FARAJI KHALIFAN MOHAMED

IN THE HIGH COURT OF TANZANIA DODOMA SUB- REGISTRY AT DODOMA CIVIL APPEAL NO. 8792 OF 2024 (Arising from Civii Appeal No. 26 o f2023 in the District Court o f Dodoma, Originating from Civil Cause No. 22 o f2023 in the Primary Court o f Dodoma) FARAJI KHALIFA MOHAMED.........................................APPELLANT VERSUS ATHUMANI ADAM SELEMAN.......................................RESPONDENT JUDGMENT 12thJuly & 9 hAugust, 2024. MUSOKWA, J. This appeal arises from the judgment of the District Court of Dodoma in Civil Appeal No. 26 of 2023 delivered on 13th October, 2023. Briefly, the appellant and the respondent were parties to CivilCase No. 22 of 2023 in the Primary Court of Dodoma Urban (trial court). Therespondentherein, lodged a claim of TZS 7,090.000/- against the appellant before the trial court. At the trial court, the appellant admitted the claim and agreed to pay the respondent in installments. The trial court ordered the appellant to pay the respondent TZS. 480,000/- per month from 23rd April, 2023. The appellant being aggrieved with the said decision, appealed to the District Court. After hearing the parties, the District Court ordered the appellant to pay the respondent a total of TZS 6,690,000/- with immediate effect. The appellant was equally aggrieved by the judgment and decree of the District Court hence appealed to this court on the following two grounds of appeal: - (1) That the Honourable Magistrate Court erred in law and fact by upholding the decision o f the trial court that the appellant shall pay the respondent herein above amount o f TZS. 480,000/- per month while the appellant is incapable o f paying the said amount (2) That the Honourable Magistrate Court erred in law and in fact by holding in favour o f the respondent herein without any analysis and or justification o f the decision and without considering the source o f income o f the appellant. By the order of this court, the hearing of this appeal was by way of written submissions. Both parties complied with the court scheduling orders. The appellant in his written submissions, submitted on the first ground of appeal that the respondent sued the appellant for recovery of debt valued at TZS 7,09,000/- and the appellant admitted the debt and started the repayment thereof. Initially, the appellant agreed to pay TZS. 15,000/- per day but it has been difficult for the appellant to implement the agreement due to meager source of income. The appellant has intention to pay the debt even during the prosecution of this appeal. The appellant added that, the amount required to be paid per month is too high due to inadequate income of the appellant. Notably, the appellant is a bajaji and bodaboda driver and his monthly income does not equate to even half of TZS 480,000/- which was ordered by the trial court. The appellant prayed that the amount be reduced to the tune of TZS 60,000/- per month, an average of TZS 2,000/- per day. Regarding the second ground of appeal, the appellant submitted that the trial and the District Courts did not consider the source of the income of the appellant; the case of Simon Edson@ Makundi vs Republic, Criminal Appeal No. 5 of 2017 was cited in support this point. The appellant stated further that, the trial and the District Courts decided the case without any legal justification. Thus, the appellant prayed that this appeal be allowed and the findings of the lower courts be overruled with costs. In reply to the first ground of appeal, the respondent submitted that the ground of appeal is baseless basing on the fact that the appellant had previously made efforts to pay an amount of TZS 130,000/- to the respondent thus, he is capable of paying the said amount. The respondent further referred to page 4 of the trial court proceedings, whereby the appellant stated that he is working for gain, and that the amount he earns shall be directed towards repayment of the outstanding debt owed to the respondent. Therefore, the amount of TZS 480,000/- per month as ordered by the trial court is within the means of the appellant. In response to the second ground of appeal, it was the submission of the respondent that the trial court considered the evidence adduced by both parties and proceeded to determine the matter on the balance of probabilities. The respondent added that, the appellant should find other sources of income in order to repay the outstanding debt. The respondent therefore prayed that this appeal be dismissed with costs. After going through the submissions of both parties and the court records as a whole, the issue to determine is whether this appeal has merits. I am fully aware that this is a second appeal. It is a settled principle that in the second appeal, this court can only interfere where there was a misapprehension of the substance, or quality of the evidence, or violation of some principle of law or procedure which has occasioned a miscarriage of justice. The case of Neli Manase Foya vs Damian Mlinga [2006] T.L.R, 167 is referred to. Starting with the first ground of appeal, I have analyzed the parties' submissions and perused the trial courts records and discovered that there is no dispute that the appellant is indebted. The main complaint by the appellant that prompted the appeal to the District Court and before this court, is that the monthly repayment installment ordered by the trial court is excessive due to inadequate source of income. In view of the above, since the appellant admitted that there is a contractual agreement between the parties, then the appellant was supposed to fulfil his obligations under the contract. Turning to the second ground of appeal, I am of the settled opinion that the respondent was entitled to the amount of TZS 6,690,000/- which is outstanding. The appellant submitted that the breach of agreement was due to his financial incapacity. This defense raised by the appellant did not exonerate him from the obligation to honor the agreement to which he freely entered with the respondent. In the upshot, I find that this appeal lacks merit and it is entirely dismissed. As the result, I hereby order the appellant to pay the respondent the outstanding amount of TZS 6,690,000/-. The mode of payment of the outstanding amount or execution of the decree is exclusively left to the discretion of the parties herein. No order as to costs. 5 'Right of appeal is explained. DATED at DODOMA this 9th day of August, 2024. Judgment delivered in the presence of the appellant and in the presence of the respondent. 6