JUDGMENT IN MAKAZI INVESTMENT LTD

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY AT DAR ES SALAAM CIVIL APPEAL NO. 25757 OF 2024 (Originating from Civil Case no. 3 of 2023 in the District Court of Kisarawe at Kisarawe) MAKAZI INVESTMENT LIMITED ................................................. APPELLANT VERSUS THOBIAS KIBEE SAMBAYA ..................................................... RESPONDENT JUDGMENT Date of last order: 25.09.2024 Date of Judgment: 08.11.2024 NGUNYALE, J. Before the trial court, the respondent sued the appellant in Civil Case No. 03 of 2023 seeking reliefs under breach of contract. That the appellant and the respondent entered a contract on 10th July 2020 whereby they agreed that the appellant to survey, plan and sale the respondent’s land located at Makurunge, Kiluvya Kisarawe district measuring 15.5 acres in a consideration of Tsh. 155,000,000/= which was to be paid by instalments Ttle first instalment of Tsh. 50,000,000/=was to be paid on or before 09th September 2020 and the remaining balance to be paid in monthly instalments of 5,000,000/= for 21 months from October 2020. The terms were not honoured as agreed, on 09w' September, 2020 the appellant never paid the respondent until November 2020 when he deposited only 20,000,000/= and the monthly instalments were paid as he wished and up to the time of filing the case before the trial court the appellant had only paid the respondent Tsh. 71,000,000/= leaving a balance of Tsh. 84,000,000/= Upon full trial, judgement was entered in favour of the respondent herein (the plaintiff at the trial court) where the appellant was declared to have breached the contract and he was ordered to pay Tsh. 84,000,000/= being the outstanding balance, payment of Tsh. 10,800,000/= being 12% of the delayed payment, payment of Tsh. 7,560,000/= being 0.5% of the delayed monthly instalments and general damages of Tsh. 10,000,000/= to the respondent. The appellant was not amused by the trial court finding hence preferring this appeal on the following grounds: 1. That the honourable magistrate erred in law and fact by failing to analyse the evidence adduced by the parties thus arrived at wrong decision. 2. The honourable magistrate erred in law and fact by holding that the appellant to pay the general damage without any proof of the same. Hearing of the appeal took way of written submissions; the appellant was represented by Ms. Modesta Medard while the respondent enjoyed the service of Mr. Joseph Assenga both learned advocates. Submitting in support of the 1;t ground of appeal on analysation of evidence, the appellant submitted that the Magistrate erred in analysing the evidence on record by reaching a conclusion that there was breach of contract without considering the evidence of DWI who testified that the appellant was prevented and burned by the respondent from performing his contractual duty hence the delay to pay was contributory. He was of the view that if the evidence was properly analysed then the trial Magistrate would have arrived on a different result. Regarding the 2-d ground on general damages, Ms. Modesta submitted that general damages which were awarded to the respondent were too excessive considering the fact that the respondent contributed to the breach but again there were no reasons adduced for the grant of the same. They cited the case of Felician Muhandiki Versus the Managing Director, Barclays Bank Tanzania Limited, Civil Appeal No. 82 of 2016. It is her prayer that the appeal be allowed with costs. Opposing the appellant’s submissions, on the lst ground of appeal the respondent rebutted the appellant’s submissions stating that the trial Magistrate properly analysed the evidence on record and arrived to a right conclusion by awarding the respondent. He insisted that the respondent adduced both oral and documentary evidence which was uncontroverted which substantiated the claims in the plaint. On the 2-d ground, he submitted that the trial Magistrate was fair and just in awarding the respondent general damages of Tsh. 10,000,000/=. He added that the appellant’s advocate has confused between general damages which are awarded at the discretion of the court while special damages demand to be specifically pleaded and strictly proved. It is his prayer that the appeal be found with no merit and be dismissed and the trial court findings be upheld. Regarding the submissions of the respondent by Mr. Joseph Assenga, the appellant reiterated his submissions in chief. Appreciating the submission of both parties, I have made a thorough perusal and considered the submission by the parties and the lower court the lst appellate court is invited to re-evaluate the evidence in record as it was stated in the case of Registered Trustees of Joy in the Harvest vs Hamza Sungura Civil Appeal No. 149 of 2017 (CAT) where it was held : V/ / VHf +/all L/ rrlU Gr/ V /r / bfL#lIHIWIIlbrIt rrILll 4/VEII IIHUll//l•Pbl CJUI rvbUlblbP+7 bllhrl it is part of our jurisprudence that a first appellate court is entitled to reevaluate the entire evidence adduced at the trial and subject it to critical scrutiny and arrive at its independent decision:’ Emphasis added. In re appraising the evidence on record, I have considered the grounds of appeal and the submissions from both parties and found that the appeal raises two issues to be determined by the court that: 1. Whether the breach of contract was contributory in nature? 2. Whether the trial court was justified to award general damages to the tune of 10 million. Having examined the trial court proceedings and considered the submissions from both parties, there is no doubt that the parties had a valid contract as exhibited by exhibit Pl and that the contract was breached following the failure of the appellant to heed to the terms of the contract of depositing the first instalment of 50,000,000/= as agreed and also failing to deposit the monthly instalment of 5,000,000/= as agreed. W What is in controversy is whether the breach was contributed by the respondent herein . The evidence on record reveals that when DWI was giving his evidence told the trial court that he paid the first instalment in time but not as agreed and he failed to pay the monthly instalments due to Corona but also the plaintiff stopped him to continue with selling the land and sued him to the ward land tribunal where he was again stopped from selling the plots. When he was cross examined, he stated that there in no written order or estoppel for continuing selling the plots for proving his allegation. In determining this we should be guided by the principle that he who alleges existence of a certain fact must prove the same. This position was elaborated in the case of Paulina Samson Ndawavya versusTheresia Thomas Madaha, Civil Appeal No. 45 of 2017 where the Court of appeal had this to say: "It is trite law and indeed elementary that he who alleges has a burden of proof as per section 110 of the Evidence Act, Cap, 6 [R.E 2002]. It is equally elementary that since the dispute was in civil case, the standard of proof was on a balance of probabilities which simply means that the Court will sustain such evidence which is more credible than the other on a particular fact to be proved." (emphasis added) m Being guided by the above principle, it is with no doubt that the appellant did not prove by any probable means his allegations against the respondent that he estopped him from continuing with the selling of the plots. If it was truly that the Ward tribunal estopped him, he could have ta stop order Short of that, it is my finding that there is no contributory breach of the terms of the contract, it is the appellant who breached the contract on the reasons only known to him. Ttrat being the position, I find the trial Magistrate accurately analysed the evidence adduced. The first ground of appeal fails. On the 2-d issue as to whether the trial court was justified to award general damages to the tune of 10,000,000/=. It is undisputed fact that general damages are awarded at the discretion of the court. This position has been repeated by the Court of Appeal in a number of cases. In the case of Ami Tanzania Limited versus Prosper Joseph Msele, Civil appeal no. 159 of 2020, the court said: "In law, general damages are awarded at the discretion of the court having considered the evidence on record and all circumstances of the case and having satisfied itself that the claimant has suffered materially or mentally following the unlawful action of the defendant:' See also the cases ofJafari Hussein Sinai and Another versus Silver General Distributors Limited, Civil Appeal No. 271 of 2017; Alfred M Fundi versus Geled Mango and Two Others, Civil Appeal No. 49 of 2017, and Trade Union Congress of Tanzania (TUCTA) versus Engineering Systems Consultants Ltd, Civil Appeal No. 51 of 2016. In the case at hand, the respondent prayed before the trial court general damages amounting to Tsh. 20,000,000/= and the trial Magistrate awarded him Tsh. 10,000,000/=. ne 2-d ground of appeal dictates that the general damages were awarded without proof of the same, and in the submissions Ms. Modesta added that there were no reasons adduced by the trial Magistrate for the grant of Tsh. 10,000,000/=. Taking in mind that general damages are awarded at the discretion of the court the same need not be specifically proved. However, it is also settled law that the trial court must assign reasons justifying the awarding of general damages. This position was well stated in the case of Anthony Ngoo & Another versus Kitinda Kimaro, Civil Appeal No. 25 of 2014 where the court of appeal said: "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 reasons." (emphasis added) Tbat being the position of the law, I have thoroughly passed through the trial court judgement to ascertain whether reasons for the grant of Tsh.10,000,000/= were adduced. When he was awarding the general damages, the trial magistrate stated : " it is my finding that the sum ofTzs. 10,000,000/= is fair and just in the circumstances of this case." One may ask which circumstances? it has been the position of the law that general damages are awarded based on the reasons founded on the evidence. See the case of Felician (supra). Now, does the word circumstances of this case carry the reasons found on evidence? The answer to this is certainly no; the trial magistrate should have stated the reasons for the grant directly. As this is the first appellate court, I will step into the shoes of the trial court and assess general damages. The respondent prayed for general damages following the breach of the terms of the agreement by the appellant and the costs he resulted from the breach where he prayed to be paid 20,000,000/=. It is undisputed fact that following the breach by the appellant, the respondent made several follow-ups including taking the matter to the Hamlet chairman, then to the Village Executive officer and to the Ward Executive Officer where in both reconciliations failed. To me the delay to pay in time and the disturbances attracts payment of general damages to the respondent where I find that the amount awarded by the trial magistrate was reasonable, I have no reason to fault it. All said and done, the appeal is bound to fall. It IS hereby dlsrnlssec] WIth costs. It is so ordered. 'T““~'P'"”'' Dated at Dar es Salaam this 08t1 2024. D JUDGE 10