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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DODOMA SUB REGISTRY AT DODOMA PC CIVIL APPEAL No. 138080 OF 2024 (From Civil Appeal No. 36 of 2023 before the District Court of Singida Original case No. 9 of 2003 before the Primary Court for Singida District at Mungaa). OMARY A. MWAMPUDA............................. APPELLANT VERSUS RAPAEL SUNGI.............. .......... RESPONDENT JUDGMENT 10/12/2024 & 14/2/2025 MASABO, J. This is a second appeal. It emanates from a decision of Singida District Court. Its factual background is not difficult to establish. It is discerned from the record that the parties herein had an oral partnership agreement for trading in public transportation. They jointly purchased two cars make Toyota Noah and had them operate as commuter buses. Later, the appellant appropriated one of the cars. Disgruntled, the respondent moved the Primary Court for Singida District at Mungaa praying that the appellant be compelled to return it or in the alternative refund the respondent a sum of TZS 9,000,000/= being the purchase price for the appropriated car. He also prayed for compensation to the tune of TZS 5,000,000/=. Upon hearing both parties, the trial court dismissed the suit after it found the respondent to have failed to establish his claims. The dismissal order was reversed in an appeal before the District Court of Singida. The appellant was ordered to pay the purchase price of the car and a compensation of TZS 3,000,000/=. The reversal has disgruntled him. His appeal to this court is based on the following grounds. Page 1 of 11 1. The Appellate Court erred in law and fact for failure to evaluate properly the evidence adduced before the trial court and reached into unjust decision, the same which were properly recorded and analyzed by the trial court and used to reach into just decision. 2. The Appellate Court erred in law and fact by ordering the Appellant to pay the Respondent the sum of Tshs. 9,000,000/= and compensation of Tshs. 3,000,000/= which was never prayed by the Respondent before the trial court. 3. That, the Appellant court erred in law and fact to reach its decision by entertaining and recording new evidence/facts at the appellant stage that were adduced during the respondent's submission. The hearing of the appeal proceeded in writing. The appellant, was represented by Mr. David Rutayuga Deogratias, learned counsel. Submitting in support of the first ground of appeal, the learned counsel argued that, the first appellate court erred in holding in favor of the respondent because, as per the trial court proceedings, the oral contract was undisputed. The appellant and the respondent duly acknowledged its existence. Both testified that they agreed to trade on public transport using a car make Toyota Noah which was to operate as a commuter bus. They jointly contributed to its purchase. Later, they purchased a second car and both contributed to its purchase. Part of the purchase sum came from the proceeds earned from the first car. Also, the appellant repaid the loan advanced to the respondent Page 2 of 11 by Postal Bank as part payment for the second car. Thus, he too contributed to its purchase. The finding by the appellate court that the appellant did not contribute to the purchase of the car and that he was a mere driver, was lucidly wrong as it conflicted with the evidence on record which credibly demonstrated that he too contributed to its purchase. The learned counsel submitted further that, as correctly held by the trial court, the evidence on record is that the parties agreed to distribute the two cars amongst themselves. The respondent took the first car. He operated it, sold it without consulting the appellant and kept the sale proceeds to himself. The appellant took the second car and registered it in his name. It was submitted further that the first appellate court materially erred in holding that the appellant fraudulently registered the car in his name. This finding was not backed by any evidence of fraudulent misrepresentation. Citing the case of Hemed Said v. Mohamed Mbiiu [1984] TLR 113, the learned counsel submitted that, as held in this case, a party whose evidence outweighs the opponent's evidence deserves to win the case. Had the first appellant court properly evaluated the evidence on record, it would have found the appellant's evidence heavier and it would have upheld the trial court's decision. On the second ground of appeal, it was submitted that the award of compensation to the tune of TZS 3,000,000/= was materially wrong as such sum was neither prayed for nor proved. By awarding that sum, the first appellate court offended the principle in Clamian Salashy Kitesho vs John Van Der Moosdijk alias Johnnes Louis Van De Moosdijk, Page 3 of 11 Consolidated Civil Appeal No.41 of 2021 [2021] TZHC 14049 TanzLII, and the decision of the Court of Appeal in Dr. Abraham Israel Shuma Muro vs. National Institute for Medical Research and others, Civil Appeal No 68 of 2020 [2021] TZCA 183 TanzLII and Melchiades John Mwenda vs Gizelle Mbaga (Administratix of the Estate of John Japhet Mbaga -deceased) &2 others, Civil Appeal No.57 of 2018 [2020] TZCA 1856 TanzLII where it was consistently held that it is an elementary law in our jurisdiction that the court will grant only reliefs that have been prayed for and not otherwise. Therefore, it was improper for the appellate court to award such compensation. Submitting on the third ground of appeal, Mr. Deogratias argued that paragraph 1 of page 5 of the typed judgment shows that the first appellate court entertained new evidence contained in the respondent's submission in chief. The new evidence was in the respondent's submission that he handed over the second car to the appellant to continue with the public transport and the appellant was to get a commission as consideration for driving the car. As this fact was not part of the evidence on record, it ought to have not been admitted. By admitting it the first appellate court offended the rule that bars appellate courts from admitting fresh evidence unless it was not available to the party seeking to use it at the trial or that reasonable diligence would not have made it so available (see AS Sajan Vs. Cooperative and Rural Development Bank (1991) TLR 44). In conclusion, the learned counsel argued that the appeal be allowed and the decision of the first appellate court be quashed and set aside. Page 4 of 11 Rebutting the first ground of appeal, the respondent submitted that the first appellate court did not err in reevaluating the evidence and in arriving at a different finding. In fortification, he cited the case of Peter vs. Sunday P°st [1958] E.A 424 where it was held that the appellate court has powers to review the evidence to determine whether or not the conclusion of the trial court should stand. Exercising this right, the first appellate court, having analyzed the evidence on record, correctly established that the respondent proved his case on the balance of probabilities and it consequently reversed the trial court's decision. Thus, it cannot be faulted. On the second ground of appeal, it was submitted that the court did not err in awarding the respondent a sum of TZS 3,000,000/ as compensation. Clarifying this point further, the respondent argued that the fact that the sum awarded was not prayed for in the plaint is non-fatal and is inconsequential as the award may be granted to meet the ends of justice under the general prayer for any other relief that the court deems just and fit to grant. The second ground is, therefore, lacking in merit and should be dismissed for want of merit. On the third ground, it was submitted that it was without merit and should be dismissed as no new evidence was rendered in the first appellate court. The first appellate court solely analyzed and relied on the evidence recorded during the trial. Summing up the submission, the respondent cited the decision of the Court of Appeal in the case of Martin Kikombe vs Emmanuel Kunyumba (Civil Appeal 201 of 2017) [2020] TZCA 224 (13 Page 5 of 11 May 2020) TanzLII and argued this court to restrain from disturbing the concurrent findings of the lower courts. I have considered the rivalry submission from both parties. As stated earlier, this appeal is based on three grounds of appeal. Before I embark on these grounds I will provide a brief account of the evidence on record. While reading the record, I observed that the respondent's evidence constituting his oral testimony, the oral testimony of PW2 and documentary evidence was that he orally agreed with the respondent to trade on public transport. In the execution of this agreement, they resolved to buy a car make Toyota Noah. Each of them contributed TZS 4,500,000/= to the purchase. The car started to operate as a commuter bus with the appellant serving as its driver. They opened a joint bank account in for depositing the proceeds from the business. After they had collected TZS 3,400,000/= in the bank account, they resolved to buy a second car make Toyota Noah which was sold at TZS 9,000,000/=. As they did not have the whole sum, they paid an advance of TZS 3,000,000/=. The respondent sourced the remaining sum through loans obtained from NMB Bank, one George and from Postal Bank. The appellant started to operate the 2nd car as its driver. From its proceeds, he repaid the loan that the respondent had obtained from Postal Bank to settle the loan owed to George. It was stated further that, after repaying the loan, the appellant breached the agreement. He appropriated the car and did not deposit any money into the joint account. The respondent told the court further that the first car was underperforming. He sold it. Asked about Page 6 of 11 the proceeds of the sale, he stated that he kept it in his persona! account and never shared the same with the appellant. The appellant admitted the existence of the agreement between him and the respondent. He maintained that the two cars were jointly acquired. He also told the court that, they agreed that, after the acquisition of the second car, each of them should keep one. And, for that reason, he kept and operated the second car while the respondent kept the first car which he later on sold without consulting him and as stated above, he kept the proceeds of the sale to himself. The trial court found this story credible. It dismissed the suit and condemned the respondent to pay the costs of the suit. Reversing this finding, the first appellate court held that there was no evidence that the appellant contributed to the purchase of the second car and he was therefore, its mere driver and not its co-owner. It consequently condemned him to refund the purchase price for the second car. As for the prayer of TZS 5,000,000/=, the appellate court found it to have not been proved but it awarded the appellant a sum of 3,000,000/= to compensate the loss of profit encountered by the respondent. Reverting to the ground of appeal, as correctly submitted by the respondent, the first appellate court is enjoined by law to re-assess the evidence on record and come up with its finding which may not necessarily resemble the trial court's finding (see Peter vs. Sundaypost (supra). In exercising this duty, the first appellate court is enjoined to determine whether the evidence on record supports the trial court's finding. Page 7 of 11 It is a trite law in our jurisdiction that the burden of proof of a certain fact rests on the person who wishes the court to believe in its existence. That is, it lies on that person who would fail if no evidence at all was given on either side (see sections 111 and 112 of the Evidence Act, Cap 6 R.E. 2019). And, as correctly submitted by Mr. Deogratias, the standard of proof is proof on the balance of probabilities meaning that the party whose evidence is heavier than that of the other must win the case (see Hemed Said v. Mohamed Mbilu (supra). Also, as correctly submitted by the respondent, it is similarly trite that where there is a concurrent finding by the lower courts, the second appellate court should restrain from disturbing it unless there was misdirection or misapprehension of the law or evidence. In the present case, there is no concurrent finding. As already stated, the trial court found the respondent to have failed to prove his case while the first appellate court found him to have proved it. This being the case, I have carefully examined the record to see which of the two findings is sufficiently supported by the evidence. Mindful of the principle above as regards the burden of proof, and bearing in mind that the respondent was the plaintiff in the original suit, I have asked myself whether he discharged his burden of proof. Being the plaintiff he had to prove that the appellant breached the agreement by unlawfully appropriating the second car to which he had no contribution to its acquisition. From my scrutiny of the record, I have found him to have miserably failed. As per the trial court's findings to which I fully subscribe, the evidence on record credibly demonstrates not only the existence of the oral partnership Page 8 of 11 agreement between them but also the contribution of the parties in the acquisition of the two cars. PWl's evidence implicitly suggests that the advance payment of TZS 3,000,000/= for the second car was drawn from the joint account which they used to deposit the proceeds from the first car which was jointly procured. Since the parties contributed equally to the acquisition of the first car, there was a rebuttable presumption that each of them had an equal share of the proceeds earned. This assumption was never rebutted. The respondent's assertion that the appellant never contributed to the purchase of the 2nd car was empty and inconsistent with the evidence on record which, as narrated above, implicitly demonstrated that the appellant just as the respondent, contributed half of the advance payment of TZS 3,000,000/=. It also demonstrates that his second contribution was in the TZS 2,500,000/= owed by the respondent to Postal Bank. Both parties are in agreement that, the repayment of this sum was from the earnings of the second car which was being operated by the appellant. I also subscribe to the finding by the trial court that holistically, the evidence on record suggests that the respondent was running the first car and, presumably, used its proceeds to repay the loan he obtained from NMB Bank. I am fortified in my finding by the multiple loopholes in the respondent's evidence as are hereby pointed. First, he did not state, where the advance payment of TZS 3,000,000/= came from hence the assumption that it was drawn from the joint account which at the purchase of the 2nd car had a balance of 3,100,000/=. Second, he did not state what happened to the first Page 9 of 11 car and how the loan from NMB Bank was repaid. The omission, considered alongside the fact that the respondent sold the first car and kept the proceedings to himself, corroborates the appellant's assertion that they divided the two cars amongst themselves and that, out of that, the respondent took the first car while the second car went to the appellant. Thus, there is no unlawful appropriation of the second car. Besides and as correctly submitted by Mr. Deogratias, there was no evidence of fraudulent misrepresentation in the transfer of the car and its registration in the appellant's name. The finding by the first appellate court that the appellant unlawfully appropriated was lucidly wrong and so was the finding that the appellant was a mere driver of the said car, not its owner. That said, I have found merit in the first ground of appeal and I allow it. The second ground of appeal will not detain me because the respondent's prayer for compensation of TZS 5,000,000/= to remedy the loss of profit was in the form of specific damages and hence could not be granted in the absence of proof. Since the first appellate court correctly observed that there was no such proof, it had no justification for awarding TZS 3,000,000. The prayer ought to have been dismissed for want of proof. The third ground of appeal is misconceived and without merit, as no new evidence was admitted at the appeal stage. In the foregoing, the appeal succeeds to the extent above. The decision of the appellate court and its decree are quashed and set aside. The decision Page 10 of 11 and decree of the trial court are, consequently, restored. Costs for this appeal shall be borne by the respondent. DATED and DELIVERED at DODOMA this 14th day of February 2025. J. L. MASABO JUDGE Page 11 of 11