Charles Kahiza Judgment

Page 1 of 13 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB-REGISTRY OF GEITA AT GEITA CIVIL APPEAL NO. 16905 OF 2024 (Arising from Civil Appeal No. 1289 of 2024 of the District Court of Geita, Originating from Civil Case No. 190 of 2023 of the Nyankumbu Primary Court) CHARLES KAHIZA…………….………………………………………...APPELLANT VERSUS NUARUKAMA MUGASA MAKUNJA…………………………….....……..RESPONDENT JUDGMENT Date of last Order: 02/08/2024 Date of Judgment: 09/08/2024 MWAKAPEJE, J.: This is the second appeal in which the appellant appeals against the decision of the District Court, which affirmed the primary court's decision in the case where the appellant was ordered to pay the respondent Tshs. 20,000,000.00 for breach of contract. The circumstances leading to this appeal are succinct: the appellant and the respondent were engaged in the pork industry from 2021 until their relationship deteriorated in 2023. The respondent, a pork supplier, catered to the appellant, who in turn distributed to the mines. The business arrangement necessitated the respondent to deliver the pork upon request, with payment settled after the appellant received funds Page 2 of 13 from his clients. Between April and May 2023, a shipment of 2,246 kilograms of pork was delivered, as evidenced by exhibit KEM3. Despite the appellant receiving payment from his buyers, he ceased communication with the respondent until his apprehension by the police in Bukoba. Following his release on bail, he began reporting to the police station. On 18 September 2023, he admitted owing the respondent Tshs. 20,000,000/- and committed to settling the debt by 02 October 2023. The appellant failed to honour his commitment, which pushed the respondent on 24 November 2023 to file a civil suit in the Nyankumbu Primary Court. In the court, the appellant claimed to have paid the respondent all the amount he owed him. However, the trial court decided in favour of the respondent, ordering the appellant to pay the acknowledged amount. Unhappy with the decision of the primary, the appellant unsuccessfully appealed to the district court. Still discontented, the appellant has knocked on the doors of this court with the following two grounds of appeal: 1. That the district court erred in law and, in fact, by failing to overturn the decision of the primary court, despite the fact that the decision was reached without considering that the Page 3 of 13 appellant did not prove his case on the balance of probabilities. 2. That the district court erred in law and, in fact, by failing to decide that exhibit KEM6, used by the lower court to rule in favour of the respondent, was not valid for use because the appellant complained of coercion during the preparation of the exhibit. This appeal was argued orally. The Appellant was represented by Mr Eliaman Ayoub, while the respondent had the services of Mr Yessey Simeon Lubandu, a learned advocate. Taking the stand, Mr. Ayoub initiated by stating that the appeal consisted of two grounds outlined in the petition of appeal, which he argued collectively due to their interconnected nature. He asserted that both the trial and first appellate courts based their rulings on exhibit KEM 6, a document the appellant claimed was coerced during its creation. Mr Ayoub maintained that this exhibit was prepared at the police station under duress, a fact that the Respondent did not contest. Furthermore, he highlighted that the Respondent admitted that the exhibit was crafted at the police station. He further argued that it was clear that the trial and first appellate courts acknowledged the appellant's grievances regarding coercion. Page 4 of 13 Moreover, Mr Ayoub contended that according to the case of Tegemeo Madindo vs Zacharia Chaula (PC Civil Appeal 13 of 2021) [2021] TZHC 9084 (16 November 2021), the failure to cross-examine a witness on a crucial matter implies acceptance of the witness's testimony. Therefore, he implored the court to grant the appeal on the basis that the Respondent acknowledged the appellant's complaints about the coercive nature of exhibit KEM 6. He further argued that the Respondent's failure to summon any police officer or individual present during the creation of the said exhibit as a witness should be interpreted against him. In response, Mr Lubunda stated that there existed a business relationship between the Appellant and Respondent, as evidenced by the submission of exhibits KEM 1, KEM 2, KEM 3, KEM 4, and KEM 5 by the Respondent. He elucidated that the core of the matter revolved around a debt claimed by the respondent against the appellant stemming from their business transactions. The dispute arose when the appellant borrowed Tshs 20,000,000 and subsequently evaded repayment. The Appellant was later apprehended by the police in Bukoba. Mr Lubunda further argued that while under police bail, exhibit KEM 6 was created, with the appellant acknowledging the debt to settle the dispute. He asserted that this acknowledgement was voluntary and not Page 5 of 13 coerced, as the appellant was not under police custody at the time but was acting of his own volition. The Appellant's signature on the document remained uncontested. Additionally, he stated that during the trial, the Appellant admitted to the existence of the debt and did not refute the details of their business transactions, including payments made through a bank account supported by receipts provided by the Respondent. The absence of these receipts to substantiate the Appellant's claim of repaying the debt was noteworthy. Mr Lubanda argued that in civil cases, the burden of proof lies with the party making a claim, and the party with more substantial evidence merits a favourable ruling, which in this case was the Respondent. He contended that the Appellant failed to present evidence to counter the Respondent's testimony. Given that the Appellant raised allegations of coercion and non-indebtedness, the onus was on him to substantiate these claims as per Section 110 of the Evidence Act, which he failed to do by not specifying who coerced him and how. He noted that the authenticity of exhibit KEM 6 was not disputed in the trial court. Mr Lubanda also argued that it was not the respondent's duty not to summon witnesses but the Appellant's responsibility as the one alleging coercion to do so, as stipulated in sections 110 and 111 of the Evidence Page 6 of 13 Act. Therefore, he concluded that the lower courts were correct in ruling in favour of the Respondent based on the testimonies presented, with the Respondent possessing stronger evidence than the Appellant. He prayed for the appeal to be dismissed with costs. In his rejoinder, Mr Ayoub pointed out that crucial evidence, Exhibit KEM 6, was prepared at the police station without clear circumstances, highlighting the Appellant's coercion claim. He contended that the Respondent's failure to cross-examine the coercion claim indirectly supported the Appellant's version of events. Mr. Ayoub further argued that in civil cases, proof can be inferred from the omission to question essential aspects, as the Respondent did. He, therefore, prayed that the appeal be allowed and the lower courts' decisions be overturned with costs. Having considered the parties' submissions, I will now determine the grounds of appeal accordingly, starting with the first grounds of appeal. The main issue that I will answer in this case is whether the case against the appellant was proved on the balance of probabilities. It is common knowledge that in civil cases and for the proceedings in the Primary Court, the general principles of proof revolve around the balance of probabilities, as far as Rule 6 of the Schedule to the Page 7 of 13 Magistrates' Courts (Rules of Evidence in Primary Courts) Regulations, GN Nos. 22 of 1964 and 66 of 1972 is concerned. This means that a fact is considered proven if it is more likely to be true than not. Further, the party who brings the claim bears the burden of proof. This principle is based on the notion that the person who asserts a fact must provide evidence to support its existence according to Rule 1(2) of the Schedule to the Magistrates' Courts (Rules of Evidence in Primary Courts) Regulations. This principle has been cherished in several court decisions, including but not limited to the cases of Anthony M. Masanga vs Penina (Mama Mgesi) and Another, Civil Appeal No. 118 of 2014, Godfrey Sayi vs Anna Siame As Legal Representative of the Late Mary Mndolwa, Civil Appeal No. 114 of 2012, Paulina Samson Ndawavya vs Theresia Thomasi Madaha, Civil Appeal No. 45 of 2017; Hamza Byarushengo vs Fulgencia Manya and 4 Others, Civil Appeal No. 246 of 2018 (all unreported), and Eupharacie Mathew Rimisho t/a Emari Provision Store & Another vs Tema Enterprises Limited & Another (Civil Appeal No. 270 of 2018) [2023] TZCA 102 (13 March 2023), to mention a few. Expressly, in the case of Eupharacie Mathew Rimisho t/a Emari Provision Store & Another vs Tema Enterprises Limited & Another, it was stated that: Page 8 of 13 “In civil proceedings, a party with legal burden also bears the evidential burden, and the standard of proof is on the balance of probabilities, which in simple terms means that the Court will sustain and believe such evidence which is more credible than the other on a particular fact to be proved.” Guided by these principles, in the present appeal, according to exhibit KEM3, it was not disputed that the respondent supplied pork to the appellant on 04/04/2023, 17/04/2023, 23/04/2024, and 23/05/2023, amounting to 3055 kg. The total amount he claimed from the respondent, including the sum he spent searching for him, was Tshs 20,000,000/-. Apart from that, the respondent stated in court the modality used by the appellant to pay him and tendered the bank statements as KEM2, KEMs 4 and KEM5, proving that the appellant paid for the previous supplies. He further tendered in court the appellant’s acknowledgement of the claim and his commitment to pay the same by 02/10/2023, which was admitted and marked as exhibit KEM6 after the appellant admitted that the contents were his. He had no objection to it being tendered and admitted. It is from the testimony of the respondent and accompanying exhibits, which were not disputed by the appellant, that the court believed him to have weightier evidence to prove his case on the required standard in civil cases. The respondent, on the other hand, offered nothing to convince the court otherwise apart from the fact that he owed the Page 9 of 13 respondent nothing in his oral account, which does not supersede tendered exhibits as far as Rule 14(1) of the Schedule to the Magistrates' Courts (Rules of Evidence in Primary Courts) Regulations, GN Nos. 22 of 1964 and 66 of 1972. In the case of Martin Fredrick Rajab vs Ilemela Municipal Council & Another (Civil Appeal 197 of 2019) [2022] TZCA 434 (18 July 2022), it was explicitly stated that: “In the premises, the oral account with respect to the land purchased by the appellant is as stated in the three exhibits, and it cannot in any way be superseded by the oral account of the appellant at the trial.” [Emphasis supplied] From the foregoing, I fail to fault the two courts below because there is no doubt that the duos were businessmen, and the appellant agreed to pay the respondent but dishonoured his commitment. Another point of interest: I wish to address the appellant's claim that he was coerced into preparing exhibit KEM6. His counsel stated that the same was prepared at the police station, making its admission questionable. It has been a principle of law that the balance of proving a fact in a civil case will always be on the plaintiff. However, it tends to shift to the other side. In the case of Martin Fredrick Rajab vs Ilemela Municipal Council & Another (supra), it was stated that: Page 10 of 13 “In all the said decisions, the Court dealt at considerable length on what constitutes proof on the balance of probabilities and the duty of the plaintiff to discharge the same before the burden shifts on the defence side, and as such, it is incumbent on the plaintiff to discharge the evidential burden.” [Emphasis supplied] The appellant, therefore, had a duty to prove that he was coerced into acknowledging the debt and signing that he would pay the respondent the amount of Tshs 20,000,000 he owed the respondent. The counsel for the appellant stated that the agreement signed on 18th September 2024 to pay the said amount was prepared at the police station; hence, he was coerced into writing the same. I agree with the counsel for the appellant that an agreement signed at a police station could be considered signed under coercion, but without proof, it would be challenging to substantiate the claim. In my considered opinion, for one to successfully challenge the agreement reached at the police station, he must prove the following: firstly, the atmosphere during the signing process was intimidating; secondly, there were indications of threats, intimidation, or undue influence in the statements or actions of the police officers; thirdly, the agreement was not entered into freely and voluntarily; fourthly, the mental state of the signatory at the time of signing was not stable; fifthly, Page 11 of 13 the access to legal representation was curtailed; sixthly, what were the circumstances surrounding the signing, including any arrest, interrogation, or detention; and seventhly, how promptly concerns about coercion were raised. Generally, the agreement made at a police station can be invalid if it does not meet the criteria of a valid contract under the Law of Contract Act, Cap. 345 R.E. 2022. In the present appeal, there is a lack of evidence regarding the first five criteria. There is no mention of whether the environment was intimidating if threats were made, if the signatory was not acting of his own free will, or if his mental state was compromised. As for the circumstances leading to the signing, as stated by Mr Lubunda, the appellant was regularly visiting the police station due to being on bail, indicating he was not under duress. Regarding the final point, it was raised during the defence, and it was revealed that the appellant had been frequenting the station and eventually, on his own volition, decided to draft the agreement to alleviate the perceived pressure. The said coercion concerns were not raised or objected to promptly when exhibit KEM6 was tendered and before its admission that the court could ascertain the truthfulness of the appellant. See the case of Nyerere Nyague vs Page 12 of 13 Republic (Criminal Appeal Case 67 of 2010) [2012] TZCA 103 (21 May 2012). The fact that the appellant was not subject to cross-examination by the respondent regarding the alleged coercion during the hearing in the trial court, as argued by the appellant's counsel, did not absolve him from proving that he was coerced in preparing KEM6 in terms of Rule 1(2) of the Schedule to the Magistrates' Courts (Rules of Evidence in Primary Courts) Regulations. Therefore, upon my scrutiny, in light of the absence of evidence supporting the seven points above, the pressure may have stemmed from the respondent's obligations to settle debts with others. Additionally, even if the said exhibit KEM6 was not admitted or was to be expunged, there were other pieces of evidence admitted, such as exhibit KEM3, which were not objected to, proving that the appellant owed the defendant. Hence, in the circumstances of this appeal, I consider the coercion claim an afterthought, and consequently, I dismiss it. From the foregoing, and since there is no doubt that the appellant owes the respondent, and he further acknowledged the truthfulness of all the exhibits tendered and admitted in court by the respondent, to counter them by the oral account at this juncture would not be accepted by this court. Page 13 of 13 Consequently, I find the appeal devoid of merits, and I hereby dismiss it with costs. It is so ordered. DATED at GEITA this 09th day of August 2024. G.V. MWAKAPEJE JUDGE This judgment is delivered this 09th day of August 2024 in the presence of Ms Elizabeth Msechu, learned advocate for the respondent. The respondent was present. G.V. MWAKAPEJE JUDGE