Judgement PC Civil Appeal No

IN THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MOSHI SUB- REGISTRY

AT MOSHI PC CIVIL APPEAL NO. 5104 OF 2024 (C/F Civil Appeal No. 21 of 2022 in the District Court of Moshi at Moshi. Originating from Civil Case No. 27 of 2022 in Mwika Primary Court) JOHN SALIEL LYANGOWI.......................................................APPELLANT

VERSUS ELIAS ELIABU MAKYAO.……………………..….…………… RESPONDENT

JUDGEMENT Date of Last Order : 04.06.2024 Date of Judgement: 25.06.2024 MONGELLA, J. This is a second appeal. Initially, the appellant had sued the respondent vide Civil Case No. 27 of 2022 in the primary court of Moshi district at Mwika (hereinafter, the trial court) over TZS. 3,000,000/= arising from an agreement entered between them in 2012. In the trial court, the appellant claimed that on 05.02.2012, he entered into an agreement with the respondent to engage in a business of selling animal feed. He contributed a capital of TZS. 6,000,000/- into the business whereby the respondent was to repay the entire sum in 24 months and surviving profits would be shared between them. The capital was fully paid in 2015. Upon evaluating their profits, they found the business to have generated profits worth Page 1 of 9 TZS. 6,000,000/=. The value was to be divided between them but the respondent refused to do so. The respondent had ventured into operating a hardware store instead of the animal feed business. The trial court found in the respondent’s favour and declared the claim unproved. The appellant appealed to the district court vide Civil Appeal No. 21 of 2022 (hereinafter, the 1st appellate court). His appeal was found without merit and dismissed. Aggrieved further, he preferred the appeal at hand on one ground, to wit: 1. That, the Magistrate Court (sic) erred in law and facts

by failing to re-evaluate oral and documentary evidences adduced during trial. The appeal proceeded by written submissions whereby both parties appeared in person. Submitting in chief, the appellant alleged that it was undisputed that the he and the respondent entered into an agreement to start a business of selling animal feed. That, they agreed to equally divide between them the profit which would be yielded out of the business. They further agreed that the duration of the agreement was 24 months. This fact is apparent in the contract which was admitted at the trial court as Exhibit M1. The appellant further contended that the respondent conducted the business and managed to refund him the 6,000,000/= which he had injected as capital to investment in the business. However, he Page 2 of 9 said, when he consulted the respondent on his share of profits, he refused to give him the profits alleging that he had already given him the same. He disputed that being true. Further, he alleged that the respondent altered the business from selling animal feed to hardware and that he still refuses to give him his share. He added that he explained all of these issues while testifying at the trial court, but still the decision was against his favour. Further that, when he appealed to the district court, it failed to properly re- evaluate the trial court evidence leading into deciding in

favour of the respondent, which in his stance was erroneous. He finalized his submissions by praying for the appeal to be allowed, the trial court and the first appellate court’s decisions to be set aside and for the respondent to be ordered to give him his share as agreed. In reply, the respondent commenced his submissions by re-echoing the position that in aiding dispensation of justice, justice should not only be done, but also seen to be done. He then asked the court to adopt the contents of his reply to the Petition of Appeal as part of his submissions. Addressing the grounds of appeal, he had the firm stance that the trial court properly evaluated the evidence of both parties and reached a fair decision. He retorted that the Jurisprudence is well settled that the one entitled to recovery must make and establish his legal claim by reasonable preponderance of evidence. In his view, it does not suffice for the party to make out a case that is merely probable. He supported his averment with foreign cases of Page 3 of 9 Wright Root Beer Co. vs. Fowler Products Company, 196 So. 2d 615 and Perkins vs. Texas and New Orleans Railroad Co. 147 So. 2d 646 (1962). He further contended that oral evidence ought to be direct as provided under Paragraph 10 of the Schedule to the Magistrates’ Courts (Rules of Evidence in Primary Courts) Regulations G.N. No. 22 of 1964. Further, that

Paragraph 11 of the same Schedule to the Regulations provides that in tendering documentary evidence, the original documents must always be produced. The respondent additionally claimed that the appellant contradicted himself, by alleging that the trial court failed to evaluate the oral and documentary evidence on record while the court admitted Exhibit M1. He insisted that the trial court considered all evidence adduced by both parties. That the contract made between the parties lapsed in 2012 after he paid the agreed amount. He further challenged that the appellant remained silent for 10 years without doing anything. In the premises, he found it strange that the trial court allowed his application to file the case out of time, as it opened a Pandora box for him to be disturbed. The respondent further challenged the appellant on the ground that in his submissions, he shifted the burden of proof to him while it lay on him (the appellant). In his view, the appellant ought to have produced clear and convincing evidence to prove his case. He contended that the issues drafted sufficed to determine the case and the judgment was proper. Further citing Regulation 14 of Page 4 of 9 the Magistrates’ Courts (Rules of Evidence in Primary Courts) Regulations, he alleged that a written contract could only be altered by written contract. He said that according to the contract entered, the

amount claimed was 6,000,000/= and the said amount was totally paid. In his stance, the appellant never proved his claims on balance of probability as the law requires. He considered the appellant to have not adduced any proper evidence. He finalized his submissions by praying for the appeal to be dismissed with costs. I have considered the grounds of appeal, the rival submissions of both parties, as well as, the records of the two lower courts. I wish to start by re-affirming the settled legal position that the second appellate court cannot interfere with concurrent findings of facts of two lower courts, unless there are misdirections and misapprehensions of nature and quality of the evidence on record or there being miscarriage of justice. See, Helmina Nyoni vs. Yeremia Magoti (Civil Appeal 61 of 2020) [2022] TZCA 170 TANZLII, in which it was stated: “It is trite law that the second appellate court should be reluctant to interfere with concurrent findings of the two courts below except in cases where it is obvious that the findings are based on misdirection or misapprehension of evidence or violation of some principle of law or procedure, or have occasioned a miscarriage of justice.” In the matter at hand, it is apparent that the appellant faults the decision of the 1st appellate court on the ground that that it failed to re-evaluate the evidence on record. It is well settled

that the 1st Page 5 of 9 appellate court has the duty and discretion to re-evaluate the evidence of the trial court and make its own findings, if any. See, Registered Trustees of Joy in The Harvest vs. Hamza K. Sungura (Civil Appeal 149 of 2017) [2021] TZCA 139; Kaimu Said vs. Republic (Criminal Appeal No. 391 of 2019) [2021] TZCA 273 (7 June 2021) TANZLII and; Siza Patrice vs. Republic, Criminal Appeal No. 19 of 2010 CAT (Unreported). In Siza Patrice (supra) the Court stated: “We understand that it is settled law that a first appeal is in the form of a rehearing. The first appellate court has a duty to re-evaluate the entire evidence in an objective manner and arrive at its own findings of fact, if necessary." I have observed the judgement of the 1st appellate court. Contrary to the appellant’s allegations, I find that, the 1st appellate court did perform its duty to evaluate the evidence on record as found from pages 6 to 11 of its judgement. Still, since the appellant alleges that there were faults in the re-evaluation of evidence, I will analyse the evidence on record and make my own findings. From the record, I find it was not disputed that the appellant and the respondent entered into an agreement on 05.02.2012. It is also not disputed that they agreed for the appellant to provide a capital of TZS. 6,000,0000/= which he did. The said capital was also to be re-paid in 24

months. It is further uncontested that the full amount of the capital issued was re-paid as of 2015 and that the residue after payment of the capital was TZS. 6,000,000/=. The contest therefore Page 6 of 9 lies on whether the appellant was paid the TZS. 3,000,000/- he claims as part of the profits. The appellant claimed that the said value was not paid, but had no other witness to back up his averment. On the other hand, the respondent claimed the he had given the appellant TZS. 2,800,000/=. That, the appellant afterwards filed a complaint to SU2, a Ward Executive Officer, over the outstanding amount of TZS. 200,000/= which he was not aware whether it was paid or not. SU3, the respondent’s wife also claimed that the respondent had paid the entire TZS. 3,000,000/=. It is settled that he who alleges must prove. In civil cases, a claimant is required to prove all necessary facts to establish his or her claim. This is well provided under Paragraph 1 (2)(a) of Schedule to GN. 22/1964 which states: “1. (2) 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 is the defendant) admits the claim.” The standard of proof is on balance of probabilities whereby the court weighs the parties’ evidence against each other. This is well stated under Paragraph 6 of the Schedule to GN.

22/1964, which states: “6. In civil cases, the court is not required to be satisfied beyond reasonable doubt that a party is Page 7 of 9 correct before it decides the case in its favour, but it shall be sufficient if the weight of the evidence of the one party is greater than the weight of the evidence of the other.” In Crescent Impex (T) Limited vs. Mtibwa Sugar Estates Limited (Civil Appeal No.455 of 2020) [2023] TZCA 17501 TANZLII, the Court of Appeal stated; "It is also elementary that the standard of proof, in civil cases, is on balance of probabilities which means that the court will sustain such evidence which is more credible than the other on a particular fact to be proved. Likewise, it is the law that the burden of proof never shifts to the adverse party until the party on whom the onus lies discharges his/her burden to prove and the said burden is not discharged or diluted on account of the weakness of the opposite party's case.” See also; Maria Amandus Kavishe vs. Norah Waziri Mzeru & Another (Civil Appeal No. 365 of 2019) [2023] TZCA 31; Paulina Samson Ndawavya vs. Theresia Thomasi Madaha (Civil Appeal 45 of 2017) [2019] TZCA 453 and; Agatha Mshote vs. Edson Emmanuel and Others (Civil Appeal No. 121 of 2019) [2021] TZCA 323 (all from TANZLII). In this case, the appellant had the duty to prove that he was never paid the amount of TZS. 3,000,000/= that both parties

agreed to have come from profits. Apart from his empty allegations, he did not bring any witness or evidence to prove his assertion. In fact, while he claimed TZS. 3,000,000/= from the respondent, he never disclosed there being any sort of meeting to evaluate the Page 8 of 9 generated profits in which it was found to be TZS. 6,000,000/=. Such facts on there being a meeting in which the profit was identified came from the respondent’s evidence. On the other hand, the respondent clearly elaborated the details of their arrangement. SU2’s evidence in regard to there being a claim of TZS. 200,000/- as profits, served to show that indeed the respondent paid the appellant an initial sum of TZS. 2,800,000/= as he claimed. In my view, the absence of proof of payment or rather any documentation to signify the payment is not absolute evidence that the amount had not been paid. I find that the scales shifted in the respondent’s favour rendering him entitled to win as well expounded in Hemedi Saidi vs. Mohamed Mbilu [1984] TLR 113. The lower courts clearly evaluated the evidence produced and rightly found in the respondent’s favour. In the premises, the appeal if found without merit and consequently dismissed with costs. Dated and delivered at Moshi on this 25th day of June, 2024. X L. M. MONGELLA

JUDGE Signed by: L. M. MONGELLA Page 9 of 9