final Judgment PAUL MGONI TANZLII

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB - REGISTRY AT MOSHI (PC) CIVIL APPEAL NO. 19397 OF 2024 (Appeal from the decision of the District Court of Rombo at Rombo dated 4th of July 2024 in Civil Appeal Number 00008056/2024 and originating from the decision of Mkuu Urban Primary Court in Civil Case Number 04/2024) PAUL MNGONI………..……………………………………..APPELLANT VERSUS BONIVENTURA SALEMA……………………….………RESPONDENT JUDGMENT 19th Sept. & 28th Nov. 2024 A.P.KILIMI, J.: This is the second appeal, the appellant lost the case in two courts below, undeterred has preferred his appeal in this court. Before delving into this appeal, I wish to highlight the genesis of this matter as gathered from the record of the two courts below. The appellant and respondent entered an oral agreement that the respondent should give the appellant a cow to be taken care by him, and further it was agreed that upon it giving birth, the first calf will be handed over to the respondent and the second calf be handed to the appellant. Then the said cow was handed to the appellant to execute the agreement. 1 The said cow gave birth and as agreed the first calf was handed over to the appellant, however the said cow did not give birth to the second calf. This caused them to agree the cow be sold in order to buy another cow which will be able to give birth to the second calf. After appellant sold the said cow, he neither bought another cow nor did he hand over the money to respondent. Then the respondent sued the appellant at Mkuu Primary court claiming at Tshs. 500,000/= being for the cow compensation, Tshs. 100,000/= being profits for each month since April 2023 and Tshs. 300,000/= as costs of the case and other general damages as court think and just to grant. Therefore, a total Tshs. 1,700,000/= was claimed at the trial court. After hearing on merit, the trial court decided in favour of the respondent by ordering the appellant to pay respondent Tshs. 539,000/= being the amount the said cow was sold. Being aggrieved with the decision of the trial court the appellant appealed to the District court with ten grounds. This first appellate court was of the view that since appellant sold the cow and did not honour the agreement entered with the respondent of buying another cow that will give birth to another calf, thus Appellant is the one who breached the 2 agreement. However, rejected on how the price of the said cow was reached by the trial court and consequently ordered the amount to be determined after getting the price of the market value at the time when the cow was sold plus the costs of the said suit which is Tshs. 10,000/=. Thus, allowed that appeal to that extent. Moving this court as the second appellate court, the appellant has preferred the following grounds intending to overturn the two court below decisions. Those grounds can be recapitulated as follows; First, that of the two court below mistook the evidence produced of the trial court especially the testimonies of SM1, SM2 and SM3. Second; That the decision of the 1st appellate court to hold that there was no evidence suggesting or indicating that appellant was handed meat worth Tshs. 529,000/= proves that the cow was slaughtered but no proof that appellant was handed anything to sell. Third; That the two Courts below failed to find that the case arose at a butchery and does not concern an alive cow but the meat worth Tshs. 529,000/=, the lower Courts did not evaluate evidence to ascertain that the said cow was slaughtered by the respondent at a butchery and whether its meat alleged to worth Tshs. 529,000/= was handed to appellant for sale. 3 In the ground number Fourth; the appellant faulted the finding of the trial Court that there was sufficient evidence as required by civil law while in fact there was no corroborate evidence to such effect. Thus, he was required to bring the evidence of owner of the said butcher any other person such as meat inspector to prove the same. Fifth ground he claimed that the 1st Appellate Court grossly misdirected not to consider appellant defense as he evidenced that he was sentenced to 17 years in jail in 1998 the fact which was not disputed by respondent. In Sixth ground he claims that the 1st Appellate Court grossly erred when failed to balance the evidence produced at the trial and wasted most of the valuable time to quote several higher authorities to fit the case at the hand and which didn't correlate with the appeal before her. Moreover, I have considered seventh and eighth grounds are more less grounds of appeal but rather shows that this Appeal is within time and this court has jurisdiction, and lastly the appellant prayed his appeal be allowed, thus the two lower Courts judgment be set aside with costs. In the instant appeal all parties were unrepresented, the appellant prayed this appeal be argued by way of written submissions, the respondent did not dispute but in his own will prayed this court to consider 4 his written reply to the grounds of appeal as are enough to dispose this appeal, thus told me he will be having no any submission so far to what is going in this appeal. In his submissions the appellant was very brief and avowed that there was no evidence to indicate that Appellant was handed cow’s meat to sell. Further faulted the first appellate court decision when failed to find the fact that since the evidence of SM1, SM2 alleged that the cow was taken from the care and custody of the appellant and slaughtered at a butchery, then the contract or agreement previously entered between the parties came to an end or rather ceased to exist. Thus, he said this was grave mistake occasioned injustice to the appellant who was ordered to pay a cow already slaughtered by Respondent. Arguing further, the appellant submitted that the source of the dispute arise after the cow was slaughtered for sale, but the 1st appellate Court failed to conceive that there was no evidence to show that appellant was handed the alleged cow meat. Thus prayed this court to quash all decisions of the lower courts. 5 On the outset, this being the second appellate court. It is a trite law that where there are concurrent findings of facts by two courts, the second appellate court should not disturb the findings, unless, it is clearly shown that there has been a misapprehension evidencing a miscarriage of justice or violation of some principle of law or procedure as it held in the case of Amratlal Damodar Maltaser and Another t/a Zanzibar Silk Stores vs A.H Jariwallatla Zanzibar Hotel [1980] TLR 31 and Bushanga Ng'oga vs Manyanda Maige [2002] TLR 335. I have considered the above brief submissions and the grounds raised above by the appellant, I think it will be convenient to divide appellant’s complaints in two-fold; first whether there was a proof of a valid agreement and appellant breached it, and second whether appellant’s defence that he was imprisoned was not considered. In the first fold, it is undisputable the agreement was oral, the same was witnessed by one Michael Joseph Massawe (SM2) and Maria Bonoventura Laswai (SM4). SM4 said she knew the appellant as they live in one hamlet. In their testimony said that the appellant and respondent agreed that the appellant should take care of respondent’s cow and upon giving birth the first calf will belong to the respondent. Therefore, as rightly 6 decided by the two courts below I also found the valid agreement was entered between the two. The next question depicted above on whether the said agreement was breached. Again, the two witnesses above said that the said cow did not gave birth to the second calf, therefore appellant and respondent entered another agreement the same should be sold and the proceeds to buy another cow in order to find the intended calf as per previous agreement. They also said the sale was affected but the appellant did not buy another cow or gave the sale money to the respondent. I have considered this evidence on record, in my view no any misapprehension of evidence by the two courts below, thus I concede with their decision that appellant failed to honour what they agreed with the respondent, thus breached the contract. In his defence the appellant said that since the cow was slaughtered then the contract or agreement previously entered between the parties came to an end or rather ceased to exist. I have considered this defense, first it is not supported by any evidence, and second is a new matter which the appellant did not raise it at the trial court. It is a trite law an appellate court cannot allow matters not taken or not pleaded in the Court below to 7 be raised on appeal. (See Hotel Travertine Limited vs National Bank of Commerce Ltd. (2006) TLR 133 at page 141. Thus, this assertion in lieu of the above authority is disregarded. In the second fold, it is true in his defence the appellant said he was imprisoned for 17 years and rejected to be handed the said cow by the respondent, however to support his assertion at the trial he brought one witness named Felix Mngoni Kimario (SU2), this witness told the trial court that the appellant is his young brother from the same father and mother, he said he didn’t know the appellant claim, but he was followed by appellant and told about claim of a cow from the respondent. Thus, I am settled the appellant did not prove that at the time of the said agreement he was in prison. It is trite law that, a person who moves the court to decide a certain fact in his favour must prove it. See Paulina Samson Ndawavya v. Theresia Thomasi Madaha Civil Appeal No. 45 of 2017 (unreported). I have considered the evidence of the appellant above and that of his witness SU2, I have the following view, first SU2 did not support appellant’s evidence, second the evidence of SM1, SM2 and SM4 depicted that the appellant lived with them in the same locality and knew him very 8 well, therefore the fact they witnessed the said agreement and its breach thereof, I am of considered view their evidence become more credible than that of the appellant that he was in prison. I am fortified by the decision of the court in the case of Mary Agness Mpelumbe vs Shekha Nasser Hamud (Civil Appeal No. 136 of 2021) [2022] TZCA 408 (TANZLII). When had this to say; “The burden of proof lies with the party who makes an allegation, and in a civil case, the standard of proof is on a balance of probabilities. This means the Court will uphold evidence that is more credible than that presented by the opposing party regarding a fact to be proven.” For the foregoing I am in all fours with the two courts below findings that the appellant entered the said agreement and breached as explained above. Thus, this appeal fails miserably. The next issue to be ascertained by this court is the relief awarded by the two courts below, while the trial court ordered the appellant to pay the respondent Tshs. 529,000/= being the money obtained after selling the meat, the first appellate overruled this amount and ordered the amount to 9 be determined after getting the price of the market value at the time when the cow was sold plus the costs of the said suit which is Tshs. 10,000/=. I have revisited the trial court record to see how the said amount was attained, according to the record on 13th February 2024 the respondent tendered document evidencing the weight in terms of kilograms of the said cow’s meat which shows it accumulated a total of Tshs. 529,000/=. The said document was not objected by the appellant and for the purpose of clarity I reproduced what transpired after tendering of it; “M daiw a:- Karatasi ni yeye aliandika ipokelewe nitauliza maswali. Saini: D. T. M ALLYA HAK I M U 13/ 2/ 2024 Am ri:- Karatasi ya tarehe 24/4/2023 imepokelewa nakupewa alama exhibit P.1. Saini: D. T. M ALLYA HAK I M U 13/ 2/ 2024 Hoja za SU1:- SM1 (kuhusiana na kielelezo) Madai yangu yalihusu ng’ombe niliyokuwekezea na hujanirudishia. Nyama uliuza wewe, mimi nikaandika 10 kwenye karatasi. Sikuzuia asichinjwe, tulikubaliana ng’ombe auzwe ili pesa inunulie ng’ombe mwingine ili umfuge, upate ndama wako ndipo nimchukue ng’ombe wangu, wewe unaniita mjomba na ndiyo maana nilikuamini. Saini: D. T. M ALLYA HAK I M U 13/ 2/ 2024” What I discern from the quoted excerpt is that, first; the appellant did not object its admissibility, second; he had also a chance to cross- examine the witness on the genuine of the said document. Then I have considered questions imposed to the respondent and answers thereto, the appellant did not question on the amount reached after the said sale. Therefore, in my view since the said document was admitted without objection and the fact that the appellant failure to cross- examine respondent on the said amount accumulated after that sale, in my considered view the said amount was justified and cannot be denied by the appellant. I wish to restate the principle that it is trite law that failure to cross- examine a witness on an important matter ordinarily implies the acceptance of the truth of the witness evidence. (See Bomu Mohamed vs Hamisi Amiri (Civil Appeal No. 99 of 2018) [2020] TZCA 29 (TANZLII). 11 It is for the foregoing reasons therefore, I am settled in finding that the trial court decision was justified, consequently I reverse the first appellate court order of finding the price of the market value at the time when the cow was sold, and I hereby restore the trial decision which ordered the appellant should pay Tshs. 529,000/= to the respondent. On the whole therefore, I find no merit in this appeal which I accordingly dismiss in its entirety with costs. It is so ordered. DATED at MOSHI this 28th day of November, 2024. X JUDGE Signed by: A. P. KILIMI Court: Judgment delivered today on 28th day of November, 2024 in the presence of both appellant and respondent. Sgd; A. P. KILIMI JUDGE 28/11/202 12 Court: Right of Appeal duly explained. Sgd; A. P. KILIMI JUDGE 28/11/2024 13