masoud mostapha katimile vs bizmana jackson bukululu 2023 tzhc 21761 5 october 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF TABORA AT TABORA PC CIVIL APPEAL NO. 6 OF 2023 (Arising from the District Court of Tabora in Civil Appeal No.16/2022 and originating from PC Civil Case no. 64 of2022 at Urban Primary Court) MASOUD MOSTAPHA @ KATIMILE................................APPELLANT VERSUS BIZMANA JACKSON @ BUKULULU..............................RESPONDENT JUDGMENT Date of Last Order: 08/09/2023 Date ofJudgment: 05/10/2023 MATUMA, J. At Tabora Urban Primary Court the Appellant unsuccessfully sued the respondent for claims of Tshs. 5,090,260/= being an outstanding debt arising from their business transactions. The brief background to the said claim is that; the respondent is a businessman who owned among other businesses, a milling machine in which he used to pack maize flour and the appellant was his maize supplier on credit basis. ^2' i The dispute arose between the two when the appellant alleged that the respondent's payment trend for the maize supplied was not going well. He supplied him three times but the respondent did not pay him properly. At last, the appellant went to the respondent's office for collection of the outstanding debt which was Tshs. 8,090,260/= but the respondent was not present as he was on safari. Having communicated with him through phone conversation, they agreed to deduce the debt in writing but since the respondent was not physically available he directed his wife to take the appellant to the advocate's office so that she executes a loan deed on his behalf. The respondent's wife complied and thus she in a company of the appellant and one Moshi Ramadhani the respondent's servant went to Mr. Pharles Malengo learned advocate on 30th March, 2021 and executed a loan contract on behalf of her husband. The said contract was tendered as exhibit Pl. In addition to the loan contract the respondent's wife one Mariam Liphoba Lukoba issued her sworn spouse consent to the said loan which was as well tendered in evidence along with the loan contract. According to the appellant, after the execution of such contract, the respondent paid him Tshs. 3,000,000/=. The remaining balance of Tshs. 5,090,260/= was not paid until when he decided to commence the suit which is the subject to this appeal. On his part the respondent although admitted to have been in business relations with the appellant, he denied completely to be owed any debt to the appellant. He disputed to have received maize cargo from the appellant three times but only two times. He refused^to recognize the loan contract exhibit Pl and the spouse consent of his wife and alleged that the same was a forged document which was not executed by his wife. The trial court dismissed the appellant's claims on the ground that the respondent was not party to the loan contract. On appeal to the District Court, the appellant's appeal was dismissed as a whole on the ground that the Primary Court properly rejected the claims. The appellant is now before this court on a second appeal with two grounds whose major complaints is that; i) The first appellate court erred for failure to reevaluate the evidence on record. ii) That the first appellate court erred in law for failure to find that the loan agreement was valid by the law of agency. At the hearing of this appeal both parties appeared in person and after I heard their respective submissions and bearing in mind that this court on appeal may take or direct further evidence to be recorded, I found it incumbent for the interest of justice to have Mr. Pharles Malengo learned advocate summoned to clarify on the contested contract, and to have specimen handwriting of the respondent's wife for comparison purposes. Mr. Pharles Malengo learned advocate and the respondent's wife one Mariam Liphoba Lukoba dully appeared and did the needful. The appellant in his submission to this appeal argued that the two lower courts misdirected themselves to concentrate on transactions which were not in dispute between the parties and left out the transaction upon which the claim was based. 3 He also faulted the findings of the trial Primary Court which was upheld by the District Court that he was paid Tshs. 500,000/= on 10/06/2021, Tshs. 500,000/= on 17/06/2021 through his bank account while such amount was not paid which shows that his bank statement which he tendered was not worked upon. The respondent on his part maintained that the basis of the appellant's claim is a loan contract exhibit Pl in which he was not a party. He denied to have instructed his wife to enter such contract and, in his opinion, the said contract is a forged document because the signature in it does not resemble to the specimen signatures of his wife. He finally argued that the appellant may sue the one who entered the contract with him. He also maintained that the amount which the appellant denies to have been paid was actually paid and can be seen in the bank statement because he was paying by way of transfer. Mr. Pharles Malengo having been summoned made his clarification that on 30/03/2021 the appellant, one Moshi and the respondent's wife Mariam Liphoba Lukoba came to his office to execute the loan contract but he realized that the respondent who was the borrower was not present. He asked Mariam who had introduced herself as the wife of the respondent the whereabouts of the respondent. Mr. Pharles Malengo further testified that Mariam Liphoba Lukoba linked him with her husband through phone no. 0745470801 but before he could talk on that phone he made his search to satisfy himself as to whether such phone number belongs to the intended person. He thus tested to send money vide M-pesa transactions and the n^m'e of Bizimana Jackson Bukulu appeared. He thus became satisfied that through that phone number the right person was the one to talk to him. He thus called him and they talked in which the respondent instructed him to draft such loan agreement for his wife to sign on his behalf. He then drafted the loan agreement which was dully signed by the appellant and the respondent's wife. The learned advocate further stated that since the respondent in person did not appear before him, he decided to prepare an affidavit relating to the transactions for Mariam Liphoba Lukoba in person to depose on the transactions and volunteer her matrimonial properties to be liable for attachment and sale in case of any default to repay the loan. The learned advocate then identified the loan contract and the spouse consent exhibit Pl collectively. I will start with the second complaint in this appeal which relates to the validity or otherwise of the loan contract. First of all, it should be noted that the respondent and his wife disputed such contract and pleaded that the same is a forged document which was not signed by any of them. Under section 75 (1) of the Evidence Act, Cap.6 R.E 2019 the court is empowered to make comparison of the disputed handwriting and signature when it has to form its own opinion as to the handwriting or signature between the disputed one and that which is not in dispute. In that respect I decided to take the specimen handwritings and signatures of Mariam Liphoba Lukoba and through comparisons, I have no doubts that the handwritings and signatures in the disputed loan contract and spouse consent and the specimen handwritings and signatures of the said Mariam Liphoba Lukoba given by her in my presence are the same. I have noted 5 that she attempted as much as she could to avoid the specimen to resemble the contested signatures in the contract but unfortunately, she could not avoid it all. Thus, for instance letters "M" in both the disputed signature and the specimen signature looks alike. They resemble to each other particularly "M" in the second line of item four on the specimen resembles clearly to all "M" in the loan contract and on the spouse consent in its stroke formation. Other letters which resemble are "u", "k", "o" "b" and "a". She has only tried to change a little bit letter "L". All in all the stroke formation, letter spacing, pen pressing (mgandamizo wa kalamu) and the length of words in both the disputed handwriting and the specimen resemble exactly. Not only that but also by the evidence of advocate Pharles Malengo, he witnessed the documents being signed in his presence by the said Mariam Liphoba Lukuba. His evidence is relevant to the fact in issue in terms of section 49 (1) and (2) of the Evidence Act supra. I therefore entertain no doubts that Mariam Liphoba Lukoba dully executed exhibit Pl and signed it along with the spouse consent. As to whether such contract can legally bind the respondent who did not execute it, I should first of all put it clear that the learned advocate poorly drafted the contract. The facts before him were clear to the effect that the contract was to be entered on behalf of the respondent by his wife. But the manner the contract was drafted does not reflect that it was executed by someone on behalf of another. It is drafted as if the respondent personally signed it. The learned advocate did notj^ruse Mariam Liphoba Lukoba to sign on behalf of the respondent, instead she signed it as if that signature belonged to the respondent himself. The Contract on the face of it does not speak by itself that it was executed by a third party on behalf of the Debtor. Section 64 (1) of the Evidence Act supra requires the contents of documents to be proved by the documents themselves in the meaning that the documents must speak by themselves. In the instant matter the loan contract does not by itself speak of all issues relating to execution and signing by a third party on behalf of one of the parties therein. That contract was thus deficient and cannot be acted upon against the respondent. Having so determined the legal stance on the disputed loan contract, there remains a spouse consent of the respondents wife which as I have already ruled out, it was dully executed by her. In that document the respondent's wife acknowledged that the respondent was indebted to the appellant Tshs. 8,090,260/= and she consented to such debt and undertook a joint liability. The Spouse Consent is an independent document executed by the respondent's wife and its weight shall be discussed in the second issue. To that end the second ground relating to the loan agreement is dismissed on the reason that although it was dully executed by the respondent's wife in accordance to the oral evidence on record, the same was not valid against the respondent because it was drafted in the manner contravening the documentary principle that documents must speak by themselves. Coming back to the first ground/complaint relating to the evidence generally, I have no doubt that the appellant had enough evidence which upon analysis on the balance of probabilities ought to have won the case against the respondent. It is not in dispute by the evidence of both parties that they had business relations in which the appellant was supplying maize to the respondent on credit basis. Their business relation was undergoing on trust basis and therefore the parties were not executing any writings in each transaction they did. Instead, the respondent was receiving maize from the appellant and then repay for them by instalments. At last the appellant alleged that the respondent started to be difficult in repaying for the maize and it is when they decided to deduce into writing for acknowledgment of the outstanding balance of Tshs. 8,090,260/=. Thereafter the respondent paid him Tshs. 3,000,000/= under instalments and remained with Tshs. 5,090,260/= which is the subject matter in this suit. The respondent on his part disputes this amount and averred that he had paid for all maize he took from the appellant. On my side I find the appellant worthy to be trusted and relied upon than the respondent. This is because he is supported by the respondent's own wife when she deposed a spouse consent before a registered advocate to a acknowledge such debt in which she personally stated; 1. Kwamba mimi ni mtanzania kwa kuzaiiwa. 2. Kwamba mimi mke wa BIZIMANA JACKSON BUKULU. 3. Kwamba, ieo tarehe 30 mwezi wa 03 mwaka 2021 mume wangu amekopa kilo 18,748 za mahindi kutoka kwa MASOUDI MOSTAPHA KA TIMLE. _ 8 4. Kwamba ninatoa ridhaa mume wangu BIZIMANA JACKSON BUKULU kukopa kilo 18,748 za mahindi kutoka kwa MASOUDI MOSTAPHA KATIMLE. 5. Kwamba natambua ya kwamba kwa mujibu wa matakwa ya sheria ya Ardhi Na. 4 ya Mwaka 1999 pamoja na Sheria ya Ndoa ya Mwaka 1971, ridhaa ya mume (mwenza) inahitajika pale maii ya wanandoa inapouzwa au kuwekwa dhamana. 6. Kwamba nami kwa kutambua matakwa hayo ya sheria kwa hiari yangu, kwa akili zangu timamu na bila kulazimishwa na mtu yeyote, natoa ridhaa yangu Hi maiizetu za ndoa zitumike kama dhamana kwa aji/i ya mkopo wa kilo 18,748 za mahindi yenye thamani ya shiiingi Miiioni nane na e/fu tisini mia mbiii na sitini (Tshs. 8,090,260/=). 7. Kwamba ninathibitisha kuwa yote niiiyoyaeieza hapojuu nikweii tupu kwa mjibu wa sheria ya Viapo na matamko ya kisheria sura ya 34 Juzuu ya mwaka 2019. Therefore, the respondent's denial of such debt is without any substance and accordingly dismissed. Not only that but also the appellant is supported by the fact that after execution of the spouse consent, the respondent paid him some money out of such debt which reduced the debt from Tshs. 8,090,260/= to only Tshs. 5,090,260/=. The appellant did not claim the whole amount of Tshs. 8,090,260/= which was acknowledged by the appellant's wife despite the fact that he had such written evidence but honestly declared to have been paid some amount thereof. The two lower courts wrongly concentrated on the previous argued by the appellant. They rejected the evidence of the appellant merely because the loan contract was wrongly drafted without scrutinizing and determining the spouse consent of the respondent's wife which was as well put in evidence. They did not scrutinize the bank statements of the parties which when scrutinized reflects that the appellant spoke the truth as against the respondent. I therefore agree with the appellant that the evidence on record was wrongly evaluated against him. My reevaluation finds that the appellant proved his claims at the trial court on the balance of probabilities as against the respondent. In that respect the judgments of the two lower courts are hereby quashed and the orders thereof are set aside. The appellant is declared to have proved his claims and the respondent is ordered to pay the appellant Tshs. 5,090,260/= as an outstanding debt of their business transactions. The respondent is further condemned costs of this suit in all courts from the trial court, the first appellate court and in this court. This appeal is therefore allowed to the extent herein above stated. Right of further appeal is hereby explained in accordance to the laws governing third appeals. 10 11