Ludovick Roweta Silayo vs Hilda Steven ngua Another

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY)

AT SUMBAWANGA PC. CIVIL APPEAL NO. 27716 OF 2023 (Arising from Civil Case No. 276 of 2022 of the Urban Primary Court of Sumbawanga and Civil Case No. 19 of 2023 of the District Court of Sumbawanga) LUDOVICK ROWETA SILAYO..................................................... APPELLANT

VERSUS HILDA STEVEN NGUA....................................................... 1st RESPONDENT ROGATH PATRICK KAZONDA........................................... 2nd RESPONDENT

JUDGMENT MWENEMPAZI, J. The appellant herein named filed in the Primary Court a suit against the respondents herein claiming for Tshs. 3,000,000/= (Shillings Three Million only) which money he had paid to the respondents’ account in an oral agreement that the money part payment for the purchase of a house located at Kizwite area within Sumbawanga Municipality. According to the record as testified in the trial court they had agreed that the respondent will sell the said house to him at the price of Tshs. 17,000,000/= (Seven Million only) which amount the appellant agreed and paid the claimed amount but upon being advised by his children, 1 that the amount is on the high side for the house, the appellant proposed to part with Tshs. 7,000,000/= (shillings seven million only) which amount the respondents refused. Since there was not consensus the appellant demanded that they pay back Tshs. 3,000,000/= he had already deposited into their accounts. It is clear in the testimony that part of money, TZS 1,000,000/= was intended to be utilized for the redemption of the house as it was used as collateral for the loan which he failed to pay on time. The record also shows that the respondents admit that the amount was paid to them. And the 2nd respondent at the hearing in the trial court agreed and committed to pay but he did not honor the promise. The trial court ordered that the

Respondents pay back the amount and an addition of Tshs. 10,000/= within sixty (60) days. The order aggrieved the respondents hence they appealed to the District Court. In their submission at the 1st appellant court the respondents proposed to pay the amount in a span of two years. In the appeal the 1st appellate court made a finding that there was no contract between the parties on the sole reason that the price was not clear and certain. 2 The appellant is aggrieved by the decision of the first appellate court. He has filed this appeal to seek a redress. I have read the record as well as the submission by the parties. This in my view is a fit case for settlement which need not go to the complexities and niceties of determining whether there was a contract or not. Basically, the respondents, who are wife and husband, in particular the 2nd respondent agreed and committed to pay back the money at first at the PCCB offices and in the trial court that he received the money and he was ready to payback. At issue is the payment of the money paid in anticipation of purchasing a house which plan failed. I have no doubt that it was wrong for the first appellate court to order for a new and separate civil case while there was no dispute that money belonging the appellant had been paid by the appellant through their bank accounts and received by the respondents and that the respondents

(2nd respondent) agreed to pay back. The only problem the mode of payment. Under the circumstances, the appeal is allowed, the Judgment and order of the 1st appellate court are quashed and set aside respectively. The respondents are hereby ordered to refund the money paid into their 3 account to the appellant as ordered by the trial court. Costs to follow event. It is ordered accordingly. Dated and singed at Sumbawanga this 17th day of December, 2024. T. M. MWENEMPAZI

JUDGE 4