19771117 TZHC Mwanza

IN THE HIGH COURT UF rANZANiA C (DIn the District (., gistry) AT i4ANZA •. .: (PC) CIVIL ?PAL 1 JO 0 171 0F975 (From the decision of tha district court of NUSONA distrIct at.flUSQM in civil a.Ua1 No.0 37of 1974) Befo J. i iUII sç R JIDENT GI 3TI TE' (Or±ginal 3wai Primari Court C l Cae No 33 of 1973 PAULO JIBZ1I 0 00 0 0 0 0000 0 0 00 0 00 0 0 00 00 0 0 0 0 0 00 0000 00 CC 0 0 0 b .. 0 0 od 0000 0 0.;p?ELLANT vc MAINGU 1,1ATEKELE0 '0 0000 000000.000 000.00.00 o:oo.o 0000 00.0 0.00000 .RESPONDENT 0• .. -OoO-

JUEGMENT MFALILAO J. In the primary Court of Musoma district, at Bwasi.the. p.pl1atit ...... Paulo Jibai succes.fully sued the respondent Ilaingu r4atekele for the payment of an alleged debt of 3hs0 1000/= which the respondent received as a loan under a written agreement produced in the primary Court as Exhibit 10 The respondent resisted this claim denying that he receivud any loan from the appellant and denied the authenticity of the writtei-i agree- ment produced by the appellant0 On his part the appellant said that he gave this loan to the respondent when the latter requested him for the purposes of running a business0 He said that apart from reducing this agreement into writing the actual hand-over was witnessed by his own wife one Esther who did not give evidence at the trial 0 After hearing evidence the primary Court held that the document which was produced by the appellant showed that not only did the respondent acknowledge receipt of this money but he also signed it in the presence of his wife Esther0 On this finding the primary Court held that the apel- lant had proved his case and awarded him judgment as prayed0 Against this decision the respondent appealed to the district Court at Musoma. The district Court held that the whole case depended on ti-ic docu- ment, Exhibit 1 and that as this document was not properly proved the appellant could not be said to have proved

his case against the respondent. The learned Resident Magistrate held that this document was not witnessed by anyone nor was it signed by the recipient of the loan hence its authenti. city depended on the word of the apellant against that of the respondent0 On this balance the appellant could not be said to have proved his case on a balance of probabilities0 On this basis the district Court allowed the appeal with cots0 Against this decision the appellant appealed to this Court complaining that the district Court was not justified in setting aside the judgment of the orimary' Court as he had lad enough evidence to prove his claim against the respondent0 0 On the state of the evidence both oral and documentary I think that the decision of the district Court was correct0 If this document proo- duced by the appellant is genuine then the appellant has only himsàlf to b1me for having agreed to lend so much money under such a loose arrange ment0 I cannot imagIne what prevented him from insisting that the respondent sign the document in front of an independent witness preferably a cell leader who should also have sIgned the document0 He claimed in ti-ic primary Court that this transaction was witnessed by his wife0 Despite this claim he did not even think it necessary to call his wife to give evidence. The Resident Magistrate was therefore correct in insisting on strict proof of all

the allegations made by the aenellant against the respondent0 For this is actually in accordance with Rule 1 (2) of the Rules of Evidence in Primar Courts which provides as follows: "Where a p sb. mtkes a claim aginst another in a civil case, the claimant must prove all the facts necessary to csabish the claim unless the other rarty (that is the defendant) admits the claim - In the Drc'er1t cse the apllnt all gc icridirig a sum of noiej to the respondent0 This was denied; it was upon irn to arove -this allegation. He alleged that this transaction was reduced to writing0 The authenticity of the document which 'hëroducPd was denid he therefdehad to prove this0 Apart from his own o.rd thero ..ws no other evidence to suinort his allegations0 So that like the Resident Maqistrate I find that the appel- lant failed, to dicharge hs burden as raguired under rule 1 (2). of the Evidence Rules in Primary Courts0 Accordingly 1 find that the decision Of the Resident Magistrate was correct and that he rightly allowed the appeal. or these rsor1s, this apeal is dismissed and as neither parv . appeared there will be no order for costs0 --