MARIA PASKALI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE SUB-REGISTRY OF MANYARA) AT BABATI PC. CIVIL APPEAL NO. 16 OF 2023 (Arising from Civil Appeal No. 9 of 2022 Mbulu District Court, Original Civil Case No. 2 of 2022 Daudi Primary Court) MARIA PASKALI BERAA.......................................................... APPELLANT VERSUS IDDIABDITSERE RESPONDENT Date of last order: 24/2/2024 Date of Judgment: 15/3/2024 JUDGMENT MAGOIGA, J. The appellant is the wife of the late Philemon Bura who passed away sometimes in 2021. The respondent claimed that he and the deceased were friends, hence out of such friendship the respondent loaned the deceased a sum of Tsh 2,700,000/= in 2019. Later on, in 2021 the respondent advanced a sum of Tsh 6,500,000/= to the deceased payable within a month. It is unfortunate that the deceased passed away before paying the loaned amount. 1 To recover the amount loaned to the deceased, the respondent sued the appellant before Daudi Primary court (the trial court) for payment of Tshs 9,200,000/= being amount of money the respondent loaned to the deceased as shown above. After hearing the parties, the trial court decided in favour of the respondent herein. It ordered the appellant to pay the said amount within 30 days from the date of the judgment. Being aggrieved with the trial court's decision, the appellant appealed to the District Court of Mbulu (the first appellate court). Her appeal first appeal was in vain. Daunted and still aggrieved with the decision of the first appellate court, the appellant preferred the instant appeal with four grounds of appeal as follows: 1. That the firs t appellate court erred in law and in fa ct fo r upholding the decision o f the tria l court w hile the sam e fa ile d to properly evaluate evidence adduced by both 2 parties, thereby reaching a wrong decision in the face o f law. 2. That as p er ground No. 1 the firs t appellate court's decision is bad in law because it upheld the decision o f the tria l court based on forged docum entary evidence (exhibit M6 and M 7) tendered by the respondent In that way it arrived a t wrong decision in the face o f law. 3. That the firs t appellate court's decision is bad in law fo r failu re to see to it that the decision o f the tria l court was bad in law as it based upon irrelevant docum entary evidence (exh ib it MM-1) tendered by the respondent, in so doing it made a wrong decision in the face o f law. 4. That the decision o f the firs t appellate court was m arred by procedural irreg u larities thus fa r it arrived a t a bad decision in the face o f law. The appeal was disposed of by way of written submissions in which the 3 appellant was represented by Mr. Omary Gyunda, learned advocate, while the respondent appeared in person. In his submission in support of the grounds of appeal, Mr. Gyunda argued the first and third grounds of appeal jointly. He faulted the lower courts for failure to evaluate the evidence on record. He argued that going by the loan agreement entered between the respondent and the deceased, there is no clause that states that the loan of Tsh 6,500,000/= was to be repaid through the deceased pension fund. He argued that the contents of documentary evidence can be proved by the documents itself and not oral evidence. He referred to section 100 of the Evidence Act [CAP 6 RE 2019]. On further submission, Mr. Gyunda faulted the two courts for not evaluating the evidence on record regarding the amount of Tsh 2,700,000/=. He argued that such amount was wrongly claimed by the respondent since the same amount had been claimed and fully adjudicated in Civil Case No. 11 of 2019. He argued that as such claim was raised again in the subsequent suit before the trial court, it was nothing but res judicata. He submitted that exhibit M-l was irrelevant to the claim of Tshs 6,500,000/=. He argued that, had the two 4 courts below properly evaluated the evidence on record, they could come up with different finding. In his reply to the first ground of appeal, the respondent argued that there was no evidence that the first loan of Tshs 2,700,000/= had already been settled by the deceased. The respondent argued further that the two courts below properly analysed the evidence on record and arrived in conclusion that the debt has to be paid through the deceased's estates including the pension fund. The respondent submitted that this court sitting on the second appeal can interfere with concurrent finding of the two courts below where there is misapprehension of the substance, nature and quality of the evidence resulting in unfair trial but in the instant matter there is nothing of that sort. In rejoinder, basically Mr.Gyunda reiterated his earlier submissions. In determining the first ground I will begin with my deliberation as to whether it was proper for the claim of Tshs. 2,700,000/= to be brought again in the matter before the trial court after the same having being determined in 5 Civil Case No. 11 of 2019. As pointed out before, the respondent loaned the deceased twice. The first time was in 2019 in which the respondent loaned the deceased Tshs 2,700,000/=. The record shows that the deceased did not pay such amount of money. The respondent, therefore, filed civil case No. 11 of 2019 which was against the deceased in person and his claims were that the said amount was not paid. It is without dispute that the claim of Tshs.2,700,000/= was improperly brought up again in the subsequent suit regardless whether it was paid or not. By the contents of M-l this limb of claim is res judicata. This is because such claim was finally determined by the competent court. Therefore, the trial court erred in entertaining and awarding such claim which was later confirmed by the first appellate court. This was irregular. Therefore, the claim of Tshs.2,700,000/= awarded by the trial court and affirmed by the first appellate court was wrong entertained and is accordingly quashed and set aside. As to the modality of payment as ordered by the first appellate court, I shall revert to it back later. 6 Submitting on the second ground of appeal, Mr. Gyunda faulted the first appellate court for upholding the decision of the trial court based on forged documentary evidence namely exhibit M4 and M7 which are the loan agreements between the respondent and the deceased. The learned advocate submitted at length faulting the loan agreement. He argued that the loan term was of one month commencing from 31/3/2021 to April 2021. The learned advocate argued that the deceased died on 21/10/2021 and the respondent showed up a month later claiming for his money. The learned advocate contended that there were no efforts by the respondent to claim the said amount during the deceased's life time. The learned advocate argued that the money lent to the deceased was on the higher figure taking into account the deceased did not pay the earlier amount. He argued that there was no any deceased's family member was called to witness the loan agreement. He submitted that the respondent claimed in his evidence that the loan money was to repaid through the deceased's pension money but the said agreement is silent on this aspect. He referred the decision in the case of Jadili Mahumbi v Republic Criminal 7 Appeal No. 229 of 2021 [2022] TZCA 329 in which the court held thus; A w itness who te iis a He on a m aterialp o in t should hardly be believed on other points. The learned advocate submitted that the respondent did not take any effort in demanding the loan from the borrower until after the latter had passed away. The learned advocate submitted that the respondent entered into loan agreement with the deceased who was sick without any independent witness. Hence there was a possibility for the respondent to induce the deceased to enter into the loan agreement. Finally, the learned advocate for the appellant pointed out that the respondent did not call material witness namely the deceased second wife who is said to benefit from the loan. He argued that failure to call material witness, the court is entitled to draw an adverse inference. To buttress his arguments, the learned advocate referred to the case of Mashimba Dotto @ Lukubanija v Republic Criminal Appeal No. 317 of 2013 [2014] TZCA 271 . 8 In reply to the second ground of appeal, the respondent argued that the complaint regarding the forgery of the loan agreement was not raised both at the trial and first appellate courts. He argued that the appellant never cross examined the respondent regarding the said agreement. The second ground of appeal should not detain me longer than it is necessary. The appellant never raised the complaint that the agreement was forged when it was tendered. She did not as well cross examined the respondent on aspects which she claimed were lacking in the agreement. It follows, therefore, that failure to raise such complaints before the trial court at the time when the said agreement was tendered makes the complaint at this point an afterthought. Equally the argument that there was no family member who witnessed the said agreement lacks substance since it is not mandatory legal requirement. Besides, the agreement was witnessed by an advocate was called before the trial court to testify. The argument that the deceased was sick and there were possibilities for the respondent to induce the former to enter into agreement lacks substance. Equally the respondent could claim his money at any time 9 subject to the law of limitation and not immediately when the loan was due. Consequently, the second ground of appeal lacks merits and it stands dismissed. Submitting on the fourth ground of appeal Mr. Gyunda argued that, there is no dispute that the appellant was sued before the trial court in the capacity as administratrix of the deceased's estate. He argued that the judgment of the first appellate court, the appellant appears to have been sued in her individual capacity. He argued that this court should therefore quash and set aside the judgment by the first appellate court. The learned advocate submitted that the first appellate court issued an order freezing the appellant's bank account which was not issued by the trial court and it was not pleaded before the first appellate court. He argued that the first appellate court went beyond its powers since it was not executing court. In reply, the respondent argued that it is the appellant who has preferred the instant appeal. He added that the appellant filed this appeal showing that she is being sued in her personal capacity. He argued that the appellant should ~Jtik <==7w\ 10 have shown what injustice has been occasioned. As to the orders regarding the attachment of the appellant's property, the respondent argued that the appellant claims are misplaced since she is trying to challenge the execution process at the appellate stage which are two different avenues. I have considered the parties' rivalling arguments in the fourth ground of appeal. It is without doubt that the appellant was sued in the capacity as administratrix of the deceased's estate. She preferred an appeal to the first appellate in such capacity. However, the judgment of the first appellate court shows that the appellant stands in her personal capacity. This omission I find not fatal and rather a mere typing error. The appellant has not shown how she was prejudiced with such omission. Therefore, I will proceed to dismiss such complaint. As to the orders made by the first appellate court that the appellant's banks accounts particularly those in which the deceased's pension has been kept be frozen and the money therein be attached. The learned first appellate magistrate further directed that if the bank accounts have no money, then 11 execution be carried with respect of the appellant's personal properties. Rightly as argued by Mr. Gyunda, I am of the settled view that the learned first appellate Magistrate performed a task which he was never asked to do. The attachment, if any, should be exercised by the executing court after following the laid down procedures. Also, it was serious error to order attachment of the appellant's personal properties. In so doing not only the appellant was condemned unheard but also, I am of the considered view it is only the deceased's estate liable to settle the claim through the appellant. Therefore, the orders made by the first appellate court are quashed and set aside. Therefore, I find the only claim which the respondent was entitled is Tshs.6,500,000/=. The other amount of Tshs 2,700,000/= is quashed as demonstrated while addressing the first and third ground of appeal. Therefore, the appeal succeeds and fails to the extent shown. In the circumstance I order each bear its own costs. It is so ordered. 12 \ r 13