nina hassan kimaro vs salehe omary ititi 2020 tzhc 3994 23 october 2020

IN THE HIGH COURT OF TANZANIA (DODOMA DISTRICT REGISTRY) AT DODOMA (PC) CIVIL APPEAL NO. 02 OF 2020 (Arising from Civil Appeal No. 6 of 2019 in the District Court of Singida at Singida , Originating from Civil Case No. 02 of 2019 at Ufemini Primary Court) BETWEEN NINA HASSAN KIMARO.......................................................... APPELLANT VERSUS SALEHE OMARY ITITI........................................................... RESPONDENT L. Mansoor, J. Date of Judgment: 23rd October, 2020 JUDGEMENT This is the second appeal whereby the appellant herein having unsuccessfully sued the respondent in the Ufemini Primary Court, appealed to the District Court of Singida where again she lost. The brief factual background as can be gathered from the records is that, on 8th Jan, 2019 the appellant herein instituted a suit against the respondent before Ufemini Primary Court claiming a sum of THz 9,000,000/= and a plot of land (Kiwanja). i To substantiate her case, the appellant marshalled only one witness, the appellant herself, where she told the trial court that the respondent was her husband whom they had been running jointly a business of selling bananas in the market. That, in the course of the said business the respondent told her his intention of running a beans business. That, having received a loan from her Kikundi, the respondent asked that money for him to kick start his intended new business. That it was in July 2014 when she advanced THz 9,000,000/= to the respondent. She testified further that the respondent’s new business was not viable, it eventually collapsed. Having seen that and after several futile attempts to demand for refund, she decided to send him to the court where he committed himself in writing promising to clear the debt. The appellant tendered the said respondent’s commitment which the trial court admitted it as exhibit UK1. The respondent testifying as (SU1) on the other hand told the trial court that, together with his wife, the appellant herein, they were running jointly a banana business in the market, whereby his wife was in charge of running it in the market while on his part he was in the charge of following the commodity (bananas) from 2 Ngara. That the money started getting lost in her hands as she was the one supervising the business in the market. That having seen the loss, she started raising complaints against him arguing that she could not accept her money to get lost in the hands ot a man, so he should pay. The respondent went on to testify that their quarrel worsened after him marrying a second wife where she was telling him to have on different dates of 2014 advanced him money to the tune of THz 9,000,000/= in total. The respondent testified further that, because he wanted peace in his marriage as she was threatening him, he decided to promise her that he would pay. That despite his promise, the respondent continued to disturb him until 2015 when she went to the court, which in turn the court having seen that the said money was for business which was run jointly it reconciled them. The respondent testified further that on 28th /ll/ 2018 the appellant pulled out of their wedlock and on 1st /12/2018 in witness of the Street chairman she came to their home and collected all the properties of their marriage. That she confessed before the street chairman to have taken all what was due to her and there was 3 nothing of hers left behind. The respondent tendered a handing over document showing properties which were taken by the appellant and the trial court admitted it as exhibit MM1. Mr. Bashiri Nasib (SU2) a street leader, testifying for the respondent, told the trial court that he witnessed when the appellant was taking her properties. That he reduced into writings and they both signed. Upon these evidences the trial primary court found that although the respondent via exhibit UK1 admitted that he owed the appellant THz 9,000,000/=, it held that the said money was advanced to him because they were husband and wife and business partners and the money was for the said joint business. The trial court having so found and considering that the parties had a pending divorce/matrimonial proceeding, it reasoned that the law applicable for the said money was marriage laws and not civil procedure laws as the marriage laws provides guidance on private and matrimonial properties. So she left the matter to be tackled by the court in the matrimonial cause/proceeding. 4 Dissatisfied, the appellant appealed to the District Court, the first appellate court dismissed the appeal on ground that exhibit UK1, was not a legal contract as “it did not meet required essential elements of a contract". He pointed out S. 14 (1) of the Law of Contract Act and decided that the mere fact that the respondent agreed to pay the said money before the court magistrate, that meant he did not agree out of freewill but due to force or coercion. Having been dissatisfied with the decision, she is now appealing before this Court armed with two grounds of appeal, these are; 1. That the District Court erred in law and in fact in holding that the respondent agreed to pay the debt to the appellant without free consent the issue which was not raised by the respondent himself either in the trial court or in the District Court. 2. That the District Court erred in law and in fact in holding that the appellant failed to prove her case to the balance of probability while the evidence adduced was enough to reach the said standard. 5 In the hearing of the appeal before this Court, Mr. Mussa Chemu Learned Advocate who was representing the appellant submitting on the first ground of appeal contended that the issue of free consent was initiated by the first appellate court suo motto. He argued that it was not raised in the trial court neither was it raised in the first appellate court by the respondent. Referring this Court on exhibit UK1, Mr. Mussa submitted that the respondent signed it freely in presence of the Magistrate as the Commissioner for Oaths as per S. 10 (1) and (2) (b) of the Notary Public and Commissioner for Oaths Act. On the second ground of appeal, relying in the case of Hemedi Said Vs. Mohamedi Mbilu [J 986] TLR 113 on the point that in civil litigation the burden of proof is on balance of probabilities, Mr. Mussa submitted that the evidence adduced by the appellant proved her case on balance of probabilities. Thus praying this Court to allow the appeal with costs. Submitting in reply Mr. Lucas Komba Learned Advocate who was representing the respondent contended that as the first appellate court the District court had a duty to re-evaluate the evidence on record and having re-evaluated, it was correct in 6 holding that the appellant signed on exhibit UK1 in absence of free consent. Counsel had his base in the case of Gody s/o Katende @ Godfery Kafende Vs. The Republic, Criminal Appeal No. 399 of 2018. The respondent’s counsel submitted further that the parties signed a deed of settlement when there was no case pending between them. It was his submission that a deed of settlement can only be entered if there is a case pending before the court. In the end he prayed this Court to dismiss this appeal. Rejoining his submission in chief Mr. Mussa learned Advocate argued that a deed of settlement can be entered at any time. There is no requirement to have a pending case before the court. Having careful considered the grounds of complaints, the submissions of the learned counsels and the records before me, I have seen that the epicentre of the parties’ arguments lies in exhibit UK1, a document in which the respondent admitted a debt of THz 9,000,000/= by the appellant and promised to repay and granted one acre of shamba situate at Mandewa. Mr. Mussa for the appellant on the issue of free consent contended that it was initiated by the first appellate court suo 7 motto. Indeed neither in the trial court nor in the first appellate court did the respondent pointed to have executed exhibit UK1 by force or coercion. Therefore this remains to be an invention of the first appellate court. It is the understanding of this Court that, the first appellate court, as it was held in Gody s/o Katende supra, it is upon it to re­ evaluate the entire evidence on record by reading it together and subjecting it to a critical scrutiny and if warranted arrive at own conclusions of fact. The District court in the instant case, as the first appellate court by importing its own facts it omitted its legal duty. That was a wrong move. See Rule 7 of the Magistrates’ Courts (Rules of Evidence in Primary Courts) Regulations GN No. 22 of 1964, which provides; In deciding all cases, the court must confine itself to the facts which are proved in the case and the matters it is deemed to know or may presume under rules 3 and 4. A court must not take into account any fact relating to the case which it 8 hears of out of court except facts learnt in the presence of the parties during a proper visit to any land or property concerned in the case. Emphasis mine. Furthermore what is seen to be the intention of the parties in executing exhibit UK1 before the Primary Court Magistrate was to cement their prior oral agreement in writing. This is because, as the appellant testified in the trial court and supported by the respondent, the agreement has reached after several dishonoured oral promises by her husband. Again, that being the case, it means, it was not a deed of settlement, for a deed of settlement there has to be a pending suit between the parties and once entered by the disputing parties, it has the same effect as if it were a decision of the court. See Rule 52 of the Magistrate's Courts (Civil Procedure in Primary Courts) Rules, GN No. 119 of 1983. Now that the respondent on 9th Oct, 2015 committed into writing vide exhibit UK1 admitting a debt of THz 9,000,000/= by his wife, the appellant herein, promising to pay her in installment until June, 2016 and granting one acre of shamba which is located at 9 Mandewa . The question which is borne from it is, are its terms binding? There is no dispute that the parties were a husband and wife and were running joint business. The appellant testified that she gave loan to her husband of THz 9,000,000/= in order to pump into a new business venture of beans from that of bananas, her husband do not deny expressly but says after their business collapsed his wife started throwing complaints on him and demanding him the said money. To secure peace in his marriage he promised to pay. But having failed to honor the promise he was sent to the court which it reconciled them. From the flow of evidence by the respondent himself I am convinced that the respondent having been brought before the court, while well knowing that he owed money his wife and having several times failed to honor his oral promises to pay, he willingly and intentionally decided to commit his promises in writings. The promise which to date he hasn’t honored yet. So now the claims that he does not owe money his wife as she confessed when she was collecting her properties on 1st Dec, 2018 are unfounded. io Be as it may, much as the respondent admitted the debt in writing and promised to pay and granted a one acre of shamba at Mandewa, the agreement must be honored. That is oral evidence in a civil case cannot contradict or vary the written terms. See Rule 14 of the Magistrates' Courts (Rules of Evidence in Primary Courts) Regulations GN No. 22 of 1964. To this end this Court finds, as the appellant counsel submitted, that the appellant evidence were strong and proved her case on balance on probabilities. That said, this Court finds that this appeal has merits and is hereby allowed. Decisions and orders of the lower courts are hereby set aside. This court orders the respondent to pay the appellant Tshs 9,000,000/= as an outstanding debt, and a Plot. No costs since parties were once married. LATIFA MANSOOR JUDGE 23rd October, 2020 li