20180221 TZHC Mwanza

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IN THE HIGH COURT OF TANZANIA

AT MWANZA PC. CIVIL APPEAL NO. 57 OF 2017 {Arising from Civil Case No. 171/2016 in the Mwanza Urban Primary Court, Appeal from de~ision of Nyamagana District Court at Mwanza, Civil Appeal No. 7 of 2017} /,, RICHARD ATHANAS MABULA ................................ APPELLANT

VERSUS LYDIA GAMA MBISE ........................................ RESPONDENT

JUDGMENT 15/12/2017 & 21/2/2018 --- - ---- - The appellant successfully filed a suit against the respondent before Mwanza Urban Court at Nyamagana (trial court). On appeal by the respondent, the District Court of Nyamagana at Mwanza turned down the verdict of the trial court by ordering trial denovo. Aggrieved by the decision_ of the 1st appellant, court, the appellant filed his petition of appeal containing three grounds of appeal, to wit; 1. That, the honorable learned Magistrates erred in law and fact by delivering the judgment in favour of the weight basing on facts which were not at issue 2. That, the honourable learned Magistrates erred in law and fact in entertaining the appeal against the ~eight of evidence on records ~ adduced by the appellant during trial _ ,,,,,~ (,_ 1 ,...

3. That, the honourable learned Magistrates erred in law and fact by delivering the judgment in favour of the respondent while the appellant managed to prove his case to the balance of probability During hearing of this appeal, both parties had legal representation, one Edwin, the advocate who also appeared before the 1st appellate court representing him (appellant) whereas the respondent enjoyed the legal service of advocate Sodoka. Vigorously supporting the appellant's appeal, Mr. Edwin, argued in in respect of 1st ground appeal that the 1st appellate court erred in law basing its decision on the cheques issued by the respondent while issue of cheques were not contentious during trial . Regarding the 2nd and 3rd ground of appeal, the _9 ppellant'_co.unsel.- . --- - - -- submitted that the Di-strict- Court -wro~;ly .ignored the documentary evidence, namely, delivery note and calculations tendered and received by the trial court for evidential value. Opposing the appeal, the learned counsel for the respondent briefly argued that the trial decision was legally wrong due the reason that the chegues admitted in evidence were not drawn by the respondent by one person known by the names of Lidya Hassan Mwanambali and that the payees of the two cheques was not the appellant but a person called John Chambikasekele. Replying to the submission by the respondent's counsel, Mr.

Edwin, stated that the 1st appellant court was not justified in setting aside --.. proceedings and judgment and judgment of the trial court on grounds, ~ 2 firstly, that the respondent admitted to have been indebted to the tune of Tshs. 900,000/= and secondly, failure to consider that the calculations admitted in court. It is as rightly held by the trial court that weight of evidence does not depend on a number of witnesses but on the credibility of witness and testimony given in court. It is, my considered view, the trial court's decision must always base on credibility of witnesses as it has been consistently stressed in various judicial decisions for instance in Mari Ahmed v. Republic (1983) TLR 52-CAT and Hemedi Saidi v. Mohamedi Mbilu1984) TLR 113). In our case, the appellant was only a witness who managed appear and adduced his evidence that the respondent was indebted for Tshs. 6, ---- 600, 000/ =and he tendered some documents, namely; delivery note (PE1) dated 22 nd April 2016 establishing that the respondent was given biscuits products worthy Tshs. 46, 579, 000/ = two cheques (PE2 collectively) drawn in favour of John Chambi Kasekele, one cheque dated 28th April 2016 worth Tshs. 9, 900, 000/ = and another worth Tshs. 9, 900,000/ =dated 2 nd lune 2016 and a copy of written calculations in the exercise book. ' I am in agreement with the appellant as to the 1 st ground of

appeal that the 1st appellate court could not have been justified to deal with issue which was not contentious during trial or issues which were not framed, but as it is, in the record, the trial did not frame issues as required for under Rule 44 of the Magistrates' Courts Act (Civil Procedures in Primary Court) Rules, G. Ns 310 of 1963 and 119 of 1964, prior to the hearing~ 3 ,;. of the case only that issues for determination were framed by the learned trial magistrate during judgment preparation. However since the documents ( chegues (PE2) were tendered by the appellant and the same were evidential admitted, it was not wrong for the 1st appellate to make a scrutiny or ascertain their weight. As rightly found by the 1st appellate court, the names of payee and drawer of the cheques collectively tendered as PE2 are different from those of the parties; this explanation ought to have been given during trial. Regarding the complaints on evidence adduced before the trial court and therefore on record which answers ground no. 2 and 3 of the appellant's appeal. It was the duty of the 1st appellate court to carefully re-evaluate evidence adduced by the parties and come up with its findings bearing in -- mind that proof in civil cases is on balance of probabilities. In Manager, NBC, Tarime v Enock m. Chacha (1993) TLR 228, it was judicially demonstrated that; "It is a cardinal principal

of law that in civil cases there must be proof on the balance of the probabilities. In this case, it cannot be said that the scanty evidence adduced in this Court proves in any way what is alleged in the plaint. There must be proof of the case on the standard by law which is on the balance of the probabilities even when a case proceeds ex-parte like in this case .... In the present case, if I am to look at the evidence adduced by the plaintiff now appellant I am not convinced at all if the appellant proved his case at the standard required as he merely stated that he claimed Tshs. 6, ~ . 4 600, 000/ = and the PE3 are not self explanatory to hold the respondent liable of the claimed amount as the same calculations are not clear if they amount to respondent's admission to debt or merely names of persons who bought the biscuits products on credit. While I am aware that the evidence of a single witness may suffice in proving a civil suit, yet with piece of evidence adduced by the appellant no prudent person can say that there was sufficient evidence to support the claim of Tshs. 6, 600, 000/ =. As to the additional ground raised during oral submission by the learned counsel for the appellant that the 1st appellant court was not justified in nullifying the entire proceedings and decision of the trial court on the ground the respondent admitted part of the amount claimed. I candidly

find this ground of appeal to be meritorious as it is vividly seen from the record that the respondent admitted to be indebted in the tune of Tshs. 931, 000/ = (see page 3 of the typed proceedings of the trial court), it follows therefore some amount admitted ought to be taken as proved and be recorded. In our case the respondent's admission had been correctly recorded as required under Rule 44 of the Magistrates' Courts Act (Civil Procedures in Primary Court) Rules, G. Ns 310 of 1963 and 119 of 1964, also the Court of Appeal had an opportunity to discuss on admissions of claims in civil proceedings in Asolele General Agencies v. African Inland~ Church Tanzania (1994) TLR 192 and had this to say; 5 "Once a claim for a specific item is made, that claim must be strictly proved, else there would be no difference between a specific claim" See also Finaughty trading as Hi-Way Service and Engineering v. Prinsloo [1958] 1 EA 657. This being the position of the law as provided by the provision of the law and judicial precedents cited above, I am the considered view that the 1st appellate court wrongly set aside the whole proceedings and judgment of the trial and it did not consider the respondent's admission of part of the appellant's claims. In the final result, this appeal has no merit save to the amount so admitted by the respondent during trial. Since it is not easy to

determine the amount paid to the appellant and what extent of money is still owing to the respondent as well as unexplained difference on the names appearing on the cheques (PE2), for interest of justice, I am justified to order trial denovo of the matter as ordered by the 1st appellate court on the contentious amount of money claimed. Trial de-nova shall be heard from 20th December 2016 where the trial court ended and by a different magistrate. Each party to bear its own costs Order accordingly. Order accordingly. M.~ Judge 21/02/2018 Right of appeal fully explained. 6 -,;f" t"t-'- 'l 7