Changamkeni Case

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM CIVIL APPEAL NO. 8666 OF 2024 Originating from District Court of Ilala at Kinyerezi civil appeal no 52 of 2023 dated 19.4.2024, Hon Nyenyema PRM Original Civil case no 212 of 2023 Ukonga Primary Court dated 4.8.2023 Hon. Cecilia SRM MONICA MAIMBI……. ...........................................................1ST APPELLANT MARTHA MASHOKO .............................................................. 2ND APPELLANT VERSUS CHANGAMKENI GROUP (RENALDA KWAYE) ........................ RESPONDENT JUDGMENT 31st July & 13th, Aug, 2024. KIREKIANO J. This is a second appeal. The appellants are seeking to overturn the concurrent findings of the two lower courts; according to the claims filed in the primary court, the appellants secured a loan from the respondents amounting to TZS 31,482,000. It appeared that the appellant partly paid the loan, and the unpaid balance was Tsh 21,552,000. Upon trial, they were condemned to pay the respondent Tshs 21,552,000. Their first appeal in the District Court failed, hence this appeal. 1|Page According to evidence on record, the factual background is that the respondent is a village community bank popularly known as KIKOBA Group, registered as IMC/Ukonga/Vicoba/005 219. The respondent has been operating since 2008 and has about 40 members. The 1st appellant was a treasurer, and the 2nd was the chairperson. It was the testimony of PW1 Renalda Kwaye that sometime in 2014, the appellant secured a loan from their group and vanished from the group's affairs. Upon follow-up made by the group, the dispute caught the attention of the Prevention of Corruption in the Bureau and the office of the Regional Commissioner; it was a settlement between the two parties that the appellants should pay the outstanding amount at the tune of 27,682,000/= The appellants made a partial payment of Tshs 4,990,000 in August 2022 and later 1,140,000/= However, the respondent defaulted on the agreement to pay by instalment, and the outstanding amount remained at Tshs 21,552,000. PW2 Albertina Marandu and PW3 Felista Ranya verified this version. PW2 refuted appellants defence that the appellant paid the group TZS 3,355,000 through one Deus a Local leader. On their party, the first appellant admitted that she owed the 2|Page respondent but disputed the figure. According to her, the debt was only TZS 10,844,000. It was her defence that when the matter reached PCCB, the outstanding amount was 22,692,000, but there was an amount of money she paid through the local leader one Deus; thus, it was upon the respondents to collect it. The second respondent admitted the outstanding sum to be TZS. 21,552,000/= and promised to pay the same in the following year. Both appellants associate the debt with poor records of the group accounts. Upon hearing, the trial court found that the claims were proved to the required standard and adjudged the appellants to pay the respondent TZS 21,552,000. The first appellate Court, in its reevaluation, upheld the decision of the Primary Court, hence this appeal. Aggrieved, they appear to this court basing on two grounds; 1. That, the District Court of Ilala (1st Appelate Court) erred in law and facts by failing to re-valuate properly the evidence in record and come to its independent judgment and hence; the 1st Appellate Court failed to discharge its duty. 2. That, the District Court of Ilala erred in law and facts by upholding the decision of Ukonga Primary Court (the trial Court) and proceeded to dismiss the Appelants' Appeal while 3|Page in fact, the judgment of Ukonga Primary Court is not grounded on evidence, which makes the said decision nullity. When the appeal came for hearing the same was heard by way of written submissions, the appellants were represented by Mr. George Dogani Mwalali while the respondent had the service of Innocent Paulos Mwelelwa & Edward Mwalongo (Advocates) In support of the appeal, the counsel for the appellants argued all grounds jointly that the trial Court did not consider the vital evidence tendered by DW1 and DW2, who testified that they owed the respondent Tshs. 10,844,000/=. It was his argument that if the trial court could consider this, then it would come to the conclusion that the defence witnesses were heavier than that of the respondents. He submitted that, in measuring the weight of evidence, it is not the number of witnesses that the court counts most but the strength and quality of evidence. He referred to the Hemed Said vs Mohamed Mbilu (1984) TLR 113 HCD. He argued that the 1st appellant court failed to re-evaluate the evidence properly regarding exhibit P1, which was not tendered as an exhibit in the trial court, which was seen in the judgment of the 1st appellate court. 4|Page He cited the cases of Shemsa Kalifa & 2 others vs Suleiman Hamad, Civil Appeal No. 82 of 2012, CAT cited in the case of Silas Daud vs Leonard Ndono, Civil Appeal No. 09 of 2022 HC at Mwanza at pg. Seven, the judgment must be grounded on the evidence properly tendered during the trial. Otherwise, it is not a decision. He argued that the Court, as the Appellate Court, has a duty to re-evaluate the evidence of the trial Court and come up with its independent findings. To support this, he cited the case of The Registered Trustee of Joy in the Harvest vs Hanza K. Sungura, Civil Appeal No. 149 of 2017 at pg. 6 and 7 In his reply, Mr. Mwelelwa argued that, as this is a second appeal, the court's role is not to venture on matters of fact already settled by the two lower courts. To support his argument, he cited the case of Simon Kichele Chacha vs Aveline M. Kilawe, Civil Appeal No. 160 of 2018, at pg. 10. Regarding the first ground of appeal on the issue of re-evaluating the evidence, he submitted that the evidence adduced in the trial court was properly evaluated. The first appellate court re-evaluated the evidence on pg. 2 and 3, whereby the 1st appellate court re-evaluated the evidence of DW1 and DW2 as they both came into concurrent findings of Tshs. 5|Page 21,552,000/=, the exact amount the appellants are in debt to the respondent, as admitted by DW2. He submitted that the amount of Tshs. 21,552,000/= proved by exhibit P1 was not objected to by the appellant and that the allegations of TZS. 10,844,000/= was not proved by the appellants. It was his view that the two courts properly analysed the evidence and came with a fair judgment. He cited the case of Amratlal Damodar Maltaser and Another t/a Zanzibar Silk Stores vs A.H. Jariwalla t/s Zanzibar Hotel (1980) T.L.R pg. 32 that where there are two concurrent findings of two courts, should not disturb them unless there is a miscarriage of justice or violation of some law principles. It was his submission that there is no violation of principles and procedures of law shown by the appeal. He disputed the claims by the appellant on the 2nd page of his submission that there were two groups owing a total of Tshs. 35,590,500/= to the respondent, it was his submission that this is an afterthought as they could have been called as their witnesses or joined them as a third party of their suit. He submitted that there is no dispute that the appellants took a loan 6|Page from the respondent, which was not paid in full. He submitted that the appellants should be reminded of the contract's sanctity principle as stated in the case of Abualy Alibhai Azizi vs Bhatia Brothers Ltd (2000) TLR. 288 at pg. 289. He concluded on the 1st ground that the duty of re- evaluating the evidence by the 1st appellant court was duly complied with. On the 2nd ground of appeal, Mr Mwelelwa replied that in civil cases, the standard of proof is on a balance of probability; it does not amount to the number of witnesses laid down. He referred to the case of Barelia Karangirangi vs Asteria Nyalambwa, Civil Appeal No. 237 of 2017 and the Case of Hemed Said vs Mohamed Mbilu (1984/ TLR 113, on measuring the weight of evidence. He argued this court should pay attention to page 6 of the typed judgment of the 1st appellant court on the allegations by the appellants that they paid Tshs. 5,355,000/= to the Village chairperson while there is no proof of the same. He argued that the village chairperson was a material witness to prove the allegations in their favour. He referred this court to the case of Boniface Kundukira Tarimo vs Republic, Criminal Appeal No. 350 of 2008 on the failure to call a material witness. He also referred to the cases of Paulina Samson Ndawavya vs Theresia Madaha, Civil Appeal No. 45 of 2017 (unreported), and 7|Page Imani Madege vs Yusuf Mahebood Manji and three others, Civil Appeal No. 135 of 2019 on the proof of the plaintiff’s case. He finally argued that the grounds of appeal raised by the appellants were devoid of merits and based on false allegations, and he prayed the same to be dismissed with costs. The appellant's rejoinder submission was that this court's role to venture on matters of facts already settled by the two lower courts is limited. The appellant's counsel, however, referred to the evidence of (DW1 and DW2), arguing that the appellants secured a loan from the Respondent to the tune of Tshs. 35,590,500/=, and they paid the Respondent to the tune of Tshs. 24,665,500/= and the remaining amount of debt they owe to the Respondent is an amount of Tshs. 10,844,000/= From the records, it is clear that the first appellate court agreed with the trial court's findings that the respondent’s claim was merited. The position of law is that this court, being a second appellate court, should not interfere with concurrent findings of the two lower courts unless the findings are based on misdirection and non-direction of the evidence or violation of some principles of law or procedure. 8|Page In Jafari Mohamed vs Republic Criminal Appeal No. 112 of 2006, In Amratlal Damodar (supra), it was held: - “Where there are concurrent findings of facts by two courts, the Court of Appeal, as a wise rule of practice, should not disturb them unless it is clearly shown that there has been a misapprehension of evidence, a miscarriage of justice or violation of some principle of law or procedure.” Looking at the first ground, I have gone through the district court's judgment; it appears that the district court, in its analysis, considered Exhibit P1, a letter from PCCB addressed to the first appellant, requiring the appellant to settle the claims. In their submission, the appellant complained that this evidence was not valid since it was not tendered as evidence. As I have indicated earlier, I intended not to address issues on facts, but this complaint in exhibit P1 inclines this court to address the same. This is fortified by the decision, Firmon Mlowe vs Republic (Criminal Appeal 504 of 2020) [2022] TZCA 694 (9 November 2022) We must emphasize that ordinarily, save where there are misapprehension of the evidence on record, the first appellate court is the final court of facts to the respective party. 9|Page It is a trite law that no court can decide based on evidence or documents not tendered and admitted in court as an exhibit. This was stated in the case of Mohamed A. Issa vs John Machela, Civil Appeal No. 55 of 2013 (unreported) by referring to the case of Shemsa and two others (supra) that: - "At this juncture, we think our main task is to examine whether it was proper for the trial court and other subsequent courts in appeals to rely upon; in their judgments, the said document which was not tendered and admitted in court. We out-rightly are of considered opinion that, it was improper and substantial error for the High Court and other courts below in this case to haverelied on a document which was neither tendered nor admitted in court as exhibit.” Going through the trial court records, it is unclear how the trial court received this evidence. It is not featured in the evidence of the plaintiff's case, and there is no record of its admission. In the absence of this record, the two lower courts misapprehended this piece of evidence. Had the first appellate court addressed this, it would have certainly come to the same conclusion. The same is equally expunged from the record. Having touched on the validity of part of the evidence, this court is thus inclined to step into the district court's shoes, reevaluate the 10 | P a g e remaining evidence, and see whether it is enough to prove the claims against the appellants. There is the oral account of PW1 and PW2, it is on record that when the dispute reached PCCB, the outstanding amount was 27,682,000/=. It is also on record that the appellants made a partial payment of Tshs 4,990,000 in August 2022 and later 1,140,000/=, bringing the outstanding amount to Tshs 21,552,000. The appellant's counsel asked this court to consider the appellant's counsel; however, the court referred to the evidence of (DW1 and DW2). The first appellate court considered this evidence well, but the district court was not convinced. It appears from the defence case the 1st appellant at the untyped proceedings, which is also reflected on page 5 of the trial court judgment, is recorded saying: - “Barua ya Takukuru tulikuwa tunadaiwa 27,682,000, hiyo ndio ngazi ya mwisho tuliyowahi Kwenda, tulipunguza 4,690,000/= ikabakia 22,692,000. Pia nililipa pesa kwa Mbaraka 1,040,000/= (sic) pia nililipa bank ya DCB 120,000/=. Kuna hela nililipa kwa Deus, hawakwenda kuichukua, je? mimi nifanyaje?. Therefore, the appellant does not dispute the evidence, as alluded to by the respondent, regarding the debt and the steps taken in securing the 11 | P a g e said debt, as shown above. Besides, apart from the appellant denying the existence of the debt, TZS 21,552,000/=, from the extract above, which shows how they managed to pay the debt from the time when their dispute caught the attention of PCCB The version that there was money paid through the local leader reads; Kuna hela nililipa kwa Deus, hawakwenda kuichukua, je? mimi nifanyaje To disturb the plaintiff's case, it was upon the appellants to call the said Deus to verify whether he ever received money from the respondent on behalf of the group. This fact was considered by the first appellate court when it cited the case of Boniface Kuandakira Tarimo vs Republic (Criminal Appeal 351 of 2008) [2011] TZCA 194 (4 October 2011) at page 7 that; Where a witness who is in a better position to explain some missing links in a party's case is not called without any sufficient reason being shown by the party, an adverse inference may be drawn against that party, On the second ground of appeal, though not far from the first ground of appeal, the appellants argue that the lower court's decision was not grounded on evidence, making it invalid. 12 | P a g e In this appeal, the appellants are denying the debt of 21,552,000/= from the respondent. Their stand is that the debt now is 10,844,000/=. Looking at the untyped proceedings of the trial court, as reproduced above, the respondent testified that when they went to PPCB, they claimed 27,682,000/=, paid Tshs. 4,990,000/=, and remained Tshs. 22,692,000. Tshs. 21,552,000/= It is seen from the records that the appellant never cross-examined the respondent’s evidence. It is a principle of law that failure to cross-examine important facts amounts to an admission of evidence. It was stated in the case of Issa Hassan Uki vs. Republic, Criminal Appeal No. 129 of 2017, CAT at Mtwara, pg. 16 that: - “It is settled in this jurisdiction that failure to cross-examine a witness on a relevant matter ordinarily connotes acceptance of the veracity of the testimony.” The evidence DW1 that the appellants owed the respondents in two groups that is to say, the actual balance to the respondent was TZS 10,844,000. was well considered by the trial court. This figure was found to be inconsistent with inconsistent with the evidence by DW2. On this, I agree with the two lower courts that on balance of probability, the case against the respondent was well proved. 13 | P a g e In the end, this appeal is devoid of merits. The appeal is dismissed with costs, and the decisions of the two lower courts are upheld. A. J. Kirekiano JUDGE 13/08/2024 COURT: Judgment was delivered in the chamber in the presence of the first appellant, in the absence of the second appellant, and the presence of the respondent. A. J. KIREKIANO. JUDGE 13.08.2024 14 | P a g e