CIVIL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: MKUYE. J.A.. MWAMPASHI, J.A. And MGEYEKWA. J.A.^ CIVIL APPEAL NO. 448 OF 2020 FAUZIA JAMAL MOHAMED........................................................APPELLANT VERSUS LILIAN ONAEL KILEO..................................... ............... ......RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Commercial Division, at Dar es Salaam) (Mwambeaele, J.’i dated the 18th day of February, 2016 in Commercial Case No. 135 of 2013 JUDGMENT OF THE COURT 3rd & 23rd July 2024 MKUYE, J.A.: Fauzia Jamal Mohamed, the appellant, is appealing from the judgment and decree of the High Court of Tanzania (Commercial Division) at Dar es Salaam dated 18th February, 2016 by Hon. Mwambegele J. (as he then was) in Commercial Case No.135 of 2013 in which the respondent, Lilian Onael Kileo, emerged successful. Before embarking on the merit of the appeal, we find it imperative to preface our judgment with a brief narration of the background of the matter leading to this appeal. i The respondent is a business woman dealing with real estate development. Sometimes in 2012, she was introduced to the appellant by her acquaintance that the appellant was in a position to facilitate the purchase of Government houses from defaulting buyers. According to the respondent, the appellant met with her and discussed about the deal whereby it was agreed that the respondent should pay her TZS. 450.000.000.00 for the transaction. Based on the discussion between the two, the respondent began effecting payments to the appellant in respect of the agreed deal and paid her an amount to the tune of TZS. 411.500.000.00. Later on, the respondent received a tip off from an acquaintance whereupon it was revealed to the respondent that the appellant was none other than a known swindler. This information disturbed the respondent. In response she decided to disassociate herself from the deal and demanded from the appellant a refund of the money already received by her. It would appear that the appellant refunded her some money. Then, it was resolved by the two parties that the outstanding amounts be treated as a loan. On 30/1/2013, an agreement between the two to that effect was executed. Meanwhile, it would appear that the appellant paid the respondent USD 50,000.00 on the same date (30/1/2013) but before the said agreement was concluded. Also, in the same month of January, 2013 the appellant allegedly paid the respondent an amount to the tune of USD 30,000.00 on 11/1/2013 and USD 20,000.00 on 26/1/2013 but this fact is denied by the respondent. Be it as it may, the appellant maintained that the arrangement between the two was based on a loan advanced to her by the respondent without giving out any clear information leading to the agreement. It was further maintained by her that the loan in question had already been repaid in full and that she was not owed by the respondent even a single cent. On the other hand, the respondent maintained that the appellant owed her some money. The respondent then instituted a suit in the High Court claiming for among other things; a declaration that the defendant (appellant) breached the contract; payment of an outstanding amount of T2S.160,000,000.00; special damages of TZS. 20,000,000.00; and general damages to be assessed by the court; interests and costs. After hearing both parties, the trial court entered judgment in favour of the respondent in which the appellant was ordered to pay the respondent a sum of TZS.160,000,000.00 being value of the outstanding loan amount and general damages of TZS. 10,000,000.00. Aggrieved by the decision of the High Court, the appellant has appealed to this Court on six grounds of appeal which can be paraphrased as follows: (1) The High Court erred by holding that USD 50,000.00 paid to the respondent on 3&h January 2013 was not payment for the loan but involved a separate transaction, (2) That, the High Court erred in holding that the appellant did not pay the respondent the sum o f USD 30,000.00 and USD 20,000.00. respectively. (3) That, the High Court erred by holding that the respondent is entitled to general damages at the tune o f TZS. 10,000,000.00 withoutjustification. (4) The trial Judge erred by failing to take into consideration the admission during cross examination that USD 50,000.00 was part o f payment under the contract. (5) The trial Judge erred by failing to allow the appellant to respond to new averment in a reply to the written statement o f defence by way o f additionalproceedings. (6) That, the High Court erred by holding that the appellant failed to call essential witnesses thus unable to prove the payment o f US D 30,000.00 and 20f000.00. When the appeal was called on for hearing, the appellant was represented by Ms. Rita Odunga Chihoma, learned advocate, teaming up with Messrs. Elinas Emmanuel Kitua and Ismail Amin Mmari, both learned advocates. On the other hand, the respondent had the services of Mr. Edward Peter Chuwa assisted by Ms. Anna Lugendo, both learned advocates. Notably, the matter was once placed before the Court on 4/7/2023 whereby it was adjourned to pave way for the appellant to lodge a supplementary record of appeal to include the transcript of proceedings of the trial court within sixty days of the order, which has been complied with. We propose to deal with this appeal in accordance with the following arrangement. We will start with ground no.5, followed by grounds nos. 1, 2, 4 and 6 co-jointly and ending up with ground no.3. On being called upon to amplify the appellant's grounds of appeal, Ms. Chihoma in the first place, sought to adopt the written submission in support of appeal lodged on 26/01/2021 together with a list of authorities filed on 6/2/2024 without more. In the written submission the, appellant began with ground No.5 in which she faults the trial Judge for not allowing her to respond to the new averments in the respondents' reply to the written statement of defence (WSD) by way of additional proceedings. It is argued that the respondent in reply to the appellant's WSD averred new facts that were not pleaded as shown at page 294 of the record of appeal. She contended that while in the plaint the respondent claimed to have entered into a loan agreement with appellant to the tune of TZS.315,000,000.00, in the reply to WSD (page 49 of the record), she claimed to have paid the appellant TZS.415,000,000.00 for the purchase of a Government house which was a new fact not pleaded in the plaint or WSD. It is further contended that, this is why counsel for appellant sought leave of the trial court to make a rejoinder but the prayer was rejected on account that no good reason was advanced which, in her view, was wrong as it amounted to an unfair trial as the right to be heard was violated. To bolster her argument, she referred us to the cases of Mbeya Rukwa Auto parts and Transport Ltd v. Jestina George Mwakyoma (2003) TLR 251; Ex D.8656 CPL Senga s/o Idd Nyembo and Others v. Republic, Criminal Appeal No.16 of 2018 [2020] TZCA 381 (7 August, 2020) TANZLII; Director of Public Prosecutions v. Sabima Inyasi Tesha and Another (1993) TLR 237 the gist of which is that the denial of a right to be heard in any proceedings vitiates the proceedings. In particular, in the case of Mbeya Rukwa Auto parts and Transport Ltd (supra), the Court stated as follows: "...in this country natural justice is not merely a principle o f common law; it has become a fundamental constitutional right Article 13 (6) (a) includes the right to be heard amongst the attributes o f the equality before the law." Upon being probed by the Court if there was any law permitting a reply to the rejoinder to the WSD, Ms. Chihoma said there was none. In response, through her written submission and oral submission made by Mr. Chuwa, it was submitted in the first place that pleadings are matters of law. That, the reply to the WSD was proper in law as per the proviso to Order VII rule 13 of the Civil Procedure Code [Cap 33 R.E. 2019] (the CPC) and that it was filed with the leave of the court issued on 11/11/2013. The respondent also argued that the contention that the appellant was denied the right to rejoin has no basis since the denial by the trial court was due to the fact that the appellant failed to cite any law or authority in support of her prayer and that she did not state the reasons for filing a rejoinder. Moreover, the respondent argued that, the allegation that the respondent averred new facts was an afterthought contending that the averment relating to TZS. 415,000,000.00 was in response to paragraph 3 of the WSD in which the appellant had averred that "...the actual loan was agreed by the parties sometimes during the month o f December 2012", which was before the execution of the written loan agreement dated 30/1/2013. It was stressed that, the averment was clarifying on the balance of TZS 315,000,000.00 which was reduced into writing. At any rate, it was further argued that neither in the pleadings nor framed issues was there a claim of oral agreement of TZS.415,000,000.00 as they never featured in the plaint or WSD and hence not subject to proof and that the matter at issue was the loan contract of TZS 315,000,000.00 which was specifically pleaded. The respondent added that the issue of Government houses and TZS 415,000,000.00 was not referred to in Exh PEI. As was rightly argued by Mr. Chuwa, pleadings are matters of law and this was clearly explained by the trial court in its judgment as shown at pages 341 to 344 of the record of appeal. If we can put it in summary form as gathered from the quotation relied by the trial court while citing the work of Odgers on High Court Pleading and Practice (3rd Edition) by D.B. Casson, London, Sweet and Maxwell 1991 at page 17 the same stated: "... the usualpleadings in an action are: 8 (a) A set o f claim in which the plaintiff sets out the facts relied on to support his cause o f action with a il necessary particulars as his injuries and fosses. (b) A defence, in which the defendant deals with every material fact alleged by the plaintiff in his statement o f claim and also states any new facts on which he intends to reply. A defendant may also set up a cross-daim known as a counter­ claim. (c) A reply in which the plaintiff deals with fresh facts raised by the defendant in his defence. A reply is unusual except where the defendant sets up a counter-claim." As a general rule, no pleading subsequent to the WSD other than by way of a set off or counter-claim is allowed to be presented in court except with the leave of the court as per Order VIII rule 13 of the CPC. However, there is an exception to the said rule that allows filing of a reply to the WSD with a leave of the court within seven days after the WSD which shall have been served upon the plaintiff (the appellant herein) in accordance with the provisions of Order VI rule 2 of the CPC. Now, going by the dictates of the above quoted excerpt, we hold a view that a reply to the WSD was allowed and as such, the trial Judge rightly held that a reply to the WSD was also a pleading. 9 Regarding the grievance that appellant was denied opportunity to reply to the new averments advanced by the respondent in the reply to the WSD, in the first place, we wish to make it clear at the outset that there were no new averments by the respondent in her reply to the WSD. We say so because, essentially her reply, was a response in clarification to what had already been advanced by the appellant in the WSD regarding the actual loan agreement which was agreed by the parties sometimes during the month of December 2012. That is when the respondent clarified what was agreed in December which was an amount to the tune of TZS. 415,000,000/= and the balance of 7ZS.315,000,000/= which was reduced in writing. Be it as it may, assuming there were new facts, which was not the case, it is our view that the appellant's complaint that she was denied the right to reply cannot be tenable since there is no law or authority relating to pleadings which can be filed after filing a reply to the WSD as was conceded by Ms. Chihoma. This is because, such contention is not supported by any law or works of dignitaries who have discussed what entails pleadings as we have endeavoured to show above. It is no wonder that even the trial judge declined to grant the appellant's prayer to lodge such a reply to the reply to the WSD on the ground that there was no law to cater for such a situation and more so taking into account 10 that the appellant failed to give reasons for such a prayer. The reason behind this stance, we think, is to avoid endless pleadings. In the circumstances, it cannot be said that the denial of the opportunity to file a reply to the reply to WSD amounts to the denial of the appellant's right to be heard as envisaged in Mbeya Rukwa Autoparts Ltd (supra) because one, such scenario is not covered under the law as was rightly submitted by Ms Chihoma. Two, there were no new facts raised by the plaintiff/ respondent as what was averred in the reply to the WSD was a mere clarification on what was advanced by the appellant in relation to the former agreement of sometimes in December 2012. We, therefore, find this ground not merited and we dismiss it. Next is grounds nos. 1, 2, 4 and 6 which the appellant has argued them co-jointly. The appellant's areas of complaints are that, it was wrong for the trial court to hold that USD 50,000.00 was paid by the appellant to the respondent based on previous arrangement before Exh. PEI was executed to safeguard the amount owed by the appellant to the respondent after the previous oral arrangement over the purchase of Government house, the fact which the respondent failed to prove. It is further argued in relation to the payment of USD 50,000.00 that, it was not proved how the appellant had capacity to deal with Government ii houses let alone that even the letter from the Ministry of Finance informing the respondent that her application for leasing a Government house was under consideration did not mention the appellant. The appellant argued further that the trial court wrongly ignored the testimony of appellant (DW1) in respect of payments of USD 20.000.00 and USD 30,000.00 which was repaying the loan on 11/1/2013 and 26/1/2013 (page 325-326) while the respondent admitted during cross-examination (page 318 line 20) that she received it. On the issue of ignoring to consider the DWl's evidence, the appellant invited the Court to step into the High Court's shoes and consider the evidence and come to its own finding. She referred to us the case of Abuu Kahaya Richard v. Republic, Criminal Appeal No. 577 of 2017 [2020] TZCA 1826 (22 October 2020) TANZLII. The other complaint was on failure to call witnesses who witnessed the payments of USD 30.000.00 and 20,000:00 at the Barclays Bank. With regard to contention that USD 50,000.00, USD 20,000.00 and USD 30,000.00 was paid in respect of the loan agreement of 30/1/2013, the respondent argued that there was no evidence to that effect. She pointed out that though USD 30,000.00 was said to have been paid on 26/1/2013, the loan agreement was executed on 30/1/2013 without reflecting the said payment. She added that there was no evidence of 12 payment of USD 20,000.00 at the Barclays Bank at Masaki on 11/2/2013 and regarding payment of USD 50,000.00 on 30/1/2013 she argued that, if it was for such purpose no reason is shown why the agreement was not amended on the same day to reduce the amount of the loan. In tackling this issue, we wish to begin by restating some principles which will guide us. It is trite law that in deciding disputes relating to contracts, it is the duty of the court to give effect to the intention of the parties discerned from the documents witnessing the contractual obligations of both sides. Where parties have freely entered into binding agreements, neither courts nor parties to the agreement, should interpolate anything or interfere with the terms and conditions therein, even where binding agreements were made by lay people. (See: Philipo Joseph Lukende v. Faraji Ally Saidi, Civil Appeal No. 74 of 2019 [2020] TZCA 1779 (21 September 2020) TANZLII and Unilever Tanzania Limited v. Benedict Mkase Trading as Beme Enterprises, Civil Appeal No. 41 of 2009 [2009] TZCA 24 (3 March 2009) TANZLII. In this case, the loan agreement is found at pages 12 to 17 of the record of appeal. Part II thereof is on loan amount. For clarity, we leave it to speak for itself. It states as follows: 13 "2.1. The loan amount granted to the borrower under the terms o f this Agreement is Tanzanian Shillings Three hundred fifteen miiiion only (TZS.315,000,000). 2.2. The loan amount shall be repaid in full by means o f a bullet payment after a period o f six months from the date o f signing o f this Agreement. 2.3. Furthermore, the both lender and borrower agree that this loan will not attract any interest. ''[Emphasis added] Part III of the Agreement which deals with anticipation of repayment date states that: "4.1 The borrower shall be entitled to repay the loan facility, in one lump sum within six months from the date o f signing this Agreement} however, the borrower is at liberty to repay the said loan at any time before expiration of agreed time save the borrower shall notify the lender in advance." [Emphasis added] Looking at the said loan agreement it is evident that it related to TZS. 315,000,000.00 as per Clause 2.1 of the agreement and no other amount. It means, therefore that, the issue of the past loan of TZS. 415,000,000.00 is irrelevant in this agreement and, correctly so in our view, because much as it was mentioned in the reply to the WSD, it did 14 not feature neither in the plaint nor the WSD. It is no wonder that it was not among the issues framed for the parties to advance evidence on it. Apart from that, it seems to us that the said agreement, looking at its terms, was not meant to bind past actions of the parties. In other words, the agreement is silent on that. It relates to the amount of the loan stipulated therein and the manner it will be repaid, that is, six months from the date of agreement. Nevertheless, looking at Clause 4.1 of Part III thereof, it shows that it allows the borrower to repay the loan at any time before the expiration of grace period so long as the borrower notifies the lender, which did not happen in this case. The appellant's claim is that she made payments of USD 30,000.00 on 26/1/2013 and USD 50,000.00 on 30/1/2013 the date when the loan agreement was executed. Much as the respondent admitted to have been paid such amounts, she was categorical that such payments did not relate to the loan in the agreement. Even by looking at the manner the loan agreement was couched, it cannot be said that it was intended to cover past events. Apart from that, assuming that the borrower utilized the option under Clause 4:1 of the agreement, there is no evidence to the effect that the borrower informed the lender of her wish to repay the loan in advance. On top of that, the said payments were made before the loan agreement at issue was executed which in essence cannot 15 accommodate her claim that she paid in advance. In any case, we think that, if the parties had so intended, that the sum of USD 50,000.00 and 30,000.00 be considered as part payment of the loan, then the agreement would have expressed so explicitly. In the absence of such expression, this Court cannot interpolate terms not being part of the intention of the contracting parties. But again, it is well settled principle of law that where an agreement is reduced into writing, oral evidence cannot be advanced in respect of the terms therein to supersede the written agreement. Otherwise, such oral evidence would be inadmissible. See: Joseph F. Mbwiliza v. KoEwa Mohamed Lyeselo Msukuma (Legal Representative/Administratrix of the Estate of the late Rashid Mohamed Lyeselo), Civil Appeal No.227 of 2019 [2022] TZCA 669 (10 November 2022) TANZLII and Lulu Victor Kayombo v. Oceance Bay Limited and Another, Consolidated Civil Appeals no 22 and 155 of 2020 [2021] TZCA 228 (7 June 2021) TANZLII. Therefore, we cannot be swayed by oral testimony that such payments were intended to amend the terms contract. The appellant's complaint regarding the payment of USD 30,000.00 and USD 20,000.00 is that the trial court did not consider the evidence of DW1 to that effect. It is gathered from the pleadings and evidence of the 16 appellant that she effected payments of the said amounts of money to the respondent on 11/1/2013 at her home in the presence of Pastor Mtiesa and Lulu (the respondent's daughter) and on 26/1/2013 at the counter of Barclays Bank at Masaki after having withdrawn it from the Bank. Incidentally, during cross examination, the respondent at page 107 of the record of appeal admitted to have been paid USD 30,000.00 although she denied to have been paid in the presence of Pastor Mtiesa and Lulu. Unfortunately, none of the persons who were alleged to have been present when payment was made was called to testify in court and no reasons were advanced for failure to call them to testify. Apart from no document indicating that such payment of USD 20,000.00 was effected was produced in court. That was the reasoning which was adopted by the trial court, which we subscribe, in rejecting such allegation. We reiterate that, failure by the appellant to call such material witnesses can be interpreted that perhaps they would have testified against the appellant. In any case, assuming that such amounts were paid, the same were paid prior to the execution of the agreement which in our view, strictly speaking, it cannot be said to have been related to the loan agreement which came later. Alternatively, prudently, as hinted earlier on, if it was intended to relate to the loan agreement, it could have been 17 stated so. Otherwise, as was argued by Mr. Chuwa, there was no evidence on record for the trial court to have relied upon to find as the appellant seems to suggest. We are aware that Ms. Chihoma kept on insisting that the transactions were made on trust meaning that the parties trusted each other, thus, the need of taking such extra care did not arise. However, in our view, we are far from being convinced with such reasoning more so when taking into account that the transaction involved a colossal sum of money. It could not be possible to transact such huge amount of money on trust when taking into account that the two parties had not known each other for a substantial period of time. In this regard, we find no merit in these grounds and we accordingly, dismiss them. Last is ground no. 3 in which the appellant faults the trial court for awarding the respondent general damages at the tune of TZS. 10,000,000.00 without justification. In awarding such amount the trial court considered that the respondent suffered damages because the outstanding amount of money remained unpaid after the expiry of the agreed period to repay and the respondent did not utilize it. It is the appellant's argument that the general damages were awarded basing on assumption as no evidence was adduced by the 18 respondent. On the respondent's side, it is argued that as the trial court was satisfied that the matter was proved on the balance of probability that there was breach of contract, it was justified to award it. Our starting point would be section 73 (1) of the Law of Contract, Cap 345 R.E. 2002 which governs such a scenario. It provides that where a breach of contract has been occasioned, the party who suffers from the breach is entitled to compensation for any loss or damage so caused. This provision was interpreted in the case of Tanzania Sanyi Corporation v. African Marble Company Ltd [2004] TLR 155 where the Court stated that: "Generai damages are such that the law will presume to be the direct, natural or probable consequence o f the act complained of". In this appeal, it is not in dispute that the appellant breached the contract. It is evident from the record that even the payments of TZS. 60,000,000.00, TZS. 70,000,000.00 and TZS. 25,000,000.00 in relation to the executed agreement were paid in August 2013 which was beyond the agreed period of payment as per the agreement which was six months from when the agreement was executed. The six months expired on 31/7/2013. So, we are settled in our mind that, the amount that was awarded as general damages by the High Court was a direct outcome of 19 the appellant's breach of the agreement. As such, we find this ground to be devoid of merit and we dismiss it. In the final analysis, we are satisfied that the appeal is not merited and we, accordingly, dismiss it with costs. Order accordingly. DATED at DAR ES SALAAM this 20th day of July, 2024. R. K. MKUYE JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL The judgment delivered this 23rdday of July, 2024 in the presence of Mr. Edward Peter Chuwa, learned counsel for the Respondent also holding brief for Ms. Rita Odunga Chihoma, learned counsel for the Appellant, is hereby certified as a true copy of original.