the claim against him. The respondent testified as SM1 and called, as his witness (SM2) one, Advocate Tumaini Materu who notarised their contract. The appellant also testified as SU1 and furnished two witnesses: SU2, Godfrey Dams Baraka and SU3, G790 DC Samuel. The trial court found in the respondent’s favour and declared the claim proved. The trial court awarded the respondent TZS. 13,000,0000/- and costs for the suit. The appellant appealed to the district court vide Civil Appeal No. 10 of 2023 (hereinafter, the 1st appellate court). His appeal was found without merit and dismissed. Aggrieved, he has now preferred this second appeal on three grounds as follows: 1. That, the first appellate court erred in law and in fact in holding that the trial court had properly analysed the evidence before it and therefore reached a just decision. Page 2 of 16 2. That, the first appellate court erred in law and in fact by concluding that Exhibit K-1 was a valid contract.

3. That, the first appellate court erred in law and in fact by concluding that the appellant's defence was an afterthought while the same was raised even during cross examination. The appeal was resolved by written submissions whereby the appellant was represented by Ms. Lilian M. Justus and the respondent by Mr. Gideon Mushi, both learned advocates. Arguing on the 1st ground, Ms. Justus averred that the respondent’s evidence was not to be believed. That, he did not tender exhibits to show that he really owned the alleged car, he just testified by word of mouth. She claimed that existence of a thing must be proved. She challenged the respondent’s evidence on the ground that it was not backed by any other witness. Explaining that, she alleged that there were no other witnesses that testified that the appellant and the respondent entered into agreement, except for the advocate who signed the contract. She further faulted the contract tendered alleging that it was invalid as it lacked elements of a valid contract. She claimed that the alleged contract had no witnesses and had elements of coercion. In that respect, she had the stance that there was no contract between the appellant and the respondent. Addressing the 2nd ground, Ms. Justus commenced her submission by citing the provisions of Section 10,13, 14, 15(1) and 19(1) of the Law of Contract Act [Cap 345 RE 2019] as to

elements of a valid Page 3 of 16 contract. She also referred the case of Merali Hirji and Sons vs. General Tyre (EA) Ltd. [1983] TLR 179. She further provided the definition of the term “coercion” as provided in the Black's law dictionary, 4th Edition. Arguing further on the point of coercion, Ms. Justus averred the appellant did not enter into contract with the appellant under free consent. In such assertion, she contended that the absence of a free consent renders the contract voidable. She insisted that the appellant was coerced to contract with the respondent because, he was threatened, beaten and tortured in order for him to enter into contract with the respondent. In addition, Ms. Justus discussed bail concerns alleging that according to the offence which the applicant was charged, he had the right to be bailed out, but the respondent used threats insisting that he would not be granted bail until he enters into a contract showing that there was an agreement between them to the effect that the respondent sold a car to the applicant, something which is not true. Arguing that bail is a constitutional right, she defined what police bail entails and claimed that the appellant’s constitutional right was violated when he was denied bail. In that respect, she referred Articles 13(3) and (6) (b) and 15(1) and (2) of the Constitution of the United Republic of Tanzania of 1977 as

amended, which she claimed to have been violated. On the other hand, Ms. Justus argued that the right to bail is not absolute as it is a matter of privilege to be administered in accordance with the law and where bail is applicable. However, she claimed that the appellant was taken to the police for a civil Page 4 of 16 matter and not a criminal offence and no bail was granted to him until when he agreed to sign the agreement, to wit, Exhibit P1. She added that the appellant was also detained for a period of 14 days which was contrary to Section 148 of the Criminal Procedure Act, [Cap 20 R.E 2022] and Article 15(1) and (2) of the Constitution of the United Republic of Tanzania. With regard to the 3rd ground, Ms. Justus averred that during cross examination of the appellant, he stated to have been unlawfully detained and that the detainment was intended to threaten him. In that respect, she challenged the 1st appellate court’s finding that the appellant’s defence was an afterthought. Ms. Justus finalised her submissions by praying for the appeal to be allowed and the Judgment and orders of the trial court be quashed and set aside. The respondent opposed the appeal. In reply, his counsel, Mr. Mushi opted to consolidate all the grounds on the consideration that they were all on matters of facts or evidence. He commenced his submission by referring to the provisions of Section 110

of the Tanzania Evidence Act Cap. 6 R.E. 2019, which provide the standard of proof in civil cases to be on the balance of probabilities. In that respect, he averred that the one with strong evidence compared to the other, should be the one to win the case. He cemented his point with the case of Hemedi Said vs. Mohamed Mbilu [1984] 113. Page 5 of 16 The learned counsel submitted further that the court is to receive evidence from the parties in dispute together with their respective witnesses and assess the credibility of each witness before making a finding on the contested facts in issue. He traced such directions from the case of Stanslaus Rugaba Kasusura and Another vs. Phares Kabuye [1983] TLR 334. Mr. Mushi asserted that it is trite principle of the law that, once the lower court fails to properly assess and analyse the evidence adduced during trial, the higher court will step into the shoes of the lower court and re-assess/re-evaluate the said evidence and come up with its own findings. He cemented his assertion with the case of Deemay Daati and 2 Others vs. Republic [2005] TLR 132. He added that once parties adduce their evidence, the presiding magistrate or Judge is obliged to determine the same in accordance with the evidence adduced. He referred Nkungu vs. Mohamed [1984] TLR 46 to bolster his argument. The learned counsel then proceeded to dispute the assertion by Ms.

Justus that the respondent failed to establish ownership of the motor vehicle in dispute. On this, he contended that the respondent established ownership of the motor vehicle make Toyota Harrier (New Model) with registration number T225CD56 (sic), under paragraph 1 and 3 of the contract concluded between the parties, which was admitted as Exhibit K1. In the premises, he argued further that since all the details in respect of ownership of the said motor vehicle were analysed in Exhibit K1, the allegation that the respondent failed to show how he owned the said motor Page 6 of 16 vehicle becomes an afterthought. He considered the evidence of SM2, the advocate who prepared the said contract, being sufficient on the ground that what matters in trials is not the number of witnesses, but rather, the quality of evidence adduced. He fortified his averment with the case of Yohanis Msigwa vs. Republic [1990] TLR 148 and Juma Kanenvera vs. Republic [1992] TLR 100. Explaining on what had transpired, Mr. Mushi narrated that the appellant had approached and pleased the respondent to give him his motor vehicle for purposes of visiting the shamba where they used to cultivate commercial crops. That, he promised to return the said motor vehicle upon demand. That, after the respondent gave him the motor vehicle, he stayed with it for more than one (1) month without any communication, despite

several demands for the same to be returned. Mr. Mushi further spoke about the sale of the motor vehicle whereby he stated that the appellant admitted to have sold the motor vehicle without the respondent’s consent. He said that the appellant explained that he managed to do that as the necessary documentation for the motor vehicle were in the vehicle’s drawer. He added that the appellant consented to compensate the respondent with a similar motor vehicle or in alternative, re- reimburse or compensate the respondent a total sum of thirteen million TZS. (13,000,000/=) only, which was the purchase price of the said motor vehicle. However, he said, the appellant failed to honour the terms and conditions of the said contract, which made the respondent to file the case at the trial court. Page 7 of 16 Addressing the assertion that the contract was entered without free consent, Mr. Mushi had the firm stance that the contract was executed under free will and consent before SM2, who also testified before the trial court as SM2. He claimed that there was no any element present which made the trial court to believe that the said contract was invalid. In that respect, he found the applicant’s allegations remained to be an afterthought. Stressing that the contract was validly entered between the parties, he contended further that when cross examined before the trial court, the appellant

admitted that the contract was concluded before SM2 at his office and there was no any kind of force which made him sign the same. He thus considered the requirement under Section 10 of the Law of Contract Act to have been met. Still arguing on the contract being valid, he contended that while preparing the contract, the appellant had a witness, SU2. That, SU2 confirmed that when they were before the SM2’s office for purpose of preparation of the said contract, there was no any undue influence; there was no police or any other person apart from them. Mr. Mushi further referred to the testimony of SU3, who he said, testified that he knew nothing about the contract entered between the parties. Mr. Mushi further averred that the appellant’s allegation that he was forced to sign the contract amounts to criminal offence to which he should have filed a criminal case before the court with competent jurisdiction. He had the view that failure to file the said criminal case makes his allegations an afterthought and the Page 8 of 16 respondent’s evidence stronger compared to his. That, as held in the case of Hemedi Said vs. Mohamed Mbilu (supra), the respondent, being the one with stronger evidence, was justified to win. Mr. Mushi as well addressed the argument on denial of bail advanced by Ms. Justus. He challenged the appellant’s counsel for taking much of his time discussing about

issues of bail in criminal cases. In his view that was an afterthought and a new issue having nothing to do with the matter at hand. He held such argument considering that the case at hand is civil and not criminal. On the view that the situation at hand is different, he distinguished the case of Merali Hirii and Sons vs General Tyre (EA) Ltd (supra) cited by the appellant’s counsel. He finalized his submission alleging that the appeal is devoid of merit. He sought for the same to be dismissed with costs and the proceedings, judgment and orders by the trial court to be confirmed. After considering grounds of appeal, the submissions of both parties’ counsels and the lowers courts’ record, it appears to me that all the three grounds can be addressed under one issue, which was also raised at the 1st appellate court. This is “whether the trial court and the 1st appellate court properly evaluated the evidence before it.” Prior to resolving the issue, I wish to note that it is settled that the second appellate court can rarely interfere with concurrent findings of the two lower courts, unless there are misdirections, Page 9 of 16 misapprehensions of the nature and quality of evidence or if there was miscarriage of justice. This position was well stated in Helmina Nyoni vs. Yeremia Magoti (Civil Appeal 61 of 2020) [2022] TZCA 170 TANZLII, in which it was held; “It is trite law that

second appellate courts should be reluctant to interfere with concurrent findings of the two courts below except in cases where it is obvious that the findings are based on misdirection or misapprehension of evidence or violation of some principle of law or procedure, or have occasioned a miscarriage of justice.” The respondent’s case in this matter was quite simple. He knew the appellant since 2011 and they used to be friends. On 07.10.2019, he purchased a motor vehicle make Harrier (new Model) T 225 CD 56. He lent the vehicle to the appellant who requested to use it to visit his farm in Tanga. A week later, he called the appellant asking about the car and the appellant informed him that he was in Dar es Salaam and he would be back in a week’s time. A while later, the appellant told him that he used the car as security for loan. All necessary ownership documents were in the vehicle compartment. The respondent tried getting them from the appellant who kept telling him that they were in the car and when he redeems the same, he would hand them back. The appellant was then arrested in Dar es salaam and brought to Moshi where he admitted to have sold the vehicle. Following that they decided to resolve the matter amicably and decided to sign a contract with the respondent. Page 10 of 16 On 18.04.2022 the respondent and the appellant went to SM2 who drafted an agreement and handed

each of them a copy for perusal. On 19.04.2022, the contract was executed in the presence of SM2 and witnessed by SU2 and one Hussein Juma. The details were that the appellant was to purchase another vehicle of the same model or in alternative, pay the respondent TZS. 13,000,000/- by 19.12.2022. The appellant never honoured the agreement. This agreement was tendered and admitted as Exhibit K1 The appellant, on the other hand, narrated that he had been doing farming business with the respondent from 2017 to 2022. That, the respondent had a farm and he (the respondent) used to give funds to service the farming. On 24.02.2022, he was arrested at Dar es Salaam and taken to Kibaha Police station whereby he was informed that he had a case against him in Moshi. On SU2’s costs he was brought to Moshi whereby the respondent claimed to have lent him a car. He testified to have been interrogated, sent to lock up, denied bail and eventually was given bail on an agreement that he would settle the matter with the appellant. When he failed, as he reported to the police, he was arrested again, sent to Dar es Salam and required to show the Police the vehicle and eventually was returned to Moshi. He also claimed to be tortured and beaten up. SU2 testified to have been told that the appellant would only be granted bail if he agreed to accept the debt and sign an agreement with such details. That,

the appellant signed the agreement with SU2 as his witness. Page 11 of 16 SU3’s testimony was to the effect that he was required to investigate a car theft case between the parties and was assigned the file on 30.03.2023. He said that he was waiting for some exhibits so that the matter would be taken to court. According to him, the matter was still being investigated and the appellant was out on bail. He had no knowledge of there being any contract executed between the parties. It is apparent from Ms. Justus’ argument that she challenges the validity of the contract on the ground that the same was procured under coercion on the part of the appellant. Her argument first of all entails there being no dispute as to the appellant signing the said contract. What is on the table is the appellant’s counsel’s endeavouring to vitiate the contract on ground of coercion. However, contrary to the allegation, I have gone through the evidence of both parties and found proof of coercion, just like the lower courts found. I say so, on the following observations: One, the appellant did not prove that at the time of signing the contract he was under any threat or undue influence from the respondent or the police whom he alleged to have made sure to deny him bail until he agrees to pay back the vehicle. SU2 and SM2 stated that there was no any police officer present at the signing of the

contract. The appellant himself admitted to the fact that there was no police officer present at the signing. It appears that even SU3, the investigator in said case, did not have any knowledge of the contract, which I find raising questions as to Page 12 of 16 whether the alleged coercion indeed took place and who exactly was involved. Two, SM2 gave both parties the chance to review the contract before having the same signed. Therefore, if the appellant was indeed coerced, he had time to seek some other remedies to resolve the issue without getting himself involved in the signing. Three, having observed the appellant’s defence, I found that he did not at any time deny being handed over the mentioned vehicle by the appellant. He only denied the same belonging to the respondent. Even in this appeal and at the 1st appellate court he challenged that the vehicle did not belong to the respondent. In the premises, I had to consider on whether there were doubts as to ownership and whether such doubts would affect the matter at hand. It appears plainly to me that the appellant was floating in his defence in search for loopholes in the contract. The contract clearly stipulates that the motor vehicle belonged to the respondent. Further, as explained by the respondent, the vehicle ownership documents remained in the car when the appellant borrowed the same. He even explained how he sought

for the documents so that he could have the vehicle registered. This statement connotes that the registration was yet to be effected. However, I am of the view that that does not mean that the car did not belong to the respondent and the extent of vitiating the contract entered by the parties. Page 13 of 16 Further, upon observing the evidence in whole, I am more convinced that the appellant was responsible for selling the vehicle. It is evident on record that there was an investigation on car theft and as testified by SU3 the case involved the parties. It was after several efforts to procure the car back; the respondent reported the same stolen. It was after his arrest and return to Moshi that he learnt the appellant had sold the vehicle. It appears that the police pushed to know whether the vehicle had really been sold and as admitted by the respondent, the appellant was held in police custody for some time. This makes it clear that the appellant was arrested for theft, a criminal offence and not a mere civil claim. Under different circumstances, I would have been convinced that the appellant was under duress when signing the contract. However, I am inclined to question why after the signing of the contract which would bind him, and his beneficiaries in case of death; he did not take any action to revoke the same for being procured under coercion. It was only after being sued

that he pleaded the contract was voidable and illegal. As the 1st appellate court, I also find that this assertion an afterthought. The appellant ought to have challenged the contract in a court with jurisdiction immediately after signing the same since he alleged, he was coerced. The standard of proof in civil cases is on balance of probabilities meaning that the court ought to pay regard to the evidence with more weight. This is well provided under paragraph 1 (2)(a) and 6 Page 14 of 16 of the Schedule to the Magistrates’ Courts (Rules of Evidence in Primary Court) Regulations GN. 22/1964, which state: “1.(2) Where a person makes a claim against another in a civil case, the claimant must prove all the facts necessary to establish the claim unless the other party (that is the defendant) admits the claim.” “6. In civil cases, the court is not required to be satisfied beyond reasonable doubt that a party is correct before it decides the case in its favour, but it shall be sufficient if the weight of the evidence of the one party is greater than the weight of the evidence of the other.” The cited provisions are pari materia to Section 111 and 112 of the Evidence Act. In Paulina Samson Ndawavya vs. Theresia Thomasi Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453 (11 December 2019) TANZLII, the Court of Appeal interpreting what balance of probabilities entails stated: “It is

trite law and indeed elementary that he who alleges has a burden of proof as per Section 110 of the Evidence Act, Cap. 6 [R.E 2002]. It is equally elementary that since the dispute was in civil case, the standard of proof was on a balance of probabilities which simply means that the Court will sustain such evidence which is more credible than the other on a particular fact to be proved.” See also; Hemedi Said vs. Mohamed Mbilu (supra); Maria Amandus Kavishe vs. Norah Waziri Mzeru & Another (Civil Appeal No. 365 of 2019) [2023] TZCA 31; Paulina Samson Ndawavya vs. Theresia Thomasi Madaha (Civil Appeal 45 of 2017) [2019] TZCA 453 and; Page 15 of 16 Agatha Mshote vs. Edson Emmanuel and Others (Civil Appeal No. 121 of 2019) [2021] TZCA 323 (all from TANZLII). Weighing the evidence on record for both sides, I find that the respondent’s evidence was more credible than that of the appellant. The respondent proved to have lent the vehicle to the appellant, something which he did not deny. He as well proved signing of the contract between them before SM2 as a lawyer and witness, something which the appellant never denied doing. On his part, the appellant endeavoured to vitiate the contract he entered with the respondent on ground of coercion. However, I find that he failed to prove his allegations. In that respect, I find the contract valid and the appellant bound by its terms. In the foregoing, I uphold the Judgement of the courts below. Evidently, the appeal is without merit and I hereby dismiss it, with costs. Dated and delivered at Moshi on this 24th day of September, 2024. X L. M. MONGELLA

JUDGE Signed by: L. M. MONGELLA Page 16 of 16