SENKORO JUDGMENT edited

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM CIVIL APPEAL NO 2033 OF 2024 (Arising from the decision in Civil Appeal No.49 of 2022 at Kinondoni District Court dated 17/10/2023 before Hon. J.J.Rugemalila –PRM, Arising from Civil Cause No.153 of 2022 from Kimara Primary Court delivered on 10/06/2022.) GERALD SENKORO MBWAMBO………………………………………….....APPELLANT VERSUS HALFAN RAMADHANI ALLY…………………………………………….…RESPONDENT JUDGMENT 17th October& 19th November 2024 MWANGA, J. Appellant and Respondent entered into a sale agreement for 400 sqm of land at a consideration price of Tshs.5,500,000. Unfortunately, the agreement could not be implemented due to the occurrence of Matrimonial Civil Cause No. 80 of 2016 between the appellant and his wife. Thus, the appellant agreed to refund/ return the respondent's money. The appellant managed to pay the respondent Tshs.2,750,000 only. In a quest to pursue his rights, the respondent filed Civil Case No. 153 of 2022, claiming his money in which the Primary Court entered Judgment in his favor. 1 Displeased, the appellant filed Civil Appeal No. 49 of 2022 before Kinondoni District Court, in which the District Court Magistrate dismissed the appeal with cost. The decision in the 1 st Appeal irked the appellant, hence his decision to take a ladder up to this court challenging the judgment of the district court on the following grounds; (i) The learned trial magistrate erred in law and facts by totally ignoring to accept the evidence produced by the Appellant during the trial. (ii) The learned trial magistrate erred in law and facts by purporting that the appellant breached the sale agreement notarized illegally by the Mavurunza Local Government Authority Executive Officer. (iii) The learned trial magistrate erred in law and, in fact, by accepting the fraudulent and ambiguous sale agreement mischievously crafted by the very same incompetent parties, the Executive Officer of the Mavurunza Local Government Authority, in collaboration with the respondent to enforce malicious compensation. (iv) The learned trial magistrate erred in law and fact by failing to reckon that the appellant and respondent entered into an agreement that both parties were under a mistake. Hence, the preliminary agreement and subsequent ones became voidable, 2 pursuant to section 20(l) of the law of contract Act Cap. 345 R.E 2019. (v) The trial magistrate erred in law and, in fact, by taking for granted the sale agreement for a 400 sqm piece of land out of a surveyed plot No. 116 Block 6, area sqm. 1245 with Registration Plan NO. 98101, Title No. DSMT1004356 failed due to Matrimonial Civil Cause No. 80/2016. (vi) The trial magistrate erred in law and fact by holding that the respondent and Local Government Authority were not aware of facts about the status quo with regard to the purchased price of land. In contrast, it’s a matter of principle that the Local Government Authority is equipped with reliable information and, in their capacity, capable of being notified of all events, including disputes within their administration boundaries. (vii) The trial magistrate erred in law and, in fact, by purporting that the Appellant had breached the Agreement and hence awarded costs in favor of the respondent. (viii) The trial magistrate erred in law and, in fact, by accepting misrepresented reported cases not relevant to the case at hand, she misdirected herself to the principle of promissory estoppel and an ambiguous agreement. (ix) The learned trial magistrate erred in law and facts by ruling that 3 an extra amount of Tzs 2,000,000/= (Two million only| to be paid to the respondent for unjustifiable reasons. Based on the above grounds of appeal, the appellant implores the court to allow the appeal, set aside the judgment of the trial court, cost of the appeal, and the courts below be awarded to the appellant, and any other relief this honorable court deems and fit to grant. Both parties appeared unrepresented when the appeal was called for hearing; thus, the appeal was heard viva voce. In support of the first ground of appeal, the appellant submitted that the trial court ignored the appellant's evidence during the trial. He said he produced evidence and circumstances of the case and that the local government authority knew the whole saga. He submitted that he tendered the evidence of communication between him and the local government, stating that they have all the information regarding the plot. Still, that evidence was not considered in the judgment. He insisted that he did not breach the contract as they sold 400 sqm to the respondent with a view that division would be made. The respondent gave him 5,500,000/- as purchase price. But the division failed; hence, he returned 2,750,000/= before the local government authorities, where he had to pay the remaining balance within two weeks. Afterward, 4 the respondent claimed 2 million extra, which he paid the court broker and local government official. He said he was not supposed to pay the extra two million, which had no justification, and he was forced to pay the additional amount unjustifiably. On the second ground, he submitted that the first appellate court erred by stating that the appellant breached the sale agreement notarized illegally by the local government executive officer as the same was said to be void abnitio. He believed he did not breach the agreement as there was a mistake of fact. On the third ground, the appellant contends that the first court erred, in fact, by accepting a fraudulent and ambiguous agreement mischievously crafted by the incompetent parties to enforce malicious compensation. According to him, the other side's agreement was procured fraudulently by forcing him to pay an extra two million shillings. On the fourth ground, the appellant contends that the first appellate court erred in law and fact by failing to recall that the appellant and respondents entered into an agreement when both parties made a mistake of facts. Hence, the preliminary agreement and subsequent agreement are voidable. 5 On the fifth ground, the appellant contends that the appellate court erred in law and fact by failing to consider that the 400 sqm of the surveyed land failed because of matrimonial cause. The plot was not in the attachment as sought. Regarding the sixth ground, the appellant submitted that the first appellate court erred in law and fact to hold that the local government authority had no information about the said plot. On the seventh ground, the appellant submitted that the trial court had no need to grant costs on his part as it was the respondent who refused to receive the money. Submitting in the eighth ground, the first appellate court erred in applying the principle of promissory estoppel on the contract, which was ambiguous. Submitting in the last ground, the appellant contended that the trial court erred in ordering an extra 2 million for unjustifiable reasons. He, therefore, Prayed to the court to allow the appeal and judgment of the trial court to be set aside and the cost of the appeal to be awarded. In response, the respondent argued that the first appellate court considered the appellant's evidence. He relied on the case of Khalfan Sudi vs Abieza Chichili, 1988TLR 527, which held that whatever is in the court 6 proceedings is what was discussed. All court proceedings show that his evidence was considered. On the second ground, the respondent submitted that Section 10 of the law of contract shows the ingredients of the contract. In his view, all elements of the contract were met, whether witnessed by the local government officials or not. He placed reliance on the case of Rutoyo Richard VS R, Criminal Appeal No. 114 of 2012 CAT- and Petro Deo Vs R, Criminal Appeal No. 282 of 2021. Respondent said that the third ground was not raised in the first appellate court, and since it is not a question of law, the court cannot entertain grounds of appeal not dealt with by the trial court or first appellate court. His submission on this ground also applied to the fifth and sixth grounds of appeal. On the fourth ground of appeal, the respondent submitted that there were no mistakes of fact as the appellant owned land, and he knows all facts relating to the title; he had a duty to give information details of the land. He relied on Section 20(1) of the Law of Contract Act. He said the respondent was unaware of the matrimonial dispute with the appellant. 7 On the seventh ground, the respondent submitted that the appellant breached the contract as he promised to refund the purchase price to the respondent. He contended that there was proof of the costs for brokers who obtained information on the plot from the appellant. He believed that awarding the costs was within the court's discretion. On the eighth ground, the respondent said, the same has no merits as the records moved the first appellate court. He referred the court to section 73(1) of the Law of Contract Act. He said the appellant agreed to refund the money, and there is no proof that he was forced; thus, the principle of estoppel was correctly applied. On the last ground, he submitted that the payment of an extra two million was justifiable, as the same was incurred in procuring the property. He concluded that the appeal had no merits and should be dismissed. In a short rejoinder, the appellant had nothing useful to add; he was insistent that he was not the one who brought the brokers. I have accorded the deserving weight of both parties’ submissions and scrutinized the trial court records. In answering this ground, I wish to be guided by the principle in Civil cases that he who alleges must prove, and 8 the onus of so proving lies on the party who would lose the case if the alleged existing facts are not proved, as the standard of proof is on the balance of probabilities. This is in terms of sections 2(b), 110, and 111 of the Evidence Act [Cap. 6 R.E 2019] and the case of Abdul Karim Haji Vs. Raymond Nchimbi Alois and Another, Civil Appeal No. 99 of 2004 (CAT- unreported). I also wish to state from the outset that, as per the trial court records, it is an undisputed fact that the appellant agreed to sell a piece of land to the respondent at the consideration of Tsh.5,500,000/= and the appellant is admitting to receiving that amount of money. Further, it is undisputed that the appellant failed to fulfill his promise due to marital issues and thus agreed to refund the respondent money, of which he returned 2,750,000 remain with 2,750,000, which was to be paid within two weeks, the fact that is well explained at page 3 of the trial court judgment after consideration of both party’s evidence. Parties lock their hands on whether it was proper for the trial court to order the appellant to pay an extra amount of Tsh. 2,000,000 as the cost incurred while obtaining the said plot of land. Thus, the fact that the contract was void since an incompetent Authority endorsed it, the assertion that his evidence was not considered, to me, is baseless, as 9 the records reflect that the decision was reached after considering both parties’ evidence. In totality, the undisputed facts carry the first, second, fourth, fifth, sixth, and seventh grounds of appeal. Thus, the same are destitute of merit and deserve to be dismissed. The critical and undisputed issue to be considered here is whether the two million awarded to the respondent by the trial court is justifiable. Undoubtedly, the trial magistrate awarded the 2,000,000, based on exhibits C1 and C2, the alleged contract to pay. I say the alleged contract because, firstly, the same was objected to by the appellant when it was tendered, but the trial magistrate did not consider the objection and enter a ruling on that; instead, he went on to admit the same. Secondly, there is no proof that the said exhibits C1 and C2 were legally tendered and admitted in court and, therefore, properly relied on by the trial court to base its findings. A glance of an eye to the trial court proceedings, the handwritten one, reveals that exhibits C1 and C2 were not tendered when the respondent was giving his evidence in chief rather when the court was asking clarification questions after the respondent had completed his testimony, which is not the procedure. Thus, it is my finding that the agreement to pay, tendered by the respondent during clarification questions, was unlawfully and illegally 10 introduced into the record as the same was supposed to be tendered when the respondent was giving his evidence in chief, which was not the case in this matter. Further, the appellant objected, but the court admitted it. Thus, it was improper for the trial court to rely on the said document, and the same deserves to be expunged from the record, as I hereby do. Having so doing, the remaining evidence for consideration is the oral evidence where, when trying to prove the said costs, respondent told the court that, tulikubaliana serikali ya mtaa kwamba atalipa hela zangu Pamoja na gharama nilizoingia zikiwa ni Pamoja na kulipa madalali, mashahidi na uongozi wa mtaa. Looking at that evidence, it is apparent that the amount claimed was specific damage, not general damages, that is why the respondent was trying to prove the same. Nevertheless, he could not do so; he mentioned that he had paid Mavurunza Local Government Authority Executive Officer. Tshs. 400,000, brokers Tshs. 1000000 and witnesses Tshs. 300,000/=without producing proof, as he had no receipt to prove that he paid the said amount as claimed. It is a trite law that specific damages must be pleaded and proved; see the case of Masolele General Agencies vs. African Inland Church Tanzania [1994] TLR 192 CAT. Therefore, the 11 decision of the trial court to grant an unproved amount of Ts. 2,000,000 was against the principle of law. I accordingly allow this ground of appeal. In the event, the appeal is partly allowed and partly dismissed, as shown above. To avoid doubt, the appellant has to pay the remaining amount of Tsh.2,750,000.Due to circumstances of this case, each part shall bear his own costs. It is so ordered accordingly. MWANGA JUDGE. 19/11/2024 COURT: Judgment was delivered at Dar es Salaam on 19th November 2024 in the presence of the Appellant in person and the absence of the Respondent. Right of appeal explained. MWANGA JUDGE 19/11/2024 12