joseph petro ambrose vs hadija ramadhani saidi 2024 tzhc 447 26 february 2024

IN THE HIGH COURT OF TANZANIA

DODOMA SUB REGISTRY

AT DODOMA CIVIL APPEAL NO. 17 OF 2023 (Arising from Civii Appeal No. 26 of2022 of the District Court of Singida and Originating from the Civii Case No. 27 of the 2022 before Urban Primary Court, Singida) JOSEPH PETRO AMBROSE....... ................... APPELLANT

VERSUS HADIJA RAMADHANI SAIDI.................................. RESPONDENT

JUDGMENT Date of last order. 15/02/ 2024 Date ofJudgment. 26/02/2024 LONGOPA, J: This is a second appeal. The appellant and respondent were parties to the proceedings in Urban Primary Court of Singida in which the respondent was claiming compensation against the appellant. The claim arose out of the fact that the respondent was once a tenant in a house which was disposed off by way of sale by the appellant as an administrator of the estate. 1 I Pa ge 4 During pendency of the tenancy, the respondent was permitted to construct a food vending building at the land belonging to the appellant as administrator of estate. It was agreed further that electrical installation and water installation in the tenancy house should be done at the costs of the respondent. The total cost was amounting to Shillings one million eight hundred ninety-one thousand five hundred (TSHS. 1,891,500/=). Further, all the materials used in constructing a food vending building/restaurant room as well as electrical wiring were agreed to remain properties of the respondent. It was envisaged that on termination of the tenancy, all the materials used in electrical wiring, water installation and construction/building of food vending facility would be handed over to the respondent. On 30/9/2021 when the tenancy came to an end by selling of the said tenancy house, all those materials were taken by the purchaser of the

house as part of the sold house as instructed by the administrator of the estate who is appellant. It was alleged that the appellant did sell the house with all the amenities including the electrical wiring and the materials used in the construction of food vending building. The respondent successfully sued the appellant claiming the compensation of the costs of the properties that belonged to her. On 10/8/2021, the Urban Primary Court of Singida entered judgment and decree in favour of the respondent to the extent that the respondent should be paid TSHS 702,000/= and the appellant should return all the materials used to construct the food vending facility. 2 | P age The appellant did challenge the decision of the Urban Primary Court of Singida and the District Court on 11/1/2023 entered a judgment and decree in favour of the respondent and ordered that the respondent should be compensated to the tune of Tshs 1,000,000/= (shillings one million) only. That decision also infuriated the appellant who is now challenging the findings of the District Court of Singida in favour of the respondent on the following grounds: (a) That, the trial court erred in law by upholding decision where the respondent sued a wrong person. (b) That, the trial court erred in law by upholding a decision where the respondent had no cause of action against the appellant. (c) That, the trial Court erred in

law and fact to order the respondent to be paid compensation of Tshs. 1,000,000/= that was not proved on balance ofprobabilities as required in law. (d) That, the trial court erred in law by upholding a decision without a proper evaluation of evidence that was before it. On strengths of these grounds, the appellant prayed that this appeal to be upheld by quashing and setting aside the orders of the trial court and the district court with costs. On 15/2/2024 when the matter came for hearing the appellant was represented by Ms. Salma Mussa, learned advocate while the respondent appeared in person. Ms. Salma Mussa, advocate submitted that the first ground is that the respondent action to sue a wrong person. It was submitted the appellant was supposed to be sued as administrator of 3 | Page estate of his late father and not in his personal capacity which is contrary to Rule 11 of the Primary Court Civil Procedure Code/Rules which provides that where the matter involves administration of estate must be instituted against the administrator of estate. It was argued that the titling of the parties does not indicate that appellant was sued in administrator's capacity. The case of Leon Mussa Mwakitwange vs Magreth Massawe (Land Case) [2023] TZHCLandD 16715 (1 August 2023), was cited to cement that one must be sued under administrator's capacity and not in personal capacity. On the second

ground of appeal is on lack of cause of action by the respondent against the appellant. It was submitted that having dully informed the respondent that her tenancy would terminate on 30/9/2021 anything that happened beyond that time the blame should be on the respondent who remained trespasser to that land. The case of Princess Nadia (1998) Ltd vs Remency Shikusiry Tarimo & Others (Civil Appeal 242 of 2018) [2021] TZCA 249 (9 June 2021) was cited on trespasser having no right to benefit from his action of trespass after notice has been given/eviction order. The third ground is centred on legality of compensation order of TSHS 1,000,000/=. It is argued that the first appellate court having found that receipts amount to sum of TSHS 800,000/= were not in the name of the respondent thus expunged them there remained no evidence to prove on balance of probabilities that respondent was entitled to compensation. The case of Paulina Samson Ndawavya vs Theresia Thomasi Madaha 4 | Page 4 (Civil Appeal 45 of 2017) [2019] TZCA 453 (11 December 2019) was cited to reflect that he who alleges must prove. The fourth ground was on failure of the court to evaluate evidence of the case that led to improper decision in favour of the respondent. It was argued that the District Court discarded all the documentary evidence of the respondent thus there was nothing left. There is no evidence as

to reasons for respondent leaving her properties in that house and to whom did she entrust those properties for a period from 11th October 2021 to 6th September 2022. The counsel for appellant invited this Court to invoke its powers to re evaluate the evidence of the courts below. At this point a case of Idrissa Ramadhani Mbondera vs Allan Mbaruku and Another (Civil Appeal 176 of 2020) [2023] TZCA 204 (27 April 2023) on balance evaluation of evidence was cited to invite this Court to re-evaluate the evidence to depart from concurrent findings of the trial and first appellate courts. The respondent resisted this appeal forcefully. She argued that the respondent instituted the case as she had demands/ claims against the appellant. The claim arose out of the fact that appellant took away all properties of respondent. These were the electrical wiring and the construction materials used in constructing a food vending building. Those properties were either taken by the appellant or a person given authority by the appellant as the appellant sold the main house together with all 5 | Page other associated properties including the materials used for wiring and construction of the food vending building/restaurant room. On the second ground, it was argued that she had a cause of action against the appellant Mr. Joseph Petro Ambrose as he was the one responsible for that house. He sold the

house and all properties of the respondent to the new owner/ purchaser of the house. Those included the whole electrical wiring and building/construction materials for the restaurant building for food vending business. The third ground it was submitted that the District Court was right to order compensation of Shillings one million (TSHS 1,000,000/=) as the remaining sum after deductions from the whole claim of Shillings 1,800,000/= that were being claimed. The deductions resulted from the receipts were in the name of respondent's husband thus the Court decided to deduct to remain with compensation of Shillings one million only. The last ground, it was argued that the evidence was watertight and sufficient to establish the case against the appellant. The court was satisfied that the evidence was sufficient to prove the case against the appellant on the required standard. That is why both trial and first appellate courts had a concurrent decision that the respondent was entitled to the judgment and decree against the appellant. In a brief rejoinder, the counsel for appellant reiterated that the appellant was not sued on his administrator's capacity and that there was 6 | Pag e no analysis with regards to the findings on compensation of Tshs. 1,000,000/= to the respondent. I have dispassionately considered the submissions of the parties and the record of trial and first appellate

courts to determine this appeal. I shall address the grounds of appeal as follows: The analysis shall commence with evaluation in respect of second ground of appeal on cause of action. To find out whether the respondent had a cause of action against the appellant it is necessary to state what amounts to cause of action. The Court of Appeal had set parameters related to what is the cause of action and modalities of ascertaining the same. In the case of Anthony Leonard Msanze & another v. Juliana Elias Msanze & 2 others, Civil Appeal No. 76 of 2012 (unreported), the Court of Appeal at pages 4-5 stated that: We laid down relevant legal principles on cause of action in JOHN M. BYOMBALIRWA v AGENCY MARITIME INTERNATIONALE (supra). Through this decision, we first pointed out that although the expression "cause of action" has not been defined under the Civil Procedure Code, but that expression simply means essential facts which a plaintiff in a suit has to plead and later prove by evidence ^7| Page if he wants to succeed in the suit. Secondly, we laid down that for purposes of deciding whether or not a plaint discloses a cause of action; courts should NOT go far into written statements of defence or into replies to the written statements of defence. But they should discover a cause of action by looking only at the Plaint. Thirdly we also said that where the Plaint does not disclose a

cause of action, the remedy is NOT for the court to dismiss the Plaint, but to reject it. The cause of action is ascertained from the complainant's pleadings as it relates to facts constituting a cause of action. The record of the trial and first appellate courts reveal that respondent was a tenant of the appellant's house since 2013 and there was an agreement that allowed the respondent to construct a restaurant room/ food vending facility at her costs. Also, it was agreed that respondent should install water system and electricity at her own costs as well. These things were to be compensated for costs incurred or respondent should collect them upon expiry of tenancy. However, at termination of the tenancy, the appellant sold the house together with the properties as part of the house without compensating the respondent. These are the facts which can be easily found on pages 1-2 of the judgment of the District Court of Singida in Civil Appeal No. 26 of 2022. Also, they are reflected on page 1 of the judgment of the Urban Primary 8 | Pa ge A Court of Singida District. Both trial and the first appellate courts found that the respondent managed to establish that parties have agreed to the effect that the respondent was allowed to incur costs of installation of water system, electrical wiring and construction of the food vending building /restaurant room at the appellant's

house. The record at pages 7 and 8 of the trial Court judgment is reflecting this finding in answering first and second issues, namely whether or not the respondent was a tenant at the appellant's house; and whether or not the parties agreed to have water system, electrical installation and construction by the respondent at her own costs. The same is the contents of the first appellate court judgment in page 6 where it is indicated lucidly that the respondent entered into oral agreement with the appellant to construct the restaurant room which she was using for her food vending business. I shall hasten to state that both the trial and first appellate courts correctly found that there was a cause of action by the respondent against the appellant. The facts stated above reflect that these facts formed basis of the claim of the respondent against the appellant. I find that second ground of appeal on lack of cause of action is devoid of merits and it is hereby dismissed. Regarding compensation amounting to Tshs 1,000,000/=, it can be rightly observed from the record that trial court ordered at page 8 of the 9 1 Pa ge 4 judgment that all the materials used for construction of the restaurant room/ food vending building at the appellant's house should be returned to the respondent. Similarly, the first appellate court on page 7 of the judgment restated the reasons for the award. It

was reiterated that there was oral agreement to construct the restaurant room and install the electrical wiring and water system. The respondent roofed the room, fixed the windows and door and installed water and electricity at her own costs. The appellant sold the house together with those amenities belonging to the respondent. The first appellate court found that the respondent deserved to be compensated for the expenses incurred. It is on those reasons that the first appellate Court arrived at a decision that respondent should be compensated to the tune of Tshs. 1,000,000/= (one million shillings only) for expenses used for room construction and electrical wiring installation. I am of the settled view that the first appellate court arrived at a right decision. A person who suffers loss as a result of breach of her rights in agreement between the parties, the injured party deserves compensation. That is generally what is contained in pages 7-9 of the decision of the District Court of Singida in Civil Appeal No 26 of 2022. The nature of the damages awarded by the first appellate court is what is termed as general damages. The same is in line with a decision in the case of Antony Ngoo and Another v. Kitinda Kimaro, Civil Appeal 10 | P a g e No. 25 of 2014 the Court of Appeal of Tanzania at Arusha Registry (Unreported), where the Court of Appeal gave guidance, at pages 15-16,

to the effect that: The law Is settled that general damages are awarded by the trial judge after consideration and deliberation on the evidence on record able to justify the award. The judge has discretion in the award of general damages. However the judge must assign a reason. Although the law presumes general damages to flow from the wrong complained of general damages are not damages at large. The first appellate Court having independently evaluated the available evidence on record concluded that the respondent was entitled to consolation for costs she had incurred because of the appellant failure to honour oral agreement on the recovery of the costs of materials for construction of restaurant room and installation of electricity. The Court categorically stated the reasons for so finding at page 8 and 9 of the judgment of the first appellate Court. There was basis for the award of TSHS. 1,000,000/= to the respondent. Award of compensation of general damages nature is the discretion of the Court. In case of Managing Director Tanzania New Habari Ltd vs Fadhili Josiah Manongi (Civil Appeal 115 of 2019) [2021] TZHC 6220 (7 September 2021), the High Court noted that: 11 | P a g e It is a cardinal principle that, since the assessment of general damages falls under the purview of judicial discretion, the figure arrived at by the trial court is not disturbed on appeal unless it is

based on erroneous principle, or it is so low or so excessive that it must have been based on some incorrect reasoning. I fully subscribe to this reasoning by the High Court. I state so as I am aware of the powers vested in the first appellate court to independently analyse the evidence to come up with a valid conclusion on its own finding on a matter before it. The District Court of Singida being the first appellate Court was entitled to revisit and analyse the evidence of the trial court. Its findings are based on correct legal position and valid for enumerating all the required principles of law. At this point, I am of the view that third ground of appeal is wanting of merits thus I proceed to dismiss it. On the fourth ground is challenging the alleged failure of the first appellate Court to evaluate evidence. My perusal of the first appellate court's judgment reveals a different story. The complaint by the appellant is unmaintainable. The first appellate court appreciated the available evidence, analysed the same fully prior to arriving at a concurring decision with the trial Court. In so doing, the first appellate Court on pages 6-8 of its judgment analysed every piece of evidence on record. It went on to expunge all the documentary evidence of the respondent which would prove specific damages in terms of receipts for not adhering to principles of tendering documentary and

exhibits in Court. 12 | P a g e At pages 7-8 of the judgment of the first appellate court it is revealed that the court analysed the remaining evidence on record to have been able to prove to the required standard of proof on balance of probabilities that the respondent was entitled to the decision of the Court. It was stated that basis of the respondent claim is based on facts and evidence on record that there was an oral agreement to undertake the construction and installation at her costs, existence of the restaurant room/food vending building and electrical installation. According to the record, evidence of the respondent was corroborated by evidence of PW 3 who was a Street Chairman proved existence of the constructed restaurant room and installation of the electricity. This Court cannot agree with the counsel for the appellant that there was no analysis of the evidence and that this Court should step into to re- evaluation the evidence. That invitation is tantamount to this Court re­ inventing the wheel. The Court of Appeal has guided fully in plethora of authorities on powers of the 2nd appellate Court. In the case of Martin Kikombe vs Emmanuel Kunyumba (Civil Appeal 201 of 2017) [2020] TZCA 224 (13 May 2020), the Court of Appeal stated that: It is settled /aw that a second appellate court's power to interfere with concurrent findings of the courts below is limited to

situations where it is plain 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 ofJustice, 13 | P a g e 4 On perusal of record for both trial and appellate courts I have found nothing worth to warrant the same being considered as violation of some principles of law or procedure that occasion miscarriage of justice. Both trial and first appellate courts applied relevant principles of law to reach to the decisions. Also, in the case of Faraji Augustine Chambo vs Republic (Criminal Appeal 346 of 2015) [2016] TZCA 852 (12 August 2016), the Court of Appeal reiterated the powers of the second appellate Court in that: It is pertinent to mention that this appeal before us, is a second appeal wherein the court confines itself to determination of matters of law. But, there are circumstances where the court can on a second appeal, like the present appeal is, venture into concurrent findings of facts by two courts below. As this Court restated in Julius Mdahari V. R, Criminai Appeal Alo. 215 of 2004 (unreported), the Court can interfere with concurrent findings of facts by the courts below if there is a misdirection or non-direction on matters of facts by the courts below. This is the principle that will guide on determination of this appeal. In my settled view there are no issues

whatsoever to warrant an interference with the concurrence of findings by the trial and first appellate 14 | P a g e 4 courts that the respondent is entitled to be compensated for the costs she incurred in construction of the restaurant room/food vending facility and electrical installation at the appellant's house. As a result, this fourth ground should not detain this Court anymore. It has nothing to do with the truth but rather it is like "the kicks of dying horse" as the appellant is trying to impress this Court on existence of valid ground to vitiate the concurrent findings of the trial and first appellate Courts. The fourth ground stand dismissed for lack of merits. I shall now revert to the first ground that the respondent sued a wrong person. The counsel for appellant argued forcefully that the appellant ought to have been sued in his administrator of estates' capacity and not in his personal capacity. This ground shall be tackled in two angles. The first angle is on the evidence available on record regarding under which capacity was the appellant sued. Page 1 of the Judgment of the District Court of Singida reflect categorically that the appellant was sued as the administrator of the estate of the late Petro Ambrose. The same stand is reflected in the judgment of the trial court where in pages 1-2, the appellant is recognised in his administrator's capacity. Both

judgments of trial and first appellate court are lucid on the appellant's standi to have based on his administrator of estate's role and not otherwise. 15 | P a g e 4 Also, at the commencement of the trial in the Urban Primary Court of Singida, the parties agreed on all matters which parties were concurring and those which parties were in dispute. The trial court proceedings at page 2-3, indicates as follows and I shall quote for clarity and easy of reference on this point:

MAMBO WADAAWA WANAYOKUBALIANA Swa/a la Mdaiwa kuwa Msimamizi wa mirathi ya baba yako (baba wa Mdaiwa) SIGNED17/6/2022 SIGNED17/6/2022

MDAI MDAIWA SGD: EE SHAIDI

HAKIMUMKAZI 17/6/2022. This extract is a clear reflection of the record that parties to this appeal from the outset at the Urban Primary Court of Singida were at one that the appellant is litigating in the capacity of the administrator of the estate of his late father one Mr. Petro Ambrose and not in any other capacity whatsoever. This was at the commencement of the case prior to framing of issues and adducing evidence before the trial court. The appellant was aware that 16 | P a g e he is sued in his capacity as the administrator of the estate of the later Petro Ambrose, and he appears to defend the case in that capacity. At this point the appellant cannot be heard to complain that he was sued in his personal capacity. It is an afterthought that shall not be entertained. This limb is enough to dispose this ground. The second limb is on legality of the ground itself. This appeal being a second appeal, there are limitations as to what can be entertained in the second appeal. This ground was not part of the grounds in the first appellate court. In the case of George Maili Kemboge vs Republic (Criminal Appeal 327 of 2013) [2014] TZCA 203 (30 October 2014), the Court of Appeal observed that: Further, relying on the Court's earlier decision in the case of Ramadhani Mohamed v R Criminal Appeal No. 112 of 2006 (unreported) it was held:- "We take it to be settled law, which we are not

inclined to depart from, that this Court will only look into matters which came up in the lower court and were decided; not on matters which were not raised nor decided by neither the trial court nor the High Court on appeal." See also Richard Mgaya @ Sikubaii Mgaya v R Criminal Appeal No. 335 of2008 (unreported). 17 | P a g e In the event and on the basis of the settled legal position demonstrated by the Court, grounds 2 and 3 having been raised for the first time in a second appeal are not legally before us for determination and therefore lack merit. In conclusion, this appeal fails in its entirety. We dismiss it. It is pertinent that this Court cannot address the grounds which have not been part of the trial or matters that were deliberated at the first appellate court unless the same is on jurisdiction of the Court that can be raised at any time. A question of proper party to be sued at two lower courts was not subject of the analysis in both trial and first appellate courts. This was so because the parties understood incontrovertibly that the appellant was litigating and has always been appearing to defend the interests of the estate of late Petro Ambrose. The first ground of appeal is dismissed for want of merits. As I have observed that all the four grounds of appeal have fallen apart for being destitute of merits, it is pertinent to reiterate that second appellate court

as a matter of law have limited powers in respect of analysis and evaluation of evidence. The second appellate court should restrain itself in departing from concurring findings of the trial and first appellate court unless there is proof of exceptional circumstances to indicate that the two lower courts violated clear legal principles or ignored essential evidence that has occasioned a miscarriage of justice. 18 | Page 4 In the case of Adelina Koku Anifa & Another vs Byarugaba Alex (Civil Appeal 46 of 2019) [2019] TZCA 416 (4 December 2019), the Court of Appeal reiterated that: It is certain therefore, that where the iower court ma/ have not observed the demands of an/ particuiar provision of iaw in a case, the Court cannot justifiab!/ dose its e/es on such giaring illegality because it has duty to ensure proper appiication of the taws b/ the subordinate courts and/or tribunals. Since the second appellate court in the present case did not address the anomaly which was pointed out b/ the advocate for the appellant, we have duty to address and determine that point as raised. My scrutiny of the judgment and decree of both trial and first appellate courts does not have any indication of iota of illegality on part of the court. The articulation of issues, analysis of evidence and findings of the respective courts are in order within legal bounds with precision. In the case of Simon

Kichele Chacha vs Aveline M. Kilawe (Civil Appeal 160 of 2018) [2021] TZCA 43 (26 February 2021), the Court of Appeal guided as follows: The appellant, in the instant appeal, has failed to show either a misapprehension of evidence, or a miscarriage of Justice or violation of some principle of law or procedure that would Justify this Court to interfere with the concurrent findings of fact on failure to make pa/ment on 19 | P a g e time to the respondent. We find no justification on the appellant's complaint at this second stage of appeal. As the appellant has not shown any cogent reasons for this Court to depart, the appeal before this Court deserves nothing more than dismissal on its entirety for being preferred without any merits whatsoever. I am bound to strictly adhere to the guidance of the Court of Appeal that failure to ably demonstrate that the trial and first appellate courts did misapprehend the evidence or there was miscarriage of justice or explicit violation of a principle of law or procedure, the second appellate court should not interfere with such concurrent findings of the two lower courts. That said and done, this court finds that there are no merits in the appeal. The appeal is destitute of any cogent merits thus deserves dismissal for being preferred unmeritoriously. The concurrent findings of the trial and first appellate courts is upheld. In the end, the appeal is dismissed in its entirety for lack of merits with costs. It is so ordered. DATED at DODOMA this 26th day of February 2024. WMr. E.E LOjMGOPA JUDGE' 26/02/2024. 20 | Page