RECTIFIED JUDGMENT IN HARUNA 0001

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAAM PC CIVIL APPEAL NO. 15 OF 2022 (Originating from Civil Appeal No. 02 of 2022 Originating from Civil Case No. 131/2021 in Mwambao Primary Court Bagamoyo District) HARUNA SAID MASEBU ........................................................ APPELLANT VERSUS FUTURE CENTURY LIMITED .............................................. RESPONDENT RECTIFIED JUDGMENT Date of Last Order: 26/07/2024 Date of Judgment: 30/08/2024 NGUNYALE, J. This is the second appeal after the appellant Haruna Said Masebu was aggrieved with the decision of the District Court of Bagamoyo in Civil Appeal No. 02 of 2022 on the civil claim of Tshs 31,000,000/=. The facts giving rise to this appeal my simply be stated as follows; The appellant HARUNA SAID MASEBU alleged that he owns 150 acres of land located in different areas of Bagamoyo District in the Coastal Region. He alleged that in 2012 he el 1 respondent FUTURE CENTURY LIMITED to clear the said farm at a cost of 30,000,000/= (Thirty Million Shillings Only) as labour charge. The agreement was made between him and the representative of the respondent named Albert. Unfortunately, the respondents did not complete the work besides being paid a total sum of 30,000,000/=. In 2017 the parties held a meeting to discuss on the problem. In the meeting it was estimated that the work done was worth only 9,000,000/=, therefore they agreed that the respondent should return back the remaining amount of 21,000,000/= out of the total sum of 30,000,000/= he was paid because he could not complete the work. The respondent never paid such amount claiming that he completed the work as they agreed in March 2012. The respondent alleged that after completion of the work, the supervisor of the appellant signed acknowledging performance of the agreement. The contentions position between the parties moved the respondent to file Civil Case No. 131 of 2021 before Mwambao Primary Court in Bagamoyo District. The primary court heard the case and at the end of the day it ruled in favour of the respondent. The primary court found that there was no evidence proving that the respondent was paid a total of 30,000,000/= and the terms of the agreement were not certain. The decision of the =M trial court aggrieved the appellant who preferred the first appeal (Civil Appeal No. 14 of 2021) before Bagamoyo District Court. In the same trend, the District Court did uphold the decision of the trial court. The appellant presented the present second appeal challenging judgment and decree of the District Court. In the petition of appeal, the appellant raised seven grounds of appeal; 1. That the appellate court erred in law and facts by failing to find out that, it is the respondent who breached the terms of the agreement as per the exhibit Pl and P2. 2. That the appellate court erred in law and fact by failing to consider the evidence adduced by the appellant and his witnesses. 3. That the appellate court erred in law by failure to recognise that the primary court judgment lacked the opinion of the court assessors. 4. That the appellate court erred in law by failure to recognise that the primary court judgment was not signed by the court assessors. 5. That the appellate court erred in law and facts by dealing with extraneous matters which were not the roots of the case hence reaching into injustice decision. 6. That the appellate court erred in law and facts by failure to recognize that the appellant or agent herein above named has never at any point in bme signed any document for comprehension of the work with the respondent and that the recorded document as exhibit Dl is bad in law as it is tainted with fraud. The appellant appeared represented by Salha Ramadhan Hamis learned Counsel and the respondent was represented by Dominicus Nkwera also learned Counsel In support of the first ground of appeal Ms. Hamis submitted that the respondent is the one who was in breach of the agreement which was contracted between the appellant and the respondent. The written agreement between the parties was admitted before the trial court as exhibit P2 which is email tendered before the trial court. The document shows that there was an agreement for clearance of 150 acres and the same was not cleared by the respondent as agreed through their communication via email. The email communication is very clear on the agreement and that the work was not done. The appellant insisted that the respondent is the one who was in breach of the agreement for failure to deliver what was agreed through conversation of the exhibit Pl and P2 (emails and slip of payment) and through email dated 24th April, 2021 the respondent admitted that he received 30 Million only. The respondent breached the agreement, he is to compensate the appellant. On the claim of compensation, she referred the court to Section 71 (1) and Section 73 (1) (2) (3) of the Law of Contract Act Cap 345 R. E 2019. He also cited the case of Mexon's Investment Limited vs DTRC Trading Company Limited, Civil Appeal No. 91 of 2019 Court of Appeal of Tanzania decision where it was held that breach of contract entitled payment of damages. Therefore, she insisted that the appellant is entitled to payment of specific damages in the tune of 21,000,000/= and general damages in the tune of 10,000,000/= In the second ground that the evidence of the appellant and his witnesses was not considered; the appellant’s Counsel submitted that the appellant proved on the balance of probabilities that the respondent was paid 30,000,000/= as admitted in Exhibit No. Pl and P2 for clearance of the farm. The trial Magistrate erred to hold that the appellant did not prove his case and believed the case of the respondent that he completed the work without any exhibit. She referred the court to the case of Abdul Karim Haji vs Raymond Nchimbi Alois and Another, Civil Appeal No. 99 of 2004 where it was held that the one who alleges is the one who is responsible to prove his allegations. The appellants’ Counsel was of the view that the appellant discharged his duty to prove that the parties entered into an agreement and the respondent breached such agreement. Through exhibit Dl shows that the respondent admitted that the work was completed that is why he issued a letter of comprehension of work to PW2, let us ask ourselves a question, if the work was completed why the appellant was complaining in the conversation via email that the soil was not good for the machines to operate. They should wait for the soil to be good unfortunately the respondent failed to do as promised . The 3'd and 4th grounds of appeal the learned Counsel for the appellant opted to argue them jointly because they aim to fault the judgment on reason that the court assessors were not full involved in the proceedings before the trial court per Section 7 (1) and (2) of the Magistrate Court Act Cap 11 R. E 2019. It stated in the provisions that proceedings before a primary court, the court shall sit with not less than two assessors, need not to overemphasize. It is undisputable fact that the requirement is mandatory because the provision is coached in mandatory terms. This point was cemented in the case of Abdallah Bazamiye and Others versus Republic (1990) TLR No. 42 where it was stated that assessor’s full involvement in the trial is an essential component of the process for justice and that omission of the opinion of assessors is fatal and renders the trial a nullity. In the case at hand, in the proceedings and judgment there is no any records shows that the assessor’s opinion other than recording their names only. Therefore, the assessors were not involved in the proceedings. In the 5th ground of appeal, the appellant complain that the appellate court involved itself dealing with extraneous matters which were not the subject of the appeal. The learned Counsel referred the court to exhibit Pl and P2 which were emails which were part of the evidence. But the trial magistrate based his determination which were out of the party’s discussion. The conversation in those exhibits establish that the agreement was about 150 acres farm, but the magistrate stated that the work which was not completed was not the same of the one claimed by the appellant. The trial magistrate engaged to discuss issues different to those submitted by the parties. Exhibit Dl relied by the respondent alleging that he completed the work was a forged document. In the last ground of appeal where the appellant complain that he never signed a document to establish that the work was completed the learned Counsel submitted that the parties willingly entered into an agreement. It was not true that the work was completed and the appellant agent signed to acknowledge the same. The document tendered as Exhibit Dl was a forged document thus it was contested during trial. The said document was subjected to Criminal Case No. 223 of 2022 at Bagamoyo District Court between the Republic versus Reuben Albano and Hellen Verediana the director of the respondent. 7 In reply the respondent submitted in respect of the first and second grounds of appeal that, there was nothing about breach of contract between the appellant and the respondent as stated by the respondent before the trial court. The respondent made part performance because he was paid only 15,000,000/= as proved by the respondent. Exhibit Dl is very clear that the respondent made clearance of the farm. The appellant has failed to prove that he paid the respondent 30,000,000/= The cases cited by the appellant are distinguishable thus he could not even supply the copies. The appellant evidence was properly evaluated. His evidence was weak and contradictory. The respondent clearly successful disproves the appellant’s case in view of Section 110 of the Tanzania Evidence Act Cap 6 R. E 2019 and the case of Hemed Said vs Mohamed Mbilu (1984) TLR 113 that the one whose evidence is heavier than the other must win and in measuring weight of evidence what matters is not the number of witnesses but the quality of such evidence. The respondent opted to argue together the 3'd, 4th and 5th grounds of appeal that the court assessors before the trial court underwent their opinion according to the law in force. The respondent Counsel submitted further that the judgment of the trial court was signed by the court =Mf assessor and their opinion was in the decision of the trial court. He went on to submit that the appellant intends to distort the court and nothing more. The mandatory provisions of Section 7 (1) (2) and Section 32 (2) of the Magistrate Courts Act Cap 11 R. E 2019 were compiled. On the 6th ground of appeal, the respondent stated clearly that exhibit Dl was a genuine document, the allegations of forgery are false. The respondent cleaned the farm of the appellant as per payment paid as clearly stated by the respondent before the trial court and it is clear that the appellant intends to manipulate the court and nothing more. The trial court and the appellate court had no jurisdiction to rule that exhibit Dl was a forged document. No document from the police force has been brought to court to prove that the document was forged. The Criminal Case No. 223 of 2022 Republic versus Reuben Albano Muhanika & Another before Bagamoyo District court which was filed in connection to that document was withdrawn. In rejoinder the appellant maintained his position submitted in his submission in chief while cementing that the argument that the cases cited are distinguishable had no merit. He prayed the court to regard their cases for the interest of justice. On the issue of the agreement between the parties he insisted that Thirty Million Shillings was received ,M by the respondent as admitted through email communications, the respondent breached the agreement thus he is supposed to compensate the appellant. The exhibit Dl which was admitted by the trial court was a forged document. It purported to establish that the appellant accepted the work done. He prayed the court to do justice. Having heard the parties to the suit, I will proceed to determine the appeal whether it has merit or not by considering the record of appeal and the rival submission of the parties. The first and second grounds of appeal are about evidence, they will be determined together as argued by the parties. According to the records before the trial court, there is no dispute that the appellant and the respondent entered into an agreement for clearance of the farm in 2012. This fact is not denied by the respondent at all. The only issue is whether there was breach of contract by the respondent. It is a rule of law that parties to the agreement are bound by the terms of the agreement. In the present case terms of the agreement are not certain especially on the duration of the work. There is no direct document which is an agreement between the parties, the only circumstance which assist the court to establish that the parties had an agreement is the evidence on record and the email communications (exhibit Pl and P2). In his evidence during trial the appellant who testified as PWI haruna slo Said Masebu stated that they entered into an agreement for clearance of the farm with the respondent through the respondent supervisor one Albert at a price of 30,000,000/=. The work was not completed thus in 2017 they held the meeting with the respondent. In the meeting they made an evaluation which established that work done was worth Nine Million Tanzanian Shillings. Therefore, they agreed that the respondent to return 21,000,000/=. He testified further that the respondents were not denying the debt but they did not pay. In establishing that he paid the money to the respondent for the same he relied in the Exhibits Pl and P2. The argument that the respondent made part performance was corroborated by PW2 Rajabu Ally Mbwilam. The respondent in her evidence through DWI Helena Verediana Masanja acknowledged to have been handled with the farm for clearance and he completed the work as proved by Exhibit Dl. According to Veredian the work operation started on llth March, 2012 and completed on 12th March, 2012 and the last part was completed on 20th March, 2012. After completion the supervisor of the plaintiff signed. In his submission the appellant insisted that the respondent was in breach of the agreement the idea which demand him to compensate the appellant the stance which has been strongly contested by the respondent. Having weighed Exhibit Pl, P2 versus Exhibit Dl. I am of the view that the email dated 24th April, 2012 confirm that the respondent received a total of 30,000,000/= for the whole exercise of clearing the bush and uprooting trees in the farm of the appellant. The argument of the respondent that it was part payment is an afterthought. The appellant performed his part by paying the agreed consideration. Thus, the last part is whether the respondent performed his part. The appellant strongly submitted that the respondent was in breach of contract because he involved himself in part performance of the agreement relying on the testimony of PWI, PW2, PW3 Juma Mrisho Gwambi. He cited the case of Mexon's Investment Limited (supra) praying for compensation. Specific damages in the tune of 21,000,000/= and general damages in the tune of 10,000,000/=. The testimony of the respondent DWI Helena Verediana Masanja as corroborated by DW2 Albert s/o Albano Mkanika is to the effect that the whole work was completed as proved by Exhibit Dl which was signed by the appellant representative. It is a rule of law that the one who allege must prove the allegations as referred by both parties in their respective submission. Having weighed the evidence on record, without hesitation I am in agreement with the respondent that the plaintiff has failed to prove that the respondent was in breach of the agreement. The appellant said that they made a valuation meeting and it was established that there was part performance. Unfortunately she could not prove who was present in the meeting and tender the deliberations through minutes. I therefore end with the position of the respondent who established that the work was done and completed in favour of the appellant around March, 2012 as proved by Exhibit Dl. I have no reason to fault the final findings of fact of the trial court that the appellant failed to discharge his duty of proving his allegations. I need not to cite any authority on this because both sides have laid this foundation in their respective submissions that the one who allege must prove the allegations and that the one with heavier evidence must win. Consequently, the first and the second grounds of appeal cannot stand. The third and the fourth grounds of appeal lay complaints to the trial court that the court assessors were not consulted as mandatory dictated by the law. I am in agreement with the parties that consultation or involvement of the court assessors was mandatory per Section 7 of the Magistrate Courts' Act Cap 11 R. E 2022. The relevant provision provides; '(1) in every proceeding in the primary court, including a finding, the court shall sit with not less than two assessors. (2) All matters in the primary court including a finding in any issue, the question of adjourning the hearing, an application for bail, a question of guilt or innocence of any accused person, the determination of sentence, the assessment of any monetary award and all questions and issues whatsoever shall, in the event of difference between a magistrate and the assessors or any of them, be decided by the votes of the majority of the magistrates and assessors present and, in the event of an equality of votes the magistrate shall have the casting vote in addition to his deliberative vote. " The provision cited above dictate the consultation of the court assessors to be a mandatory procedure as submitted by the Counsels for both sides. Thought the parties subscribe to the position that consultation of assessor is obligatory but they tend to differ in one aspect. The appellant is of the view that the assessors were not involved the omission which renders the whole proceedings of the trial court and the subsequent proceedings a nullity. In their side the respondent’s Counsel submitted that the judgment of the trial court was signed by the court assessor and their opinion was in the decision of the trial court. Having in mind the legal position about the primary court sitting with the court assessor and the rival submission, I am in the position to determine the third and the fourth grounds of appeal sufficiently guided by law and court practice. In the instant case the records reveal that throughout the trial, the magistrate was sitting with two assessors namely M. Thomas and E. Mahiza. According to the handwritten proceedings, the signature of those two assessors have been appearing throughout the trial and on llth October, 2021 when the judgment was pronounced by the trial court. Therefore, the argument that the judgment was not signed is an afterthought. The assessors accordingly and unanimously were part of the final decision of the court without any dissenting opinion. In the case of Valentina Shabirira versus Leopord Daud, PC Civil Appeal No. 11 of 2022 this court sitting at Bukoba it was held that: 'The assessors are part of the primary court together with the magistrate. Under Section 7(1) and (2) of the Act, there is not requirement for the assessors to give their opinion before the Magistrate writes judgment." The similar trend is observed in the case of Adelaide Kamilembe Mlasilingi versus Advela K. Rugalabamu, PC Civil Appeal No. 16 of 2019 where this court sitting at Bukoba discussed the issue of failure to record assessors opinion it was held that, I quote: 'ln my view, where there is no dissenting opinion, the magistrate does not need to state the opinion of each assessor because all members of the court agreed on one decision" In that view, the second and third grounds of appeal are reduced into nothing because the assessors signed the judgment and their opinions are not necessary to be reflected in the judgment especially when the court has no dissenting opinion. The case of Neli Manase Foya versus Damian Mlinga, Civil Appeal No. 25 of 2002 Court of Appeal of Tanzania at Arusha is very elaborate on this point: 'As for the assessors opinions it is nowadays not necessary tb write assessors opinions provided they sign the judgment of the court to certify that they agree with it. So the primary court judgment is not defective. " We think that the answer to the issue as certified lies in Rule 3 (1) and (2) of the Magistrate's Court's (Primary Courts) (Judgment of the Court) Rules, 1987 GN No. 2 of 1988. It provides as follows '3 (1) Where in any proceedings the court has heard all the evidence or matters pertaining to the issue to be determined by the court, the magistrate shall proceed to consult with the assessors present, with the view of reaching a decision of the court. (2) if all the members of the court agree on one decision, the magistrate shall proceed to record the decision or judgment of the court which shall be signed bv all the members." (emphasis supplied) (3) For the avoidance of doubt a magistrate shall not, in lieu of or in addition to, the consultations referred to in sub-rule (1) of this Rule, be entitled to sum up to the other members of the court." We do not read anything in Rule 3 (1), (2) and (3) above which demands the assessors to give their opinions on an issue before the court. Under Rule2 assessors are members of the court which include the magistrate. It is evident from sub rule (2) above that all members of the court are required to participate in the decision I making process of the court. Assessors are members of the court, co - equal with the magistrate. After they have completed hearing the evidence from the parties, the stage is then set for the magistrate to consult with them in order to reach a decision of the court. This presupposes that before the court reaches a decision, there will be a conference of the members of the court to deliberate on the issues before them and reach a decision. In such a case, the magistrate will write down the decision, which will then be signed by all members of the court. It will be recalled that Mchome, J. said that 'they (assessors) sign the judgment of the court to certify that they agree with it." With all due respect to the learned High Court judge, this is not what Rule 3 (2) provides. The assessors are members of the court and sign the judgment as such, and not for the purpose of authenticating it or confirming it. In answer to the second point of law, assessors are neither required to give their opinions, nor to have their opinions recorded by the magistrate." Having said and done, the trial magistrate correctly complied with the procedure of involving court assessors as part of the court It was wrong 17 for the first appellate court to leave undetermined the issue of assessors which was raised in the 4th ground of appeal. The fifth grounds of appeal the appellant complain that the trial court involved extraneous matters. I will not make mark time on this ground of appeal because the appellant failed to establish those extraneous matters and how they affected the root of the matter. The complain about use of Exhibit Pl and P2 cannot be considered as extraneous matters after all those exhibits have been fully used in the determination of the 1't and 2-d grounds of appeal. Therefore, the fifth ground of appeal is dismissed accordingly. The sixth ground of appeal is about Exhibit No. Dl the document which establish that the appellant agent was signing every work done and he acknowledged that the work was done to its completion. The appellant complaint that the said document Exhibit Dl is bad in law as it is tainted with fraud. He submitted that, the said document was subjected to Criminal Case No. 223 of 2022 at Bagamoyo District Court between the Republic versus Reuben Albano and Hellen Verediana the director of the respondent. It was the submission of the respondents’ that the appellant failed to prove that the said document was forged document and this court has no jurisdiction to rule that the document was forged. It was the duty of the appellant to prove on the balance of probabilities that the document under scrutiny was a forged document. Essentially, it has already been observed that the one who alleged must prove the allegations. The criminal case which was filed against the suspects of the alleged forgery was not determined on merit to ascertain as to whether there was forgery or not. The respondent has submitted at length that the civil court which means the trial court or the lst appellate court and this second appellate court has no jurisdiction to declare the said document was a forged. In the other side the appellant prayed this court to allow the appellant to bring additional evidence to qualify exhibit Dl. In the ruling of this court dated 26th July, 2024 the court noted that the objection against exhibit No. Dl was an afterthought because during trial the same was admitted without any form of objection. The court said in part; 'From the record before the trial court... reveal that exhibit Dl tendered by DWI Helena Verediana Masana (61) and without any form of objection from the appellant during trial. the appellant who complains at this stage that the said exhibit forged did not cross examine on the authenticity of the very during trial. The fact that he never challenged the authenticity of the exhibit by way of cross examination means the acceptance of fact. In the case of George Maili Kemboqe vs, R, Criminal No. 327 of 2013, CAT Mwanza registry (unreported) the Court held that: - O 19 "It is trite law that failure to cross examine a witness on an important matter ordinarily implies the acceptance of the truth of the witness evidence." In the second appeal he raised the 4th ground of appeal challenging the authenticity of Exhibit No. Dl but the ground was dismissed" In therefore rule that the complaint by the appellant against exhibit Dl is an afterthought, hence the last ground of appeal is worth of being dismissed otherwise this court will end up contradicting itself. Consequently, the appeal stands dismissed with costs. Order accordingly. Dated at Dar es Salaam this 30th day of August, 2024. (9 bunyale JUDGE Judgment delivered this 30th day of August, 2024 in presence of Ms. Salha Ramadhan Hamis for the appellant D JUDGE 20