20140228 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA ' i IN THE DISTRICT REGISTRY ATMWANZA MISCELLANEOUS CIVIL APPEAL NO. 14 OF 2012 (Originating from District Court Civil Appeal No. 3/2011, Original from Urban Primary Court of Musoma in Civil Case No. 45/2010) O,LUOCH KIMBAGE .. ............................................. .... APPELLANT VERSUS MAGANGA FISHING CO. LTD ................................. RESPONDENT JUDGMENT BUKUKU,J.: At the Musoma Urban Primary Court, the respondent herein filed a suit against the appellant (Civil Case No. 45/2012) Claiming payment of T.shs. 1,809,445. It is alleged that, sometimes ·in 2003, the appellant herein approached the respondent with a view of getting a loan for fishing gear. On 16th April, 2003, the appellant was given the fishing gear as follows:- (i) Fishnets, 50 pieces valued at T.shs. 1,050,000/= , (ii) Floating beams 400 pieces valu~d at T.shs. 68,000/= (iii) Ropes/ Rollers - 90 pieces valued at T.shs. 315,000/= 1 :'.:-.' (iv) 1 engine boat, Suzuki HP 15 valued at T.shs. 1,450,000/=. The above mentioned fishing gear were worth .T.shs. 2,883,000/=in i total. .; I •, •• • .\:'-' It is further alleged that, the appellant received the said goods vide «: . .'·. t~ . ,· Delivery No. 30. The Agreement entered into between the appellant and the respondent was such that, having been given the fishing gear, the '-':'. appellant was to do the fishing, sell the fish consignment to the respondent -t.: ... ' .' ·only, and in return, the appellant was to be paid 20% of the revenue until he discharges his debt. Unfortunately, things did not· go well. It is alleged that, the ··~ -.respondent"failed to discharge his obligation as envisaged. He managed to pay only T.sh. 214,800/= on 5th September, 2010 after several follow ups. The non payment of the loan on the part of the appellant forced the . respondent to seize the engine boat from the appellant, and it was sold for T.shs. 1,300,000. This amount reduced the outstanding debt to T.shs. 1,368,200/= ·which stood unpaid. On 28th January, 2009, the respondent engaged the services of Makire Auction mart as its debt collector. The , · "_respondent then issued a notice to the· appellant before the Ward .: '' ' 2 I I. Chairman, and before appellant's family, The· appellant was notified about payment of a total of T.shs. 1,809,445/= being the outstanding loan, interest of 15% being 205,230/= and collection fee of T.shs. 236,014/=. Despite the notice, the appellant failed/ neglected to pay the debt hence the institution of the suit at the Primary Court. Having heard both parties, on 7th December, 2010, the Primary Court decided in favour of the respondent and ordered the appellant to pay the., respondent T.shs. 1,809,445/= together with costs of the suit which '"is, ., T.shs. 3,000/=. Aggrieved by the said decision and order, the appellant herein appealed to the District Court of Musoma, a~ Musoma, in Civil Appeal No. 03 of 2011. On 2ih September, 2011, Rugemalira, R.M. found the appeal to be unmerited and dismissed it with costs. On 25th November, 2011, the appellant herein filed in this court his . petition of appeal in which •he raised four grounds of appeal. The first bei17g , I ,I :i- that, the appellate court magistrate did not consider his evidence that he had paid as per the agreement; second, that, the appellate magistrate did not weigh his evidence ·which established his case on the balance of probability; third, that, the appellate magistrate did not consider his evidence adduced at the Primary Court where he proved his case on a 3 ';•I• .. : '·. ,\ .- .. 1 /:. balance of probability and finally, that, the appellate magistrate did not · : consider the fact that the respondent failed to prove his claim against him · / on the balance of probability, as there was no any piece of evidence · ·_', corroborating his claim. When the matter was called on for hearing, Mr. Makowe, learned .. advocate for the respondent prayed that the matter be argued by way of · · written submissions. I readily granted his prayer and both parti~s made :·,. their submissions as ordered. I am grateful to them. In his Written submission, the appellant herein informed the court - ··- that, Maving gone through the grounds of appeal, he discovered that, there . are legal matters which need consideration of this court, other than his , ·/.grounds of appeal filed in court on 25th October, 2011. It is on those basis .,· .:-:. that he decided to abandon his grounds of appeal as they are factual /.: matters. which were already considered by the two lower courts below and · · then proceeded to address the court on totally two new grounds of appeal, •' t - .- namely:- 4 ,'n• ' .... 1. That, the two courts below, erred in law not to consider that the agreement between the appellant and the respondent was uncertain and hence void from the beginning . . . 2. That, the two courts below erred in law for failure to discover that the loan advanced to the appellant. in form of fish equipment (sic) was tainted with illegality .. He then proceeded to argue the• above mention two new grounds of appeal. On his part, Mr. Makowe, learned advocate .for the respondent, argued in his reply to the appellant's submission in support of the appeal that, ~tnce. • the appellant had decided to abandon his 1grounds of appeal, . there stands no appeal worth of considering by this court. Mr. Makowe also questioned as to whether grounds of appeal in proceedings . . originating ,,: from Primary Court can be amended or substituted, sin~e there is no rule that caters for what the appellant has endeavoured to do. He also questioned about payment of court fees, whether they were paid since an appeal cannot be filed without payment of court fees. He thus surmised that, the appeal argued by, the appellant is incompetent, as there was no 5 ------------- leave of the court sought to amend the grounds of appeal. Mr. Makowe humbly prayed that the appeal be dismissed. Before going into the arguments raised by counsel; I think it is apposite that I put the legal position clear. , There is no definition of appeal in the Code of Civil Procedure, but I . have no doubt that, any application by a party to an appellate court, asking to set aside or reverse a decision of a subordinate court, is an appeal within the ordinary acceptation of the term. Every appeal must be preferred in the form' of a memorandum signed by the appellant or his advocate. This memorandum or petition of appeal is a concise statement of the grounds on which the judgment, ruling, decree or order appealed from··· is sought to be varied or reversed. It is important that, before presenting the memorandum of appeal, the appellant must be fully satisfied that his memorandum of appeal contains all points that need to be argued in the appeal. This is because, an appellant will not, except, with the leave of the court, urge or be heard in support of any ground of objection which has not been set out in the memorandum of appeal. A court ought not to base its decision on any . 6 " t' other ground unless the party who may be affected by so doing _has had sufficient opportunity of coritesting the case on that ground. I . The' above stated, in this particular case, it is not disput~d that, the . • · appellant herein decided to abandon his four grounds of appeal fil.ed earlier ' on and decided to argue two new grounds of appeal. At page 2 of his · writter:, submission, the appellant wrote: "...........It is on that basis I will abandon my grounds of appeal as they are factual matters which were already considered by the two lower courts below_ and without wasting precious time of this court my grounds of appeal are two namely. ...... " And then he mentioned the two grounds as already outlined. • The question that ·arises, then, is, in what circumstances will· an appellate court exercise its discretion to allow an appellant to take a new point on appeal? In the case of Tanganyika Farmers Association V. • Unyamwezini Development Corporation [1960] EA 620, at the trial court the appellants' defence had been that there had n.o privity· of contract between them and the respondents (former plaintiffs) and that they 7 . (appellants) had bought the goods in question from a different party whom they paid. The trial judge dismissed the defences and found for the respondents. On appeal, counsel for the appellants attempted to treat the evidence of a certain witness in a reversal way. This was objected to. On this point, Gould, A. V-P, said at page 626: "The objection to the submission is that, it raises a question which was never in the contemplation of the parties in the court below. It was not argued there/ nor was it ever mentioned in the correspondences between the parties. An appeal court has a discretion to allow a new point to be taken on appeal but it will permit such a course only when it is ·.assured that full Justice can be. done to the parties'~ · The issue here is whether the appellant should be permitted now to raise a contention not raised in the court of first and second instance. · Having gone through the record, I am satisfied that, the two grounds of appeal raised by the appellant in his submission in support of the appeal, were never raised during the appeal to the District Court. A look at his petition ofappeal to the District Court of Musoma dated 4th January 2011, 8 shows he never questioned about the uncertainity of the agreement nor· the legality of the loan advanced to him. Theiiabove considered, upon the view as to wh~ther the appellant should be permitted to raise here a contention not raised in the court of first instance, I find myself most closely in accord with the view as raised in the case of Sijaona Chacha Machela V. Republic,:· Criminal Appeal No. 223 of 2011 {CA){unrepcnted) referred to me by Mr. Makowe, learned Counsel for the re~pondent. As it is, the District Court of Musoma never made a finding about the two grounds of appeal raise by the . appellant in his submission. I find it to be too late in the day to take the said grounds on board, the reason being that, this being an appellate court, it does not deal with matters which were not ra•ised and canvassed by the court below. It is on record that, the appell~nt herein never challenged the agreement at the trial court. In fact, in his sworn testimony, he told the trial court that; he was given the loan sometimes in 2003 .. Considering· that the two grounds of appeal were not taken at thetrial, and presented for the first time in this court, they ought t~ be most jealously scrutinized. I say so because, the conduct of a cause at the tri~I is_ governed by, and the questions asked for the witnesses are directed 9 to, the points then suggested. It therefore appears to me that the two · . grounds ought not, in any case, to be taken on board since the appellant · has taken the respondent by surprise. (See: Visram and Karsan V. Bhatt and others [1965] EA 789. In conclusion therefore, considering that the appellant decided to abandon his grounds of appeal contained in his memorandum of appeal and decided to impose two new grounds of appeal, without leave of the .. · court, it is my considered opinion that both issues raised by the appellant are extraneous issues being raised on the second appeal. From the above foregoing, the appeal is dismissed with costs. Ordered accordingly . . Right of appeal explained . ............•. ·.......•.••••..• A.E. BUKUKU JUDGE · Delivered at Mwanza . .· This 28th February, 2014. 10