Hamduni

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA TABORA SUB REGISTRY AT TABORA PC CIVIL APPEAL NO. 26593 OF 2023 (Arising from the decision of the District Court of Nzega in Civil Appeal No. 7 of2023, Original, Civil Case No. 21 of2023 before Nzega Urban Primary Court) HAMDUNI KHALFAN........................................................... APPELLANT VERSUS MOHAMED ATHUMANI KIMISHA................................ RESPONDENT Date of last order: 22/05/2024 Judgement date: 4/7/2024 JUDGEMENT MANGO, J The Respondent, Mohamed Athumani Kimisha successfully instituted Civil Case No.21 of 2023 before Nzega urban Primary Court against the Appellant Hamduni Khalfan. He claimed for payment of Tshs. 2,860,000/- as unpaid debt due to the Appellant. He alleged that, the Appellant entered into a business relationship with him and in the course of their relationship, the Appellant borrowed money from the Respondent twice. In the first instance, he borrowed Tshs. Tshs. 3,900,000/- and second instance he borrowed Tshs. 360,000/-. He paid back only Tshs 1,400,000/- making the unpaid debt to be Tshs. 2,800,000/-. The trial Court ruled in favour of the Respondent. Dissatisfied by the decision of the trial Court, the Appellant unsuccessfully appealed before the District Court of Nzega via Civil Appeal No. 7 of 2023. He has now preferred this second appeal to this Court on three grounds which are hereby reproduced as follows: - 1. That the Appellate District Court erred in law for failure to discover that at the trial, the Respondent failed to prove his case on standard the balance of probability 2. Since there is no direct evidence to prove that the Appellant borrowed Tshs. 3,900,000/- to the Respondent, the first Appellate District Court erred in law in upholding the decision of the primary Court. 3. The Appellate District Court erred in law and fact that the evidence on the side of Respondent was oral which was cooked up The Appellant was represented by advocate Samwel Ndanga while the Respondent was represented by advocate Kayaga. With the leave of the Court, the appeal was argued by way of written submissions. I am grateful to the advocates who represented parties in this case for their compliance with the schedule of submissions. In his submission in support of the appeal advocate Ndanga argued all the three grounds of appeal collectively. He argued that, the Respondent who was the Plaintiff before the trial tribunal did not prove his case on the required standards. He explained that, evidence on record indicate that, the agreement orally made by the appellant and respondent was not witnessed by any witness. Thus, it is not expected any person aside from the two, be aware of the amount borrowed by the Appellant. He submitted that, it is 2 not clear how SM2 Rudan Anselimule knew the amount allegedly borrowed by the Appellant from the Respondent. According to him, SM2's testimony is merely cooked. He challenged also the testimony given by the Respondent who testified as SMI. In this he argued that, the Respondent did not establish clearly the existence of the alleged oral agreement through which the Appellant borrowed Tshs. 3,900,000/-. He added that, the Respondent did not even establish as to when, how and where the Appellant paid Tshs 1,400,000/- to the Respondent to settle part of the debt due. According to him the Respondent's evidence was so weak and it was basically hearsay which in essence cannot establish a case against the Appellant on the required standard. Being aware of the principle that limits the second Appellate Court from interfering with concurrent factual findings of the two courts unless there is misapprehension of evidence, miscarriage of justice or violation of legal principle(s) or procedural rules, the learned counsel argued that, in the appeal at hand there is misapprehension of evidence. He cited the case of Amratlal Damodar Maltaser and Another t/a Zanzibar Silk Stores Vs A.H Jariwalla t/a Zanzibar Hotel (1980) TLR 31 and invited this Court to re- consider evidence adduced during trial and interfere with the concurrent findings of the two courts. He prayed the appeal to be allowed with costs. In his reply submission, the Respondent's advocate submitted briefly that the appeal at hand seeks to challenge the evidence on record that was unanimously supported by the trial court and the District Court. He reminded 3 this court that, being a second appellate court it should be reluctant to interfere with factual findings of the trial Court where the first appellate Court has concurred with the such findings. He cited the case of Neli Manase Foya versus Damian Mlinga (2005) TLR 167, Ally Abdallah Rajab versus Saada Abdallah Rajab (1994) TLR 132 and Amratlal Damodar Maltaser and Another t/a Zanzibar Silk Stores Vs A.H Jariwalla t/a Zanzibar Hotel (1980) TLR 31 He argued that, the Respondent SM 1 was supported by SM.2 Rudan who actually paid Tshs. 1,400,000/- to the Respondent on behalf of the Appellant. He added that, the Appellant conceded that SM2 was conducting business with both the Respondent and the Appellant and that SM.2's testimony contains the truth. The learned counsel is of the view that, there is nothing that can be changed in this appeal. He prayed the appeal to be dismissed with costs. I have considered submissions by both parties and Court record. I agree with both parties that, this court being a second appellate court should not interfere with concurrent factual proceedings unless there is misdirection or misapprehension of evidence or violation of some legal or procedural principle(s) and has occasioned miscarriage of justice. From the submissions by both parties and Court record it is not disputed that, there is concurrent factual findings by the two courts that the Appellant owes the Respondent Tshs. 2,860,000/- as unpaid loan. The only issue in this appeal is whether there is any misapprehension of evidence by the two Courts. The Appellant's counsel raised two issues in this aspect, that the Respondent's testimony was merely hearsay and second, evidence against the Appellant fabricated. My perusal of court record revealed that the Respondent's evidence is neither hearsay nor fabricated. According to Court record, the fact that the Appellant borrowed money from the Respondent is established by two pieces of evidence. The testimony of the Respondent who stated clearly that the Appellant borrowed Tshs. 3,900,000/- from him. This witness testified further that, the Appellant paid back Tshs 1,400,000/- thus making the unpaid amount to be Tshs. 2,860,000/-. His testimony provides response to the questions posed by the Appellant's counsel as to when, how and where was the contract executed. He stated that, in the year 2022 the Appellant approached him as his friend and requested to borrow the mentioned amount. He stated further that, he honored his request and gave the amount requested by the Appellant at Majengo street and that they had a mere oral agreement as he trusted him. The Appellant did not cross examine the Respondent on the amount that he paid back to him. He only cross examined him as who witnessed the Respondent giving him the alleged amount. The Respondent acknowledged that nobody witnessed as they were only two at the time he gave the amount to the Appellant. The Respondent's testimony is supported by the testimony of Ruban Anselimulamale, SM2, who stated to have been conducting business with the Appellant and Respondent for a long time. This witness was the one who effected payment of Tshs. 1,400,000/- to the Respondent on behalf of the Appellant. He stated that, he owed the Appellant Tshs. 1,400,000/-, when 5 he wanted to pay back, the Appellant told him to pay the amount to the Respondent as part payment of the amount he borrowed from the Respondent. This piece of testimony respondents to the suspicions by the Appellant counsel as to how Ruban got informed of the amount the Appellant owes the Respondent. Ruban was informed of the loan by the Appellant himself as he stated in his testimony. Even when cross examined by the Appellant, he responded that when they were computing their business transactions with the Appellant, the Appellant admitted that, he owes the Respondent Tshs. 3,900,000/-. The Appellant did not cross examine SM2 on the amount he testified to have paid the Respondent as part payment for the loan advanced to the Appellant. Failure to cross examine a witness on a relevant matter ordinarily connotes acceptance of the veracity of the testimony as it was held by the Court of Appeal of Tanzania in the case of Issa Hassani Uki vs Republic (Criminal Appeal No. 129 of 2017) [2018] TZCA 361 (10 May 2018). Thus, technically it means the Appellant admitted that, the amount was paid as part payment of the loan advanced to him by the Respondent. Unfortunately, the Appellant employed evasive denial which could not assist him. He also raised allegations that they conducted a business with the Respondent and they all suffered loss without proving the existence of the alleged business, the amount they contributed for the business and the loss suffered. It is trite law that, whoever allege must prove as provided by section 110 of the Evidence Act It is my considered view that there is no any misapprehension of evidence by the two courts. The Respondent through his testimony, testimony of SM.2 6 and technical admission by the Appellant, managed to prove that the Appellant borrowed from him Tshs. 3,900,000/-, paid Tshs 1,400,000/- and he still owes him Tshs. 2,860,000/-. In such circumstances, I do not find any reason to interfere with the decision of the two Courts. The Appeal is hereby dismissed with costs. Dated at Tabora this 4th day of July 2024 Z.D. MANGO JUDGE