haruna chakupewa vs patrick christopher ntalukundo 2021 tzhc 7546 30 november 2021

in THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA in the district Registry of kigoma)

AT KIGOMA (APPELLATE JURISDICTION) (PC) CIVIL APPEAL NO. 10 OF 2021 (Arising from Civil Appeal No. 6 of 2020 Kibondo District Court, Before S.G.„Mcharo RM, Original Civil Case No. 61/2020 Kibondo Urban Court Before H J. Kayandabila - RM) HARUNA S/O CHAKUPEWA ............. .. ..APPELLANT

VERSUS PATRICK S/O CHRISTOPHER NTALUKUNDO ^RESPONDENT 25/10/2021 & 30/11/2021 L.M. M LAC HA, J This weight of documentary eyidgnc’eixlt calis>fbr a look at the rules of evidence in primary courts\k theSaspect. It is against the decision of the District court ofsKibondo made in Civil Appeal No. 6 of 2020, original civil case No. 61 of 2020'Of the Primary Court of Kibondo District at Urban Court. , It. is the story of Haruna Chakupewa (hereinafter referred to as the. appellant) and Patrick Christopher Ntalukundo (hereinafter to be referred to as the respondent). The two people worked together for 15 . years as great friends but are now at longer heads! Money, assets and. Page 1 of 17 mistrust have separated them. It is the struggle for the ownership of a car, Toyota Dyna Pick up 3 tones registration number T 479 BJC. Each one claims to be the owner of the car. It is indeed difficult to know who speaks the truth. Their conscious will speak better, now or later. But for us, we must be guided by the principles which govern civil litigation; proof on the balance of probabilities.-Further, we must be guided by the law for the legislature has made a provisionXo’-gpvemxthe situation as we shall see later. <\ The records show that the drama started'at a?Timb.er Furniture factory \\ \> \\ \\ \ at Kibondo town. Documentsishow'that it'is owned by the respondent. Z j** \ \ *< v He says that

he employed the‘?appdliant some 15 year back, as a rx. \ \ <S \ X x carpenter. Due to hisCgoodXerformarice he promoted him to be the W supervisor. They worked that way happily over the years but one day he stole^ofneNTioney^at thxfactory and he was fired. He then stole v\ X\ \x. documents of the car arid claimed that they were his. He sent him to court as^Othief./The appellant agree that he was employed as a carpenter but argue that he changed to be a partner over the years. While there as a partner he bought the car which was used at the factory on some considerations. He added that problems developed between them. In the course of the problems, the respondent fabricated a criminal case so that he could take his car. Page 2 of 17 The records show that the respondent sent the appellant to the primary court where he was charged of stealing documents of the car. and obtaining property (the car) by false pretense. He was found guilty and convicted. The conviction and sentence were set aside by the district court on appeal. The respondent appealed to this court but he could not be successful. He then returned to the primary courtwhere he filed civil case No.61 of 2020 which is the subject of this)appeal. \\ The respondent prayed for a declarationsorder^thaLheSs 'the lawful owner of the car. He also prayed''for^0rdersxGom'pelling the police to release the car to himcSTheVprimaryv

court-' conducted lengthy Z-/ x\ X'X J t * *X?'*X proceedings. Witnesses from the^espondent were there to tell the court % \\ that the car, the subject\matter jof? the case, is property of the respondent despite the fadsthat his name appear in the sale agreement him tosbuy the car in themame of the appellant who was his great friend by then. Thatf-apart from the fact that he appears as a witness in the sale agreement but he was actually the buyer of the car and thus the owner. He had a total of five witnesses to support him. To the contrary the appellant told the court that the car is his personal property as reflected in the sale agreement which he tendered. He had one witness to. support him. The witness, DW2 Isaka Ntikahela added that the Page 3 of 17 respondent paid Tshs. 5,000,000/= after the end of criminal cases as an apology. This evidence was not contradicted. The primary court believed the evidence that the respondent bought the car in the name of the appellant -due to some family problems. It proceeded to hold that the sale agreement was illegal for showing the name of a person who did not buy the car as the buypr. It ordered the car to return to its original owner, PW3 Ren^tus Kachira. It-denied ownership to any of the parties. It however did'noLsayvanything about the purchase price Tshs. 6,000,000'■which-was^paid^to. the seller. So the seller got the money

plus-hiSjcar.\The respondent-accepted the finding and decision. The appellant did jiot^see justice in the decision. He \\ appealed unsuccessful^oxthe.'District court hence this appeal. contract was illegal>it-.upheld the trial court's decision and dismissed the W \\ appearw/?/? minor corrections and minor exceptions'. The appellant was aggrieved hence-th'is appeal. The grounds upon which this appeal was filed read thus: 1. That the 1st appellate court grossly erred on point of law in failing to hold that in the circumstances of the case, the respondent hard no locus stand to sue the appellant before the primary court being privity to the disputed sate contract. Page 4 of 17 2. That the 1st appellate court totally erred on point of law in falling to hold that the seller of the disputed motor vehicle one RENATUS KAZAMBA KACHIRA @ RENATUS KACHIRA MLAGALA was a mandatory party dependent instead of appearing as the respondent's witness (DW.3). . * C\ 3. That the 1st appellate court grossly erred orhpolnt of law in upholding the decision and orders delivered cot/rt-that the \Kx : contract between the parties is vpjd afte^aving,heldytt)at terms of written contracts can only'bdvaried'b'y.d/fiting. minor exception td^the orders^whicfa are unidentified in its Judgment..

5. That-the^l^appei/ate cobrt erred on point of law in holding ■ / jp"-- '\v<\ [die lst 'ground-'Of appeal on the ground that consulting, - recording opiniohs;‘of the gentlemen/Lady Assessors who sat witfKthe^ia^magistrate is not a legal requirement of Hie law. * 6. That the 1st appellate court totally erred a point of law in failing to order the trial Primary Court to take additional evidence by the commissioner for oath who attested the disputed contract ofsale of the disputed motor vehicle. Page 5 of 17 The appellant was represented by Mr. Ndayanse Masendeka while the respondent was represented by Mr. Method Kabuguzi. Hearing was done by oral submissions. In ground one counsel for the appellant questioned the locus of the appellant to file the case while he was not one of the parties to the sale agreement. He submitted that the respondent was cr'witness in the sale agreement which was signed on 14.09.2016 ijeiitoeen tfie'appellant and Mr. Renatus Kachia not the buyer. He went on to. sayzthatthe~argument X\ W that the respondent is the pwrier^of^thexcar 'contradict the sale agreement and the supplementary agreement-'signed before the ((' .. Xx magistrate (Sophia Kitehge). It,also contradicts section 100 (1) of the <x V\ < W \x x.\ \> Evidence Act, cap.6 R'.E^.2019/-.he said.yHe stressed that the respondent /C— <x \\ was not privy\toxthe> contract as such he could not have

locus to sue. In grouniTt^'o/Zoupsebpubmitt'ed that Renatus Kachira Mlagala @ Renatus v ' s\\ Kazamba Mlagalaxwho sold the car was supposed to appear as a party but came^a^awvi^ness. In ground three, counsel had the view that the district court erred to declare the contract void. He had the view that the contract has no problem. In grounds four and five, counsel challenged the language used by the district court when it said that it accepted the decision of the primary court despite minor errors. These errors were not pointed out, he said. He added that the court erred to say that the Page 6 of 17 opinion of assessors was not needed because that was contrary to GN No.2 of 1987. In ground six, the appellant challenge the decision of the district court for failure to call the primary court magistrate who witnessed the second sale agreement to give additional evidence. He asked the court to set aside the decision of the lower court and allow the appeal. Submitting in reply to the submission on gro'und^one, Mn'Kabuguzi said that the respondent had locus to sue on'-the strength/ofssix witnesses ” ■ - \\ \<Z who said that the car was bought'in^the;'name<of the appellant due to c x. 'v x, X \ X some family disputes. On^this reasoning',\courisel'submitted that the respondent was privy touhe contract and\had?locus standi. He went on \\ \ X to say that section^'lOQ. (l.)xjrasjjiscussed

fully at page 29 of the proceedingsSHeadded ttiaNt^was correct for the court to take into. accoun^?a^^videQce^b'ecause all witnesses said so. In ground two, counsel\submitted\that-it was not necessary to plead the name of Renatus kachira-Js^a party because he had no cause of action against them. Counsel proceeded to submit on ground three and said that it was not necessary to call the magistrate because the second contract depended on the first contract. In ground four, counsel submitted that the court did not say that the opinion of assessors was not correct. What it said was that it was not necessary to write them. He referred the Page 7 of 17 court to rule 3 and 4 of the Magistrates Court Act (Primary Court Judgment of the court) Rules 1987, GN No. 2 of 1988 and the case of Clayton Ftevocatus @ Baba Levo v. F 8350 PC Msafiri Ponera, PC Criminal Appeal No.45 of 2019. Counsel concluded that the appeal is baseless and argued the court to dismiss it. I had enough time to go through the records oCall the files (both counsel submissions. I think I should’start-by reminding the counsel that the primary court has its,ownjsebof-Jaws,\rules and regulations. When one is dealing with an issue originating'ffom'the primary court he has to Zx \\ Xx take this into accounrtp-avoid. making mistakes. The Evidence Act is not /Z ■ Z applicable in the Primary Court! The court use the

Magistrates'Courts . \\Z \\ (Ruies,'ofEvidence in Primary Counts) Regulations GNS: 22 of I\\I . \\ x\ \\\\ ■ 1964and 66 of'■2972;^ perusal has shown me that the relevant law \\ )) to govern'thfe-situarion was regulation 14 and not section 100 of the Evidence Act. Regulation 14 (1) governs situations similar to those which fell under section 100 of the Evidence Act. That said, I will now move to examine the grounds of appeal. Ground one question the locus standi of the respondent to sue on the contract. Page 8 of 17 There is no dispute that the respondent was a witness in the contract.. He signed as a witness of the appellant who was the buyer. I thus agree with counsel for the appellant that a mere witness to a contract had no capacity to sue on it. In ground two, the appellant say that PW3 was Supposed to be a party not a witness in the case. He signed the. > 4 document as a seller, selling the car to the appellant^ I therefore agree that he being a seller and a party to the contract, was'hot supposed to \'’X\ W\XZ ✓ . be a. witness of the respondent to’ contradict what he^had^signed, for as we shall see later, something which>had soeen 'reduced into writing cannot be erased by a word of'-mouths In''ground three, again for reasons to be given later,(the lower courts erred to declare the contract . ’• c\ \\ XX<X void based on oral evidence-.,,The law has given scenarios under

which — XX x x /■ / the documentrcouidXe challenged-by oral evidence. What was said do not felLintci>any\ofr tfiexexceptions provided under regulation 14 (1). • (f x\X\ Ground\4 speaks'of the>language used by the magistrate as she was ■ concludmg^herjudgment. She spoke of 'minor corrections and mino exceptions'. The appellant says that these minor corrections and exceptions were not mentioned in the judgment. I have read the judgment. I enjoyed a good language command of the magistrate, but I could not see clearly the minor corrections and exceptions. I think the magistrate should have mentioned them clearly at the end of her Page 9 of 17 judgment before going to the end. I advise her to do so in future. Ground five talks of assessors; whether it was important to have a written record of what was said by the assessors. I agree with the district court that there were no such a requirement in the primary court. That requirement is in the District Land and Housing Tribunal (see regulation 19 (2) of GN 174 2003). In the primary?court the position of the law and practice was to write what was said.by the^assessors in the \\X\ SXz' judgment if they agree must sign. Thejrxsignatures);signify'consent to what was written. This is what waSsdohe.J seemo broblem with it. \^X«XX \\ W \\ And finally ground six speaks, of'the need to calkthe magistrate who 1/>zs' \x \x XX w attested the

second contract to^ive additional evidence. I agree that \\ v x> the second agreement'brought some/confusion in the matter making it Z><X XX —<7 important tdysumm.on the-.'magistrate as a witness. But I think the district^dbrt^refra]nedXo^;do so to avoid embarrassment to the \ K x magistrate and tlje court. And if I were to add a word for future XX. /I guidance, Xicould..say this; magistrates are commissioners for oath. In their capacity as commissioners for oath, they can attest affidavits and documents. Attestation of documents includes sale agreements, but I think, this should be left to advocates to avoid future embarrassments to the magistrate and the court. Magistrates should say, no thanks, for it is very embarrassing for a magistrate to be subjected to cross examination Page 10 of 17 with an element of dishonest on a document he had signed and affixed a court seal. It is better to stay aside. Their role, in my view, when it 1 comes to documents, other than affidavits, should be limited to certifying them as true copies of the original. Next in my discussion is an examination of the record to find out what. should have been done by the lower courts. The record is aloud that, he trial court was confronted with a situaborKbf^contradiction<of oral and . documentary evidence. That was^the main jjrbblerrk before the \\ \c ■ ■ primary court. This is not an,

are^sWithout\authorities. Speaking of section 100 (1) of the JMdence\Actwhidi^ has-^similar provision to Regulation 14 (1), the Icourt (AopAppeaT,hasd> this to say in UMICO ^pree/7?e/7f^9 afdrm of a document, then no evidence of oralagreement or statement shall be admitted for the purpose of contradicting, varying, adding to or * subtracting from its terms"\Emphds\s added] See also Agatha Mshote v. Edson Emmanuel and 10 others,CAT Civil Appeal No. 121 of 2019 page 26 where it was said that a documented sale agreements cannot be superseded by an oral account and the decision of the Court of Appeal in Tanzania Fish Processors Page 11 of 17 Ltd v. Christopher Luhangula, Civil Appeal No. 21 of 2010 where it was said that when a document is reduced into writing, no evidence shall be given in proof of its term. The document is supposed to speak for itself. In our case, it being an appeal originating from the primary court, we should now step to the shoes of the primary courband see what the magistrate should have done. . ■ ■ \\ The magistrate was supposed to go ktd\regulationz 14Z>(1) of the Magistrates' Courts (Rules of EvidenceJnxPrimary Counts) Regulations GNS: 22 of 1964 and 6'6^of 1972xand\seek guidance. For easy of reference the regulation is'produced'verbatim as under; >) ' \\ V \\ ~ ’ "14(1),w!jere;an agreements in'writing, no oral evidence, may begiven by the f>arties to the

agreement or their ^^pT&enthtive^^ng civil case, to contradict or vary \the writtenterms. X \ V \ xx V CytZL/C// a) evidence may be given of any fraud or dunes or mistake in writing down what was previously agreed; b) evidence may be given of a separate oral agreement on any matter on which the writing in silent which is consistent with the writing; or of a separate oral agreement Page 12 of 17 made after the written agreement which cancels or modifies the written agreement. c) Evidence may be given of customs by which terms are made part of contracts although the terms are not included in the written agreement. ......... "(Emphasis added) Reading through the regulation, I can pick the^foliowing; one, like sectipn 100(1) of the Evidence Act, regulation i'4H) prevent fthe? ■■ ’ • /> ’ ■ ? receiving of oral evidence to contradict,.or varyythe,rtermsxbf/a/written .contract. That is the.Law in general;.The lawJnasvJexceptions only. In \'\\\ \?x \ \ ■■ (a), the primary court is allowed^^r^^eToj^beviclence to establish fraud, dunes or mistake in writing, down, the agreement. That is where a party wantsrto show the court that the contract was made out of.fraud, dunes'oCmistake^ 'sIriX(bj^dral evidence may be given of a' K\\ )L \\ ■ separateoraiagreementon any matter in which the writing in; s//d/#^But this. must^be consistent with the written agreement, it must not contr^.^ctjt^jt may

also be given of a separate oral agreement made after the written agreement which cancels or modifies the agreement. It is never given to change the position of parties. And finally, in (c), oral evidence may be given of customs by which terms * are made. Page 13 of 17 The contract between the parties to the sale agreement dated 14/09/2021 reads as under; "YAH: MAUZIANO YA GARI AINA YA TOYOTA DYNA YENYE NO. T.479BJC: Mimi RENATUSKAZAMBA KACHIRA wa Kiiemba Kibondo nimemuuzia gari ndugu HARUNA CHAKUPEWA yenye Namba T 479 BJC aina ya Toyota DYNA Pickup ya Blue yenye Keiia kwa thamani Shs. 6,000,000/=pametanguliza shs \ XxZ/ 5,800,000/= bado shs 200,000/=Z/mbazd atamaiizia myvezi wa 12 Tarehe 20/2016. X\ V/ Amemaiiza shs 200,000/^/12/2018' Mashahidi waiiokuwepo upandeZwa mnunuzi 1. PA TRICKKRISTOFA rifAL UKUNDO.. Sgd. w \\ 2.SAHlfi^A^MNiJNUZI^^J................... Sgd. MashahidKupandewa Miiuzaji; 1 LENATUS KACHIRA Sgd. k \ \\ X\ ■Sgd. From its wording/ the seller is Mr.. Renatus Kazamba Kachira and the buyer is Mr. Haruna Chakupewa. The respondent appears as a witness of the buyer. Evidence was given during trial that the name of the appellant, Haruna Chakupewa was merely put but the actual buyer was the respondent, Patrick Krostopher Ntalukundo. Based on the oral Page 14 of 17 evidence, the trial court found the contract as illegal and returned the * car to the original owner. It

did so without any order for refund of the amount paid as consideration, Tshs 6,000,000/=. The issue now is whether oral evidence given in support of the respondent's case had the effect of nullifying the clear terms of the <\ contract. As it was clear in my interpretation of regulation 14(1), oral X-., evidence had no effect of nullifying the clear terms^fthe^contrart. And <x x^X if anything, it was supposed to fit to'■the three exceptions provided ■ ‘-X 'xxxx'j under regulation 14(1). It was notXltTo.llows'that/\yhat was said, good as it might have appeared,"Was contrary to-the law-and of no effect' The X\ ■ ■ ■ ' ■ respondent remained a Mness^tfie contract and not the buyer. The evidence of PW3_could?o^bexqoodzif1t came to support the document not to contradict it, as it didxWhat was written by parties with their free will cannot be'changed byva>word of mouth. There should be another U X\ X\ writtemagreement which'is not existing. Further, if the-respondent had family problems which prevented him to buy the car in his name, why didn't he call his wife or any of his family members to support him? He instead Called the seller and people from the garage to support him. That was not correct. Again, why did he agree to pay the appellant Tshs. 5,000,000/= after the end of the Page 15 of 17 criminal cases? I think that if things were in the way he wants us to believe, he could not

pay the money. I see the contract, exhibit DI as a legal document under which title of the car passed to the appellant. However, much as I agree that the remaining sum of tshs. 200,000 was paid before the magistrate on 4/12/2018, I don't find the second agreement, exhibit D2 as a legal document because it tend to show that the whole amount was paid that day. It was meant for payment of the balance, Tshs. 200,000 but it purports to evidence the whole amount of Tshs. 6,000,000/=. It was illegal to that extent. I in the upshot, allow the appeal. I vacate and set aside the decisions of the lower courts. The appellant is declared to be the lawful owner of the car. It is ordered so. Costs to follow the event. Page 16 of 17 Court: Judgment delivered in chamber in the presence of both parties. L.M. Rlacha

JUDGE 30/11/2021 Page 17 of 17