freddy william swai as administrator of the estate of the late william eliapenda swai vs vicent john mmasi 2023 tzhc 18494 30 june 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF ARUSHA AT ARUSHA CIVIL APPEAL NO. 10 OF 2021 (Originating from Civil Case No. 7 of 2014 in the Magistrate Court of Arusha at Arusha) FREDDY WILLIAM SWAI (As Administrator of the estate of the late William Eliapenda Swai............................. APPELLANT versus VICENT JOHN MMASI................................................................ RESPONDENT JUDGMENT 11th April & 30th June 2023 TIGANGA, J Dissatisfied by the decision of the Resident Magistrate Court (trial court) the appellant has filed this appeal with a total of three grounds of appeal as follows; 1. That the Resident Magistrate Court erred in law and fact by failure to consider the evidence adduced by the appellant about the contractual basis. 2. That the Resident Magistrate Court erred in law and fact by relying on the ambiguous and unsupported evidence adduced by the respondents witnesses. i 3. That the Magistrate erred in law and fact by awarding the respondent payments of general damages to cover for disturbance without being proved his case on the balance of probability. At the trial court, the respondent filed a case against William Eliapenda Swai (now deceased) for the claim of breach of contract. He alleged that on 28/09/2012 he entered into a contract with the said William on an agreement that he will build a car parking in his area situated at Sanawari area and that upon completion of the construction, the respondent will hire the same but with payment of the rent will commence after he had deducted the expenses he incurred in the construction. After the parties had entered into the said agreement, construction of the said building commenced, however in the year 2013 the construction which was at the final stages stopped as the said William decided to breach the terms of the agreement by letting another person in the said area. It was at this juncture that a controversy between the parties arose. In proving his case, the respondent summoned a total of three witnesses, an architecture, a bower hall driller, and a mason, together with his witnesses the respondent also tendered the following exhibits; an agreement for hiring the appellant's place (Pl) and two receipts (P2). 2 The appellant on the other hand admitted that the respondent was his tenant in his house. However, he refuted having entered into any agreement with the respondent nevertheless, he stated that they entered into an agreement that the respondent to build one room for business in his area on the condition that he will start to pay the rent after he had deducted his construction costs. To butter his evidence, he tendered the agreement named "Mapatano ya Ujenzi" which was admitted in court as exhibit DI. He went further to state that, the respondent built the said room but he did not open any business and that in 2013 he left the place without paying rent to him. Further to that, the appellant also alleged to have no idea of the agreement that was tendered by the respondent and the reason that the same was forged as at that time he was admitted to the hospital, thus he had no idea of it. Sadly, the medical reports were not admitted in court to support the assertion. In disproving the respondents claims, the appellant paraded two witnesses Charles Benjamin (DW2) who testified to have built the appellants house which was near the garage. He denied knowing the respondent. DW3 was Benard Fredrick Mushi a mason who was engaged by the said William to build in his area at Sanawari. According to him, he 3 built a business room, a room that was used as a grocery, another room was used as a dry cleaner, and the fourth room had no one. Just like DW2, DW3 also denied knowing the respondent. After evaluation of the evidence from both parties, the trial court reached the finding that the respondent successfully proved his case on the balance of probability, and therefore the appellant was ordered to pay Tshs. 10,800,000/= as an outstanding debt from the breach of contract, Tshs. 2,000,000/= to cover the disturbances caused by the breach of the said contract, interest from the date of institution of the suit to the date of judgment, and interest at a commercial rate of 7% from the date of the judgment to the date of satisfaction of the decree in full. When the matter was called for hearing of this appeal, the appellant was represented by the learned counsel Mr. Shedrack Boniface Mofulu, learned Advocate whereas the respondent was represented by advocate Julius Karata. With the leave of the court, the appeal was argued by way of written submissions. Supporting the grounds of appeal, the appellant submitted as follows; on the first ground of appeal, he contended that the trial Magistrate failed to consider the evidence adduced by the appellant about the contractual relationship between the parties. According to him the evidence of the 4 appellant together with that of his witnesses along with the admitted agreement entered between the parties were sufficient to disprove the respondent's claims. As to the second ground of appeal, the appellant submitted that the trial Magistrate erred by relying on ambiguous and unsupported evidence adduced by the respondent witnesses in particular PW2 the architect who submitted a different map from the one attached to the plaint. The appellant also questioned the evidence of PW3 who claimed to drill the well of PW1 in the premises of DW1, however, he did not produce any agreement or contract of his engagement with PW1 nor did he produce any receipt to prove payment of the work done. PW4 also testified that he was hired by PW1 to receive building materials and to supervise the whole process of the construction nevertheless, he could not provide the list of the accounting. As to the third ground, the appellant submitted that the tria) Magistrate erred in awarding the respondent the payments of general damage to cover for disturbance while the case was not proved to be the balance of probabilities.’ Countering the appellant's submission, the respondent had the following to say; 5 About the first ground of appeal, he contended that the matter at hand involved two genuine contracts but looking at their contents they demonstrate two different events. While the contract tendered by the respondent (exhibit Pl) related to the contract for the construction of a car parking on the premises of DW1, on the other hand, the contract tendered by DW1 was a tenancy agreement that is not related to the matter at hand. The respondent further submitted that it is an undisputed fact that he had a long-time relationship with DW1 as he was his tenant for residential purposes before they engaged in another contract for the construction of a car parking. As far as why the trial court Magistrate disregarded the appellant's contract, the respondent was of the view that the said contract was refused because of the lies covered in the appellant's testimony. To expound more, the respondent submitted that, it was unusual for DW2 and DW3 who testified that they were engaged in the building of the DW1 house to say that, they did not know the respondent while he was a tenant in the DWl's premises. More so, the respondent also submitted that DW1 alleged that, there was a forgery of his signature in the contract tendered by him and that at the time the said contract was extracted he was admitted at AICC. However, on cross-examination, he could not 6 remember the date when he was admitted to the hospital, in addition to that, DW1 did not tender any document to prove that at the particular time, he was admitted at the hospital. Moreover, even though he alleged that his signature was forged he did not take any action to prove that. On the second ground of appeal, the respondent submitted that the evidence adduced by the respondent witness was credible enough and was well supported by other evidence. On the third ground of appeal, the respondent submitted that general damages are awarded at the discretion of the court. Further to that, the respondent submitted that since he was able to establish that DW1 breached the contract, therefore the trial Magistrate was correct to award the specific damages which are not challenged by the appellant and the general damages. In the short rejoinder, the appellant reiterated his submission in chief, that the respondent rented his house for residential purposes with his family, after that he further entered into another agreement with the appellant of building a room for business with an agreement to pay rent after deduction of the construction costs. He further contended that the case at the trial court was not proved on the balance of probabilities. 7 Having reviewed the record of the appeal it is without dispute that, the parties herein acknowledge that they have been in a landlord-tenant relationship for a long time. However, the controversy between the parties is whether the appellant agreed with the respondent for the construction of a car parking which is also the basis of the first and the second grounds of appeal. While the appellant denies having entered into an agreement of car parking with the respondent, on the other hand, he admits to having entered into another agreement of building a room for business purposes with the respondent. It was the respondent who filed a case against the appellant. Now, under sections 110 and 111 of the Evidence Act [Cap 6 R.E 2019] the one who alleges has the burden of proving certain facts in his favour. I am guided by the decision of the Court of Appeal of Tanzania in the case of Jasson Samson Rweikiza vs Novatus Rwechungura Nkwama, (Civil Appeal No. 305 of 2020) [2021] TZCA 699 (29 November 2021) which was held that; "It is a cherished principle oflaw that, generally, in civil proceedings, the burden ofproof lies on the party who alleges anything in his favour. We are fortified in our view by the provisions of sections 110 and 111 of the Evidence Act." 8 It was the respondents case that on 28/09/2012 he agreed (exhibit Pl) with the deceased one William E. Swai titled "MAKUBALIANO YA KUMPANGISHIA VICENT JOHN MMASI ENEO LA KUUZA MAGARI NA KAZI ZINGINE ATAKAZO AMUA." A clear reading from the title of the contract portrays that the agreement was not of car parking as it is termed by the parties but rather it is more of a showroom. In the said agreement there are signatures of both the appellant and the respondent together with the appended passport-size photos. The appellant challenges the said contract (exhibit Pl) on reasons that the same was forged because at the time when the same was allegedly entered he was admitted to the hospital, therefore he was not aware of the same. Nevertheless, as correctly submitted by the respondent, even though the allegation of forgery by the appellant is by nature a criminal accusation, it was not reported anywhere. It was expected for the same to have been reported to the police or any other authority. Faced by similar issue the Court of Appeal of Tanzania in the case of Eupharacie Mathew Rimisho t/a Emari Provision Store & another vs Tema Enterprises Ltd & another (Civil Appeal No. 270 of 2018) [2023] TZCA 102 (13 March 2023) stated that; 9 "..even if the signature were forged as alleged, it was incumbent on the appellants to act promptly, and invoke other remedies by reporting the matter to the Police because all along, and before filing the joint written statement of defence the appellants had knowledge on the existence of exhibit P2 (agreement) which was annexed to the plaint" More so, the appellant did not plead fraud in the Written Statement of Defence as required by the law. In paragraph 2 of the written statement of defence, the appellant pleaded that he never entered into any agreement with the respondent and that, on the date, the appellant is alleged to have signed the said agreement, he was sick and admitted at Mount Meru Government Hospital and later transferred to KCMC Hospital Moshi. This is what has been pleaded by the appellant in his written statement of defence and the issue of fraud surfaced only in the testimony ofDWl. Much as it is the requirement of the law that where a party relies on misrepresentation, fraud, breach of trust, wilful default, or undue influence and in all other cases in which particulars may be necessary to substantiate any allegation, such particulars (with dates and items if necessary) shall be stated in the pleading. See Order VI Rule 4 of the Civil Procedure Code Cap 33 R.E 2019. In the circumstances, the appellant's io inaction to invoke remedies under criminal justice and to have the allegation of fraud pleaded leaves a lot to be desired. This court has also taken into consideration of the supportive evidence of PW2, PW3, and PW4 who were involved in the construction machinery. Nevertheless, I am aware that they may be casual labours and do not need any written agreements of employment or receipts showing payments for the work done but their evidence established the work that was done at the DWl's premises. This court has also gone through the contract that was tendered by the appellant which he relies on, with due respect that was a different agreement titled "MAPATANO YA UJENZI BAINA YA VICENT KABILA MMASI WA KUONGEZA VYUMBA/CHUMBA KIMOJA KATIKA VYUMBA VYA DUKA MBELE KWA UPANDE WA NYUMA KUWE NA CHUMBA CHA BIASHARA NA VYUMBA VYA KULALA/'The same is dated 26/07/2012. As rightly submitted by the respondent, this agreement is different and does not relate to the claims of the respondent. In the above analysis, it is my firm view that the respondent herein proved his case to the balance of probabilities. As to the third ground of appeal, the appellant contends that the award of general damages was issued while the case was not proved on 11 the balance of probabilities. This ground of appeal does not need to detain me much as it has already been established hereinabove that the respondents case was proved on the balance of probabilities and therefore general damages were rightly awarded at the discretion of the court and with reasons thereto. Given the above discussion, I am satisfied that, the respondent proved his claim on the balance of probabilities and find no cogent reasons to fault the decision of the trial court. Thus, the appeal is with no merit and it is hereby dismissed in its entirety. Each party to bear its own costs. It is so ordered. DATED and delivered at ARUSHA this 30th June 2023 12