Judgment Maneno Final

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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB-REGISTRY

AT GEITA CIVIL APPEAL NO. 29166 OF 2024 (Arising from Civil Appeal No. 2107 of 2024 of the District Court of Geita, Originating from Civil Case No. 137 of 2023 of the Nyankumbu Primary Court) MANENO SIMON.….……………………………….……………………...APPELLANT

VERSUS ESTER KIIZA MANENO………………………………………....…….. RESPONDENT

JUDGMENT Date of last Order: 13/12/2024 Date of Judgment: 17/12/2024 MWAKAPEJE, J.: This is the second appeal in which the appellant appeals against the decision of the District Court Geita, which differed from the Primary Court's decision and decided in favour of the respondent. Before the trial court, the appellant had a claim for monies loaned to the respondent in the amount of 15,930,000. The circumstances leading to this appeal are succinct: the parties had their financial arrangements, whereas the respondent loaned the appellant. On 18/02/2023, the parties signed an agreement before the commissioner of oath, whereas the appellant acknowledged being in debt by the respondent to the sum of 15,930.000/. The agreement was witnessed by Page 2 of 14 Chiza Rutozi Simon and Jeremia Misango, who also testified before the trial Court. The Appellant could not honour the terms of the agreement. Aggrieved, the respondent filed a civil case No. 137 of 2023 before Nyankumbu Primary Court, claiming from the appellant the sum of 15,930,000/= being the sum loaned to him. To prove his claim, he tendered the loan agreement as exhibit KEM-1 and Chiza Rutozi Simon and Jeremia Misango as witnesses. In his defence, the appellant denied the claim insisting that he was coerced to sign the agreement. The trial Court decided in favour of the appellant. Resentful of the outcome, the respondent

successfully challenged the decision of the trial Court in the District Court vide Civil Appeal No. 2107 of 2024. Dissatisfied, the appellant turned to this Court and posited in this appeal the following grounds. i. That the first appellate Court erred in law and, in fact, by failing to re-evaluate the evidence in its entirety and consider the respondent evidence only. ii. That the first appellate Court erred in law and, in fact, by ignoring the appellant's evidence, which was not anyhow disputed by the respondent. Page 3 of 14 iii. The first appellate Court erred in law and, in fact, by allowing the appeal while the respondent failed to prove her case on the required standard. This appeal was argued orally. When it was called on for the hearing, the appellant was represented by Mr Emmanuel Marandi, a learned advocate, while Mr Paul Hombo represented the respondent. In his submission, Mr. Marandi addressed the second ground of appeal first and later collectively argued the first and third grounds. Regarding the second ground, he submitted that the first appellate Court based its decision on the contract between the appellant and the respondent. He cited the well- established legal principle that any argument made by one party, if not disputed or challenged by the opposing party, is deemed conceded, and no adverse inference can be drawn. This principle, he noted, was articulated

in the case of Paulina Samson Ndawanya vs Theresia Thomas Madaha (Civil Appeal No. 45 of 2017) [2018] TZCA 218, on page 20, which deals with the effect of failing to cross-examine a party on a crucial issue. Mr. Marandi submitted further that the appellant testified in the trial Court that the agreement was not genuine and alleged that he was coerced into signing it. Since the contract formed the basis of the claim, the Page 4 of 14 respondent's failure to cross-examine the appellant to dispute this assertion implied acquiescence to the appellant's version of events. Submitting on the 1st and 3rd grounds, he centred on the claim that the 1st appellate Court failed to properly evaluate the evidence presented at a trial. He cited discrepancies made by the respondent witnesses, including SM1, who alleged to have lent the appellant freezer and money, making a total of 15,930,000/—, and SM2, who claimed the respondent lent TZS 15,930,000 in cash, while SM3 stated that the amount loaned was TZS 15,000,000. He insisted that the variation of evidence raised serious doubt on the credibility of the witnesses. He insisted that the first appellate Court ought to consider the evidence presented in its totality. To support his submissions, he cited the case of Linus Chengula vs. Frank Nyika (Administrator of The Estate of The Late Asheri Nyika) (Civil Appeal No. 131 of 2018) [2020] TZCA 267

(19 May 2020). Mr Marandi further submitted that the appellant presented Exhibit KEM1, demonstrating that he borrowed TZS 5,000,000, which he paid with interest, and the respondent did not challenge. He insisted that the 1st appellate Court erred by failing to evaluate evidence on record to the required standard and prayed for the Court to quash and set aside the district Court decision and orders and restore the trial Court decision. Page 5 of 14 In his reply, Mr Hombo adopted the mode of submission of the grounds of appeal by the appellant counsel. He resisted the appeal and the appellant's arguments. On the 2nd ground, he insisted that the ground lacked merit and proper basis. On the appellant's claim that the appellant was coerced and referred to page 10 of the trial Court's proceedings, he insisted that it is unfounded. He went on to say that Exhibit KEM1 was a valid contract between the parties, which was voluntarily executed between parties on 18/02/2023, whereas the consideration was explicitly stated to be 15,930,000/=. Cited sections 13 and 14 of the law of Contract Act Cap 6 RE: 2019, which provide for consent as among the elements of a valid contract, he insisted that the loan agreement was signed by parties before the advocate and witnessed by two witnesses Chiza Lutozi and Jeremia Misango who testified as SM2 and SM3. He went on to say that, in the presence of the

witnesses and a commissioner for oath, the appellant's assertion of coercion could not be justifiable, and there was no evidence to support his claim. Reacting to the cited case of Paulina Samson Ndawanya (supra), he insisted that the circumstances were different, as there was evidence to support coercion. On the 1st and 3rd grounds, it was his reply that the first appellate Court acted appropriately in evaluating the evidence presented by the respondent's Page 6 of 14 witnesses. Both the witnesses confirmed that they witnessed the execution of the loan agreement Exhibit KEM1, and in accordance with rule 6 of the Magistrates' Courts (Rules of Evidence in Primary Courts) G.Ns. Nos. 22 of 1964 and 66 of 1972, the matter was proved to the standard required. He also cited section 110 of the Evidence Act Cap 6 RE 2019, insisting that the respondent successfully discharged his burden of proof at the trial Court, and the District Court was correct in evaluating the evidence and justifiably ruled in favour of the respondent. He, therefore, prayed for the Court to dismiss the appeal with costs, for the decision and proceedings in Civil Appeal No. 2107 of 2024 to be upheld and for any other relief in favour of the respondent. On his brief rejoinder, Mr. Marandi insisted that the respondent's learned counsel failed to deny or adequately challenge these allegations of coercion. He further

stated that the agreement's validity had to be supported by witnesses. His claim was that the advocate who executed the loan agreement did not testify before the Court to confirm the assertion and that failure left the respondent's allegations unsubstantiated. He added that the respondent counsel did not refute the appellant's contention that the witness testimonies were inconsistent and contradictory, which raised serious doubts about their credibility and the reliability of their Page 7 of 14 accounts. He further argued that the lack of consistency by the witnesses undermines the respondent’s claim and fails to meet the standard of proof required to establish the validity of the alleged agreement. He also insisted that the respondent’s learned counsel failed to provide an authoritative legal source or precedent to support his arguments and rather used Rules of Primary Court which are not applicable before this court. He concluded by reiterating his prayers for the appeal to be allowed, the decision of the first appellate court to be set aside, and the primary court's decision to be restored. I have examined the record of appeal and considered the learned counsels' contending submissions. The focal point of the appeal is whether it is merited. In responding to this issue, I will address the grounds of appeal in the mode applied by the parties. On the second ground, the

appellant learned counsel claimed that the loan agreement, which was the basis for the determination by the 1st appellate Court, was forcefully executed. The allegation was denied by the respondent's learned counsel. The law of contract is clear under section 10 of the Law of Contract Act Cap 345 RE 2019 that: - Page 8 of 14 “All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void:" On the part of the appellant's learned counsel, it was maintained that there was no free consent on the part of the appellant due to the use of coercion in executing the agreement. Section 14(1)(a) of the Law of Contract Act, Cap. 345 [R.E. 2019] defines consent as being free when it is not caused by coercion. The appellant argued that the agreement between the parties was procured through coercion and, therefore, lacked the element of free consent necessary to make it legally binding. However, upon review, this claim is unsubstantiated based on the available evidence and circumstances surrounding the agreement. First, the agreement in question was executed on 18/02/2023. Despite this, the appellant took no action to challenge its validity or report the alleged coercion until it was tendered and used as an exhibit in Court. This prolonged inaction

undermines the credibility of the appellant's claim. Delay in asserting a claim often weighs against the party alleging a defect in the agreement. Second, the agreement was executed before a commissioner for oaths, an individual legally authorised and obligated to ensure that the parties fully understand the contents and implications of a document before appending their signatures. This oversight provides a presumption of Page 9 of 14 regularity and voluntariness in the execution of the agreement. In the absence of such evidence, the claim of coercion cannot be sustained. His absence in testifying in the trial Court did not invalidate the agreement between the parties. Third, witnesses SM2 and SM3, who were present during the execution of the agreement, testified under oath in favour of its validity. Their testimony, credible and unchallenged, supports the conclusion that the agreement was entered into voluntarily. While the counsel for the appellant raised concerns about inconsistencies regarding the loaned amount, such discrepancies were minor, attributable to human error, and did not undermine the agreement's essence. The written agreement, as documentary proof, prevails over oral testimony, pursuant to section 100(1) of the Tanzania Evidence Act [Cap. 6 R.E. 2019], which states that documentary evidence supersedes oral accounts regarding the terms of a written

contract. Lastly, the appellant failed to present specific details or corroborative evidence of coercion, such as threats, undue influence, or duress. Allegations of coercion must be supported by clear and convincing evidence to meet the required legal threshold. In the present case, the appellant's assertion of coercion remains a bare allegation that fails to meet the evidentiary standard Page 10 of 14 under section 110 of the Evidence Act, Cap. 6 [R.E. 2019], which places the burden of proof on the party alleging the existence of coercion. I agree with Mr. Hombo's contention that the case of Paulina Samson Ndawanya vs. Theresia Thomas Madaha (supra) is distinguishable from the circumstances of the present appeal. In the cited case, the issue revolved around the execution of the contract entered into by the parties, which was not challenged through cross-examination. Conversely, in this case, the existence of the contract itself is undisputed; the appellant instead alleges that it was procured through coercion, a claim the appellant was required to substantiate on the required standard but failed to do. Furthermore, the respondent's failure to cross-examine witnesses on the issue of coercion does not imply that the contract was invalid or that coercion was established. Consequently, the evidence presented by the respondent remains uncontroverted, supporting the validity of the

agreement. The appellant's obligations under the loan agreement, including the repayment of the amount owed to the respondent, therefore remain enforceable. Accordingly, the appellant's claim of coercion lacks merit and must fail. On the 1st and 3rd ground of appeal, that the 1st appellate Court failed to properly evaluate the evidence in the record, it is pertinent that parties to Page 11 of 14 the contract become bound by the terms and conditions stipulated, and each has to fulfil his/her part of the bargain. Neither a third party nor courts should interpolate or tamper with the terms and conditions therein. The position was lucidly brought out in Philipo Joseph Lukonde vs Faraji Ally Said (Land Reference 1 of 2021) [2022] TZHC 10166 (26 May 2022) the Court quoted a Kenyan case of Michira vs Gesima Power Mills Ltd [2004] eKLR when determining a similar issue as to whether or not can the Court interpolate anything in a freely concluded agreement. The Court, while insisting on its duty to give effect to the intention of the parties to the contract and not interfering with the terms and conditions therein, stated, among others:- "That fact does not give room to this Court to tamper with the agreement... If the words of the agreement are clearly expressed and the intention of the parties can be discovered from the whole agreement, then the Court must give effect to the intention

of the parties" The Court of Appeal has given a similar stance in many of the decisions, including Miriam E. Maro vs Bank of Tanzania, Civil Appeal No. 22 of 2017, Simon Kichele Chacha vs Aveline M. Kilawe, Civil Appeal No. 160 of 2018 (both unreported), Unilever Tanzania Ltd and Philipo Joseph Lukonde vs Faraji Ally Saidi (supra). In Miriam Maro Page 12 of 14 (supra), while quoting the findings in Unilever Tanzania Ltd, the Court stated: "Strictly speaking, under our laws, once parties have freely agreed on their contractual clauses, it would not be open for the courts to change those clauses which parties have agreed between themselves..." Having found that Exhibit KEM1, the loan agreement, was freely entered into, the first appellate Court rightly ruled in favour of the respondent. This decision aligns with the well-established principle of law that courts are generally reluctant to interfere with the covenants freely agreed upon by parties to a contract. It has been emphasised that the role of the Court's role is not to rewrite or alter the terms of an agreement but to enforce them as they are, provided that the agreement was entered into voluntarily and did not contravene any legal or equitable principles. In the case of Simon Kichele Chacha vs Aveline M. Kilawe (Civil Appeal No. 160 of 2018) [2021] TZCA 43 (26 February 2021), the Court of Appeal reiterated that barring

any elements of fraud, duress, or illegality, parties to a contract must be held to their bargain. Similarly, in Miriam E. Maro vs Bank of Tanzania (Civil Appeal No. 22 of 2017) [2020] TZCA 1789 (30 September 2020), the Court of Appeal underscored the sanctity of contracts, cautioning against unwarranted judicial interference with Page 13 of 14 contractual obligations. Also, in the previous case of Abualy Alibhai Azizi vs Bhatia Brothers Ltd [2000] T.L.R 288, which was referred to in the case of Simon Kichele Chacha vs Aveline M. Kilawe (supra), it was explicitly stated that: "The principle of sanctity of contract is consistently reluctant to admit excuses for non-performance where there is no incapacity, no fraud (actual or constructive) or misrepresentation, and no principle of a public policy prohibiting enforcement" In the present appeal, the appellant failed to prove coercion or any other vitiating factor that would justify invalidating Exhibit KEM1. Consequently, the first appellate Court re-evaluated the trial Court's evidence and arrived at its own conclusion. Therefore, it was correct to enforce the terms of the loan agreement and hold the appellant accountable for their obligations. Further, the appellant's learned counsel contended further that the respondent's learned counsel relied on a law that was not applicable before this Court. However, this argument does not

detain me for long, as it is clear that the present appeal originated from the Primary Court. As such, the applicable legal framework is governed by the Magistrates' Courts (Rules of Evidence in Primary Courts), G.N. Nos. 22 of 1964 and 66 of 1972, which were properly applied in this matter. These rules, designed specifically for Page 14 of 14 proceedings in Primary Courts, take precedence over other evidentiary frameworks that may apply to higher courts. The appellant's objection to the use of these rules is therefore misplaced, as they provide the correct and binding procedural guidance for the adjudication of this appeal. In light of the foregoing discussion and analysis, I find and hold that the decision of the first appellate Court was sound in law and free from any error warranting interference. Accordingly, this appeal is dismissed in its entirety, with costs. It is so ordered. Right to appeal explained. DATED at GEITA this 17th day of December 2024. G.V. MWAKAPEJE

JUDGE