PC CIVIL APPEAL NO

© THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA (CORAM: HON. AUGUSTINE RWIZILE) PC CIVIL APPEAL NO. 000004335 OF 2024 PATRICIA MUTAHYABAMU COMPLAINANT/ APPELLANT/ APPLICANT/ PLAINTIFF VERSUS OBA HASSAN SEGETA RESPONDENT / DEFENDANT JUDGMENT Fly Notes Facts Ratio Decidendi 2nd of August 2024 Hon. RWIZILE.: The respondent instituted a civil suit against the appellant at Ujiji primary court with a claim ofTZS 4,725,000.00, in Civil Case No. 145 of 2023. It was factually stated that on 1st August 2021 the appellant borrowed that sum of money from the appellant with the intention of paying it back in one month. Unfortunately, that was not done. The respondent therefore filed the case claiming for the same. The trial was conducted, and in the end, it was decided in favour of the respondent. The appellant was ordered to pay the same amount of money. Aggrieved, the appellant unsuccessful appealed to district court of Kigoma. This therefore is the second appeal in a protest that has advanced the following grounds: - l. That the Honorable Senior Resident Magistrate grossly misdirected herself in re-evaluation the evidence of both sides on record when she held that the Respondent had adduced heavier evidence which proved that the appellant owes the Respondent the claimed amount of TZS 4, 725,000.00 2. That the evidence as it was adduced by the Respondent regarding the claimed amount of TZS 4,725,000.00 was doubtful and hence the Honorable Senior Resident Magistrate ought to have reversed the decision of the Primary Court in favor of the Appellant Page. I Hon. AUGUSTINE RWIZILE 3. That in the circumstances of the case, the Honorable Senior Resident Magistrate grossly misdirected herself when she rejected the Appellant's prayer for adducing additional, documentary evidence, to wit . the police loss report concerning the Appellant's Work I.D of check No. 11390132 dated 13th January 2021 which had not been received in the evidence of the Appellant before the trial Primary Court but the same had sought to tender it in order to rebut the contents ofExhibits 'P-3' on record on which the trial Primary Court had relied to decide the case against the Appellant At the hearing, the appellant was under the services of Mr. Method Kabuguzi while the respondent was serviced by Mr. Sadiki Aliki learned advocates. The appeal was heard by way of written submissions. The appellant argued the 1st and 2ndgrounds of appeal jointly. It was his argument thatthe district court misdirected itself in re-evaluating the evidence of both side and uphold the decision of the trial court. It was insisted, the respondent had the duty to prove the case in terms of rule 1 (2) of the Magistrates' Court (Rules) of Evidence. It was argued further that the evidence of respondent was too shaky since it was from the respondent and her child. (Sml and SM2). In the similar tune, it was the argument of the appellant that exhibits Pl, P2 and P3 were not genuine. It argued, they were concocted to serve the case in court. On the side of the appellant's evidence, it was added, exhibit D l was tendered to refute the allegation. It was his further argument that the respondent's evidence lacked an independent witness. Mr. Kabuguzi went on submitting that the respondent's evidence was married by material contradictions from their oral testimony and exhibits tendered. It was lastly argued that the same exhibits were inadmissible because they were not stamped contrary to section 47(1) of the Stamp duties Act [Cap 189 of the RE 2019]. There was no argument on the 3rd ground of appeal from the appellant. Opposing the appeal, Mr. Aliki learned counsel also argued the 1st and 2nd grounds of appeal together.Before delving into the same grounds, the learned advocate pointed out that the appellant did not file submissions on 14th May but filed on 21st May 2024 out of the time given, and that it was done without leave of the court. In his view, this is contrary to the holding of this court, in the case of Ally Nassoro Sembogo and another vs Amina Mohamed, Land Application No. 936 of 2018, where it was held that failure to file submissions is akin to failure to appear to prosecute the case. I was therefore asked to dismiss this appeal for want of prosecution. On merits, it was submitted that the money given to the appellant was subject of a written loan agreement between them in tenns of exhibit Pl and P2. It was added that parties are bound by terms of contract and that the oral evidence is not a substitute of documentary evidence, as held in the case of Haruna Chakupewa vs Patrick Christopher Ntalukundo, Pc civil appeal no. 10 of 202. On concocting the documents, the learned counsel was of the view that, a criminal case was to be filed in order to prove the allegation. The respondent's counsel argued the third ground of appeal. He said, exhibit P3 was the appellant's identity card which was given as sort of security to prove that the appellant as a civil servant was able to pay the loan advanced. On the contrary, it was further argued that the appellant's efforts to tender a loss report of the same identity card failed before the trial court. The first appellant court, according to him was right to reject the prayer to tender it at Page.2 Hon. AUGUSTINE RWIZILE the appellate stage which was out of the procedure. This court was therefore asked to dismiss this appeal with cots. In rejoinder, Mr. Kabuzuzi submitted that the submissions were filed in time, because according to what they were told, filing was on 20th May and the same was electronically filed but payment was delayed due to failure of the court to issue a control number. He therefore prayed; the point be dismissed. I have gone through the submissions for and against this appeal. Before getting into the merits of this appeal, I have to first admit that, filing of submissions was done out of time prescribed. I agree with Mr. Kabuguzi that there may have occurred a miss-understanding on when the same had to be filed. The reasons given, in my view, are a sufficient excuse. I therefore proceed to determine the merits of this appeal. The issue for determination is whether the appeal has merit. This is the second appellate court facing the concurrent finding of the two lower courts. The way to deal with the concurrent finding of the two courts below, was stated in the case of Aloyse Maridadi v. Republic, Criminal Appeal No. 208 of 20 I 6, on page 6 where it was held that; - "The law is well-settled that on second appeal, the Court will not readily disturb concurrentfindings offacts by the trial Court and first appellate Court unless it can be shown that they are perverse, demonstrably wrong or clearly unreasonable or are a result of a complete misapprehension of the substance, nature and quality of the evidence; misdirection or non-direction on the evidence; a violation of some principle of law or procedure; or have 11 occasioned a miscarriage ofjustice. From the above case law, this court is bound not to interfere the concurrent finding except in the above stated circumstances. The record shows, there are two written documents exhibits Pl and P2. The 1st document showing the appellant borrowed money from the appellant. The 2nd document, the appellant affirming the delay of paying debt as agreed in the 1st document. At trial court, the appellant tendered her loss report dated 13.1.2021, exhibit D1, it shows that the appellant lost her voting card. Exhibits Pl and P2 have names of both the appellant and the respondent with their witnesses. The documents in my view, show the appellant borrowed the said amount from the respondent. In the case of Sospeter Ramadhani vs The Director of Public Prosecutions, (CAT), Criminal Appeal No. 239 of 2019, on page 13, it was held that; "There is, in this regard, a long and unbroken chain of decisions of the Court which underscores the fact that there is no provision of the law which prevents a relative or family member from testifying in cases involving relatives" It is clear to me, as it was to the two courts below that the evidence by the respondent proved her case at the required standard. This is because, witnesses are not counted but quantified. There is no law that prevents as it has Page. 3 Hon. AUGUSTINE RWIZILE been held, relatives to testify. If their evidence is believed as it was done, there is no reason to have doubt on the same. Lastly, the learned advocate for the appellant submitted that the two documents exhibits Pl and P2 are not admissible because they were not stamped. I do not think, this was proper. The point was not raised before the first appellate court, it cannot be raised now. It is therefore dismissed. In totality, I find no merit in the entire appeal. Accordingly, it is dismissed with costs. Dated at KIGOMA ZONE this 2nd of August 2024. AUGUSTINE RWIZILE JUDGE OF THE HIGH COURT Page.4 Hon. AUGUSTINE RWIZILE