edna magesa vs othman m abdallah 2022 tzhc 15265 15 december 2022

IN THE HIGH COURT OF TANZANIA

AT TABORA PC CIVIL CASE APPEAL NO. 4 OF 2020 (Arising from Tabora District Court Civil Appeal No. 17 of 2019 and Original Civil Case No. 48 of 2019 Primary Court) EDNA MAGESA.................................................. APPELLANT

VERSUS OTHMAN M. ABDALLAH.....................................RESPONDENT

JUDGMENT Date of Last Order: 28/10/2022 Date of Delivery: 15/12/2022 AMOUR S. KHAMIS, J; The overriding issue in this appeal is whether an employer can successfully sue an employee’s brother for the loss occasioned by the employee. Edna Magesa is an entrepreneur who owned an M - Pesa outlet in Tabora Urban. On a request by Othman M. Abdallah, the respondent herein, she employed Amina Zuberi (SU2) as an attendant in her M - Pesa outlet. In the course of discharging her duties, Amina Zuberi allegedly ran into a loss at the tune of Tshs. 1,900,000/= which prompted Edna Magesa, to report at the Police Station. 1 In order to relieve his sister of a criminal responsibility, Othman M. Abadallah undertook to repay the loss through monthly payments of Tshs. 500,000/= until full satisfaction of the total sum. Within the first month after the undertake, Othman M. Abdallah paid Tshs. 250,000/= through mobile phone money transfer to Edna Magesa. However, Edna Magesa was not comfortable with the quantum of money paid and thus returned it to Othman M. Abdallah. Instead, Edna Magesa proceeded with a Criminal Case and had Amina Zuberi re - arrested. Criminal proceedings took its natural course in respect of Amina Zuberi which prompted Othman M. Abdallah to stop any further payments of the alleged lost money to Edna Magesa. Aggrieved, Edna Magesa filed a civil suit in the Tabora Urban Primary

Court where she demanded payment of Tshs. 1,900,000/ = from Othman M. Abdallah. Upon trial, the Primary Court Magistrate was of the view that the claimant failed to establish the claim and the suit was dismissed. On appeal to the District Court of Tabora, the trial court’s judgement was upheld and the appeal dismissed with costs. In this second appeal, Edna Magesa faulted the District Court of Tabora on four (4) grounds, thus; 1. That the appellate Court erred in law and in fact in failing to properly evaluate the evidence before it on 2 balance of probabilities consequently arriving in a wrong judgement.

2. That the appellate Court erred in law and in fact in holding that the appellant sued the respondent’s sister in Criminal Case while there was no proof of the same.

3. That the appellate Court erred in law and in fact in holding that the appellant’s act of receiving Tshs. 250,000/= was an acceptance of the respondent of adjusting terms of the previous agreement contrary to what was agreed and without taking into consideration that the appellant’s act to return the respondent’s money did not in any how amount to breach of contract.

4. That the appellate Court misconceived itself by concluding that the act of the appellant to return Tshs. 250,000/= was a breach of subsequent contract while in fact the appellant was ordered to do so and it was the respondent who failed to honour the agreement. This is the second appeal and therefore this Court is bound to warn itself on its duty bearing in mind that there are concurrent findings of facts by the trial Tabora Urban Primary Court and the appellate District Court of Tabora. In such situation, the instructive position of the law was given by the Court of Appeal for East Africa in AMIRAT1AL DAMODA t/a ZANZIBAR SILK STORES V A.H. JARIWALA t/a ZANZIBAR HOTEL (1980) TLR 31, thus: 3 “........ an appellate Court in such circumstances should not disturb concurrent findings of facts unless it is clearly shown that there has been a misapprehension of the evidence, a miscarriage of justice or violation of some principle of law or procedure. ” Before me, Edna Magesa was represented by Mr. Emmanuel Musyani, learned advocate, while Othman M. Abdallah enjoyed services of Mr. Hassan Kilingo, learned advocate, The appeal was canvassed by written submissions and both counsel made spirited submissions that were timely filed. I have read and considered the counsel rival submissions and examined the whole record of the two Courts below. Upon perusal of the lower Court’s records, I

keenly considered substance of the evidence on record, particularly testimonies by Geofrey Dominic (SM 1), Hamis Mohamed (SM 2), Othman Abdallah (respondent) Rashid Juma (SU 1) and Amina Zuberi ( SU 2). I have also taken into account the Claim Form presented by Edna Magesa in Tabora Urban Primary Court on 13/05/2019 and her personal testimony recorded in the trial Court on 17/05/2019. This evidence on record was well analysed by the trial magistrate and re - examined by the appellate magistrate in Civil Appeal No. 17 of 2019. What is deduced from the present facts is that the appellant and the respondent herein entered into a contract wherein the beneficiency was Amina Zuberi (SU2). 4 In the said agreement admitted at the trial Court, the respondent stated: **...... Nimechukua jukumu la mdogo wangu Amina la kupoteza pesa za bosi wake. Hivyo basi nimemuomba bosi kuzilipa pesa hizo ndani ya miezi 4. Kila mwezi nitakuwa nampa laki tano (5).....” It is trite law that if a contract is conditioned on the satisfaction of the beneficiary, then the subjective test only depends on whether the beneficiary honestly believes that the contract was satisfied, the opinion of other reasonable persons are not relevant. In the present case, SU2 Amina Zuberi expressly stated that subsequent to the signing of the agreement between the appellant and the respondent she was arrested at the instruction

of the appellant and arraigned in Court. At page 11 of the typed proceedings of the Primary Court, Amina Zuberi stated that: ** Tulipofika kituoni tulimuita askari mmoja. Yule askari akasema hii kesi wangemalizana nyumbani, baada ya hapo wakaandikishana kwamba kaka atalipa shilingi laki tano kila mwezi. Baada ya hapo kesi iliisha nikasafirishwa kurudi nyumbani Tanga. Ilipofika tarehe 10/4/2019 mdai alitumiwa Tshs. 250,000/= ndipo mdai alipoenda kituoni akadai kwamba hakuona hela, ikabidi tena kaka akamatwe akawekwa kituoni. 5 Baadae mdai alikubali kivamba 250,000/= ameiona ila anataka mtuhumiwa wake arudishwe ndipo atarudisha hiyo pesa. Nilirudi tena Tabora tarehe 10/5/2019 nikapelekwa kituoni nikawekwa ndani Kaka akaja tena kunitolea dhamana nikaambiwa kesi italetwa Mahakamani. NilUetwa Mahakamani lakini sikuingizwa kwa hakimu. Nikaambiwa jalada halijakamilishwa nikarudishwa tena nyumbani....” This evidence was corroborated by the testimony of the respondent, Othman Abdallah, as reflected in pages 6 - 7 of the typed proceedings of the trial Court. It is not disputed that the respondent paid a sum of Tshs. 250,000/= as part of the agreement with the appellant. However, the said money was subsequently refunded or returned by the appellant, Edna Magesa. Following return of the money, Edna Magesa demanded for production of Amina Zuberi who had to be re - called from Tanga on the

ground that she wanted to criminally proceed against her. This demand was made by the appellant as a result of which Amina Zuberi as a beneficiary of the agreement was re - arrested and arraigned in the Tabora Primary Court. These circumstances invite me to go along with the holding of the Court of Appeal of Kenya in HASSAN MBAROUK V NORTH 6 COAST FISHERMEN'S COOPERATIVE SOCIETY LTD, CIVIL APPEAL NO. 48 OF 1995 (Unreported), thus: “ Where one party fails to fulfil his part of the contract the innocent party is entitled to treat the contract as determined by notice and is not bound to wait for the contract period to end”. Edna Magesa contended that there was no proof that she preferred criminal charges against Amina Zuberi. However, the duty to prove that she did not institute a criminal action against Amina Zuberi lied squarely on the appellant’s shoulders because she was the plaintiff in the trial Court. In this aspect, I am persuaded by the Court decision in GURDE V SINGH BIRDI & ANOTHER V ABUBAKAR MADHUBUTI, CIVIL APPEAL NO. 165 OF 1996 (unreported) wherein it was held that: “ a party seeking specific performance must show proof that he has complied with his part of the agreement.” Edna Magesa’s undertaking in the agreement with Othman M. Abdallah was for her to refrain from taking criminal action against Amina Zuberi, the respondent’s sister. The trial Court’s records show

that she (Edna Magesa) failed to lead any evidence to show that she refrained to proceed criminally against Amina Zuberi on strength of the undertake by the respondent. 7 In the circumstances, findings of both law and facts by the two lower Courts were in accordance to the evidence on record and thus cannot be faulted. I am therefore satisfied that this appeal is devoid of merits and thus hereby dismissed with no order forcosts. It is so ordered. AM S. KHAMIS

JUDGE i15/12/2022 / >J

ORDER Judgement delivered in open Court in presence of Ms. Esther Mchele and Ms. Christina Jackson, advocates for the appellant and Ms. Agnes Simba, advocate for the respondent. 8