Haji Mohamed Abed vs James Opitatus Another

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUMBAWANGA SUB - REGISTRY AT SUMBAWANGA PC. CIVIL APPEAL NO. 14516 OF 2024 (OriginatedfromCivilAppealNo.40of2023atSumbawangaDistrictCourtandCivil CaseNo.117of2023atSumbawangaUrbanPrimaryCourt) HAJI MOHAMED ABED................................................................. APPELLANT VERSUS 1. JAMES OPTATUS MAFUTA...................................... 1st RESPONDENT 2. FROLA PATRICK MILAMBO.................................... 2nd RESPONDENT JUDGMENT MWENEMPAZI, J This is a second appeal after the respondents herein successful appealed to the District Court of Sumbawanga (first appellate court) in Civil Appeal No. 117 of 2023. A brief fact about this matter traces its origin at the Sumbawanga Urban Primary Court where the appellant herein successful sued the respondents for recovery of sum of money in the tune of Tshs. 3,300,000/= which he contracted with them in the year 2021 to make 35,000 bricks but failed to do hand over the bricks. Whereas, the appellant prayed for the recovery of his sum of money and the costs that he incurred in the efforts of recovering the same. 1 After a full trial, the trial court entered judgement in favour of the appellant herein, ordering the respondents to pay him the sum of money in the tune of Tshs. 3,300,000/=. The respondents were not amused by that decision and they too successfully appealed to the first appellate court, the said court overturned the decision of the trial court by holding that the appellant never pleaded what he was awarded, and therefore the decision of the trial court was set aside and quashed too, and the appellant was ordered to pay the costs of the said appeal. Aggrieved by that decision, the appellant is now before this court with his Petition of Appeal which only has one ground in it of which it is as reconstructed herein: - -That, the first appellate court erred in law and fact by failure to evaluate the evidence adduced by both parties hence reached to a wrong decision. In which he prays for judgment in his favour and the judgment of the first appellate court be quashed and set aside, and the decision of the trial court be upheld, with costs to be borne by the respondents. 2 When this matter was scheduled for hearing, the appellant enjoyed the legal services of Mr. Peter Kamyalile learned advocate while the respondents appeared for themselves meaning they had no legal representation. However, both sides agreed on battling out this matter by way of written submissions, and this court did grant their prayer and scheduled the dates for filing the respective written submissions, in which both parties adhered to. The appellant’s side filed first, and in his submission which was drafted by his advocate, Mr. Kamyalile, stated that the criteria for burden of proof in matters originating from primary Court, and matters originating from Subordinate Courts, District Land and Housing Tribunal, and High Court are different. That the rational behind is that the Law of evidence applicable are different. He then insisted that it was wrong for the 1st Appellate Court to evaluate evidence of case originating from Primary Court based on the case which its analysis was based on applicability of Evidence Act which does not applicable in primary Court. He clarified further that, in Primary Court, the Court is required to decide the case based on the facts which are proved in the case and the matters it is deemed to know. Also, in deciding the case the primary Court is required to consider the weight of evidence where the person 3 whose evidence is heavier than that of the other is the one who must win. This is the requirement of Rule 6 and 7 of the Primary Courts (Evidence)Regulations, G.N. No. 22/1964 of and the case of Hemedi Saidi Vs Mohamedi Mbilu [1984] TLR 113, where it was held that:- "According to law both parties to a suit cannot tie, but the person whose evidence is heavier than that of the other is the one who must win; " He submitted further that, according to Section 37(1) of the Law of Contract Act, [CAP. 345 R.E 2019] it provides that, parties to a contract must perform their respective promises. It is undisputed that on 2020 the appellant and 1st respondent entered into the contract to make and sale 35,000/= blocks in consideration of TZS.3,150,000/= which was supposed to be handed on the appellant on the 29/11/2021. He insisted that exhibits P1, P2, P3 and DI proved that the appellant paid the 1st respondent the total sum of 2,830,000/= being the part payment out of TZS 3,150,000/=. That, the appellant fulfilled the substantial part of contract, but he failed to finish the remaining balance after the 1st respondent breached the contract. To top it up, he stated that, the 1st respondent admitted to be paid the TZS 2,830,000/= by the appellant but he failed to prove how he fulfilled 4 his contractual obligation by handling over the 35,000 blocks. In law it was the duty of the 1st respondent to prove that he fulfilled his obligation so that it can exonerate him from the liability. He added that even the 1st Appellate Court at page 7 last paragraph admitted that the 1st respondent was indebted by the appellant in one way or another. Such legal burden is provided under Rule 2(3) of the Primary Courts (Evidence) Regulations, G.N. No. 22/1964 where it provide that:- "Where the defence to any civil case is that there are other facts than those proved by the claimant and that such fact will excuse him from liability to meet the claim, or where any fact is especially within the knowledge of the defendant the defendant must prove those other facts." He clarified further that, the intention of the parties to the agreement was that, time was the essence to the contract. The act of 1st respondent to fail to hand over the 35,000 bricks on time as agreed it amounted to a breach of contract. Also, the 1st respondent tried to hand over 10,400 blocks but since it was not of merchantable quality the appellant rejected them. Therefore, it was the 1st respondent who breached the contract and not the appellant. It was wrong for the 1st 5 appellate Court to decide that the appellant is the one who breached the contract. Again, Mr. it was wrong for the 1st appellate Court to evaluate evidence based on the principle that special damages must be specifically pleaded and strictly proved which does not apply in the primary Court by virtual of Rule 6 and 7 of the Primary Courts (Evidence) Regulations, G.N. No. 22/1964. That, the 1st Appellate Court erred in law and fact to deny the claim of the appellant based on the case of Director Moshi Municipal Council vs Stalenard Mnest & Another, CAT-Civil Appeal No.246 of 2017. He insisted that, the appellant through oral and documentary evidence proved all the facts necessary to establish his claim awarded by the trial court on the required standard and as required under Rule 1(2) of the Primary Courts (Evidence) Regulations, G.N. No. 22/1964, which provides that:- "'Where a person makes a claim against another in a civil case, the claimant must prove al the facts necessaryto establish theclaimunlesstheotherparty(thatthedefendant)admits theclaim." 6 In winding up, Mr. Kamyalile submitted that, basing on the Submission above and the plethora of relevant authorities pined in, he prays for Judgment of 1st appellate Court be quashed and set aside with costs and restore the decision of Trial Court. In their joint response to the submission made by the appellant’s counsel, in their submission, the respondents stated that the appellant's appeal is without merit and should be dismissed in its entirety for the reasons, that the 1st Appellate Court correctly evaluated the evidence, considering the primary court's simplified rules of evidence. That the appellant has failed to show that the 1st respondent breached the contract, as he has not sufficiently demonstrated that the partial delivery of 10,400 blocks was inadequate or non-compliant with the terms of the agreement. Even the Trial Court at page 13 paragraph 1 of the judgement admitted that the appellant failed to prove his claim, i.e. 800,000/= as transportation costs. They added that, while it is true that the Primary Court may follow simplified procedures; this does not imply that the higher courts should overlook clear rules of evidence and procedure when reviewing such cases on appeal. The appellate court's mandate is to ensure that the decision of the lower court is just, fair, and based on sound legal 7 principles, including the sufficiency and quality of evidence. The appellant's argument that the appellate court should not have applied these standards is flawed, as it suggests that errors in the primary court should not be corrected simply because the case originated there. Coming to contractual obligations and delivery of blocks, that, the appellant contends that the 1st respondent breached the contract by not delivering the agreed 35,000 blocks on time. However, the ,1st respondent made a partial delivery of 10,400 blocks, which the appellant admitted and later rejected, not on grounds of lateness, but on alleged quality issues. The rejection of these blocks was unjustified, as the appellant failed to substantiate the claim that they were of poor quality. Furthermore, no evidence has been presented that the remaining blocks would not have been delivered. They added that, time not expressly stated as being of the essence in the contract. It is a well-established principle of contract law that time is not automatically considered to be of the essence unless explicitly stated or inferred from the nature of the contract. In this case, there is no evidence that the contract expressly stipulated that the agreed delivery of bricks had to occur within a fixed and specific time frame, nor is there any clear indication that both parties treated time as a condition crucial 8 to the contract's purpose. They then referred this court to the case of Esther Kimbulu & Others vs Piganio Mwita, Civil Appeal No. 387 of 2020 (Unreported), where the court held that:- "Ameredesignationofaclosingdateinacontractofsale does not necessarily make that date of essence if the contract does not contain an express declaration to that effect". They then insisted that, it was not intention of the parties that the contract would be terminated over a missed deadline. They proceeded further that, the appellant asserts that the 1st Appellate Court erred in applying the principle that special damages must be strictly proven, referencing Rate 6 and 7 of the Primary Courts (Evidence) Regulations. They stated that, even if the special damages standard applies more rigorously in higher courts, the appellant has not proven the essential elements of the claim, such as breach of contract or damages suffered. The 1st respondent made reasonable efforts to perform, and the appellant's failure to accept the delivered blocks undermines his case. Finally, submitting on the rejection of 10,400 blocks delivered by the 1st respondent is a key factor in this case. That the appellant's refusal to accept the blocks without sufficient proof of their alleged inferiority was 9 unreasonable. The 1st respondent was willing and able to fulfill the contract, and the appellant's actions frustrated the performance. As the appellant has not provided evidence that the blocks were of inadequate quality, the 1st respondent cannot be held liable for breach of contract. For the reasons outlined above, the respondents submitted that the appellant has not provided sufficient grounds to overturn the decision of the 1st Appellant Court, that, the 1st respondent acted in good faith and made efforts to fulfill his contractual obligations. That, appellant's refusal to accept the partial delivery was without justification, and the appellant has failed to prove that a breach of contract occurred. For that matter, they respectfully request this Honourable Court to dismiss the appeal with costs and affirm the decision of the 1st Appellate Court in Civil Appeal No. 40 of 2023. There was no any rejoinder submission filed, and therefore this court proceeded with determining this matter on merits. After a careful perusal of the submissions from both sides and the records of appeal before me, I am fortified that the only determinant issue is whether thisappealismeritiousbeforethiscourt. Basing on the single ground of appeal as filed by the appellant, I should say this case should not have reached this far had the 1st appellate court 10 re-evaluated the evidence of the trial court well, by considering the core of the misunderstanding between the two sides. It is clear as a broad day light that core of this matter is exhibit P1 which was tendered at the trial court. The respondents never rejected neither its admission nor the contents therein. Exhibit P1 was the contract between the appellant and the respondents for making 35,000 blocks for a consideration of Tsh. 90/= for each block in which it makes the total of Tshs. 3,150,000/=. This agreement was made on the 12th day of October, 2020, and it has stated that the 1st respondent has to deliver the said 35,000 blocks by the 30th day of October, 2021. The agreement also reveals that the 1st respondent had received an advance payment in the tune of Tshs. 2,100,000/= and the remaining 1,050,000/=. Nevertheless, on the day of signing the said contract, it shows that the 1st respondent was also given Tshs. 500,000/=. Now, whatever the respondents are claiming is deemed to be an afterthought because they themselves know that they have gone against what was agreed as seen in exhibit P1. I find no need of rephrasing any of their wordings in the attempt of easing the breach, as at the trial court, the appellant well furnished his claim that he had entered into an agreement with the 1st respondent and the 2nd respondent was his 11 surety. There is no where in the records before me that the respondents had denied being in contractual agreement with the appellant. it is settled law that the contents of an exhibit which was admitted without any objection from a party in case, were effectually proved on account of failure to raise an objection at the time of its admission in the evidence. See: Kilombero Sugar Company Ltd vs Commissioner General (Tra), Civil Appeal No. 261 of 2018 and Makubi Dogani vs Ngodongo Maganga, Civil Appeal No. 78 of 2019 (all unreported). In the latter case the Court of Appeal emphasised as follows: "It is our further considered view that, even the claim by Mr Masige under the fourth ground of appeal that the said exhibits are irrelevant in this case is misconceived. It is apparent, at pages 72 to 74 o f the record of appeal that during the trial, the appellant did not object to the admissibility of the said exhibits. It is settled law that contents ofanexhibitwhichwasadmittedwithoutanyobjectionfrom theappelant,wereefectualyprovedonaccountofabsenceof anyobjection. Therefore,since theappelant didnotutilise 12 thatopportunity,chalengingthesaidexhibitsatthisstageis nothingbutanafterthought..." Guided by the above stated principle, the actual fact of the respondents firstly delivering some blocks to the appellant contrary to the contract he signed is indeed acceptance or rather acknowledgement that they had an obligation to fulfil. In the circumstances, the respondents are being estopped from denying to be aware of the agreement which was dully executed by themselves and the appellant herein. For the foregoing determination, I do find merits in this appeal and proceed to allow it. Consequently, the decision of the 1st appellate court is hereby quashed and the orders thereto are set aside. The decision of the trial court is being upheld. Costs to follow the event. It is so ordered. Dated and delivered this 23rd day of December, 2024 T. M. MWENEMPAZI JUDGE 13 14