Judg

1|P ag e IN THE HIGH COURT OF TANZANIA GEITA SUB-REGISTRY AT GEITA PC CIVIL APPEAL No.8055 OF 2024 (Arising from the decision of the District Court of Geita in Civil Appeal No. 18 of 2023, Hon.C.F. WAANE, PRM) ISSA RAMADHANI……………………………….......…...……………. APPELLANT VERSUS YASINTHA SANJULA MAGOMA……………………………………. RESPONDENT JUDGMENT Date of last Order: 17/06/2024 Date of Judgment: 15/08/2024 K. D. MHINA, J. Before the Primary Court of Nyankumbu, the respondent herein, YASINTHA SANJULA MAGOMA, instituted a civil case No. 81 of 2023 against the appellant, Issa Ramadhani, claiming TZS. 3,900,000/=, the sum of 10,000/= collected from the respondent on a daily basis from 6 January 2022 to 20 February 2023. 2|P ag e When the appellant entered an appearance before a trial court, he denied the claim. After the case hearing, the court decides in favour of the plaintiff. The respondent was aggrieved and appealed to the District Court of Geita in Civil Appeal No. 82 of 2023. The District Court confirmed the decision of the trial Court. Dissatisfied, the appellant filed this instant appeal with the following grounds of appeal. 1. That the first appellate court erred in law and, in fact, for failure to analyse evidence and exhibits tendered before the trial court and upholding unfair decisions. 2. That the first appellate court erred in law and, in fact for, failure to note and consider that the respondent was among of the plaintiffs who filed a case against the appellant in Geita District Court and that was a double claim against the appellant. 3. That the first appellate court erred in law and failed to consider that the respondent admitted before the district court that she was among the members of a social group that group had no legal validation and the appellant was never a treasurer to that group. 4. That the first appellate court erred in law and, in fact, upholding the decision of Nyankumbu PC for the claims of 3,900,000/= were not proved in the balance of probability as to how the appellant was given the money. 3|P ag e 5. That the first appellate court erred in law and, in fact for failure to consider the provision of section 10 of the Law of Contract Act Cap 345 RE: 2019, that there was lack of Free consent, Lawful Consideration and Lawful object. 6. That the first appellate court erred in law and in fact for failure to analyse the evidence adduced by the appellant at the trial court and base its decision on the evidence of the respondent and the trial court failed to analyse the elements and reasons for the decision. The appellants prayed for this court to allow the appeal with costs, quash the decision of the District Court and set aside the order of payment of 3,900,000/= and any other relief that the court will find fit and just to grant. On the part of the respondent, she also filed a reply to the appellant's grounds of appeal, objecting to the grounds of appeal. The appeal was argued by way of written submissions as per the court order dated 29 May 2024 that Submission-in-Chief on or before 05.06.2024; Reply on or before 12.06.2024 and Rejoinder (if any) on or before 17.06.2024, both parties complied. 4|P ag e The appellant was represented by Bartholomeo Musyangi, learned counsel, and the respondent engaged in the service of Beatus Emanuel, also the learned counsel. The appellant's learned counsel chose to submit on the 1st,4th, and 6th grounds together, then the 2nd and 3rd together and the 5th ground separately. On the 1,4 and 6 grounds, Mr Musyangi started by referring to Regulation 1(2) of the Magistrates Courts (Rules of Evidence in Primary Courts) Regulations G.N No. 22 of 1972 that where a person makes a claim against another in a civil case, the claimant must prove all the facts necessary to establish the claim unless the other party (that the defendant) admitted the claim. Referring to the appeal at hand, he claimed that the respondent failed to prove the case before the trial court by indicating how the appellant collected the money. No written documents on modalities of collecting the money and disbursement were brought to establish and prove the claim against the appellant, and there was no evidence that the community group was registered and had leaders other than the appellant. 5|P ag e He referred to the case of St Maurice Vikoba Group A vs. Francis Mwamlima Ndaga Civil Appeal No. 256 of 2020 (Tanzlii) Damson Ndaweka vs Ally Said Mtei Civil Appeal No. 05/1999 CAT(unreported) that, at the first appeal, the Court is duty bound to analyse the evidence of both sides to satisfy itself whether the finding of the trial Court was justified on the evidence. He claimed that the first appellate court failed to perform its legal duty of analysing the evidence by the trial court, which led to an unfair decision against the appellant. He went on to say that the evidence at the trial court revealed that there was another case before the Resident Magistrate Court of Geita, whereas the respondent was among the claimants claiming the same amount of 3,900,000/=, which was a double claim by the respondent to the appellant. The appellant informed the trial Court under regulation 12 of (the Magistrate Courts (Civil Procedure in Primary Courts) Rules, G. No. No. 310 of 1983, but the trial court proceeded with the case, and again, the claim was raised before the District Court, but the Court chose to proceed. On the 2nd and 3rd grounds, he submitted that before the District Court, the respondent admitted that she was among the group members 6|P ag e and, therefore, required to prove the legality of the group, stating if the group was so registered and how it deals with finance. He insisted that no leader of the said group come out to establish that the respondent owed such an amount of money. Supporting his argument, he cited the case of Kikundi Cha Tupendane vs Rozi Manema (PC Civil Appeal No. 35 of 2022) [2023] TZHC 15869 (28 February 2023) (TanzLii) that the procedure was not followed. He insisted that the claims were similar to the case at hand; therefore, the claims against the appellant should be set aside. On the 5th ground of appeal, he submitted that all the contracts must comply with the law of contract. He referred to section 10 of the Law of Contract Act Cap. 345 RE:2019, all agreements are contracts if they are made by free consent of parties competent to contract, for a lawful consideration, and with a lawful object, and they are not hereby expressly declared to be void. He, therefore, insisted that the agreement between the appellant and the respondent was not legal as the community group was not registered. The appellant retired, reiterating his prayers. Replying, Mr. Beatus Emanuel objected to the appeal. He was submitted on the 1st, 4th and 6th grounds together. He submitted that 7|P ag e there was an agreement between parties, as shown on page 8 of the decision of the 1st appellate court. As for the cited case of St. Maurice Vikoba (supra), he claimed that it was distinguishable. On the argument that there was a group which instituted a case, he insisted that there was no group with the name of the respondent before the Resident Magistrate Court Case. On the 2nd and 3rd grounds, he replied that nowhere in the trial court records was the registration of the entity discussed, and therefore, it was a new issue. He thus insisted that the case of Kikundi cha vikoba Tupendane (supra) does not apply as the cause of action was not initiated by a group but rather by an individual. Referring to the decision of this court in Juma Mrisho Mabiba vs Elia Wangere Busana and 8 Others (Land Appeal No. 3571 of 2024) [2024] TZHC 6249 (7 June 2024)(Tanzlii), he insisted the appellant introduced a new issue and it must fail. On the fifth ground, he replied that it has no merit, for no entity was involved in the appellant's breach of trust. There was an oral agreement, as held by the first appellate court. He therefore prays for the appeal to be dismissed with costs. 8|P ag e Rejoining, Mr. Musyangi briefly insisted that this court allow the appeal. He maintained that the respondent admitted that she was among the group members and plaintiffs before the Resident Magistrate Court against the appellant. He insisted that there was no agreement between the appellant and the respondent as determined by the lower courts. He reiterated his submissions in chief and maintained his prayers insisting that the appeal has merit and has to be allowed with costs. After the submissions from both parties, I will now proceed to determine the appeal. On the 1,4 and 6 grounds, as argued, the appellant asserted that the first appellate court and the trial court both failed to evaluate the evidence adduced and also failed to consider the appellant’s evidence. After I went through the 1st appellate court records, I do not agree with the appellant’s submission that the first appellate court failed to evaluate and consider the appellant’s evidence. The reason for my findings is that the 1st appellate court fairly evaluated the evidence adduced. As reflected on pages 6 to 8 of the 1st appellate court decision, the court went through the grounds of appeal and analysed the evidence adduced at the trial court. 9|P ag e As reflected on page 7 of the decision of the 1st appellate court, the case against the appellant was proved before the trial court as the respondent established that there was an agreement between her and the appellant and the modality of the agreement. The same was supported by SM2 David William, as referred to by the 1st appellate court. In that regard, I find that the 1st appellate court was justified in holding that the case was proved to the required standard. Therefore, the 1st, 4th and 6th grounds of appeal are devoid of merits. Coming to the 2nd and 3rd grounds, upon perusing both the trial court and the 1st appellate court records, it is clear that before the trial court, the case was between the respondent and the appellant, and no group was involved. Second, the 1st appellate court observed that this case was filed before the PC on 02.06.2023, and no other suit against the appellant was filed. Thus, the 2nd and 3rd grounds of appeal lack merits. On the 5th ground of appeal, the agreement between the appellant and the respondent was not legal because the group was not registered. The respondent insisted that the ground had no merit because no entity was involved in the appellant's breach of trust. 10 | P a g e As shown in the records, the respondent had a claim against the appellant before the trial court that did not involve the group but was a respondent as an individual. Before the trial court, claims were established, and witnesses testified, establishing that there was an agreement which the appellant breached. It is not reflected that there was an entity between parties that was required to establish its legal identity as claimed by the appellant's learned counsel. In that regard, this ground also must fail. From the above discussion, in totality, the appeal lacks merits; both grounds of appeal fail to persuade this Court to interfere with the decision of the Courts below. Consequently, I dismiss the appeal with costs. It is so ordered. K. D. MHINA JUDGE 15/08/2024 11 | P a g e Court The right to appeal is fully explained to the parties. K. D. MHINA JUDGE 15/08/2024