KIHAWA MWENDWA

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA PC. CIVIL APPEAL NO. 22 OF 2023 (Originating from Civil Appeal No. 09 o f2022 of Iramba District Court and Civil Case No. 14 o f2022 of Ndago Primary Court) KIHAWA MWENDWA.............................................................. APPELLANT VERSUS SHABANI KINANGA................................................................. RESPONDENT JUDGMENT 23. 08.2024 HASSAN, J.: The appellant herein, one Kihawa Mwendwa aggrieved by the decision of the District Court of Iramba at Kiomboi delivered on 15th February, 2023 in the Civil Appeal No. 9 of 2022 of which the respondent one Shabani Kinanga emerged victorious. It started from the Primary Court of Ndago at Iramba where at first, these parties were looking for therapy of their dispute. At that stage, the appellant filed a Civil Case No. 14 of 2022 claiming for the sum of TZS. l 1,026,000.00 as compensation from damages he incurred as transportation fare from Dar es Salaam to Shemwela area at Ndulungu village within Iramba District where the appellant had attended matrimonial settlement undertakings between the respondent and his wife. Then after full hearing, the trial court found the claim against the defendant (respondent herein) was not proved and it failed. Dissatisfied by the outcome, the appellant herein marshalled an appeal to the District Court of Iramba at Kiomboi in the Civil Appeal No. 9 of 2022. After hearing of an appeal the District court concluded in the decision delivered on 15th February, 2023, yet again the respondent herein emerged glorious. Pained once more, the appellant lodged the instant appeal. Upon exercising his right of appeal conferred under section 25 (l)(b) of the Magistrates' Courts Act, Cap. 11 R. E. 2019, the appellants preferred three (3) grounds of appeal to be determined by the court as hereunder: 1. That the court erred in law and in facts by holding to effect that the appellant failed to justify his claim o f TZS. 1,206,000.00 while there is ample evidence which portray that the appellant travelled several times from Dar es Salaam to Singida region at 2 Ndulungu village and Shemwela Hamlet to the respondent's home for the purpose o f reconciling the matrimonial disputes between respondent and his wife. 2. That the court erred in law and in facts when it failed to make proper analysis o f evidence that adduced by the appellant's side; which has the greater weight than the evidence o f the respondent's side. 3. That the court erred in law and facts by holding that there was no any promise or agreement or any contract between the appellant and the respondent, while there is evidence which shows that the respondent promised to pay the appellant all cost for travelling from Dar es Salaam to Singida region at Iramba District, Ndulungu village and Shemwela Hamlet to the respondent's home for the purpose o f reconciling the matrimonial disputes between respondent and his wife. 3 Whereas, the appellant prayed the court to allow the appeal with costs, in his Reply to the Memorandum of Appeal; the respondent on his side besought the court to dismiss the appeal with costs for being devoid of merit. Now, taking into account the purpose of having nuptial bond tidily maintained, in brief, I will re-count the story behind this dispute between these two gentlemen who are brothers-in-law. As per the evidence adduced by the appellant, his claims started from 30/10/2021 when the respondent phoned him, and thereafter, he asked him to go to his home at Ndulungu village for the purpose of helping him with his issues. And that, the respondent will reimburse the appellant's costs and time. Seeing that, the appellant accepted and promised to start the journey on December. As he had promised the respondent earlier on, the appellant travelled from Dar es Salaam to Singida urban and then he proceeded to Shemwela Hamlet on 30th December, 2021 for the purpose of attending the respondent's request. It was further asserted by the appellant that, from that date (30th December, 2021), he had repetitively travelled from Dar es Salaam to Shemwela Hamlet in order to settle respondent's dispute. And because of those go and back trips, he had incurred damages in the tune of TZS. 1,026,000.00 as per exhibits PI and P2 (copy of costs assessment and 4 transport tickets). PW1 testimony was corroborated by the evidence of PW2 (Kassim Emael) that, the appellant was telephoned by the respondent on 30/12/2021 to attend settlement meeting, but PW2 did not testify about costs arrangements. Also, PW3 (Bertha Mwendwa) who is the appellant's sister and the respondent's spouse, asserted to have heard the respondent saying that he will pay the appellant's costs when PW3 was challenging the respondent about act of calling the appellant to attend their settlement meeting. However, on his part, the respondent has accepted the claim raised by the appellant that he had matrimonial dispute with his wife. And that, the conflict was resolved in one day by 10 cells' leader and other elders. He revealed that, the appellant had attended settlement meeting and after reconciliation was reached, the respondent paid the appellant TZS. 50,000/= as compensation for his transportation fare. His testimony was corroborated by DW2 (Juma Hassan) to the extent that the appellant was reimbursed 50,000/= as his transportation expenses at ten cells' leader where the conflict was resolved. 5 Coming on 28th May, 2024, the matter was called on for hearing and both parties appeared in person unrepresented by advocate. Hearing proceeded orally. To kickstart, Mr. Kihawa submitted that, he would begin his submission with 3rd ground of appeal. He would then proceed with 2nd ground of appeal and finally end up with the 1st ground of appeal. He began by attacking the court which heard the first appeal that it erred in law for holding that there was no promise or agreement or any contract between the appellant and the respondent (parties). To show that there was a contract, the appellant relied on section 2 (1) (a), (b), (c ), (e) and (f) and section 10 together with its paragraph, section 11 (1) and (2), section 12 (1) (2) and (3), section 13, section 14 (1), section 15 (1) and (2), section 16 (1), (2) (a) and (b) and (3), section 17 (1) (a) (b) (c) (d ) and (e) and (2), section 18 (a), (b) and (c) and finally section 37 (1) of the Law of Contract Act, Cap. 345 R. E. 2019. Thus, to close this argument, he contended that the first appellate court (district court) gave its decision in contravention of the law and therefore, the decision was invalid. Adding to that, he also faulted the appellate court that, it failed to appreciate the evidence given by the appellant's witnesses. 6 Mr. Kihawa continued to submit on the 2nd ground of appeal as it appears in the memorandum of appeal. On that, he succumbed that, the first appellate court erred in law for failure to analyse the evidence of PW1 which shows that the appellant had travelled several times to go to the respondent's house to reconcile on their dispute with his wife. Such evidence includes tickets which shows that he had travelled for a number of times for the purpose of performing the respondent's affairs as they have agreed before. For instance, ticket No. 7193 of Esta Luxury Couch from Dar es Salaam to Singida, with passenger's names Kihawa Mwendwa, travelling fare TZS 39,000/= and others. He continued to explain that there was also evidence about meetings which were commenced including that of 01/01/2022 (exhibit P4), meeting of 28/01/2022 (exhibit P5) and others of which, there were more than four meetings. Moving on the 1st ground of appeal as it appears in the memorandum of appeal, he contended that the first appellate court erred in facts for its failure to hold that the appellant had spent expenses as it has been detailed in the exhibit PI. Thus, the first appellate court failed to analyse evidence adduced by the appellant's witnesses. In furtherance, the appellant submitted more that, the amount claimed was the total sum of the expenses 7 which he used to settle the respondent's affairs. At the end, he prayed the court to allow the appeal with costs. On the other hand, in response to the appellant's claims, the respondent only adopted his reply to the memorandum of appeal to be his submission and he added nothing more. In rejoinder, the appellant acknowledged to have been paid 50,000/= as compensation for transportation fare, but that was not an actual cost which he has incurred by travelling from Dar es salaam to Singida. Adding to that, he succumbed that, by paying TZS. 50,000/= it shows that there was an agreement between them although the amount that he had been paid was small. Finally, he reiterated that appeal be allowed with costs. Going through the submissions as well as the facts hereabove presented, the issue which requires determination of the court is whether or not the appellant' claim is justified. In the simple term, we can put it as whether there was a valid contract between the parties. For reference, what amounts to valid contract has been provided under section 10 of the law of contract Act, cap. 345 R.E. 2029 which provides: 8 "AHagreements are contracts if they are made by the free consent o f parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void." Whereas, under section 2 of the Law of Contract Act, Cap. 345 R.E. 2029, what amounts to agreement has been also pegged. This section provides: "2(1) In this Act, unless the context otherwise requires- (a) when one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent o f that other to such act or abstinence, he is said to make a proposal; (b) when the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted, and a proposal, when accepted, becomes a promise; the person making the proposal is called the "promisor", and the person accepting the proposal is called the "promisee"; 9 (d) when; at the desire o f the promisort\ the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise; (e) every promise and every set o fpromises, forming the consideration for each other, is an agreement;" Upon consideration of the above provisions of law of contract, and after thoroughly perusing evidence from the trial court (that is the primary court of Ndago Iramba) I am fortified that there was a valid promise which were made by the respondent to attend settlement mission of his matrimonial dispute. The facts which have not been disputed by the respondent in his evidence. For instance, the evidence of PW1 (appellant) which was corroborated by the evidence of PW2 who testified that on 30/12/2021, the respondent herein borrowed his mobile phone and called the appellant herein and asked him to come to the village and take on matrimonial settlement with his wife. The same fact was confirmed by the evidence of PW3 at page 15 of the typed proceedings, similarly, the evidence of PW4 at page 16 also confirmed that the appellant was among 10 the people who attended a meeting of matrimonial settlement involving the respondent herein and his wife on 01/01/2022 held at the respondent's house. Thus, owing to this evidence, the issue whether there was contractual agreement between the parties is not disputed and the same was rightly held by the first appellate court. Therefore, the 3rd ground of appeal is held in affirmative. Moving on the first ground of appeal, that the court erred in law and in facts by holding to effect that the appellant failed to justify his claim of TZS. 1,206,000.00 while there is ample evidence which portrays that the appellant had travelled several times from Dar es Salaam to Singida region at Iramba District, Ndulungu village and Shemwela Hamlet to the respondent's home for the purpose of reconciling matrimonial disputes between respondent and his wife. At this point, the appellant submitted that the first appellate court erred in fact for failure to hold that the appellant had spent expenses as it has been detailed in the exhibit PI. Thus, the first appellate court has failed to analyse evidence adduced by the appellant's witnesses. He further li submitted that the amount claimed by the appellant was the total sum of expense which he spent to settle the respondent's affairs. On the other hand, the respondent contested on the claim and he further submitted that the district court was correct to uphold the trial Primary Court's decision which has decided in his favour because, it is not disputed that the appellant had travelled but he failed to prove his claims of TZS. 1,026,000/= against the respondent herein. In my view going through the contested issue, I am of the same opinion with the first appellate court that the appellant had failed to prove the claimed amount. This is due to the reason that: one, in his evidence at the trial primary court testified on 24/10/2022 at page 11 and 12 of proceedings, the appellant did not verbally mention as to how many times he had travelled to follow the respondent. And, two, the detailed analysis of how he reached to the claimed amount. For clarity and reference, I will have to reproduce a passage of his testimony as hereunder: "Tarehe 30/12/2021 shabani alinipigia simu kupitia simu ya Kasimu Makuza akanitaka nije kutoka Dar es Salaam hadi Ndulunga Shamwela kwa aji/i ya kusaidia mambo 12 yake. Nikamwambia mbona mimi nina majukumu mengi, akasema wee njoo gharama zako na muda wako nitakulipa. Nikamjibu sawa, nitakuja mwezi wa kumi na mbili. Ndipo tarehe 30/12/2021 nikasafiri kutoka Dar - Singida na tarehe 31/12/2021 nikatoka Singida mjini mpaka Shamweia kwa aji/i ya kushughuiikia maombi ya mdaiwa. Niiisafiri mara nyingi kuja Shamweia kusuiuhisha, nadai shiiingi 1,026,000/= nakaia ya mchanganuo wa gharama Pamoja na nakaia za risiti zimatoiewa." Going from the above, it is apparent that description as to how many times the appellant travelled back and forth from Dar es Salaam to Singida was not availed in the oral evidence by the appellant. That means, the appellant relied on the exhibit PI and P2 to unveil such descriptions which can also show the damages suffered. For that note, by perusing exhibit PI and P2 which were admitted without objection with a view to ascertain its authentication of its contents. Here the basic question which needs to be answered is whether the said exhibits can prove claim of 1,026,000/= as raised by the appellant. To 13 analyse this point, I will lay foundation by recalling the decision in the case of African Banking Corporation T. Ltd vs T-Better Holdings Co. Ltd (Civil Appeal No. 207 of 2017) [2024] TZCA 165 (6 March 2024) which provides: "The law under section 110(1) o f the Evidence Act is that, he who alleges must prove his allegation to succeed in a suit, it is equally the law that, unlike in criminal trials, the burden o f proof in civil cases is not static. It is also trite that, a party who has the burden o fproofmust discharge his burden on balance o f probability regardless o f the weakness in the case o f his opponent." Guided by the principle in the case above, now I fill obliged to critically analyses the exhibits PI and P2 respectively which gather the amount of the claim sought with a view to ascertain its evidential value. Therefore, starting with exhibit PI, (an expenditure analysis) which shows the breakdown expenditure of the amount claimed. By inspecting what is purported to be exhibit PI, firstly, I observe that there is nothing in the attached documents which has been marked as exhibit 14 PI. Secondly, the document purported to be exhibit PI has not been signed by the maker at the end of its content or anywhere else to authenticate ownership. Thirdly, the purported exhibit PI has been erased and altered in some of its contents in order to modify figures without authenticating the changes and, or to unveil the person who made the changes. Fourth, there is no link between what was admitted by the court as exhibit PI and the purported document found on the exhibits part of the file of which is titled as "Gharama za nauli kwenye kesi za ndugu Shabani R. Kinanga," which means, costs of expenditures. Seemingly, this document comprises of costs inclusive for the respondent's expenditures and not otherwise. And fifth, there was a payment of 50,000/= which the appellant received as his expenses to attend settlement meeting but he has not reflected the same within exhibit PI, although he has admitted to have received such amount as compensation in his submission. Thus, considering all those flaws, I am of the firm view that the purported exhibit PI yield no proof to the claimed amount. That means, the first appellate court was right to undermine its evidential value. With respect to exhibit P2 (tickets), I find that, there is nothing on the attached exhibits which has been marked as exhibit P2. However, my perusal 15 to the records led to the discovery that, the attached tickets purportedly meant to be exhibits P2. However, these five sheets of paper are not original and not certified thus violate requirement of the law of evidence. Apart from having not been linked to the evidence adduced by PW1, the purported tickets seem to have been issued to two different persons including the appellant herein and one Bertha Mwendwa who had not been mentioned in the evidence or forming part of an agreement. Again, like exhibit PI, this exhibit is also a copy which has not been certified thus, it violates the applicable law. In principle, procedure of tendering of documentary evidence in the Primary Court is governed by the Magistrates' Courts (Rules of Evidence in Primary Courts) Regulations, which under regulation 11 it entails as follow: "11 (1) The original document must always be produced. Exceptions: (a) A copy o f the original document may be proved if the original has been lost or destroyed or if it is in the hands o f the opposing party and he will not produce it, but (unless paragraph (b) o f this exception applies) oral 16 evidence must be given that it is a true copy o f the original; (b) a copy o f a court or official document may be proved if it contains a certificate, signed by a registrar, magistrate or the official who has the original document, that it is a true copy. (2) Where documentary evidence is produced, oral evidence must be given to connect it with the case. To this end, upon careful consideration from the content of regulation 11 of the Magistrates' Courts (Rules of Evidence in Primary Courts) Regulations, I am fortified to hold that since what is purported to be exhibits PI and P2 were admitted as a copy in violation of the aforesaid regulation thus, the same should be accorded no weight. For that reason, the claimed amount of 1,026,000/- was not proved by the appellant. In conclusion, I hold the appeal is partially allowed to the extent that there was a valid contract between the appellant and the respondent. However, I similarly hold that the claimed amount of compensation to the tune of 1,026,000/= as raised by the appellant was not proved to the balance 17 of probability and thus, his claim fails. Ultimately, owing to the outcome of this appeal, I order each party to bear its costs. Ordered accordingly. DATED at DODOMA this 23rd day of August, 2024. 23/ 08/2024 This Judgment delivered this 23rd day of August, 2024 in the presence of the parties who were linked though video conferencing from Singida District Court to IJC Dodoma. ^ ^ x/ JUDGE ------- 23/ 08/2024 18