UTAMWA

JUDICIARY IN THE HIGH COURT OF TANZANIA (IRINGA SUB-REGISTRY) ATIRINGA PC CIVIL APPEAL NO. 06 OF 2023 IRINGA FARMERS COOPERATIVE UNION....................... APPELLANT VERSUS DR. ASHERY UTAMWA ................................................ RESPONDENT (Being an appeal from the Judgment and Decree of the District Court of Iringa) (Hon. E.A. Nsanqalufu (SRM)) Dated the 24th day of February 2022 in Civil Appeal Case No. 02 of 2021 JUDGMENT Date of last order: 22/08/2024 Date of Judgement: 20/09/2024 S.M. KALUNDE, J.: This is a second appeal. It emanates from the decision of the Iringa Urban Primary Court ("the trial court) in Civil Case No. 80 of 2020 wherein the respondent instituted a suit against the appellant claiming for TZS. 10,464,000/= as payment for legal fees. The respondent claimed that on the 10th day of August 2018, Lino Selunga, the appellant's Managing Director engaged the respondent to prepare 37 leasing agreements of the appellants located in Iringa Municipality for the year commencing from July 2018 to June 2019. The fees were also for signing attesting loan forms for the appellants' clients. The total value of all the said lease agreements was TZS. 104,640,000/=. It was agreed that the of the entire value of the work. The appellant alleged further that on the 14th day of August 2018 he handed the said agreements together with an invoice for the value of TZS. 10,464,000/=. However, despite several follow­ ups, the appellant failed to heed the call to pay the claimed amount. Thereafter, on 21st day of September 2020, the respondent issued a 14 days' Demand Notice to the appellant threatening to institute a suit if the said amount was paid within the prescribed period. Despite further follow-up the appellant refused and neglected to pay. Indicated amount. The respondent had no option than to file the suit at the trial court. The appellant denied the allegations. He contended that they did not engage the respondent because they already had an engagement with Mwamgiga Law Firm to execute their legal works. The appellant claimed that the respondents1 claims were unfounded and prayed that the same be dismissed. Upon completion of pleadings, the trial court framed two issues for determination. That is; one, whether the plaintiff (now respondent) worked for the defendants (now appellant); and two, whether the plaintiff has established that he is entitled to payment of TZS. 14,380,000/=. Thereafter, the matter proceeded to full trial. To establish his claims the appellant questioned three witnesses namely; Dr. Ashery Utamwa (SMI), Lusungu Ndawala (SM2) and Abasi Upete (SM2). In addition to witness 2 as follows: a list of contracts signed (Exhibit A), lease agreement between the appellant and Moto Moto Contractors (Exhibit B), invoice dated 14th day of August 2018 (Exhibit D), demand notice 21st day of September 2018 (Exhibit E), invoice dated 21st day of August 2018 (Exhibit F) and demand notice 23rd day of September 2018 (Exhibit G). The respondent, on the other hand, paraded two witnesses that is Adriano Lupola (Sill) and Felix Vitus Nyenza (SU2). They also tendered in evidence six exhibits as follows: Minutes of Iringa Farmers dated 18th day of April 2008 (Exhibit DI), Professional Partnership Agreement Between the appellant and Mwamgiga Samuel Creluy Njegere (Exhibit D2), Tenancy Agreement between the appellant and Centre for Research and Auction (Exhibit D3), Tenancy Agreement between the appellant and CATA Iringa Saccos (Exhibit D4), Tenancy Agreement between the appellant and Chai Bora (Exhibit D5), a letter dated 25th day of January 2019 from the appellant to the registrar of cooperative societies (Exhibit D6). In its decision, the trial court was satisfied, in accordance with regulation 6(1) of the Magistrates' Courts (Rules of Evidence in Primary Courts) Regulations, that the respondent was engaged with the appellant to draft and attest lease agreements and affidavits for Iringa Framers Cooperative Union. Regarding the second issue whether the respondent was entitled to payment of TZS. 14,380,000/=, the trial magistrate reasoned that the respondent was entitled to TZS. 10,464,000/= for preparation of 3 contracts and TZS. 1,300,000/= for attesting affidavits and loan forms. In total the trial court awarded the respondent TZS. 11,764,000/=. Additionally, the trial court awarded the respondent TZS. 2,000,000/= in general damages. In total the trial court awarded the respondent TZS. 13,764,000/=. The remainder of the respondent's complaints were dismissed. The appellant was aggrieved by the foregoing judgment and preferred the appeal to the District Court of Iringa ("the first appellate court"), through Civil Appeal Case No. 02 of 2021. The petition of appeal to the first appellate court contained four grounds of appeal which may be conveniently summarized into the following grounds of appeal: "1. teSThat, the trial magistrate had no jurisdiction to entertain the matter; 2. That, the judgment of the trial court was based on evidence not proved on the balance of probabilities and in disregard of the appellants' evidence; 3. That, the judgment of the trial court was defective for introducing matters which were not on record; and 4. That, the judgment of the trial court referred to a wrong party.” The first appellate court heard the parties and resolved that the appellant's appeal was devoid of merits. It sustained the decision of the trial court. Still aggrieved, the appellant preferred the present appeal. His petition of appeal lodged to this court 4 complaints: "1 . l&lThat, the first appellate court erred In holding that the trial magistrate had jurisdiction to entertain the matter; 2. That the first appellate court erred in upholding the judgment of the trial court which was based the case that was not proved on the balance of probabilities and in disregard of the appellants' evidence which proved his case on the balance of probabilities; 3. That the first appellate court erred in upholding the judgment of the trial court was defective for introducing matters which were not on record; and 4. That the first appellate court erred in failing to hold that the judgment of the trial court referred to a wrong party. " In light of the above grounds, the appellant prayed that the appeal be allowed by quashing and setting aside the decision of the trial court and the first appellate court. Parties consented that the appeal be argued in writing. To prepare and file his submissions, the appellant engaged the legal services of Mr. Jassey Samuel Mwamgiga, learned advocate. The Respondent, an advocate himself, prepared and lodged his submissions. I have considered submissions of both parties, however, for the reasons which shall be appellant hereunder I shall not reproduce the same in extenso, but I shall refer them as I resolve the appeal. 5 for the appellant questioned the jurisdiction of the trial court. Two arguments were fronted, one, that since there was a remuneration agreement between the appellant and respondent, the dispute between the two was solvable by the Taxing Master under the Advocates Remuneration Order, 2015, G.N. No. 263 of 2015. Two, that since there was a contract between the appellant and respondent, the dispute arising therefrom should have been tried by the District Court or the High Court Commercial Division. In response, Mr. Utamwa, cited order 5 and 8 G.N. No. 263, for an argument that G.N. No. 263 was applicable where there is a written remuneration agreement between the parties. In his view, G.N. No. 263 was not applicable in the present case because the relationship between the parties was for drafting contracts not representation in court. Additionally, the learned counsel argued that there was no commercial relationship between the parties that would give rise to the jurisdiction of the District Court or the High Court Commercial Division. He prayed that the ground be dismissed for being devoid of merits. It is trite that the question of jurisdiction for any court or tribunal is basic, it goes to the very root of the authority of the court or tribunal to adjudicate upon cases of different nature. It is also common knowledge that the question of jurisdiction is so fundamental that the courts or tribunals must, in practice, be certain and assured of their jurisdictional position at the trial's commencement. See Bahari Oilfield Services EPZ Ltd vs Peter 6 2021) TANZLII. I have carefully examined the pleadings and submissions of the parties. Having done so, I hasten to state that the appellants claims are unfounded. Having carefully read the Advocates Remuneration Order, 2015, G.N. No. 263 of 2015, I agree with Mr. Utamwa that, in terms of order 3 and 5, the basis of the application of G.N. No. 263 of 2015 is presence of a remuneration agreement between the advocate and his client. In the present case, the respondent did not plead or testify that there was a remuneration agreement between him and the appellant. Even if there was an agreement, the agreement was not necessarily an agreement between an advocate in terms of the Advocates Act [Cap. 341 R.E. 2019] for purposes of representation in court. More importantly is that, in terms of order 2, G.N. No. 263 of 2015 relates to remuneration of an advocate by a client in contentious and non-contentious matters, for taxation thereof and the taxation of costs between a party and another party in matters in the High Court and in courts subordinate to the High Court, arbitral tribunals and tribunals from which appeals lie to the Court of Appeal. It is also plain from the pleadings that the relationship between the appellant and respondent was not commercial in nature so much that it ought to be tried by the District Court or the High Court Commercial Division. The first ground of appeal is therefore without merits and the same is dismissed. In the third ground of appeal, the appellant alleges that the judgment of the trial court referred to a wrong party. He alleges 7 correct name is Iringa Farmers Co-operative Union (1993) Ltd not Iringa Farmers Cooperative Union referred to by the trial court. In reply, Mr. Utamwa argued that the respondent lodged the case in the correct name of I Iringa Farmers Co-operative Union (1993) Ltd and not Iringa Farmers Cooperative Union referred to by the trial court. The learned counsel added that it was the trial court which inadvertently referred to the appellant as Iringa Farmers Cooperative Union. He advised that the irregularity be cured by the slip of the pen rule. In resolving this complaint, I side with Dr. Utamwa that the irregularity in citing the wrong party was conducted by the trial court and not the respondent. The irregularity is therefore curable by the slip of the pen rule because a party cannot be punished by minor error occasioned by the court. The third ground of appeal is also without merits. The same is dismissed. Turning to the merits of the appeal. I have carefully considered the records in light of the grounds of appeal and submissions made by the parties. At the very outset, it is not disputed that the two lower courts made concurrent findings of fact that the respondent has established his case on the balance of probabilities. This is a second appeal, in line with decided cases the following governing principles shall guide the exercise of this court's powers. The first is that a second appellate court would rarely interfere with the concurrent findings of fact by the trial and first appellate courts unless there has been a misapprehension, misdirection or non-direction of the evidence occasioning a 8 procedure by the courts below. This view was narrated by the Court of Appeal in Julius Josephat vs Republic (Criminal Appeal No.03 of 2017) [2020] TZCA 1729; (18 August 2020) TANZLII, where the Court stated: "As may be recalled, it is the practice that in a second appeal, the Court should very sparingly depart from concurrent findings of fact by the trial court and the first appellate court. In exceptional circumstances, it may nevertheless 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. This has been expressed in several cases, including those of Pascal Christopher & 6 Others v. The DPP, Joseph Safari Massay v. Republic, Criminal Appeal No. 125 of 2012, and Felix s/o Kichele & Another v. Republic, Criminal Appeal No 159 of 2005 (all unreported). In the case of Felix s/o Kichele & Another v. Republic, the Court said: - "This Court may, however, interfere with such finding if it is evident that the two courts below misapprehended the evidence or omitted to consider available evidence or have drawn wrong conclusions from the facts, or if there have been misdirections or non- directions on the evidence." 9 and will not re-evaluate the evidence as the first appellate court is under duty to do, except where it is clearly necessary. The third is that where a case is one of fact, in the absence of any indication that the learned trial magistrate had failed to take some material point or circumstance into account, it would be impossible and improper for an appellate court to say that he had come to an erroneous conclusion. In expressing this view, in Peters v. Sunday Post Limited (1958) EA 424 at page 429 -. Sir Kenneth O'Connor, P. of the defunct Court of Appeal for Eastern Africa said: "It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution: it is not enough that the appellate court might itself have come to a different conclusion." (see also: Watt or Thomas v. Thomas (1947 AC 484)" In the present case, the two courts below made concurrent findings of facts that the respondent carried out the assignments alleged, and he is entitled to payments of TZS. 13,764,000/=. As pointed out earlier, it is trite law that, unless there has been a misdirection or non-direction of the evidence occasioning an io to interfere with such findings. In the circumstances, I shall, for the purpose of determining the present appeal, examine whether the courts below rightly concurred in their findings. This is the subject of the appellants' complaint in the second and third grounds of appeal. In ascertaining how the trial court and first appellate court assessed and appraised the evidence before o shall be mindful that in terms of section 110 of the Evidence Act [Cap. 6 R.E. 2022] he who alleges has the evidential burden of proving his allegation; and that the standard of proof in civil cases is on the balance of probabilities. The appellant alleges that the respondent failed to establish whether there was a contractual relationship with the appellant. He contends that, while the appellant tendered a valid Professional Partnership Agreement between the appellant and Mwamgiga Samuel Creluy Njegere (Exh. D2), the respondent failed to provide any evidence of a relationship that led to the assignment alleged to have been executed by the respondent. In reply the respondent argued that he had an oral agreement with the appellants' General Manager, one Lino Selunga, who was legally authorized to enter into contracts on behalf of the appellant. He also alleged that the respondent had failed to bring the said Lino Selunga to refute the allegations. Turning to considering what transpired at the trial court proceedings, it is evident that it was the respondent who instituted the case at the trial court. It goes without saying that it was the ii duty of the respondent to prove, on the balance of probabilities, that he had an arrangement with the appellant for carrying out of the assignment alleged and that the appellant owed him some money. In his testimony the respondent (SMI) alleged that on 10th day of August 2018, the appellants General Manager engaged him to prepare 37 lease agreements for their tenants in consideration of payment of 10% of the value of all executed contracts. The lease agreements related to the year 2018 - 2019. To support this, he tendered a list of contracts signed (Exh. A) and a lease agreement between the appellant and Moto Moto Contractors (Exh. B). SMI contended that the drafted agreements were presented to the appellants on 14th day of August 2018. On the same date, he issued an invoice (Exh. D) for payment of TZS. 10,464,000/=. The respondent argued further that on the 21st day of August 2018, the general manager gave him another assignment to attest loan forms. The assignment was valued at TZS. l,500,000/0n the same day, he also issued an invoice dated 21st of August 2018 (Exhibit F) for payment of TZS. 1,500,000/=. However, out of the stated amount he was only paid TZS.200,000/= and the appellant remained in arrears of 1,300,000/=. These amounts were reflected on the demand notices dated 21st day of September 2018 and 23rd day of September 2018 (Exhibits E and G). In response to the first issue, whether the respondent established he worked for the appellant the trial court was satisfied that the evidence tendered by the respondent met the requirement of regulation 6(1) the Magistrates' Courts (Rules of Evidence in 12 the trial court concluded that the respondent and his witnesses established that he worked for the appellants. The relevant part of the decision of the trial court reads: "Mahakama ilichambua ushahidi wa pande zote mbili (2) na kuona kuwa mdai ametoa ushahidi wenye nguvu zaidi kama fungu la 6 (1) la kanuni za Ushahidi kwa Mahakama za Mwanzo linavyofafanua. Hivyo Mahakama hii imeona kuwa mdai alifanya kazi za kuandaa mikataba ya upangaji na kushuhudia viapo vya wanachama wa Iringa Farmer's Cooperative Union (IFCU) kama alivyoeleza mdai na kama mashahidi wake walivyoshuhudia." It is the above decision which was confirmed and upheld by the first appellate court. In its decision, the first appellate court made the following observation. "As the second ground of appeal concerning proof of case to balance of probability. This court has well scrutinised the trial court proceeding and observed that the trial court Magistrate decision was based by evidence adduced by three witnesses and ruled in favour of the respondent, while disregarding the defence so raised. Much as this court passed through the trial court records, when the respondent was adducing his testimony, no cross examination was done concerning payment of Tshs 200,000/= that the respondent claimed to have been paid by the appellant. In so doing, then this court ask itself as to why was the respondent paid such amount if there was no contract? in addition to that I also join hands with the respondent counsel in 13 who testified were not the eligible ones as Lino Salunga who was the then manager of the corporation was to be called to prove that there was none of the said oral contract that the appellant entered with the respondent. Failure to call him makes an adverse inference to be draw. See Abel's Case and Mujuni's Case (Supra)." From the above passages it is plain that the trial court did not rigorously evaluate the evidence on record. It is also not disputed that the first appellate court did not carry out its duty to reevaluate the evidence tendered before the trial court. The first appellate court had a duty to conduct a sort of re-hearing of the case by review and re-evaluation of the evidence and come to its own conclusion. The position in circumstances like this is that where the first appellate court has abdicated its responsibility of analyzing and re-evaluating the evidence on record and reaching at its own reasoned conclusions, this court, as a second appellate court, has the power and duty to review the evidence before the Primary Court and reach its own conclusions. A similar approach was adopted by the Court of Appeal in the case of Shabani Amiri vs. The Republic, Criminal Appeal No. 18 of 2007, where the Court (Rutakangwa, J.A) sitting at Arusha observed thus: "This appeal presents us with one of those very rare cases in which this Court, on a second appeal, has to step into the shoes of the High Court and make a proper evaluation of the entire evidence in order to satisfy itself on whether or not the conviction of the appellant was justified or right. That this is permissible was clearly spelt out in the case of D. R. PANDYA v. R [1957] E.A. 336 (Court of 14 the evidence must be treated as a whole to a fresh and exhaustive scrutiny, (which was not done here) and that failure to do that is an error of law, which can be remedied on a second appeal. That has been the stance of the law since then." Guided by the above authority, I will proceed to consider the grounds of appeal and the written arguments by the parties, and make my own conclusions, based on the evidence before the primary Court. Upon a careful perusal of the records and I have noted several evidential matters which were not properly evaluated by the trial court. Firstly, I stated earlier that the respondent had the duty to prove that on 14th day of August 2018 and 21st day of August 2018, he was engaged by Lino Selunga, the appellant's Managing Director, to draft lease agreements and attest affidavits. His evidence was allegedly supported by SM2 and SM3. However, in his testimony the respondent did not state whether the agreement reached by the said Lino Selunga was oral or written. It was also unfortunate that he did not tender any written professional agreement between him and the said Lino Selunga. Forgetting that it was his duty to prove his case, the respondents’ submissions before the first appellate court and this court was that the appellants failed to call Lino Selunga. Unfortunately, the first appellate court fell into the same trap in blaming the appellant for failure to call Lino Selunga. The failure to bring cogent evidence, including the testimony of Lino Selunga meant his case was not proved. On the other hand, blaming the appellant for failing to 15 summon Lino Selunga was an attempt to shift the burden of proof to the appellant, which could not be entertained. Secondly, in his submissions the respondent alleged that there was an oral agreement between him and Lino Selunga. However, in his plaint before the trial court, the appellant did not plead existence of an oral agreement with the appellant. It is also evident from the records that the respondent did not establish, in evidence, the existence of an oral agreement before the trial court. It is trite that parties are bound by their own pleadings. The court itself is as much bound by the pleadings of the parties as they are themselves. I find support in this view from the decision of the Court of Appeal in the case of Registered Trustees of Islamic Propagation Center (IPC) vs The Registered Islamic Center (TIC) of Thaaqib Trustees (Civil Appeal 2 of 2020) [2021] TZCA 342 (27 July 2021) TANZLII, where the Court (Ndika, J.A) held that: "At this point, we are constrained to recall the time- honoured principle of law that parties are bound by their own pleadings and that any evidence produced by any of the parties which does not support the pleaded facts or is at variance with the pleaded facts must be ignored - see James Funke Ngwagilo v. Attorney General [2004] TLR 161. See also Lawrence Surumbu Tara v. The Hon. Attorney General and 2 Others, Civil Appeal No. 56 of 2012; and Charles Richard Kombe t/a Building v. Eva rani Mtungi and 3 Others, Civil Appeal No. 38 of 2012 (both unreported)." 16 Now that the respondent did not plead, or establish in evidence, that his claim was based on an oral contract, he cannot be heard bring up that claim on an appeal as he is bound by what he pleaded at the trial court and so is the court. Thirdly, it is also astonishing that an advocate would prepare 37 lease agreements worth TZS. 250,000 each but failed to execute a contract worth 10,464,000/= between himself and with appellant to protect his interests. If really there was an agreement with the said Lino Selunga, it was the appellant's duty to prove the existence of such an agreement be it oral or written. Failure to do so leaves his claims hanging. Fourthly, without proof of an agreement, oral or written, between the respondent and appellant, it is difficult to gauge the exact consideration which was supposed to pass from the appellant to the respondent. Fifthly, even assuming without deciding that there was an agreement, oral or written, between the appellant and respondent there was no proof that the respondent carried out the assignment. In his evidence, the respondent claimed to have prepared 37 lease agreements between the appellant and his tenants in consideration for payment of 10% of the total value of all executed contracts. To support this, he tendered a list of the names of the 37 contracts signed (Exh. A). However, beside the list of the signed contracts there was no any other evidence to prove that; the list was genuine and that it was what was agreed by the appellant or that those in the list were indeed tenants of the appellant. In addition to that, the said list was not backed up by any proof that the respondent 17 that the respondent did not maintain or retain a copy of the said agreements as evidence of the transaction. In addition to that, the respondent tendered a lease agreement between the appellant and Moto Moto Contractors (Exh. B). Surprisingly, the said lease agreement was not even signed by either the landlord or tenant. From the face of it, the said agreement has no evidential value. It is also worth noting further that the respondent did not present, as evidence, the loan forms allegedly attested by him for the appellant. In absence of copies of the said agreement Sixthly, the respondent maintained that upon execution of the stated assignment he raised invoices with the appellant. The first invoice was raised on 14th day of August 2018, for payment of TZS. 10,464,000/= (Exh. D). The second was issued on 21st day of August 2018, for payment of TZS. 1,500,000/= (Exh. F). A closer examination of exhibits D and F reveals that the said invoices do not indicate that they were, in fact, served or delivered to the appellant. I say so because the said stamps do not have any stamp or any form of acknowledgement of service from the appellant. Service and acknowledgement of service of these invoices was essential to establish and validate the respondents claim against the appellant. Thus, in absence of proof that they were served and acknowledged by the respondent it remains a misery whether there was indeed a relationship between the two parties. 18 attesting loan forms, out of the TZS. 1,500,000/=, he was paid TZS. 200,000/=. This version was also supported by SM2. However, besides the mere words of SMI and SM2, the allegation was not backed up with any evidence of the payments. Since the respondent alleged that the payment of TZS. 200,000/= was part payment of the TZS. 1,500,000/=, evidence of payment of the said amount in the form of a receipt or cheque, issued to or by the respondent, would have confirmed the existence of an agreement between the two parties. Thus, the absence of evidence of payment left the respondent claims to mere unsubstantiated allegations. It is trite that the burden of proof never shifts to the adverse party until the party on whom onus lies discharges his burden and that the burden of proof is not diluted on account of the weakness of the opposite party's case. This is what was stated in Jasson Samson Rweikiza vs Novatus Rwechungura Nkwama (Civil Appeal 305 of 2020) [2021] TZCA 699 (29 November 2021) TANZLII, where the Court (Kihwelo, J.A.) quoted with approval Sarkar's Laws of Evidence, 18th Edition M.C. Sarkar, S.C. Sarkar and P C. Sarkar and cited in Paulina Samson Ndawavya v. Theresia Thomasi Madaha, Civil Appeal No. 45 of 2017 (unreported) where it was stated: "...the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for negative is usually incapable of proof. It is ancient rule founded on consideration of good sense and should not be departed from without strong reason...Until such 19 to be called upon to prove his case. The Court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such a conclusion, he cannot proceed on the basis of weakness of the other party..." [Emphasis added] In the case under consideration, the respondent had a duty to prove his claims. However, he did not discharge his obligation, so it did not even shift to the appellant. It was therefore wrong for the first appellate court to require the appellant to prove that he did not enter into an agreement with the respondent. The truth of the matter is that the respondent failed to substantiate his case. That said, I am satisfied that there was some serious misapprehension, misdirection or non-direction of the evidence occasioning a miscarriage of justice by the trial court and first appellate court. In light of the circumstances highlighted above, I am confident that if the two lower courts had properly evaluated the evidence on record they would have found, as I have, that the respondent failed to prove his claims on the balance of probabilities. The second ground of appeal is therefore merited For the foregoing reasons, I find merit in the appeal. I will therefore allow the same with costs. Accordingly, I quash and set aside the judgment and decree of the Iringa Urban Primary Court in Civil Case No. 80 of 2020. In a similar vein, the judgment and 20 2021, are also not spared. The same are quashed and set aside. The appeal is so determined. DATED at IRINGA this 20th day of SEPTEMBER, 2024. 21