20181003 TZHC Mwanza

.. · 1 I ~,. - t) -'; .. -~ IN THE .HIGH COURT OF TANZANIA (DISTRICT REGISTRY) ATMWANZA HC CIVIL APPEAL NO. 79 OF 2017 (Originating from the Decision of the Resident Magistrat~§:ourt of Mwanza in Civil · "'~ . Case Appeal No. 8 of 204?)~ ~- · ; ---~ ,/)_ :.. -~-~~':'Y . . _v(Rsu~---..__ · · . THE BISHOP THE SEVENTH. D-A~Y"_ ':· , .,,. ·.-~:., ~~. ADVENTIST CHURCH (SDA)i°p ,;,,. ; ·~-- -. _ -~ SOUTH NYANZA CONFE\R\NC6\~·;::s·"··· ....... RESPONDENT · -~ ~- )} ·tJOGMENT ~- --o··-; ' . . . ' Last ord_ er::~~~:h0{3,:201.81\.. •_, · I~'-~' Judgm~nt Date: 0110.20,1,~ \\ }) A.Z.MGE¥EKWA, ·--...: .~. .:/ l ~ The appellant appealed to this court following his dissatisfaction with the decision of the Resident Magistrate Court in Civil Case· No.8 of 2010 dated 6th day of October 2017 which d/smissed the application filed by the appellant. 1 . ... i r- . ' .l Brief facts in relation to this appeal; the appellant one Mpazi Albert Elia Boaz has instituted a suit against the Bishop of the Seventh Day Adv~ntist Church (SDA) south Nyanza Conference. Mr. Mpazi is claiming a total sum of Tshs. 89,118,192 being the payment of construction of the Church facilities/ buildings. The appellant who is also the Director of WAMI Construction Company claimed that he was tasked to clr~w land maps and Bill of_ Qu~ntities (BOQ) for the_ constructiori_ ~h~~t(~ry/)chool adm1rnstrat1on block, school laboratory for phys1c~,,geQ9raphy~D!0'l(:)gy and . \\ -":>~"\./ chemistry and school classrooms' block. m~~pella_~1greJJc:1re? a school building sketch plan and bill of quanti~es ~~same\~ submitted to the · respondent. /f:P> . · - - ~ \/ . - - - -- . _ _ _ The appellant _is cljming~<espondent has breached a contract after he ref~sed ~--pay;,him13e 40% of the construction ·of the . whole project and co~~ti~shs. 59,118,192. The · a@e~atisfied by the deciSion of the Resident· Magist.@te':C0u.~0f<~~ecided to file an qppeal before this Court on -/r~, '\:-~ - the following grot,nds'\ojappeal:- _1. \ ~ \ ) n e d trial Resident Magistrate erred in law and in fact, when he he/d...:..t¼t there was no valid agreement between Appellant and Responc(ent for the Appellant to facilitate and carry out the Drawings and Bill of quantities for the construction of the SDA Church Nyanza Adventist Secondary School buildings at Nyanguruguru Nyakato area Mwanza City · which were estimated to cost c1 total of Tshs.l,453,51-0231.84 for the . whole construction project 2 2. That the learned Trail resident Magistrate erred in law and fact when he failed to take into consideration the fact that after the said agreement the appellant executed the agreement and mortgaged his dwelling house situated on Plot No. 421 Block "GG// Nyakato to one Adamu Amosi Nkuliye/ for a Loan of Tshs.11/000,000/= eleven million shilling~ payable with 23% interest total Tshs. 13,530,000/= Loan/ which monr the Appellant paid the building_ architectures, Civil and Electrical Enginee~ho carried out the required Drawings of secondary school builifin9..s and'bi!Aof Qtlantities - \:~':-,..._ "'-V1/ for the construction of {i) secondary school lifJ.rary ...(ii).~econctary school administration Block complex, (iii) secon~~hJJ/41£o~';;;y for Physics, chefT1istry, biology and Geogra~hl(j/f(/4~ ...,{!:>~ool dass rooms M two secondary school Dormitonr:s an"'fl. .{..vi)"secpndary school teachers staff - . quarters. ~ ' ' ~ ~ · - - - -. -3~ - That -the learned-tria(':?§side:gmagis~te erred in law and in-fact when - - he failed to take into\ consjdidtiQn ~e fact that the appellant had accomplished t~;_~~~lmploying and paying the building architectu~<(il and•E~ii:al engineers a total of Tshs.11,000,000/= payab1e<(~flk-;1nt~),.. who drew the said scho0I buildings sketch R~~..::\(fff~'J;;:yBOQ} which the appellant handed o~r to. the ( tsponden~\ff~ed the same drawings and bill of Quantities (BOQ} on ~uilding th~said secondary buildings project 4. ~ f n e d Triai Resident magistrate erred in law whe/1 he failed to take into consideration the fact that the appellant was to be paid Tshs.59/11~192/= with 23% interest being a consideration and contractual amount for the said school buildings sketch plans and bill ·of Quantities {BOQ) drawings thereof. 3 .) 5. That, the learned trial Resident magistrate erred in law and in fact, when he failed t9 take into consideration the fact that the appellants evidence which was not rebutted.by the respondent, had proved the suit against the respondent on a balance of probability the standard of proof required in Civil Trials, that the drawings which were used by respondent in buildings the said school were those which appellant submitted to the respondent 6. That, the learned Resident magistrate erred in law ~¥°<7 fact, when he relied on extraneous matters such as ''ther\'°"'IJl_~St be~'(i~f pre- qualification in which anyone who is interest"i:f:c~f,~P¼cationn '" . ~ ,.+ \b, -P.//.::i:;?':;;;, :,. / ,J.. . . J,.. w,IIc11 were not an issue . be,ore .~ 1-J.. a,e LTla,,coult./ anu:..,tJP w,11cn no ev1uence was adduced by the resf)Ondent,(!f:t'~~as l~ an inviting of pr;- qualilication for application. ~ rei}i;;-deflt-~'"')yligious sector and not Government institution ":'-!J!$' reJl:,iJ::_\';;;,11._~rs, but appellant was invited . and.directed byiespofent ~h~ilf/);:.)hich they received, hence a - - . denial ofJustice to the~pellan~ "'0 • 7. That, the learne~I r~!!!!!.!!Jagistrate erred in law and in fact, when he faile~f.~~\. into ~n.s,.idetati~he undisr>uted fact that; in mort(1aninn ci , ) ~. - ~ - ::,• ::1· ::1 his dwelling~!!~~sa_,s. 11/00~000/= payable with 23% interest; . er[alie--th~p~~tt:i.:pay by employing building architectures, Civil and r ,-'-- -~~ Electrical'-Engineers; who drew the school Building Sketch plan/ bill of E ~uantities \~hich--v the appellant subsequently handed over to the /:Is~/4e veJY building sketch plans and Bill of Quantities which the respondent used in constructing the said secondary school Buildings. 8. That the learned trail resident Magistrate erred in law when he failed to take into consideratiorJ the fact that; the respondent had breached the agreement/order as per fxhibit P2. 4 9. That the learned trial resident magistrate erred in law and fact he ignored all the documentary exhibits which the. appellant had tendered before the trial court 10. That appellant prayed for the court to visit the said secondary school with the drawings of school sketch plans he had handed over to the respondent for the school buildings to be measured according to the ( ", specifications on . the drawing~ appellant had handecio'ver to. respondent ', \. ..... \._ but the trial Resident magistrate erred in law ,when" he re)et;te,d tlgftpayer . '\~ \:"~.,. "".~·,,-,.~....... "',.._ ':. ',.. \",j /".I ,,- and never visited the said school. \ ·\ · ·<j.. "' ;:'\..., \ \ / .·. ' >.," 11. That it will be in the best interest ofJu'st/ce,for tlu¥appellafe·court to .visit ·-./ ·"' \ ' . the {locus in quoO the secondary c.fchQoljn ''i,~)$._suJ)Q determine the said . '\~~: ~''•~-----,_--·~.:·\~ ""',\_ \' - ', .\~~. drawing~ specifications visa v(s"-(he sc_hoplbuill!ings, '\ ' ·~. ··~\.\. :,.',, '--.. . ···--- '-....:..,_: : h., ~ \.\\_ ....... '-.. //✓~-"' ,. ,--. ,.__ . ':-"" '-,,,_ ~ . .,'- ' : '·\,\., >~. . ·--... . Before this court, th~ appellant appe~red in person, unrepresented ! ·: /,/, -\... "·-,~. '<_~ -~ and Mr. George Kalaka, <; >,. learned \\. •, coun's~J~appeared j for the respondent. -< '"·< ,·- . ., \ __,, /~- Arguing1.,J11 .'support of)1i~ grounds of appeal the appellant submitted -,\;_ ·"··,, / ! ' \ ·= ',, - • that he _Oq?_ fi'lec;:f ',his.-gigtmgs· for appeal after being dissatisfied by the . /~ . -~,>- ''<' '"' "< ·' . . . decislor1 of"the.\_R'e~~cl~nt Magistrate Court of Mwanza. The appellant . subn1jtt~d rebutl~d. that the Bishop did not advertise the tender instead he \ .. \ ~ called fh~',,appeJl~nt .,__ and assigned him with a task to build a laboratory for -~--.-~- ' girls and boys secondary school since that time it was a requirement for every to construct ·a laboratory. The appellant submitted further that he was ask~d to submit his business incense, article of a memorandum, . ' certificate of cooperation and TIN. He argued that later he was issued with a handwritten letter which was written by the. Chairman of SDA. The 5 appellant argued further that he was issued with a letter directing him to go to the NAS Secondary. School. The appellant argued further that the problem arises when he requested the Magistrate to visit the building which he constructed. He concluded by stating that his rights were . violated. _· In reply the respondent submitted that his·~~d~~a~v~ no merit. The counsel for the respondent subm,~ed t~t:..tfw=~~ppell~test,fied . ~, before the trial court that he had a Co~uctio~~e~mt with the ,-;; respondent. He said the Constructiotgreemen~s\endered before the court and was admitted and m~ed ~ B ~ a r ? d that is the one which the appellant verifie~.,tl?at ~~s tliie>,fontract which renders the E;~r ~, ~"'\ appellant to prepare a. ~ill 0_\antity. for~truttion of the said school. The counsel f a ~ ~ S ~ g u e d that exhibit P2 was just an introductory IE:~ic~~ntroducing the appellant to the respondent. Thus, it was }o~~,..,cokraa;~er the requirement of the law since it did not m~~~~n-~the contract and the letter did not show the partiL-,J or even ~e ~sideration or subject matter. Mr. Albert subm.itted furth~~Jtter did neither show the _signatures of the pa~ies in order to venfy that the contract was a genuine one. Mr. Albert said the appellant relied on the introductory letter while the exhibit P2 was not standing for a contract as he demanded to be paid. 6. The counsel for the respondent submitted further that the procedural of the. company of the respondent as explained· by PW1 is that all jobs concerning the church in question usually ~re advertised and not otherwise. He rebutted that a single person cannot assign someone to do a particular assignment.· He said, therefore, the job was not advertised and thus renders the appellant grounds baseless. Mr. ~~rt _concluded by submitting that the reasons given justify that the referred~ntract was no court to dismiss the appeal with costs. . . . . . . ·. v~ a leg~I agreement neither was it breached. The ~ e n t ) ~ ~ r this Both parties have filed l e n g t h y ~ >~wt the crucial issue in this appeal is whethe. r the a. ppe~~.~. d_~ffr~dvanced reasons or Lt~ '~_,)\_ ~~ grounds to warrarit this co~rt"ove~r:~le l~e{indings-oflhe ·1ower Court an-d· .. - - -- ,~ { .{ befweeA w hether t here was a contra<;rt: .. / " ~t,be"') appe II ant an d th e respon dent . . I have ~{ecf"'to-. cqmbtn~ the first, seco,:-id,_ thkd and nine grounds of appeal which rel~tds..:.:tci"=-ag~\ent and exhibits. In the record, I have found~r>E~,'t~Q e~ts conce.rning the agreement;· P2 and P3. t.-C "~ '\~ Starti~ with extiib_Jt P2, i~ th~ cou~t proceeding, the app~llant sub~itted in the mu~~ent which 1s an introductory. letter which was written. by David, Secretary to introducing Mr. Boaz, Mpaz1 Albert and the introduction was based on the distribution of school books and construction if a need arises. In the eyes of the law, the exhibit P1 which was tendered by the appellant does not amount to an agreement. As stated by th~ counsel for 7 the respondent that Pl is an introductory letter. The trial court has rightly decided that Pl not be a legal contract. With regard to P3, In record I have find that a meeting was held and it was chaired by the Bishop of the Seventh Day Adventist Church (SDA) south Nyanza Conference and 8 members i_ncluding t?~ secretary to the meeting Mr. Mharagi and the Director of Education (DDC~Rd 6 members . . . ~ "~ /.!)_ from WA_MI Construction Company. I have found1~e. .,p,;i_,g: _of,~niinutes of the meeting and the page which is attacne_d read\tvh~}~~n3eeting was . ~' \, 7 ,..- conducted peacefully in agreement to~~a_rt the'~sk tleJt\what transpired or . d1scussed. t t t d Th . ~~ ~t2' \_ 1sno .sae. e~opy~~~copy. On the six ground ~peal,__ t~,appellant contended that the {Y' .a~L~, ~-?> Magistrate erred in law wrien he,.,ir:eltecl-,on tlie respondent ground· that the must be mv1 ~ \I.fl~-- . ·t·mg of _pre~~ t· . ).- )h. h h . . t 1 , . ~ w 1c anyone w o 1s ,n eres e can t d make applicatL~le it ~~ot raised in the trial_ court. In the record, I have found \n\~_nkpe_d}eurt preceding, in the defence case, the respol'l~mitl'~{~le church can work with other entities through adve~fsing o~~n~.:>and qualified entities submit their application. Theref~,e~e respondent stated in the trial court thus this ground is baseless.~ · In relation to the seventh ground, the _Magistrate erred in law· and in fact, when he. failed. to take into consideration_ the undisputed fact that, in mortgaging his dwelling-house for Tshs. 11,000,000/= pqyable with 23% 8 interest, he drew the school Building Sketch plan, BOQ which the appellant subsequently handed over to the respondent. As long as there is no any contract between the two parties that means his grouf1d for mortgaging his property is not applicable. f'":'", Concerning the ~ight ground of appeal the appellaQt}s claiming that . . ', """'- the Magistrate erred in law when he failed to t~ke.J.nto c6F:l.sitjerati9n the \: \>'-\,, _"--->·... . ··-.:,--">,// fact that, the respondent has .breached the agreement/-o(det . ...,as,Rer' exhibit \ \ . ("""". \ \ ./ "· .-:, .. PL As I have stated above that Pl is an ihtroductotv<letter·which is not recognized or cannot sta~d for a leg~T"~oAt@~~::Tb~\q~pellant is claiming •. < ·-;: . .• ~---•• _\" >, \> that the respondent has breachecra coht,rap: &ft~fJ1e refused to pay him the 40% of the constructiol)✓ofth~--.,~Rol~ / . . p·rqjep: . and consultations fee of . /- Tshs. 59,118,192. (_ \ \ <('·,. \· ·\,, '\ ,.'·,.. / . ·.,: ·-. . _ Apart from/th~ m'eetin~{w}jich"was held between the two parties but .,.,/./.. "'-.:~ '· ·, ....,,__\_. ~-'-\ •--. there is_ no aqy<pocup1entafion·-.yvhich ·,_ / ·~---. \~ "-., '· shows that the appellant . entered into 1 a contr9e-t-w[th''t~e'fesp~-ndent: After the preparation of the sketch plan of . ;<·_,:>·· . ·_ ,.::~-~:>-..0. . "\.-:~ . >·•.., . ''"-<'' the school ahd\-HOQ,'npthing else transpired. Therefore, exhibit P2 was i . \ \ ··. ' requ{r~ci_ to. be ct;)trob~rated with other evidence such" as a contract. The ~·~ ) I . · evidence<~uffa:es.that there was no any legal agreement between the two parties. Nevertheless, the appellant even in the trial court did not produce any document which proofs that he constructed the SDA buildings._ Ground number 1-0 and 11 are baseless since this court is riot in a position to visit the locus in quo it·was supposed to be done- by the trial 9 . court. Otherwise, the appellant was supposed to apply to apply for the same. Therefore, regarding the contract the appellant failed to tender any document which supports his arguments. The appellant is the one who alleged thus he had a duty to prove it. In the case of Lamshore limited ~~ and J. S. Kir,yanjui V Bazanje K. U. D. K [1999] T~ ~30 it was held that:- "he who alleges a fact has the duty to p~~~~rd of pro~f i~ alway~ on the ~reponderance o{~oba~l~J)'~ s'.nce both parties _in a SUit cann·ot t,e (see Hemed Sad:l~M~hamed (1984) TLR 114), the respondent's evidence o v _ e ~ l ~ t ' s evidence. £:.?~,~ _____ . ~- ___ _ However,~the meeti~g~was held~~twee_r;i the-two .parties .. and -the- r.J ~ .).~ appellant prepared the BO~, the~to,a~~ in~the record, the respondent did not object the exhibi~~i~~}errant submitted instead in when he was cross-ex~i:ieo~~e stat~~hcit'P3 is an agreement between him and . the Bishop. B~~\a?~~ting minute which I find it was an official meet}°~r~'.ore~'it is prudence for the respondent to piiy the appeffant the~)t o}~paration of the BOQ since he prepared the same after \t·h\ ~v· , e,meet·mg.. . . . . · -~··· . . It is my. considered opinion therefore that the findings of trial court _partly were rightly determined. Therefore, the _-appeal is partly allowed to . . the extent that the appellant is entitled to be compensated the -costs he incurred to prepare that the BOQ and sketch drawings. The other grounds 10 of appeal remain dismissed. In the circumstances each part to bear its own costs. Order accordingly. ---'-- ----- 11