KAJALA HUKUMU

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

SHINYANGA SUB REGISTRY PC. CIVIL APPEAL NO. 2024051810000111402 (Arising from Shinyanga District Court in Civil Appeal No. 20231012000533757, the same arise from Civil Case No.53 of 2023 before Tinde Primary Court) KAJALA MASANJA ......................................................APPELLANT

VERSUS YUSTO YONA ..........................................................RESPONDENT

JUDGMENT 11th June & 19th June 2024 F.H. MAHIMBALI, J In the present appeal, the appellant had filed a civil suit requiring the trial Court to compel the respondent to receive monies which owed by him a tune of Tshs 850,000/=. In traverse to the trial court’s records reveal that, prior the appellant and the respondent had entered into oral contract for consideration of Tshs 200,000/= with the condition that the same be retuned with interest of Tshs 200,000/=. The appellant succeeded to return only Tshs 200,000/= and remained Tshs 200,000/=. The parties opted to enter into a new written contract that the appellant had loaned Tshs 850,000/= to be paid on 23/5/2023, 1 meaning that the remained Tshs 200,000/= be retuned with interest of Tshs 650,000/=, though this interest was never written in the alleged written contract. The appellant put his parcel of land as collateral/lien and that upon default to pay, the collateral be taken by the respondent. The appellant with unknown reasons failed to honour the said contract, thus led the respondent to approach the street chairman requesting him to handle the parcel of land put as collateral by the appellant to him. The chairman notified the appellant who went there with excuse and monies owed by respondent. The respondent rejected to receive the monies to wit 850,000/= on the ground that the agreed time had long time passed and the

appellant had not paid attention despite of several reminders. The appellant quickly approached the trial Court for assistance with but in futile, the same ruled that terms and conditions of the contract are to be honored. Aggrieved by such decision the appellant unsuccessfully appealed to the first appellate Court, as the same upheld the trial court’s decision. The appellant is not amused with that decision, he has approached this court marshalled with two grounds of appeal, namely; 2 1. That both the District appellate and trial courts erred in law and in facts in holding that the appellant had entered a valid and lawful contract with the respondent.

2. That both the District appellate and trial Court erred both in law and in fact by wrongly interpreting the law on mortgage. During the hearing of this appeal, the appellant appeared in person and unrepresented while the respondent denied service but later showed up in court while the matter had already proceeded experte against him. He was thus given a chance to reply to the appeal. Arguing for the appeal, appellant submitted that his grievance is that, he had that money owed by the respondent, and therefore, there was no need of taking the security (his land). The merit of confiscating the security is to recover the loan defaulted but not to punish the loanee. As he has the money, why the respondent should take his property? He thus prayed for the appeal be allowed on the strength of his grounds of appeal. In his reply, the respondent stated that so long as the appellant had defaulted the said payment, the contract is so clear that he should forfeit the securing property. 3 Having heard the parties and upon close digest of the lower courts’ records, a point for determination of this appeal is whether the appeal is merited. I should state at the onset of our determination that this being a second appeal, the Court will rarely interfere with concurrent findings of fact made by the courts below. The exceptions to the rule are when the findings are perverse or demonstrably

wrong and occasioning miscarriage of justice. This position was well stated in Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] TLR 149; Mussa Mwaikunda v. Republic [2006] TLR 387 and Wankuru Mwita v. Republic, Criminal Appeal No. 219 of 2012 (unreported). Specifically, in the latter case the Court stated that: "... The law is well-settled that on second appeal, the Court will not readily disturb concurrent findings of facts by the trial court and first appellate court unless it can be shown that they are perverse, demonstrably wrong or clearly unreasonable or are a result of a complete misapprehension of the substance, nature or non-direction on the evidence; a violation of some principle of law or procedure or have occasioned a miscarriage of justice." Therefore, in determining this appeal, I shall be guided by the above principle 4 It is not disputed that; the parties had entered into a loan agreement for the consideration of Tshs 850,000/=. See exhibit P1. It is however not disputed that the appellant put his parcel land that upon default to repay the loan, then the respondent should take it. What the trial court did in interpreting the said contract in my view is correct interpretation of the said contract as the parties had to honour the contract as are bound by it as per section 10 of the Law of Contract Act, i.e parties are bound by the agreements they

freely entered into. The cardinal principle of the law of contract being the sanctity of the contract as expounded in numerous cases including Abualy Alibhai Azizi v. Bhatia Brothers Ltd [2000] T.L.R. 288 and Unilever Tanzania Ltd v. Benedict Mkasa t/a Bema Enterprises, Civil Appeal No. 41 of 2009 (unreported). However, the issue here is the modality of execution and taking over the collateral (parcel of land). The entered contract was silent on this. I am of the firm view that, the respondent if wanted the same to be handled to him had first required to approach the court of law for claims of his money and asked for execution of it by being handed over the parcel of land. That was not done. 5 We should ask ourselves if the contract entered by the parties was solemnly in itself executable, why again the respondent approached street chairman to hand him that parcel of land. The answer is, the respondent wanted legitimacy of ownership. Therefore, that could be done through court process. Again, the appellant had alleged that, he has the money and is ready to pay the respondent but the respondent had denied to receive. In my firm findings, I agree with the appellant that the intension of the loan is to be paid and thus the loanee should not be punished. If he had the money let it be paid to the respondent and if there are other damages caused by delay to return the owed money, the

respondent should claim it. The primary aim of security is not to deprive the loanee but functions as security to the money/service obtained. Therefore, so long as the appellant was ready and willing to pay it, the respondent is precluded from confiscating the said land as the loanee is capable of redeeming his property. Otherwise, that is equivalent to considering the matter as “kausha damu mkataba.” With the observation above, I hereby direct that the appellant to pay back the respondent his money Tshs 850,000/= as previously owed. 6 Meanwhile, taking into the circumstances of the loan agreement and its calculation existed, I order the appellant to pay the respondent costs incurred by him in prosecuting the case at the trial Court. With all the said, the appeal is allowed to the extent only explained herein above. Right of further appeal is explained. DATED at SHINYANGA this 19th day of June, 2024. F.H. Mahimbali Judge. 7