CIVIL APPEAL NO 31 OF 2021 MANGENI IBAGI VS DAVID SOSPETER MAGAMBO

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: WAMBALI, J.A.. MASOUP. 3.A. And ISSA. 3.A.) CIVIL APPEAL NO. 31 OF 2021 MANG'ENI IBAGI............................................ ....................APPELLANT VERSUS DAVID SOSPETER MAGAMBO (as an Administrator of the Estate of the Late Sospeter Magambo)..................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Mwanza) (Rumanvika, 3 .} Dated the 6th day of November, 2020 in Civil Case No. 10 of 2013 JUDGMENT OF THE COURT 3rd & 18th July, 2024 MASOUP. J.A.: The appellant and the respondent, namely, late Sospeter Magambo, who is being represented by the administrator of his estate, David Sospeter Magambo, are related in that the former is a nephew of the latter. The duo had business relationship in which the latter sometime in 1996 took the former to assist him run his shop at Musoma before the former relocated to Mwanza in 2005 where another shop was established. The said shop was not only run and kept by the appellant but it was also registered in his own name with regard to Certificate of Registration for Taxpayer Identification Number (TIN), Certificate of Registration for Value Added Tax (VAT) and business licence. Over the years, some misunderstandings cropped up between them regarding ownership and managiement of the shop in Mwanza. As a result of the misunderstandings, the respondent brought a suit against the appellant in the High Court claiming ownership of the shop that the appellant was entrusted to run but mismanaged it by diverting funds for his own benefits and use and selling a motor vehicle that belonged to the respondent. The reliefs that the respondent sought, which were disputed by the appellant as he claimed to be the owner of the said shop in his written statement of defence, were as follows: First, a judgment and decree in the sum of TZS 137,000,000.00; second, 30% of the decretal sum being a commercial interest as from the date of filing the suit to the date of the judgment; third, 10% of the decretal sum being court interest as from the date of the judgment until final payment; fourth, costs of the suit; and any other relief as may be deemed just to grant. Thus, the gist of the controverse, according to the rival pleadings therefore, revolved on ownership of Mwanza business, allegation of mismanagement of the business, selling of the vehicle related to the business and appropriating the proceeds thereof, and repayment of a bank loan that was advanced to finance the capital of the shop. Whilst the respondent alleged that he is the owner of the business and the appellant was just his business assistant, the appellant contended that the business in Mwanza belonged to him. In its resolve to settle the dispute once and for all and pursuant to the decision of this Court of 19th June, 2020 in Civil Appeal No. 85 of 2018 which revised and nullified the earlier proceedings of the trial court on the matter and ordered a fresh trial from the stage when a final pre-trial conference would have been held, the trial court framed and recorded the following issues: (i) Who between the plaintiff (the respondent) and the defendant (the appellant) was the owner o f the shop based in Mwanza; (ii) Whether the defendant (appellant) received the startup capital for operating the shop from the plaintiff (respondent) and to what extent. (Hi) Whether the defendant (appellant) mismanaged and diverted funds obtained from the plaintiff's (respondent's) business in Mwanza; (iv) Whether the defendant (appellant) sold to one Shirima the plaintiff's (respondent's) motor vehicle Reg. No. T. 689 ASR make Mitsubishi Canter and appropriated the purchase price o f TZS. 12,000,000.00 and; (v) What reliefs are parties entitled to. Seeking to prove their respective cases, the respondent and the appellant did not call any other witness other than themselves testifying as PW1 and DW1 respectively. In support of their rival positions in the pleadings, they also tendered a number of exhibits. In so far as the respondent's case is concerned, PW1 tendered a total of seven exhibits, namely, lease agreement (exhibit PI), a copy of a ledger (exhibit P2), a copy of bank loan agreement (exhibit P3), a receipt evidencing bank loan repayment (exhibit P4), a copy of the registration card for motor vehicle make Mitsubishi Canter T. 689 ASR (exhibit P5), agreement reflected in a meeting dated 31st January, 2010 (exhibit P6), and appellant's letter promising to repay the bank loan dated 11th April, 2010 (exhibit P7). On the other hand, the appellant's testimony was supported by a letter dated 6th October, 2002 from the appellant's father in relation to dowry payment in his favour (exhibit Dl), Certificate of Registration for Taxpayer Identification Number No. 0321193 dated 15th June, 2005 (exhibit D2), Business Licence No. 00966420 dated 6th June, 2005 (exhibit D3), lease agreement dated 30th August, 2005 (exhibit D4), Certificate of Registration for VAT dated 29th January, 2007 (exhibit D5), TRA documents regarding importation of the appellant's Toyota Hiace Van (exhibit D6), Appellant's Cash Sale Receipts (exhibit D7), and notices/summons issued to the appellant on 11th March, 2013 (exhibit D8) which were tendered by DW1. After the hearing of the case, the trial Judge was, seemingly, satisfied that the respondent had proved his case against the appellant on the balance of probabilities. He thus gave his judgment in favour of the respondent. In the said judgment, the trial Judge made reference to the recorded issues for determination. Having revisited the evidence as a whole, the trial Judge at page 6 of the judgment answered all issues in the favour of the respondent and awarded him the reliefs that he sought in his plaint. The only exception to the reliefs sought and granted was on the court's rate which he charged at 7% instead of 10% and TZS 50,000,000.00 which he awarded to the respondent as general damages, though not prayed for. Aggrieved by the decision of the trial court, the appellant has challenged it on the following paraphrased grounds of appeal: "(1) That, the trial Judge misconceived the gist and nature of the respondent's claim. (2) That, the trial Judge erred in iaw to consider only the evidence In support of the respondent and completely ignoring the evidence of the appellant, the act which amounted to bias towards the appellant. (3) That, the trial Judge erred in iaw when he omitted to make a critical analysis of the evidence on both sides. (4) That, the trial Judge erred in iaw when he determined all issues without giving reasons. (5) That, the trial Judge erred in iaw when he omitted to observe the requirements of Order XX, Rules 4 and 5 of the Civil Procedure Code (CPC). (6) That, the trial Judge was wrong to hold that from the beginning of the Mwanza shop business, the parties intended to trade only in the name o f Mang'eni Ibagi. (7) That, the trial Judge erred in iaw and in fact when he disregarded the appellant's evidence regarding his wage arrears from the parties' agreement o f 30% of the proceeds of TZS 200 Million, which is equivalent to TZS 60 Million. (8) That, the trial Judge erred in law and in fact by holding that the respondent is the only owner o f the shop based in Mwanza. (9) That, the trial Judge erred in iaw and in fact when he omitted to consider and determine the proper contribution and share of the appellant in the Mwanza shop business. 6 (10) That, the trial Judge erred in law and in fact to uphold the respondent's case and award him all of the five reliefs in the complainedjudgment." At the hearing of the appeal, the appellant appeared in person unrepresented. On the other hand, Mr. Emmanuel Sayi, learned advocate, appeared for the respondent. Both parties lodged in the Court written submissions for and against the appeal, which they respectively adopted at the hearing and urged us to consider them as we determine the appeal. In determining this appeal, we deem it appropriate to start with the fourth and fifth grounds in the memorandum of appeal which relate to the omission by the trial Judge to give reasons for the decision he made on the issues contrary to the requirements of Order XX, Rule 4 and 5 of the CPC. We thus invited the parties to expound further on the two grounds. As to the appellant, he had nothing useful to add on these grounds, other than urging us to allow the appeal based on the grounds that he raised and argued in his written submission supporting the appeal. We note, however, that in his written submission, the appellant referred us to the quotation from Mulla on the Code of Civil Procedure (17th Edition) Volume 2 with regard to non-compliance with Order XX, Rule 4 and 5 of the CPC which relates to the fourth and fifth grounds of appeal. The relevant excerpt is to the effect that: "Ajudgment which does not set out all the points arising for determination, and does not discuss evidence, is not a judgment and is for that reason vitiated." For his part, the respondent, through his learned advocate, joined hands with the appellant on the fourth and fifth grounds which he had opposed in his written submission in reply. In this respect, he urged us to step into the shoes of the trial court and determine the issues accordingly. Upon being probed further by the Court on the fourth and fifth grounds of the appeal, Mr. Sayi contended that the trial Judge did not properly determine the dispute between the parties because he did not assign reasons for his decision on the recorded issues. However, he maintained that the omission entitles us as the first appellate court to step into the shoes of the trial court and re-evaluate the evidence in the light of the recorded issues and make our own findings and conclusions. He, thus, urged us to consider the respondent's written submission in reply with respect to his prayer that we step into the trial court's shoes and do what ought to have been done by it in the circumstances to rectify the anomaly. As alluded to herein above, the trial court framed and recorded a total of five issues which were deemed necessary for the conclusive determination of the dispute between the parties before it. Indeed, it is in relation to those issues which narrowed down the matter in controversy that the parties led evidence on and on the basis of which the decision of the case would have rested. The issue is whether the trial Judge strayed into an error of failing to determine the framed issues and assigning reasons for his decision. Admittedly, in his judgment, the trial judge reproduced the issues for determination, before proceeding to give a blanket summary of the evidence adduced by the parties' witnesses. In so doing, however, the trial judge did not show how such evidence corresponded with the issues for determination or otherwise. He just briefly attempted to make sense of the evidence generally without aligning it to any of the issues. There was, by and large, no reference made to each of the disputed facts of the case against the evidence that supports that fact or otherwise. It is also noteworthy that it is only at the end of the judgment that the trial Judge recalled the issues for determination and proceeded to answer them in favour of the respondent without having regard to the relevant evidence and without assigning any reason to justify his decision on each and every issue. Clearly, considering the materials which were placed before the trial, we respectively find that the trial Judge did not apply his minds to the evidence so as to reach a just decision on the framed issues. For clarity, he only stated thus: "In the upshot the suit succeeds in its entirety. For avoidance of doubts therefore, Issue Number.1 is answered only in favour of the plaintiff; Issue Numbers 2, 3, and 4 are answered in the affirmative. The defendant pays the plaintiff; (a) Shs. 137,000,000/= (One hundred thirty- seven million); (b) 30% of the decretal sum; (c) 7% court rate interest on the decretal sum; (d) General damages of Tshs. 50,000,000/= (Fifty million only); (e) Costs of the case. It is so ordered." We further note that although the second issue enjoined the trial Judge to ascertain from the evidence the exact amount received by the appellant from the respondent as a start-up capital had he answered the issue in the affirmative, there is no finding on the record indicating that he evaluated the evidence of both parties with a view to answering that 10 question after concluding that the appellant received the capital from the respondent. Thus, according to the judgment of the trial court, we are not told, for instance, how the second issue was conclusively determined to entitle us for example to reach our own conclusion on the dispute between the parties on the matter. Since the framed issues were purportedly answered without reference to the evidence and without assigning reasons for the decision, it means that the controversy between the parties to the dispute was not conclusively resolved in accordance with Order XX, Rule 4 of the CPC which requires a judgment to contain a statement of the case, points for determination, the decision thereon and the reasons for such decision as we. held in the case of Omary Abdallah Kilua v. Joseph Rashid Mtunguja (Civil Appeal No. 178 of 2019) [2020] TZCA 1791 (25 September 2020, TANZLII). It is a well settled principle of law found in Order XX, Rule 4 of the CPC that a Judge is duty bound to decide on each and every issue before him one way or the other and failure to do so constitutes a serious breach that vitiates the impugned decision as stated in the case of Alnoor Shariff Jamal v. Bahadur Ebrahim Shamji, Civil Appeal No. 25 of 2006 (unreported) which was guided and inspired by the cases of National Insurance Corporation and Another v. Sekulu li Construction Company [1986] T.L.R. 157 and Kukal Properties Development Ltd v. Maloo and Others [1990-1994] E.A. 281 respectively. The principle was also applied in the case of Mohamed Masoud Abdallah and Others v. Tanzania Road Haulage (1980) Ltd (Consolidated Civil Appeals No. 150 of 2019) [2021] TZCA 3538 (15 November 2021, TANZLII): It is, therefore, our finding that the fourth and fifth grounds of appeal are meritorious because there was a gross failure by the trial court to determine the framed issues and assign reasons for its decision. The omission has the effect of vitiating the impugned decision because it left the issues framed by the trial court for conclusive determination of the dispute undetermined. For the above reason and considering the circumstances of the appeal before us, this Court cannot step into the shoes of the lower court and assume that duty as was in the case of Mantrac Tanzania Limited v. Joaquim Bonaventure (Civil Appeal No. 145 of 2018) [2020] TZCA 356 (17 July 2020, TANZLII) and Truck Freight (T) Ltd v. CRDB Ltd, Civil Application No. 157 of 2007 (unreported). We so hold because as we stated in a good number of our previous decisions the jurisdiction of this Court on appeal is to consider and examine matters that have been considered and decided upon by the High Court and subordinate courts with extended jurisdiction. For this stance, see Celestine Maagi v. Tanzania Elimu Supplies (TES) and Another, Civil Revision No. 2 of 2014 (unreported) and Joseph Ndyamukama (administrator of the Estate of the late Gratian Ndyamukama) v. N.I.C Bank Tanzania Ltd and Others (Civil Appeal No. 239 of 2017) [2020] TZCA 1889 (11 December 2020, TANZLII). We, thus, disagree with both the appellant and Mr. Sayi's submissions that we are in the circumstances entitled to step into the shoes of the trial court. The only remedy available is to nullify and quash the judgment, set aside the decree and remit the case to the High Court for it to compose a fresh judgment in accordance with the law. In view of the foregoing deliberations and findings, we allow the fourth and fifth grounds of appeal. Since allowing these grounds of appeal in the manner we have deliberated upon above have the effect of vitiating the impugned judgment, we do not have any justification to deal with the remaining grounds of appeal. For the reasons stated above, we allow the appeal. Consequently, we nullify and quash the judgment of the trial court in Civil Case No. 10 of 2013 dated 6th November, 2020 and set aside the decree thereof. 13 Accordingly, we order the case file to be remitted to the trial court for it to compose a fresh judgment in accordance with law. Given the circumstances of the appeal, we order that each party shall bear its own costs. DATED at MWANZA this 17th day of July, 2024. F. L. K. WAMBALI JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL A.A. ISSA JUSTICE OF APPEAL The Judgment delivered this 18th day of July, 2024 in the presence of the appellant in person and Mr. Kassim Gilla holding brief for Mr. Emmanuel Sayi, learned counsel for the respondent; is hereby certified 14