julieth jasson kashaija and another vs mary zabron kavugha and another 2021 tzhc 2896 29 april 2021

IN THE HIGH OF TANZA NIA IN THE DISTRICT REGISTRY ATMWANZA HC CIVIL APPEAL NO. 52 OF 2020 (Originating from the Resident Magistrate Court of Mwanza, Civil Case No. 103 of 2019) JULI ETH JASSON KASHAIJA 1 ST APPELLANT OSWARD BINAMUNGU . . : - - - - - - 6 8 3 6 6 6 6 6 6 6 6 6 6 6 36 6 6 66 66 66 66 6. 6. . 6. 6 8 8 8 3 6 6 3 6 8 8 6 6 8 % % , , , 2ND PELLANT VERSUS MARY ZABRON KAVUGHA 1ST RESPONDENT OCTAVIAN JOHN MIGIRE ...------66666666666366666666666666666666.6.6.6.6,,, 2ND RESPONDENT EXPARTE JUDGMENT 19 & 29° April, 2021 RUMANYIKA, J.: The appeal is with respect to exparte judgment and decree dated 29/05/2020 of Mwanza Resident Magistrate's court (the trial court) with regard to the principal claims of shs. 31,239,000/=, interest, general damages, costs and, as usual other reliefs deemed fit by the court against Mary Zabron Kavuga and Another (the respondents). Julieth Jasson Kashaija and Oswald Binamungu (the 1 and 2° plaintiffs) respectively, but jointly having had lost the war and battle. Additional to the 3 ground memorandum of appeal, according to records lodged on 29/07/2020, Mr. Geofrey Kange learned counsel for the 1 appellants had another one related to the trial court's failure to frame issues. The grounds of appeal therefore they read thus: 1. That the magistrate's failure to frame issues it rendered the judgment legally ineffective. 2. That the learned trial resident magistrate erroneously held that there was no contract between the parties 3. That also, with the fact that with regard to the claims the defendants had issued the bank cheques but dishonored, the learned trial resident magistrate improperly analyzed/evaluated the evidence. When the appeal was, by way of audio teleconferencing called on 19/04/2021 for hearing, though duly served, according to Ms. Martina Nalei the bench clerk, Ms. Jenifa learned counsel for the respondents had just declined to pick the call (mobile number 0752773489) Pursuant to my order I dispensed with appearance of the respondent hence the Exparte Judgment. For avoidance of doubts, having had abandoned grounds 2 and 3, though the digital plat form Mr. G. Kange, advocate was heard through mobile number 0754454579. That in fact with regard to the three issues at page 3 of the typed judgment the same were, in the back of the parties 2 imposed by the learned trial magistrate therefore the omission vitiated the proceedings. That alternatively, and on the merit part of the appeal , Exhibits "Pl" and "P2" (the respective Delivery Notes) and invoices (Exhibit "PS'') issued by the respondents to the appellants sufficiently proved existence of such a valid contract between the parties but for the breach by the respondents. We humbly submit and pray that the appeal be allowed with costs the learned counsel further contended. That is all. A brief account of the evidence on record would read that having had the merchandise company in operation and on 01/04/2018, with the respondents but only witnessed by the 1 appellant they executed oral contract to, and they supplied them some rice, beans, meat and breads, but despite serving them the respective Delivery Notes duly signed receipts, several and repeated demands the defendants paid them but not fully irrespective of the respondents' promise to pay in four instalments (exhibit "Pl" and "P2'') and dishonored cheque Nos. 000105 for shs. 10,000,000/= and 000106 for 5,000,000/= dated 05/09/2019 and 10/09/2019 respectively (Exhibit "P3" and "P4'') referred. In his conclusion the learned trial resident magistrate is on record having had said that not only the purported respondents' agreement 3 to pay wasn't at all as witnessed as alleged, but also in terms of logic, text, dates, parties to it and extent of liability the contract was doubtful. Exhibit "P6" therefore it was on that basis expunged. That is it. The central issue is whether between them there was contract a breach of which to attract the specific damages of shs. 31,239,000/=. The issue of the magistrate's failure to frame the issues it needs not detain me much as, as admitted by Mr. G. Kange learned counsel, from page 3 of the typed judgment not only the 3 issues were relevant to the case, but also the same would have otherwise reasonably and sufficiently disposed of the case. It would have been a different scenario and it is trite law, which is not the case here, if upon framing them the learned trial resident magistrate had skipped/ignored the issues or one of them; or, having had suo motu introduced the issues, on that one he did not at all hear the parties much as, as said, having had defaulted, as day follows night appearance of the respondents was dispensed with. Ground one is dismissed. With regard to the issue of the Delivery Notes, Invoices and the dishonored bank cheque, not only the appellants did not, on balance of probabilities prove it was the respondents' making or approved by them 4 but also rightly so in my view, like the learned trial resident magistrate held, proof of existence of the alleged oral contract, of course without one having had assumed risks and evils of the common world's 1 day of April, if at all the parties might had contracted much as on that one, if anything, the appellants' evidence might have offended the provisions of Sections 100 and 101 of the Law of Evidence Act Cap 6 R.E. 2019. When all is said, I shall have no basis upon which to fault the learned trial resident magistrate. The appeal is dismissed with costs. Right of appeal explained. S.M. ANYIKA J DGE 25/04/2021 The ruling delivered under my hand and seal of the court in chambers this 29/04/2021 in the abs ce of the parties. 5