20120326 TZHC Arusha

IN THE HIGH COURT OF TANZANIA

AT ARUSHA PC. CIVIL APPEAL NO. 02 OF 2011 (c/f Civil Appeal No. 29 of 2010 in the District Court of Arusha, Original Civil Case No. 51 of 2009 at Maji ya Chai Primary Court) JUSTINE HUMPHRE KITOMALI ......................... APPELLANTS . ~ VERSUS MATHAYO TUWATI MATURO ......................... RESPONDENT JUDGMENT. Date of last order: 02/11/2011 Date of Judgment: 09/01/20_12 F.H. MASSENGI, J. Appellant Justine Humphre Kitomari was defendant in original Civil Case No. 51 of 2009 at Maji ya Chai Primary Court ' and Appellant in Civil Appeal No. 29 of 2010 in the District Court of Arusha. Respondent Mathayo Tuwati Maturo was plaintiff in Primary Court and respondent in the 1st appellate court. The Primary Court judgment was in favour of respondent and appellant appealed to the District Court and his appeal was dismissed. Aggrieved by the decision of both courts he is now appealing to this court. 1 " The memorandum of appeal before this court rests on the following grounds:- l. That the 1st appellate court erred in law and fact in deciding that the appellant and respondent agreed and signed a loan contract of interest of 10% while in fact there is no evidence to prove the same.

2. That, the Appellate court erred in law and fact by acting upon the evidence which was obtained under treat and torture before the Police Station.

3. That, 1st appellant court erred in law and in fact by acting upon demand letter written by the Respondent's advocate.

4. That, the 1st appellant court erred in law and fact by upholding improper evaluation of the evidence of the trial court.

5. That, the 1st appellant court erred in law and fact by upholding the decision that the appellant owe the respondent twelve million shillings (12,000,000/=) while in fact there is no evidence to prove the same.

6. That, the quality and quantity of evidence adduced by respondent at Maji ya Chai Primary Court could not justify the decision arrived by both trial and the 1st appellant court. 2 It was agreed that the appeal to be argued by way of written submissions and both parties did file their submissions accordingly. Briefly facts are that sometimes in 2005 the respondent lended appellant money to the tune of shs. 2, 104,000/= for the purpose of appellant repairing his motor vehicle, on agreement the money to be paid plus 10% interest per month. Respondent did pay back cash shs. 100,000/=. Thereafter the matter was taken to Police whereby appeUant agree the loan to the tune of 4,273,100/= and he promised to pay the loan in 500,000/= installment. He only paid 300,000/=. Appellant admits to have obtain a loan from respondent cash shs. 2,114,000/= aND he admits to have repaid shs. 400,000/= out that amount. He denies that he was to repay the money plus an interest of 10% per month. And that the agreement was not in writing. Appellant in arguing his first ground of appeal submitted that the evidence on record does not reveal that the loan contract between the parties, was to be paid with the interest of 10% per month. He further submitted that exhibits "B" and "C" was retracted by appellant as it was obtained by being forced and tortured by Police to sign it. 3 Respondent on reply to this

ground argued that there was an agreement between the parties that the loan was to be paid with 10% interest per month and both court properly found that there was such agreement and that is why the 1st appellant court dismissed this ground. During the trial and in its judgment the trial court framed the issue whether respondent did lend money to the appellant with interest. The trial court in answering this issue found that the loan was on interest basing its decision on exhibit "B". And that is what the appellant appealed against in the District Court on appeal. The District Court also come into the. same finding as the trial court that there was a loan contract of interest of 10% and this decision was based on exhibit "C" and which is also a subject to this appeal. Going through the record of the trial court, that is Maji ya Chai Primary Court, no exhibit was tendered by either party during the hearing of the suit. There is no where in the record nor anywhere in the proceedings it is recorded that during the trial the so termed as exhibits "B" and "C" were admitted in evidence. The trial court that is Primary Court based its decision on the exhibit "B" that the agreement between the parties in refund of the lended money in repayment with 10% interest. Going through the proceedings, PWl and PW2 when adducing their evidence none of them 4 produced any exhibit which .was

admitted in evidence. In the judgment the trial magistrate found that there was a written loan contract between the parties as evidented by loan agreement exhibit "B". in the case of JAPAN INTERNATIONAL COOPERATION AGENCY {JICA) Vs.· KHAKI COMPLEX LIMITED [200] TLR at page 350 dealing on a document which was not admitted in evidence The Court of Appeal had this to say:- "The documents in question somehow were not admitted in evidence. This was a substantial error during the trial, which amounted to a miscarriage of Justice'~ Therefore the trial magistrate erred in basing her decision on a document which was not admitted in evidence and arrive at a finding that there was a loan contract between the parties on agreement of interest of 10% without analysis of the document baptized to be an exhibit and the District Court on it's appellant jurisdiction did fall on the same error. Therefore the 1st ground of appeal has merits and it is hereby allowed. The above observations carters for all six grounds of appeal as the main issue was whether the loan 5 ... contract between the parties, there was an agreement that money was to be refunded with 10% interest per month. Appellant admits there was a loan contract between the parties but not on term of refund with 10% interest. At the· end this appeal it allowed to the · extent of the term of 10% interest otherwise the loan contract between the parties remain undisturbed. The loan to be paid on normal court interest. For the circumstances of this appeal each party has to bear its own costs. Sgd: F.H. MASSENGI

JUDGE 09/01/2012 . Delivered in chamber court this 9th January, 2012 in presence of both parties. Right of further appeal explained to the Court of Appeal upon certification of point of law. Sgd: F.H. MASSENGI

JUDGE 09/01/2012 I hereby certify this to be a true copy of the original. G.~ '

DISTRICT REGISTMR d-b(A3/;~ ARUSHA . 6 "_·_