BETNESS TIBAIJUKA

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA PC. CIVIL APPEAL NO. 8235 OF 2024 (Arising from Civil Case No. 66 of2023 in the District Court of Dodoma; Originating from Civil Case No. 181 of2023 in Dodoma Urban Primary Court) BETNESS TIBAIJUKA...................................................................... APPELLANT VERSUS MOHAMED KAMAL RESPONDENT JUDGMENT Jd September & 3Cfh October, 2024 MUSOKWA, J. In a suit that was instituted before Dodoma Urban Primary Court (trial court), within the region of Dodoma, the respondent herein claimed the sum of TZS 1,400,000/- against the appellant. The dispute between the parties is premised on breach of the terms of a business transaction. Notably, there was no written agreement between the parties thereto. The facts provide that the appellant herein purchased household items from the respondent under the arrangement that payment thereof to be effected in installments. Allegedly, the appellant defaulted in the repayment plan and as a result, the respondent herein instituted and successfully prosecuted the matter before the trial court. Ultimately, the trial court ordered the appellant to i pay the outstanding amount of TZS 1,400,000/“ being the principal sum as well as damages amounting to TZS 600,000/-; failure of which the property of the appellant would be attached and sold to settle the outstanding debt. Aggrieved by the decision of the trial court, the appellant lodged Civil Case No. 66 of 2023, before the District Court of Dodoma (District Court). The appeal was partly allowed; whereby the District Court upheld the order of the trial court on payment of the principal sum of TZS 1,400,000/-. However, the orders as to the payment of damages amounting to TZS 600,000/-; including attachment and sale of the appellant's property in the case of default thereto, were quashed and set aside. The appellant, determined to pursue her rights even further, has preferred the present appeal which is based on four (4) grounds of appeal reproduced hereinafter verbatim: - 1. That the honourable District Court Magistrate erred in law and in fact for deciding the case that the issue of respondent to be foreigner was raised in appeal while was subject to cross- examination in trial court and the respondent did not prove his legal capacity to conduct business in Tanzania. 2. That the honourable District Court Magistrate erred in law and in fact for deciding the case and order the appellant to pay TZS 1,400,000/- without considering that no proof of contractual 2 agreement between parties and no business transaction between parties was proved from the respondent side. 3. That the honourable District Court Magistrate erred in law and in fact for deciding in favour of the respondent without considering that the case was not proved on balance of probabilities as the respondent has weak, wrong and contradictory evidence. 4. That the honourable District Court Magistrate erred in law and in fact for deciding in favour of the respondent without proper evaluation of evidence and without considering strong evidence adduced by the appellant side. In the hearing of this appeal, the appellant was represented by Ms. Isabella Mwalulefu, learned advocate, whereas the respondent was unrepresented and fended for himself. Addressing the 1st ground of appeal, Ms. Mwalulefu submitted that the issue on the nationality of the respondent was raised at the trial court, contrary to the observation of the District Court that it was raised on appeal. Explaining further, the appellant's counsel asserted that in response to the questions posed by the appellant's counsel during cross-examination at the trial; the respondent replied that he was from Egypt and that he is an Egyptian. Further that, he is in compliance with all the prevailing laws governing the residency and required permits for a foreigner to conduct business in Tanzania. 3 Ms. Mwalulefu argued that despite his assertions, the respondent failed to produce evidence thereto. The appellant referred to section 30 (2) of the Immigration Act, Cap. 52, R.E. 2016. The said section provides that no person shall engage in any business in Tanzania, except in accordance with the terms of an appropriate permit issued in accordance with the Non- Citizens (Employment Regulation) Act, No. 1 of 2015. The 2nd, 3rd and 4th grounds of appeal were argued jointly by permission of this court. The appellant's counsel averred that the evidence adduced by the respondent herein, the complainant at the trial court, fell short of the required legal standard in a civil suit. Ms. Mwalulefu challenged the conduct of the proceedings in the trial court for reason that, secondary evidence was admitted, instead of primary evidence, as per the requirements of the law. In emphasis, the appellant referred to Regulation 11 of the Magistrates Courts (Rules of Evidence in Primary Courts) Regulations of 1964, G.N. No. 22 of 1964, (Evidence in Primary Courts, G.N. No. 22 of 1964). The appellant specifically challenged the admission of Exhibit Pl by the trial court, allegedly a copy of a receipt. The appellant, further submitted that the respondent failed to prove the existence of a contractual relationship between the parties. This was due to the fact that, at the trial, the appellant admitted to have been engaged 4 in a business transaction with one Mohamed Abdallatiff; but vehemently denied conducting business with a person by the name of Mohamed Kamal. Ms. Mwalulefu averred that the standard of proof in a civil matter is on the preponderance of probabilities; whereby the respondent grossly failed to meet the legal threshold. The appellant prayed that this court should allow the appeal with costs. The respondent was fairly brief in his submissions in reply. He firmly contended the assertions by the appellant, that he failed to submit proof that his business dealings were in compliance with the law. The respondent further stated that he submitted the documents before the trial court for verification purposes, including the residence permit and the business licence. In addressing the variation in the names appearing on the records before the trial court; the respondent submitted that he uses the names of Mohamed Kamal; and Mohamed Kamal Abdallatif interchangeably. Therefore, both names refer to one and the same person and therefore, the appellant's submissions as to this fact are baseless and should be dismissed. Accordingly, the respondent prayed that this appeal be dismissed in its entirety with costs for want of merit. The appellant had nothing to rejoin. 5 The pertinent issue for determination before this court, is the merits or otherwise of the instant appeal. As regards to the 1st ground of appeal, the appellant challenges the legal capacity of the respondent who is a foreigner, to conduct business in Tanzania. The appellant further alleges that this issue was raised in the trial court and did not emerge for the first time in the District Court. Notably, the issues for determination before the trial court were centered on whether or not there existed a valid sale agreement between the parties; and whether there was breach thereto. With all due respect to the learned counsel for the appellant, I am of the view that allegations seeking to challenge the legal capacity of the respondent as a foreigner to conduct in business in Tanzania, which were raised during the cross examination at the trial; were out of the scope of the issues framed for determination by the trial court. On similar reason, the District Court, found this ground of appeal to be baseless and the same was dismissed for want of merit. Accordingly, the appellant has failed to persuade this court to depart from the holding of the trial court and District Court in this regard. Notwithstanding the aforementioned, it is pertinent for foreigners residing in the country to ensure compliance with the prevailing laws governing business activities in Tanzania. That said, this ground of appeal is dismissed for want of merit. 6 In the 2nd, 3rd and 4th grounds of appeal, the appellant contends that the respondent failed to prove the existence of a contractual agreement between the parties. Further, that the appellant failed to prove his case before the trial court on the balance of probabilities, which is the required legal standard in a civil matter. It is trite law that in a second appeal such as the present one, the court will only interfere with the findings of the courts below in exceptional circumstances. In the case of Director of Public Prosecutions vs Jackson Sifael Mtares and Three Others, Criminal Appeal No. 2 of 2018, (unreported) the Court of Appeal of Tanzania (CAT) held that: - "As often restated, the practice is that in a second appeal, the court rarely interferes with the concurrent findings of facts by the two courts below. As a wise rule of practice, the court may interfere as such only when it is clearly shown that there has been a misapprehension of the evidence, a miscarriage of justice or violation of some principles of law or procedure by the courts below", [emphasis added] Being guided by the above cited authority, this court will only interfere with the findings of the courts below should there be sufficient cause to do so. Looking at the records, the appellant, at the trial, denied the claims by the respondent that she owed him an amount of TZS 1,400,000/-. Notably, the 7 appellant did not deny that she had entered into some business dealings with one Mohamed Abdallatif; and not Mohammad Kamal whose names appeared in the pleadings. Thus, the burden of proof was borne by the respondent to prove his claims. The holding in the CAT case of Paulina Samson Ndawavya vs Theresia Thomasi Madaha, Civil Appeal No. 45 of 2017, (unreported) is relevant to the principles of standard of proof and burden of proof, whereby it was held that: - "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. 2022]. 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, [emphasis added] In determining whether or not the respondent, at the trial court, discharged his duty to the required legal standard, the evidence adduced by the respondent herein who was the complainant at the trial court; will thoroughly be examined. According to the records, the respondent testified in support of his claims as SMI; and further paraded two other witnesses. The testimony of SMI, is recorded as follows: - Mdaiwa amen/pa TZS 700,000/- za bidhaa nUizompa hivyo nitahitaji aeleze alinipaje pesa hizo kwasababu pesa ninayomdai kutokana 8 na biashara yetu ni TZS 1,400,000/-; kama amelipa aonyeshe ushahidi mahakamani hapa. Katika nyaraka hizi ninazozileta mahakamani hapa yeye mwenyewe mdaiwa aHsaini kuwa anadaiwa TZS 1,400,000/-. Nahitaji kuzitumia katika kesi yangu nyaraka hizi. [emphasis added] The prayer of SMI to tender the said documents was contested by the appellant who asserted that the documents were not the original documents but copies thereof. Thus, could not be tendered as evidence. Further, the documents did not contain the names of the respondent. In response thereto, SMI submitted as follows: - "Nyaraka haiisi zipo iakini sina kwa sasa iakini nitaziieta mahakamani hapa. Hazionyeshi jina kwasababu jina iipo kwenye risiti na sio vinginevyo." [emphasis added] Thereafter the records provide as follows: - Mahakama: Nazipokea nyaraka hizi kama utambuzi zaidi hadi pale nyaraka haiisi zitakapoietwa. [emphasis added] The said documents, which have no title, were collectively admitted as Exhibit Pl. However, the records are silent on whether or not the original documents were later submitted in court, and if the appellant was given an opportunity to comment. As correctly observed by the appellant, Regulation 11 of the Evidence in Primary Courts, G.N. No. 22 of 1964 provide a general rule that an original document must always be produced. 9 Therefore, in the absence of the original document, and in the absence of justification for submission of a secondary evidence, it makes the Exhibit Pl to be improperly admitted. Additionally, the records indicate that the documents were received or admitted as identification "utambuzT as opposed to Exhibit. Consequently, the purported Exhibit Pl is hereby expunged from records for reasons indicated herein. The proceedings of the trial court during cross-examination of the respondent are recorded as follows: - SMI: Nadai TZS 1,400,000/-, namdai mdaiwa. Hapana sina mkataba lakini nina hati ya kupe/ekea mzigo (delivery note). Sijae/eza muda niHpompatia bidhaa mdaiwa huyu, lakini pia nimetaja idadi ya bidhaa ni/izompa mdaiwa. ..ndio jina iangu iipo katika nyaraka hizi ambazo sio nyaraka haiisi. hakuna jina katika nyaraka hizo nilizozileta mahakamani hapa. Nadai TZS 1,400,000/- na hizi ndizo nyaraka kuhusu deni hiio. Katika nyaraka hizi, jumia kuu ya deni ni TZS 1,850,000/-. Hizi ni risiti zote kuonyesha kuwa deni iote Hiikuwa TZS 1,850,000/- na baa da ya kuiipa baadhi ndio Hkabakia TZ. 1,400,000/- [emphasis added] During further cross-examination, the respondent stated as follows: - "Hakuna jina ia kampuni kuna jina iangu tu. Jina halipo pia katika nyaraka hii. Taarifa za anuani pia hazipo kwenye nyaraka hii. Nina TIN namba na duka. Ndio ninavyo na sijaleta mahakamani hapa kama ushahidi". [emphasis added] 10 On his part, SM2 testified as follows: - Tu/imkopesha mdaiwa...alilipa pesa ya kapeti tu na bidhaa zingine hakulipa hadi ieo...hivyo hadi sasa tunamdai mdaiwa TZS 1,400,000/- ni hayo tu. [emphasis added] The following is recorded during the cross-examination of SM2; "Ndio deni ia kapeti mdaiwa alilipa. Tu/imkopesha kwa kutumia jina /a mdaL.sijae/eza majina ya mdai mahakamani...namba Hiyotumika kupokea ma/ipo ya kapeti ni namba ya mdai...sikuwasHisha nyaraka zozote katika ushahidi wangu. "[emphasis added] However, during re-examination SM2 states that "Mdaiwa hakulipa pesa yoyote katika deni hili'. Additionally, the testimony of SM3 is as follows: - "TuHpoenda kupe/eka bidhaa kwa mdaiwa tu/itoa bidhaa nne na baada ya hapo kulikuwa na ma/ipo .Jakini hakufanya ma/ipo kamiii ya bidhaa hizo tu/izompe/ekea. Ni hayo tu." [emphasis added] In cross-examination of SM3 the records provide as follows: - "Bidhaa nne ndizo zinazodaiwa. Sijae/eza pia bidhaa hizo nne ni zipL.kiasi ambacho hakijaiipwa sikifahamu. Risiti za kielelezo Pl ndio hizi na katika risiti hizi hakuna jina ia mdai... mimi mteja akifanya ma/ipo yoyote huwa sipewi taarifa" [emphasis added] 11 Further, in responding to the questions addressed to him by the court, this witness further stated that "deni haHfanani na pesa zi/izo kwenye risiti kwasababu aHfanya ma/ipo ya kupunguza pesa." On her part, the appellant who testified as SUI vehemently contended the allegations of the respondent. The appellant asserted that she entered into a business transaction with a person by the name of Mohamed Abdallahtif and that the person who was before the court, namely Mohammed Kamal was unknown to her. The appellant further alleged that she fully paid the outstanding debt which was TZS 700,000/- only. In her testimony, SUI further stated that no receipt was issued by the said Mohammed Abdallahtif to acknowledge payment thereof. However, she prayed to tender a copy of a document entitled 'delivery note'. Following no objection from the respondent, the said document was admitted by the trial court and marked as Exhibit DI. The trial court, in determining whether or not the respondent proved his claims on the balance of probabilities, partly held in its judgment as follows: "Kutokana na ushahidi wa mdai anaeleza kuwa alimuuzia mdaiwa bidhaa ambazo ni dinner set, oven, carpet, na sabufa yenye thamani ya shi/ing milioni moja na iaki nne (TZS 1,400,000/-) na mdaiwa haja/ipa kiasi anachodaiwa na mdai ameweza kutoa ushahidi wa maandishi (risiti za mauzo kati yake na mdaiwa) kuthibitisha mauzo ya/iyofanyika katika samani hizo za nyumbani 12 ambazo ni ushahidi uiiopokeiewa na kupewa a/ama Pl na mdaiwa anathibitisha kuwa mauziano yalikuwepo kati ya mdai na mdaiwa. ..iakini mdaiwa aiishindwa kuwasiiisha mahakamani ushahidi wa muama/a huo aiioutumia kupitia namba yake ya simu hivyo kuifanya mahakama kushindwa kuamini ushahidi wake..." As indicated earlier, the purported Exhibit Pl has been expunged from court records. Similarly, it is clear that the evidence adduced by the respondent at the trial court is tainted with irregularities and inconsistencies. Ironically, and contrary to the law, the respondent attempts to shift the burden of proof to the appellant. Further, according to the records, SMI and SM3 acknowledge that the appellant made part payment of the total cost of the purchased goods. However, none of the respondent's witnesses were able to establish the existence of the alleged outstanding amount of TZS 1,400,000/- against the appellant. Upon careful perusal of the court records; this court is enjoined to depart from the findings of the courts below regarding proof of the respondent's claims. Accordingly, I am of the view that there was misapprehension of the evidence adduced at the trial court. In the circumstances, this court finds that the respondent failed to prove his claims to the required legal standard. 13 Consequently, this appeal is allowed. I hereby quash and set aside the proceedings, orders, judgements and decrees of the trial court and the District Court. No order as to costs because the dispute amount is negligible. Order accordingly. Right of appeal fully explained. Judgment delivered in the presence of Ms. Isabella Mwalulefu, counsel for the appellant; and in the presence of the respondent. I.D. MUSOKWA JUDGE 14