charles mtimba makunja and another vs leah magoti ntandu 2020 tzhc 485 31 march 2020

IN T H E H IG H C O U R T O F T H E U N I T E D R E P U B L IC O F

T A N Z A N IA (M U SO M A D I S T R I C T R E G IS T Y )

A T M U SO M A (PC) CIVIL A P P E A L NO. 5 7 O F 2 0 1 9 (Originatingfrom Civil Appeal No. 62 o f 2019 in the District o f Musoma at Musoma) 1. C H A RLES M T IM B A M A K U N J A .......................... 1st A P P E L L A N T 2. A L F R E D M T IM B A M A K U N J A .............................2 nd A P P E L L A N T

VERSUS LEA H M A G O T I N T A N D U ................................................ R E S P O N D E N T

JU D G E M E N T , 9th and 31st March 2020 KISANYA, J .: At M usoma Urban Prim ary Court, the appellants were sued for debt recovery of'Tshs. 800,000/=. T he said suit was dismissed for wrant of merit. T h e respondent successful appealed to the District C ourt of Musoma at Musoma which reversed decision of the trial court. T h e appellants were ordered to pay the sum of Ths. 800,000, as claimed by respondent. Dissatisfied, the appellants have filed an appeal before this Court. T he petition of appeal has seven grounds appeal which can be summarized in four grounds as follows: 1. T h a t the respondent was represented by Venansia Lucas contrary to Order III, r. 1 and 2(a) of the Civil Procedure Code.

2. That, the Respondent and her witness (PW 2) have concealed the truth in spouse relationship between (her daughter and the 1st appellant) which prom pted her to send the money directly to the 1st appellant caused the Respondent not be clear who is the actual debtor between the two appellants.

3. T h e date on which the 2nd appellant asked for money from the respondent is contrary to the date stated by the respondent in Civil Case No. 157/2019 before Musoma Urban Prim ary Court.

4. T h a t the case was not proved on the balance of probabilities. It is im portant to depict, albeit brief, what prom pted this appeal. According to the respondent (plaintiff), the 2nd appellant requested for a loan of T shs 800,000 to pay collage fees for the 1st appellant. It was agreed that, the 2nd appellant would repay the money within one year. Basing on that undertaking, the respondent deposited Tshs. 800,000 in the 1st appellant’s account on 13.11.2014. Despite several demands by the respondent, the 2nd appellant failed to repay the loan/debt. Therefore, the respondent instituted a suit for recovery of debt, In his defence, the 1st appellant admitted to have received the money from the respondent. However, he averred that the said sum of money was for the respondent’s daughter (PW2) who was living with him as spouse. On his part, the 2nd appellant denied to have asked for the loan. T he trial court was satisfied that the respondent had failed to prove her case on the balance of probabilities. Its decision was based on the account that P W l and PW 2 were not credible witnesses. T he first appellate Court reversed the decision of the trial court. It was 2 satisfied th at the case filed in the trial court was not res judicata because in Civil Case No. 157 of 2019, the Court had directed the respondent to sue the proper party. Further, the first appellate court was of

the view that, had the respondent wanted to send money to her daughter she would have deposited in her (PW 2) account. T he Court held further that there was no evidence to prove that the 1st appellant and PW 2 were lovers. At the hearing of this appeal, the appellants appeared in person while the respondent enjoyed the legal services of Mr. Kulwa Sanya, learned advocate. T he 1st appellant submitted the grounds of appeal jointly. He contended that during appeal, the respondent was represented by Venancia Lukas M tandu contrary to the law. T he 1st appellant submitted further that there was no evidence to prove the loan agreem ent between the respondent and the appellants. He argued that, although the money was deposited in his account, the same was handed over to PW 2 as directed by the respondent. Furtherm ore, the 1st appellant claimed that he was living with PW 2 as spouse and that the dispute started when they separated. He contended that he was reported to the police on the allegations of stealing P W 2 ’s properties. T h e 1st appellant argued that PW 2 was not credible witness because she denied to have lived with him. He therefore urged me to allow the appeal, quash and set aside the judgem ent of the first appellate court. On his part, the 2nd appellant argued that the first appellate court failed to consider that the case was res- judicata as the claims against him

had been dismissed in Civil Case No. 157 of 2019. He requested to adopt the petition of appeal. 3 In reply, Mr. Sanya submitted that the respondent was not supporting the appeal. On the first ground of appeal, Mr. Sanya argued that Vanencia Lucas M tandu was issued with a power of attorney to represent the respondent. As to the second ground of appeal, Mr. Sanya argued that Civil Case No. 157 of 2019 was not relating to the claims at hand. Me elaborated that Civil Case No. 157 of 2019 was between the 2nd appellant and the respondent, while the present case was instituted against the both appellants. T he learned counsel contended further that the court had directed the respondent to institute a case against the proper party. It was argued further that the loan agreement was negotiated by the 2nd appellant and their agreement was based on fiduciary relationship. On the 3rd, 4th and 5th grounds of appeal, Mr. Sanya was of the view that the respondent case was proved on the balance of probabilities that, Tshs. 800,000 was deposited in the 1st appellant’s account. Regarding the 6th and 7th grounds of appeal, the learned counsel submitted that Civil Case No. 157 of 2019 was not relating to the case at hand. He argued further that it was not proved that, PW 2 was wife of the 1st appellant and that the said issue was raised to defeat justice. Mr. Sanya contended further that, if the

money was intended for PW 2, the respondent could have deposited the same in P W 2 ’s account. F o r the aforesaid reasons, Mr. Sanya advised me to dismiss the appeal with costs. In his rejoinder, the 1st appellant submitted that, Civil Case No. 157 of 2019 relates to the case at hand (Civil Case No. 244 of 2019). As to the relationship with PW2, the 1st appellant argued that the same is relevant because the respondent deposited the money in his account basing on such relationship. On his part, the 2nd respondent submitted that the respondent is his relative. Any dispute between them, if any was supposed to be reported to the clan members. He reiterated that the case was instituted after arising of matrimonial dispute between the 1st appellant and PW 2. I have considered the evidence on record, petition of appeal, reply to petition of appeal and submissions by the parties, the main issues are whether the Vanancia Lucas Ntandu had locus standi to represent the respondent; w hether the case was res judicata; and whether the respondent proved her claims on the balance of probabilities. Starting with the first issue, the appellants argue that the respondent was represented by Venansia Lucas Ntandu contrary to O.III, r. 1 and (2) (a) of the Civil Procedure, Cap 33 R.E.

2002. It is trite law that the Civil Procedure Code does not apply to matters originating from the Primary Court. Therefore, the cited provisions are not applicable in the m atter at hand. However, according to rule 14 of the Civil Procedure (Appeals in Proceedings O riginating in Prim ary Courts) Rules, 1964, at the hearing of appeal originating from the Primary Court, parties may be represented an agent. This includes an advocate, relative or any member of the household of the party, upon the request of such party. This is pursuant to rule 2 of the Civil Procedure (Appeals in Proceedings O riginating in Primary Courts) Rules, 1964 read together with section 33 of the M agistrates Courts Act [[Cap. 11, R.E. 2002 j. It was not disputed by the Respondent that that Venancia Lucas appearing at the hearing of appeal. However, that fact is not reflected in proceedings. T he proceedings are written as if the respondent appeared in person. T he first appellate court was required to record the person who appeared on 5 behalf of the respondent. T he next question is whether the said Venancia Lucas was authorized to represent the respondent. As stated herein, relative or member of household of the party to the case, may appear if the said party so requests. T he record does not show whether the respondent requested to be represented by Venancia Lucas. She appeared by virtue of power

of attorney signed on 17th June 2019 by the respondent authorizing her to conduct Civil No. 244 of 2019. It is on record that Civil Case No. 244 of 2019 is a case filed in Musoma Urban Prim ary Court. T here is no document to prove that the said Venancia Lucas was authorized to conduct Civil Appeal No. 62 of 2019. Therefore, I hold that the said Venancia Lucas had authority to represent the respondent in appeal Civil Appeal No. 62 of 2019 before the District Court. This brings me to another question whether the proceedings before the first appellate court were vitiated by the said irregularity. I have noted that the power of attorney was issued at the time when judgem ent in respect of Civil Case No. 244 of 2019 had been delivered in favour of the appellants. Therefore, it implies the respondent wanted Venancia Lucas to represent her in matters related to the said case. T h a t is why the power of attorney read “I hereby authorize my said attorney. .. to appear to any court and argue my care (sic) as 7ne necessary..." Therefore, considering the need of ensuring substantive justice, I am of the considered opinion the proceedings before the first appellate Court were not vitiated the said irregularity. This is in accordance with section 37(2) of the M agistrates Courts Act which provides that: 6 “No decision or order o f a primary court or a district court under this Part shall

be reversed or altered on appeal or revision on account o f any error, omission or irregularity in the complaint, or any process or charge, in the proceedings before or during the hearing,; or in such decision or order or on account o f the improper admission or rejection o f any evidence, unless such error, omission or irregularity or improper admission or rejection o f evidence has in fa ct occasioned afailure o f justice. ” I now move to the second issue whether civil case filed in the primary court was res judicata. T h e provision of rule 11 of the Prim ary Courts Civil Procedure Rules, 1963 bars the plaintiff from instituting another suit involving the same parties and cause of action. T h e rule states as follows: IVhere in any proceeding before a court, the court is satisfied that any issue between the parties has already been decided by the court or by any other court o f co7npetent jurisdiction in another proceeding between the same parties, the court shall not try the issue but shall try the other issues, i f any, involved in the proceeding. T he Courts in Tanzania have in various decisions stated on the applicability, rationale and scope of the principle of res judicata. For instance, in the case o f Z a n z ib a r T e le c o m Co. L td vs H a id a ry Y R ashid t / s N a sa ria E n te rp rise s, Commercial Case No. c2 of 12009, High Court of Tanzania, Commercial

Division, (unreported), this Court (Bukuku, J.) held as follows on the scope and rationale of the principle of res judicata: "Primarily it applies as between past litigation and future litigation when a matter, whether on a question o f fa c t or o f law, has been decided between the same parties in one suit or proceedings, and the decision is filial, either because no appeal was taken to a higher or because the appeal was dismissed or no appeal lies neither party will be allowed future suit or proceedi?igs 7 between the same parties to canvass the matter again. ” Guided by the above legal position, I have read the judgem ent in Civil Case No. 157 of 2019 and Civil Case No 244 of 2019 both filed in Musoma Urban Prim ary Court. W hile reading the two judgem ents, I have noted that the defendant in Civil Case No. 157 of 2019 is Alfred M timba Makunja only. On the other, Civil Case No. 244 of 2019 has two defendants namely, Charles M tim ba M akunja and Alfred M timba Makunja. Thus, I find and decide that the parties in the two case are different. Then I have examined whether Civil Case No. 157 of 2019 was heard and finally determined on merit. As pointed out by Mr. Sanya and held by the first appellate court, in Civil Case No. 157 of 2019, the respondent was directed to file a suit against the proper party. Therefore, it was not heard and finally determined on merit. In this

respect, I agree with the first appellate court and Mr. Sanya that, Civil Appeal No. 244 of 2019 which is subject of this appeal was not res judicata. T he last issue on the ground of appeal is whether the respondent’s claims were proved on the required standard. Pursuant to regulation 1(2) of the Magistrates' Courts (Rules of Evidence in Prim ary Courts) Regulations, 1963, the claimant is duty bound to prove all the facts necessary to establish the claim unless the other party (that is the defendant) admits the claim. T h e standard of proof is provided for under regulation 6 of the Magistrates' Courts (Rules of Evidence in Prim ary Courts) Regulations, which reads: “In civil cases, the court is not required to be satisfied beyond reasonable doubt that a party is correct before it decides the case in its favour, but it shall be sufficient i f the weight o f the evidence o f the one party is greater than the weight o f the evidence o f the other/’ (Emphasize is mine). Applying the above position of law, it is not disputed that the respodent deposited T shs 800,000 in the 1st appellant’s account. T he issue is whether the money was given as a loan to the 2nd appellant. Mr. Sanya submitted that the loan was negotiated by the 2nd respondent who instructed that the money to be deposited in the 1st appellant’s account. On the other hand, the 2nd appellant denied to have requested

some money from the respondent. Further, 1st appellant stated that the money was handed over to PW 2. In its decision, the trial court was convinced that, the claim was not proved as the respondent ( P W l) and her witness (PW 2) were not credible witnesses. T h e trial court held as follows on such finding: “Kwa ushahidi uliopo kwa upande wa mdai Mahakarna imeptawa na ?nashaka katika kuuamini na kuutumia kuthibitisha madai haya, kwani unonekana umeficha mambo mengi. Kitendo cha shahidi wa mdai kumkana aliyewahi kuwa mwanaume wake, kukana kabisa kutomtambua, kukana kuwa hakuwahi kuzaa nae wakati inaonekana wana mototo kinapa mashaka makubwa Mahakama na ushahidi unaotolewa na upande wa mdai. Imethibitika uwepo wa chuki kubwa baina ya farnilia h izi mbili na liata kupelekea mashahidi kuihadaa mahakama. ” It is trite law that the trial court finding as to credibility of witness is binding on the appellate court unless there are reasons to the contrary. This position was stated in O m a ry A h m ed vs R. (1983) T L R 32, when the Court of Appeal held: "The trial Court's fin d in g as to credibility o f witnesses is usually binding on 9 an appeal court unless there are circumstances on an appeal court on the record which casefo r a reassessment o f their credibility”. Similar position was held in the case Ja c o b T ib ifu n g a vs R. (1982) T L R 125 and A n to n io D ias C aldeira

vs F re d e ric k A u g u s tu s G ra y (1936) 1 ALL ER 540). T he first appellate court in the case at hand, reversed the findings of the trial court by relying on evidence of the respondent and PW 2. T h e reasons are stated in the judgem ents as follows: “In my view i f the appellant wanted to send the money to her daughter she would have sent it direct to her daughter’s account...the respondent are (sic) just trying to diverge from their liability, it could not be possible fo r the appellant to send the money to her daughter s lover since there is no evidence that the appellant’s knew the V respondent as her daughter’s lover, the appellant proved to know the respondents all together as their relatives that is why the 2"' respondent asked, fo r the money fo r collage fee to his son from the appellant and not otherwise. ” I have read the evidence on record, PW 2 stated that he had an account because she is a civil servant. However, this evidence was countered by the 1st appellant when he testified that P W l was employed in 2015. PW 2 did not state her account and when the same became in operation. Thus, I find that it was not proved that PW 2 had account by 13.11.2014 when the money was deposited in the Is appellant’s account for the first appellate court to hold that the respondent would have deposited the money is P W 2 ’s account. Further, the first appellate was

convinced that P W l was credible witness on the ground that she was not aware of the relationship between PW 2 and the 1st appellant. It is on record that when the 1st appellant was cross-examined by the respondent, he replied as follows: “... tulipoanza kuishi wewe ulinipigia simn ulikuwa na ghadhabu..mimi nilikuwa 7iaislii na mtoto wako. Furtherm ore, I have shown herein that the P W 1 and PW 2 were found not credible witness as the trial court noted grudges between the parties. W hen cross examined by one of the assessors, the 1st appellant replied “sisi na fam ilia zetu zina mahusiano, mgogoro wetu, umekuwa kama uhasama wa kifamilia.” T h e issue that the appellants and respondent had grudges was not addressed by the first appellate court. In this regard, I am of the considered opinion that the first appellate did not address all reasons advanced by the trial court in finding P W 1 and PW 2 not credible witnesses. Lastly, there is no evidence to prove the loan agreem ent between the 2nd appellant and the respondent. No witness was brought to prove the oral agreem ent between the two parties. T h e fact that the money was deposited in the 1st appellant’ account is not in itself sufficient to prove that the said amount was a loan advanced to the 2nd appellant. Therefore, the respondent’s case was not proved on the required standard. For the aforesaid reasons, I find merit on the appeal. Consequently, I quash and set aside the judgem ent of the first appellate Court. I make no order as to costs due the nature o f this case where parties are relatives. 11 Order accordingly. D A T E D at M U SO M A this 3 1st day of March, 2020. E.S. Kisanya

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