nassoro kassimu mwenda vs bokasa sixtus nyagali 2023 tzhc 19251 27 july 2023

IN THE HIGH COURT OF TANZANIA (MTWARA DISTRICT REGISTRY) AT MTWARA PC. CIVIL APPEAL NO. 7 OF 2023 (Originating from the District Court of Ruangwa at Ruangwa in Civil Appeal No. 41 of 2022) NASORO KASSIMU MWENDA................. ......................... APPELLANT VERSUS BOKASA SIXTUS NYAGALI.... ......... ......................RESPONDENT JUDGMENT Itt' £ 27" July 2023. LALTAIKA, J. The appellant herein NASSORO KASSIMU MWENDA, is dissatisfied with the decision of the District Court of Ruangwa at Ruangwa in Civil Appeal No.41 of 2022. He has appealed to this court on three grounds as reproduced bellow: 1. That the first appellate Court erred both in law and fact by failure to consider and evaluate the weight of evidence adduced by the appellant. 2. That the first appellate court erred both in law and fact by granting to the respondent the reliefs, which had not sought (sic!) by him. 3. That the first appellate court erred both in law and facts of the case by denied (sic!) that respondent received sum ofpayment from the seller from the maize and the court fall to consider that evidence at alt Page 1 of 8 When the appeal was called on for hearing on the 17th day of July 2023, both the appellant and respondent appeared in person, unrepresented. They chose to orally argue the appeal orally albeit with the assistance of this court in reading out loud and translating the grounds of appeal assumably penned down by a legal aid provider downtown Ruangwa. The appellant started off with a rather extended background information. He stated that he hails from Songea, Ruvuma. He mentioned that the respondent had been his friend since around 2001. At that time, he had a business involving crops (rice, beans, maize) that he would purchase from Songea and Tunduru to sell in Ruangwa. The appellant explained that whenever he required financial assistance, he would call on the respondent, who would always fulfill his promises. The issues between them started in 2021 when the respondent wanted to know the appellant's hometown. He visited Songea, spending a night in a guest house before coming to the appellant's residence in Mshangano, Songea. The appellant described his family members, including his wife and four children (two boys and two girls). The respondent stayed for approximately three days at the appellant's home. During this visit, the respondent asked the appellant to order the manufacture of a machine for him, which was used for grinding and winnowing. The machines were usually made locally by SIDO Songea. The respondent provided the appellant with the necessary funds, approximately 1.2 million, to give to the artisans. The appellant then delivered the machine to the respondent in Songea, and their friendship continued. Page 2 of 8 In the subsequent year, the respondent requested another machine, and this time, the appellant advised him to directly send the money to SIDO Songea. The respondent followed the advice, and the appellant arranged for the transport of the: machine to him. However, during this period, the appellant faced financial difficulties in his business. When he approached the respondent for help, the respondent sent him five million via mobile banking. Even though the appellant used the money to buy a consignment of maize, it was insufficient. He again sought the respondent's assistance, asking for an additional 1.8 million, which the respondent promptly sent. The appellant then requested the respondent to pay 700,000 to the driver transporting the maize to his office in Ruangwa, and the respondent complied. Later, when the appellant was in Songea, the respondent demanded repayment of 8,900,000/=. The appellant offered to ask his shopkeepers in Ruangwa to give him the money. Before leaving for Songea, the appellant entrusted the storerooms and car keys to the respondent, as that was where he stored all the maize. Subsequently, the respondent took the matter to court, demanding 3,800,000/= from the appellant. The appellant counterclaimed that the respondent owed him money for taking 12 tons and 130 kilograms of maize from his Ruangwa store, valued at 8,884,500. The court eventually ruled that the appellant should pay the respondent 2,664,000 or thereabout. The appellant expressed dissatisfaction with this decision, which led him to appeal the court's ruling. Page 3 of 8 The Respondent, on his part, expressed regret that his friend was dishonestly misleading and lying before the High Court, He confirmed that they became friends in 2021 and shared the same religion, Islam. He acknowledged their previous collaboration and mentioned that he always assisted his friend whenever needed. The Respondent explained that he had gone to Songea to explore opportunities to use his minibus, a Toyota Hiace. While there, they discussed the idea of obtaining machines, but after consulting with another friend in Dar, he abandoned the idea of taking his minibus to Songea. However, he did send money to his friend, for the machines as originally planned. Later, in 2022, when his friend approached him about joining the maize business, the Respondent agreed. He mentioned that his friend suggested they buy 20 tons and 10 tons of maize (20 for his friend and 10 for him) to reduce transport costs. Eventually, his friend advised him to buy 15 tons instead. The Respondent sent the money in installments, with the first payment being 5,000,000/-, and he paid an additional 1,800,000/= as requested. The Respondent also explained that he didn't have storage or a market for the 15 tons of maize, so his friend allowed him to use his store and market in Mbekenyela, Nambslanje, and Namkatila (where his offices were located). The transactions amounted to a total of 8,900,000/=. The dispute arose when they started selling the maize, and it became evident that the money he received, and the maize given to him didn’t match Page 4 of 8 the amount he owed his friend. The Respondent attempted to settle the accounts with his friend in Morogoro, but the friend avoided him, blocked his calls, and refused to provide the maize he had requested. As a result, the Respondent took the matter to court, instituting Civil Case No 41 for 3,832,950/=. During the court proceedings, the friend denied the Respondent’s claims, asserting that the Respondent was the one who owed him money. However, the Respondent was able to prove his claim, and the court concluded that the correct amount owed was only 2,666,450/=. The friend appealed to the District Court, but the decision of the Primary Court was upheld. Having enlightened the court sufficiently on the basis of their controversy, the parties then moved on to argue the three grounds of appeal as follows. Arguing in support of the first ground of appeal, the Appellant stated that his complaint was that the respondent dishonestly denied receiving money from a person who had given it to him, and that money was taken from the appellant's shopkeeper. The Appellant stated further that he had won at the District Court, which ordered a retrial, as the respondent denied receiving the money despite previously agreeing to it. The appellant expressed disappointment that his shopkeeper's evidence was not considered during the trial. On the other hand, the Respondent responded by stating that he did not deny receiving the money. Instead, he pointed-out that there were contradictions between the parties regarding the amount of money involved. Page 5 of 8 The Respondent mentioned that he asked the appellant how much he claimed to have given him and whether it was documented. The District Court decided that a retrial was necessary due to these conflicting statements. The Respondent refused to accept the exhibit as evidence, claiming it was incorrect. He also referred to a conversation where the appellant’s brother allegedly gave him money and asked him to write it down. Moving on to the second ground of appeal, the Appellant contested the court's decision to award the respondent 1,500,000 for "kuvunja mkataba wa kibiashara" (breach of a business contract) when there was no contract between them. The appellant stated that he only remembered a transaction involving 8,900,000, but the respondent ended up taking an amount totaling 13,816,500 from him.? The Respondent defended his position by explaining that during the trial, the court had inquired whether they were in a partnership or not. He claimed that he presented seven witnesses, all of whom proved the existence of a partnership. The court then ruled in favor of the Respondent based on the testimony of these trusted witnesses. On the third ground, the Appellant complained that the court disregarded all his evidence and only accepted evidence provided by NMB (National Microfinance Bank). The appellant also accused the respondent of denying the existence of certain young individuals who would have been his relevant witnesses to the case. Page 6 of 8 In response, the Respondent refuted the claim that he denied receiving the money. Instead, he clarified that he had accounted for both the maize and the money, which came from one young man. The Respondent emphasized that he acknowledged and accepted what was given to him, and that the appellant had not mentioned any contradictions between him and Arafat Mwenda during the trial. Having dispassionately considered the rival submissions and carefully examined the court records, I have no hesitation that the relationship between the parties has been a cordial, brotherly one. It is clear that the respondent had tirelessly supported the appellant in his endeavors. It appears however that as the appellant's business deteriorated, he became rather erratic. Instead of sitting down and wait for another season of grace and abundance, he is quickly burning the camp he had obtained rest from. The respondent has clearly proved his debt and the evidence is not only credible but also intact. It is a settled position of our laws that the second appellant court wouldn't readily interfere with the concurrent decisions of the trial and first appellate courts. See, WARUKU MW ITA V. REPUBLIC Crim. App. No.219 of 2012 (unreported) where it was stated that:- "The law is well settled that on the second appeal, the Court will not readily disturb concurrent findings of facts by the trial court and the first appellate court unless it can be shown that they are perverse, demonstrably wrong, or clearly unreasonable, nature and quality of evidence, a violation of the principle of law or procedure, or have occasioned a miscarriage of justice." Page 7 of 8 I am also of the settled view that the trial court properly evaluated the evidence of the appellant before it upholds the decision of the trial court. See; page 3-8 of the impugned judgment. On the mentioned pages the first appellate court objectively analyzed the evidence of both parties as required. The first appellate court properly considered the evidence adduced by shopkeeper (SU2).See, page 5 & 6 of the impugned judgement which is the basis of the decision. Judgement delivered under my own hands and the seal of this Court on this Page 8 of 8