emmanuel 2

IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY THE HIGH COURT OF TANZANIA LAND DIVISION AT IRINGA CIVIL APPEAL NO. 21 OF 2023 EMMANUEL BENARD MUSYANI (As Administrator of the Estate of the Late ERNEST MWAKADINDA) .... ..... . APPELLANT VERSUS 1. DAVID MICHAEL MWAKALALiLE 2. AGNES EGIDIUS MASAWE J................... ....... . RESPONDENTS (Appeal from the decision of the District Court of Kilolo at Kilolo) (Hon. T. G. Maleko (RM)) Dated the 24th day of August 2023 in Civil Case No. 03 of 2022, JUDGMENT Date of last order: 05/07/2024. Date of Judgement: 09/09/2024, S.M. KALUNDE, J.: Before the District Court of Kilolo Sitting at Kilolo (Henceforth ''the trial court"), the respondents filed a suit for breach of contract against the appellant in his capacity as the administrator of the estate of the late Ernest Mwakadinda. The trial court resolved the suit in favor of the respondents. The appellant was ordered to pay the respondents TZS. 68,200,000.00, in special damages and TZS. 10,000,000.00, in general damages. The appellant is aggrieved by the said decision, hence the present appeal. The background facts to the despite are simple and straight forward. They go thus; sometimes in 2010 the respondents entered into an oral partnership agreement (Henceforth "the partnership") with Ernest Said Mwakadinda, now deceased. Under the partnership, the respondents invested in the plaintiffs' farms located at Kiwalamo and Ki ma la Areas in Kilolo District and other farms located in Mbozi District, Songwe Region (Henceforth "the suit property"). It was allegedly agreed that the respondents would inject capital for the farms' development, including planting and taking care of trees, in return, the deceased offered his farm and labor for the project's development. The respondents claimed further that on diverse dates between 2010 and 2020 they advanced sums of money amounting TZS. 68,000,000.00, being capital investments for the partnership. After the disbursements, the deceased withdrew and utilized the money to plant and take care of trees on the farms located at Kiwalamo and Kimala Areas in Kilolo District. The money was also applied to develop the other farms and mineral projects in Mbozi District, Songwe Region. It was alleged that, sometimes in September 2020, the deceased together with her daughter Lilian Kinombo breached the contract by harvesting the trees and transporting them to Buguruni, Dar es Salaam. It was pleaded further that in 2021, the deceased was involved in a conflict with his daughter Lilian Kinombo over the suit property. The matter was later resolved by the Village Government and Kilolo Police where the deceased allocated another piece of land to Lilian Kinombo. Upon settlement of the impeding disputes. The respondents were then allowed to harvest and sell timber from the suit property. It seems that, after dealing with the matter for a long time, the police noted that it was more civil than a criminal case. They also realized there was potential for further disputes, thus advised the parties to formalize their partnership by a written agreement. Thus, on the 3rd 2 day of July 2021, the respondents and the deceased signed an agreement. However, despite having signed a contract they were notified that another person invaded the suit property and started harvesting the trees. The respondent reported the matter back to the police. Unfortunately, as they were waiting for the deceased to show up at the police station to settle the matter, on the 19th day of July 2021. The respondents participated in the deceased's funeral and notified members of the family about the partnership arrangement. They also attended the family meeting that appointed the appellant to apply for letters of administration. They also notified the would be administrator of their interest in the suit property. But to their dismay, they were notified that the administrator had sold the trees. Realizing that their investments in the partnership were in jeopardy the respondents, jointly and severally, filed a suit at the trial court seeking for judgment against the appellant in the following terms: - (a)The defendant be declared that he is in breach of contract of partnership investment; (b) Payment of TZS. 68,200,000/= being specific damages of money invested in the project; (c) Payment of TZS. 104,931,974/=, being money accrued from 30% of plaintiffs' shares; (d)Payment of Tshs. 381,800,000/= out of Tshs. 880,074,624/= being anticipated profit accrued from the investment in five years; (e) Payment of Tshs. 100,000,000/= being general damages to be assessed by the court; (f) Payment of interest on Items No. (a), (c), (d) and (e) above at the rate of 25% per annum from the date of filing to the date of judgment; (g) 3. Payment of interest on. the decretal sum above at the rate of 7% per annum from the date of judgment until full payment; (h) Exemplary damages; and (i) Costs of the suit; and any other relief this court may deem fit and equitable to grant. The appellant filed written statement of defense resisting the suit. He plainly denied all the allegations in the plaint. In addition to his general denial, the appellant alleged that, in accordance with the death certificate issued on the 13th day of August 2021 (Exhibit DI), he was appointed an administrator of the estate of the late Ernest Sinamkole Mwakadinda and not Ernest Said Mwakadinda or Ernest Mwakadinda. The appellant claimed further that there was no valid and enforceable agreement between the respondents and the deceased. He averred that if there was agreement, the deceased did not freely enter it as he was coerced. From the pleadings of the parties, the learned trial court magistrate framed the following issues which were agreed upon by the parties: - "(i) Whether there was a contract between the parties; (ii) If the first issue is answered in the affirmative, whether the said contract was valid; (Hi) Whether Ernest Sinamkole Mwakadinda and Ernest Said Mwakadinda refer the same person; (iv) If the first issue will be answered in the affirmative, whether the deceased breached the said contract; (v) What are the reliefs parties are entitled to. 4 To establish the above issues, the appellant relied on the evidence of five witnesses Agnes Eg id i us Masawe (Pwl); Davi Michael Mwakalile (Pw2); PF. 199985 Insp. Msafiri Zingo (Pw3); Flomena Titus Mazengo (Pw4) and Othman Michael Kisiya (Pw5) plus one documentary exhibit namely, "MKATABA WA KU W EKEZ A KATIKA MAS HAM BA", agreement to invest in farms between Ernest Said Mwakadinda on the one hand, and Davi Michael Mwakalile and Agnes Egidius Masawe on the other (Exhibit Pl). The appellant, Emmanuel Benard Musyani (Dwl), was the sole defense witness. He also tendered in evidence the death certificate of the deceased issued on the 13th day of August 2021 (Exhibit DI). Having heard the parties and analyzed the evidence on record, the learned trial court magistrate found that the respondent had successfully established that there was a valid contract between the late Ernest Said Mwakadinda and the respondents. The learned trial court magistrate made a further finding that the names Ernest Sinamkole Mwakadinda and Ernest Said Mwakadinda referred to the same person. The trial court was also satisfied that the deceased and the appellant breached contract, in the result, the appellant was ordered to pay the respondents the sum of TZS. 68,200,000.00, for special damages; TZS. 68,200,000.00, in anticipated profits and TZS. 10,000,000.00, in general damages. The decision of the trial court provoked the appellant to lodge the current appeal to express her dissatisfaction. In the memorandum of appeal lodged to this court, the appellant has preferred seven grounds which can be summarized as follows: 5 "2 . i^That, the trial court erred to determine the Suit while the 1st Respondent had No Locus Standi to institute the claim against the Appellant; 2. That, the trial court erred in relying on exhibit Pl which had no legal effects from its inception; 3. That, the trial court erred in holding that Ernest Sinamkole Mwakadinda and Ernest Said Mwakadinda the names of the Deceased, 4. That, the trial court erred in holding that the 2nd and 1st Respondents were married; 5. That, the trial court erred in relying on mere verbal allegations without cogent proof; 6. That, the trial court erred in placing reliance on the responden ts contra dietary Eviden ce; 7. That, the trial court failed to evaluate the evidence on record and thereby arriving at a wrong conclusion." The appeal was argued in writing. Unrepresented, each party prepared and filed their written submissions in support of their stance, hence the present decision. For convenience, I propose to refer to the submissions of the parties while resolving the grounds of appeal as summarized above. However, before delving any further to the determination of the appeal I wish to acknowledge that this being a first appeal, this court is enjoined to re-evaluate the evidence and draw its own inferences of fact or conclusions subject to the usual regard to the trial courts findings grounded on the credibility of witnesses. In support of the first ground of appeal, the appellant argued that the first respondent had no locus standi to institute the suit at 6 the trial court because he was not part of the partnership agreement entered into between the deceased and the second respondent. In further arguing the ground, the appellant submitted that the partnership agreement (Exh. Pl) was only signed by the deceased and the second respondent. The appellant argued that the issue of locus standi was a jurisdictional issue and could be raised at any stage. To support his contention, the appellant cited the case of Richard Julius Rukambura vs Isaack Ntwa Mwakajila & Another (Civil Appeal No. 2 of 1998) [2004] TZCA 67 (19 January 2004) TANZLII and Lujuna Shu bi Ballonzi vs Registered Trustees of Chama ch a Mapiriduzi [1995] TZHC 731; (Civil Case 214 of 1992) [1995] TZHC 731 (9 May 1995) TANZLII. In reply, the respondents cited the name of the parties in the preamble to the agreement and argued that it was clear the agreement was entered to between Mr. Ernest Said Mwakadinda as "the Farm Owner" on the one hand and Mr. Davi Michael Mwakalile and Agnes Egid ids. Masawe, as "the Investors" on the other hand. They also added that available evidence showed that the two respondents were present at the formulation of the oral agreement that culminated into the written agreement. It was also their contention that the first respondent had locus standi to sue the appellant based on the partnership agreement. It is a settled principle of law that for a person to institute a suit he/she must have locus standi. Locus standi is a common law principle which provides that only a person who's right or interest has been interfered with by another person has a right to bring his claim to court against that other person. It is also true that in 7 Lujuna Shubi Ballonzi (supra) TLR. 203, Samatta, J (as he then was) made the following comments on locus standi: "Locus standi is governed by common law according to which a person bringing a matter to court should be able to show that his right or interest has been breached or interfered with. The High Court has the power to modify the applied common law so as to make it suit local conditions." I also agree with the appellant that the issue of locus standi is a very crucial issue because it relates to the litigant's interest in proceedings which warrants his or her title to prosecute the claim asserted;. In turn, the right to the title is among the initial matters to be established in a litigation matter. It is for this reason that in the case of Chama Cha Wafanyakazi Mahoteli Na Mikahawa Zanzibar (HORAU) vs Kaimu Mrajis Wa Vyama Vya Wafanyakazi Na Waajiri Zanzibar (Civil Appeal 300 Of 2019) [2020] TZCA 1923 (18 December 2020) TANZLII, the Court of Appeal (Levira, J.A) observed that: "l/l/e have carefully considered submissions by the counsel for the parties, grounds and the record of appeal. Wc think, it is necessary for us to determine first the issue regarding appellants locus standi before turning to the merits of the case. We observed that, although the learned High Court Judge struck out the respondent's notice of preliminary objection for being improperly moved, still the issue regarding appellant’s locus standi was very vital and we think, the High Court ought to have considered it. This is due to the fact that, the appellant's claims could not be established by a person who is not entitled to claim before the court." 8: Likewise in the case of Peter Mpalanzi vs Christina Mbaruku (Civil Appeal 153 of 2019) [2021] TZCA 510 (23 September 2021) TANZLII, the Court of Appeal (Mwampashi, J.A) sated: "Locus standi is a rule of equity that a person cannot maintain a suit or action unless he has an interest in the subject matter. Unless a person stands in a sufficient close relation to the subject matter so as to give a right which requires protection or infringement of which he brings the action, he cannot sue on it- see Godbless Lerna v. Mussa Hamis Mkanga and 2 Others, Civil Appeal No. 47 of 2012 (unreported). Further, focus standi is a point of law rooted into jurisdiction. It is for that reason that it must be considered by a court at the earliest opportunity or once it is raised." In this case, I have examined the records, particularly the testimony of Pwl, Pw2 and Pw3, and exhibit Pl. In their testimony, both Pwl and Pw2 narrated that their arrangement started in 2010 by an oral agreement with the late Ernest Said Mwakadinda. It was also part of their testimony that in 2021 their oral agreement was reduced into writing upon advice and recommendations from Pw3. Their testimony was also verified by Pw3 who narrated that he advised the respondents to reduce their agreement into writing. He also said that, upon the agreement’s conclusion, a copy was served to him. My careful perusal of the partnership agreement shows that the agreement was entered into between Mr. Ernest Said Mwakadinda on the one hand, and Mr. Davi Michael Mwakalile and 9 Mrs. Agnes Egidius Masawe, on the other. Part of the agreement reads: "MKATABA Ndugu Ernest Said Mwakadinda, wa Kiwalamo Idete Wilaya ya Kilolo, Mkoa wa Iringa S.L.P .... (ambaye katika mkataba huu atajulikana na kutambulika kisheria kama "MMILIKI WA MASHAMBA") kwa upande mmoja. Na Ndugu David Michael Mwakalalile na Agnes Egidius Masawe, wa Mkimbizi C, kata ya Mkimbizi Wilaya ya Iringa CBD, Mkoa wa Iringa, S.L.P 1394 (ambaye katika mkataba huu atajulikana na kutambulika kisheria kama "MWEKEZAJI") kwa upande mwigine. AMBAPO Bila shuruti wala vitisho pande zote mbili zimeridhiana kwa masharti ya mkataba huu kwamba MMILIKI WA MASHAMBA ana nia thabiti ya kumkaribisha MWEKEZAJI katika uwekezaji wa Pamoja katika mashamba yenye mazao mbalimbali ya msimu wa mwaka, miti ya mbao, miti ya kuni na miti ya mkaa na MWEKEZAJI ana nia thabiti ya kuwekeza katika mashamba hayo." The above preambular paragraphs of the partnership agreement may be translated as follows: "CONTRACT FOR INVESTING IN A FARM This Agreement is entered into on this 03 day of July 2021 Between Ernest Said Mwakadinda of Kiwalamo, Idete, Kilolo District in Iringa Region (who shall be known and referred to as "THE FARM OWNER") on the one hand; io AND Mr. Davi Michael Mwakalile and Agnes Egidius Masawe, of P.O. Box 1394, Mkimbizi C, Mkimbizi Ward in the District and Region of Iringa (Hereinafter known and referred to as 'THE INVESTOR") on the other hand. WHEREAS Without any coercion or threats the two parties have agreed that it is the: terms of the contract that the FARM OWNER truly wishes to invite the INVESTOR in a joint investment into the two farms containing various seasonal crops, timber logs, firewood and charcoal trees,: and the INVESTOR is willing to invest in the said farms." From the above quotation from the agreement (Exhibit Pl), there were only two parties to the agreement, namely the farm owner and the investor. The contract show further that Mr. Ernest Said Mwakadinda was "THE FARM OWNER" and Mr. Davi Michael Mwakalile and Ms. Agnes Egidius Masawe, constituted "THE INVESTOR." Considering the above quotation, it seems clear to me that the investor side was represented by two individuals, namely; Mr. Davi Michael Mwakalile and Ms. Agnes Egidius Masawe. Therefore, whenever there is a word investor in the agreement, reference was made to Mr. Davi Michael Mwakalile and Ms. Agnes Egidius Masawe.. It is also evident that the agreement was signed by Mr. Ernest Said Mwakadinda for an on behalf of THE FARM OWNER; and Ms. Agnes Egidius Masawe, signed the agreement for and on behalf "THE INVESTOR." Upon signing of the agreement by representatives from THE FARM OWNER'S side and the "THE INVESTOR" side the 11 agreement became binding upon both parties and each side would be entitled to enforce the agreement. It is also: On record that the first respondent testified as Pwl. In his testimony he gave the historical background to the relationship between him and the deceased. He also gave an account of how the written agreement was made. In the circumstances, I am satisfied that Pw2 established his relationship and proximity with the subject matter of the case before the trial court. He also testified to the extent of his rights before the trial court. His testimony was also supported by the oral testimonies of Pwl who narrated that Pw2 first provided the project funds up to 2019 when she took over. The evidence of Pwl and Pw2 was also supported by Exh. Pl and the testimonies of Pw3, Pw4 and Pw5. On that account I am satisfied that the first respondent had locus standi to institute the case against the appellant. He need not be signatory to the agreement for him to acquire the locus standi. The first ground of appeal is thus without merits and the same is dismissed. In the second ground of appeal the appellant alleges that the trial court erred in placing reliance on Exhibit Pl which had no legal effects from its inception. However, the appellant did not elaborate how Exhibit Pl was void from its inception. Nevertheless, from his scant submissions, I noted that he faulted the agreement's validity regarding the first respondent who did not sign it. In reply, the respondents alleged that the contract was legally enforceable after It had been executed by both parties. For my part, I have carefully examined the records, and having done so, I am satisfied that 12 Exhibit Pl was a valid contract with a binding force on all the parties stated therein. In accordance with the testimony of Pwl, Pw2 and Pw3, the agreement was executed in Iringa by the deceased himself. The agreement contains the signatures of both parties including the witnesses for the deceased. In his testimony, the appellant did not raise any question on the validity or legality of the terms of the agreement. It is also on record that, during trial, the appellant did not raise any valid objections against the admissibility of the said agreement. The said agreement clearly reflects the intention of the parties as reflected in clauses 1, 2, 3, 4, 5, 6, 7, 8 and 9. Clauses 1, 2, 3 and 4 of the agreement highlights the basic agreement and understanding of the parties in relation to the partnership in the following terms: "AMBAPO SASA INASHUHUDIWA KUWA: 1. MMILIKI WA MASHAMBA ni mmiliki halali wa mashamba hayo na miti yote vyote vikiwa maeneo ya Ki wa la mo ria Kima la, Halmashauri ya Wilaya Kilolo, Mkoa wa Iringa yenye "coordinates" zifuatazo 2. MMILIKI WA MASHAMBA anakiri ku wa taya ri amepokea fedha za awali jumla ya shilingi za kitanzania milioni sitini na nane na laki mbili Tsh. 68,200,000.00) kutoka kwa MWEKEZAJI, fedha zilizotolewa kuanzia mwaka 2010 hadi mwaka 2021. 3. MMILIKI WA MASHAMBA anakiri kuwa tayari ametumia fedha za a wall Tsh. 68,200,000.00 kwa kununua mashamba maeneo ya Kiwalamo na Kim a la, kufuatia kesi yake ya Kampuni ya New Forest Company (T) Limited ambayo aliwashinda New Forest Company (T) Limited), kujenga 13 nyumba katika eneo la Mawerewere katika Manispa a ya Iringa (kwa ajili ya kuwa dhamana kwa mikopo kutoka benki siku za baadaye) kupanda miti katika mashamba yaliyonunuliwa, kugharamia utatuzi wa changamoto mbalimbali zinazohusu mashamba kugharamia shughuli za maandalizi ya uwekezaji katika ardhi Wilaya ya Mbozi Mkoa wa Songwe, Kutengeneza Bara bara shambani, kuvuna miti na kupasua mbao katika moja ya mashamba kwa ajili ya kuuza mbao. 4. MMILIKI WA MASHAMBA na MWEKEZAJI kwa Pamoja wanakubaliana kuwa MMILIKI WA MASHAMBA atarejeshewa fedha zake za uwekezaji Tsh. 68,200,000.00 baada ya: uvunaji na uuzaji wa mbao na mazao mengine ya misitu kama mkaa, Magogo na kuni." The literal English translation of the above quoted clauses in the agreement is as follow: ”I/V WITNESS THEREOF PARTIES AGREE THAT: - 1. THE FARM OWNER is a lawful owner of farms and trees contained in farms located at Ki wa la mo and Kimala, Kilolo District Council in Iringa.... 2. THE FARM OWNER acknowledges that he has received a total of Tanzanian Shillings Sixty-Eight Million Two Hundred Thousand (Sh. 68,200,000.00) from the INVESTOR, being: funds received between 2010 and 2021. 3. THE FARM OWNER acknowledges that he has spent the Sh. 68,200,000.00 for purchasing a farm at Kiwalamo and Kima la, following up his cases with New Forest Company (T) Limited (which won against New Forest Company (T) Limited), build a 14 house at Mawerewere in Iringa Municipal (for purposes of pledging it as security to secure bank loans in future), plant trees on the purchased farms, incur expenses for resolving various disputes relating to the farms, sustain costs for preparation of investment in the land located in Mbozi District, So ng we Region, prepare roads in the farms, harvest timber logs and prepare timber for sale. 4. THE FARM OWNER and THE INVESTOR jointly agree that THE FARM OWNER shall repay the Sh. 68,200,000.00, after harvesting and sale of the timber and other forest products such as charcoal, logs and firewood." From the: above paragraphs, it is clear that the parties were aware of their rights and obligations as they concluded the agreement. The appellant cannot therefore contend that the agreement was void ab initio for lack of signature by the first respondent, who, as I have pointed out above, was represented by the second respondent. The second ground of appeal is also without merits. In third ground of appeal, the appellant argued that the trial court erred in holding that ERNEST SINAMKOLE MWAKADINDA and ERNEST SAID MWAKADINDA the names of the Deceased. He submitted: that according to Exh. DI he was the administrator of the estate of the late Ernest Sinamkole Mwakadinda and not Ernest Said Mwakadinda or Ernest Mwakadinda. He also argued that respondents entered into a partnership agreement with Ernest Said Mwakadinda and not Ernest Sinamkole Mwakadinda whom he administers his estate. He argued that the case at the trial court 15 was brough before a non-existent party. To support his case, he cited the case of Fort Bakery Supply Company vs. Fredrick Muigai Wangoe [1959] EA 474. It is not in dispute that in accordance with Exh. Pl, the respondents entered into an agreement with a person who introduced himself to them as Ernest Said Mwakadinda. It is also not in dispute that the said Ernest Said Mwakadinda was lawful owner of the farms located in Kiwalamo and Kimala Areas in Kilolo District. The said farms were aptly identified and explained under clause 2 of the partnership agreement. It was also not disputed that appellant also seeks to administer the same farms to which the deceased entered an agreement with the respondents. There is also no dispute that the deceased was referred to in the names of Ernest Sinamkole Mwakadinda, Ernest Said Mwakadinda and Ernest Mwakadinda. The appellant himself said that his father was Ernest Mwakadinda. In light of these revelations, the trial court was right and correct in concluding that Ernest Sinamkole Mwakadinda and Ernest Said Mwakadinda were one and referred to the same person. Regarding whether Pwl and Pw2 were wife and husband. There was no dispute whether the first and second respondents were married. It is also on record that when the said witnesses testified, they were husband and wife, the appellant did not cross examine them to question their testimony. It is trite that failure to cross-examine a witness on material facts means agreement with the evidence so adduced. This complaint is also without merits. 16 The sixth ground of appeal is also devoid of merits because in their testimony, both Pwl and Pw2 narrated that they TZS. 68,200,000.00, on the farm and that those funds were sent and utilized by the deceased to plant and take care of trees. The evidence of Pwl and Pw2 was also backed up by the contents of clauses 1, 2, 3 and 4 of the agreement. In his testimony Pw3 stated that before the police the victim admitted to having collected TZS. 38,000,000.00. He also stated that Pwl said the deceased was advanced funds in excess and above TZS. 38,000,000.00. In the end, the trail court correctly and rigorously evaluated and arrived ata just conclusion that the respondents successfully established that the deceased and appellant breached the terms of a valid agreement entered between the deceased and the respondents. For foregoing reasons, I dismiss the appeal for being devoid of merits. The respondents shall have costs. It is so ordered. DATED at IRINGA this 09th day of SEPTEMBER, 2024. 17