richard j kamanya vs elius s elizeus 2022 tzhc 12354 31 august 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA * SUB- REGISTRY OF MWANZA IN THE AT MWANZA PC CIVIL APPEAL NO 14 OF 2022 (Arising from Civil Appeal no. 11 of2021 ofllemela District Court and originating from Civil case no. 26/2021 of liemeia Primary Court) RICHARD J. KAM ANYA............................. APPELLANT VERSUS ELIUS S. ELIZEUS............................................... RESPONDENT JUDGMENT 26“ My& 31st August, 2022 Kahyoza, J.: This appeal emanated from a simple contract. Elius Elizeus (Elizeus) hired from Richard J. Kamanga (Richard) a motorcycle on an agreement to pay at least Tzs. 70,000/= weekly. It was agreed that Elius Elizeus would pay a total amount of Tzs.3,200,000/=within a period of 11 months and retain the motorcycle as his own property. Before 11 months expired and when Elizeus had paid an amount of Tzs 2,100,000/= Richard took possession of the motorcycle contending that Elizeus breached the contract. Elizeus sued Richard in the primary court. The trial court found in favour of Elizeus, that Richard breached the contract. Richard appealed to the district court where he also lost the appeal. Dissatisfied, he appealed to this Court. i Richard raised six grounds of complaint,, as follows: - 1. That, the District court Resident Magistrate erred in law and on facts by failure to observe the defect that, the trial court delivered the judgment without first taking and recording the opinion of Gentlemen Assessors of the court, thus summing up for the said Assessors without giving reasons thereof, hence rendering the whole proceedings null and void. 2. That, the District Court Resident Magistrate erred in law and in fact after upholding the decision of trial court and wrongly interpreting the ground of new issues raised by trial court without any justification therein, hence, reached on erroneous decision. 3. That, the District court Resident Magistrate erred in law and in fact by upholding the trial findings that respondent fault to adhere payment as agreement caused by sickness, without any supportive evidence on those hence erroneous findings and decision. 4. That, the District Court Resident Magistrate erred in law and in fact by upholding the trial findings that unpaid amount of 896,000/= Tanzania shillings was for two weeks. 5. That the Resident Magistrate erred in law and in facts after deciding on respondent favor and failure to observe that (it) is the respondent who breached the terms and condition stipulated in the contract. 6. That, the District Court Resident Magistrate erred in law and on facts by uphold the trial findings and failure to consider the weight of evidence adduced by parties. The appeal was heard by way of written submissions. 2 I will commence with the first ground of appeal. To support the ground of appeal, the applicant submitted that assessors are part of court and a magistrate is bound to consult and take their opinion. To support his position, he cited the case of Agnes Malida v. Richard Mhamelo (HC- Dodoma) [1995] T.L.R 137 where it was held that- "the omission by the trial magistrate to take the opinion of the second assessor was fatal and it rendered the purpotedjudgment null and void" He submitted further that the trial court passed the judgment on its own findings without assessor's view or comment. The appellant cited the Suzana Joseph v. Wambure Ihambe [1992] TLR 375 where it was held that- "It seems that neither the trial magistrate nor the appellate magistrate is aware of the Magistrate Courts (Primary Courts) (Judgment of court) Rule, Government Notice No. 2 of 1988. I would particularly draw their attention to Rule 3 thereof which puts an end to the practice of summing up to the assessors. The assessors are to be consulted for their opinions after the conclusion of the evidence without preliminaries" He conducted that the trial primary court did not consult the assessors at all and the said magistrate apparently summed up to the said assessors and therefore contravened rule 3 of the Magistrate Courts (Primary Courts Judgment of Courts) Rules. The judgment of the trial 3 primary court was null and void, as held in the case Agness Severin v. Musa Mdoe (supra). The Respondent replied that the trial magistrate consulted the assessors. He submitted that the fact that assessors signed the judgment is a proof that they were consulted as the trial court is not required to record their opinion. He cited the case of Neema Mamase Toya v. Damian Mlinga v. Damian Mlinga Civil Appl No.25/2002 and Buromo Sospeter & another v. Salvatory Benyenga Civil Appeal No. 32/2022(Kigoma HC) where Mugeta J, held that: - "One cannot detect that there were consultation of the trial court members, magistrate and two assessors because there is no has requiring the outcome of their consultation... recorded. Their consultation is reflected by their signatures put at the bottom of the judgement". I will not dwell on this issue as law is settled: the trial primary magistrate sitting with assessors is required to consult them before writing a judgment. He is not required to write down their opinions or record the consultation. The law states that, where they unanimously agree they all sign the judgement. If after consultation, the trial magistrate and assessors do not agree the magistrate writes down the judgment of the majority members who will sign it. Then, he writes the judgment of a disserting member and call upon that member to sign his dissenting 4 judgment. In the present case, there was a unanimous judgment as all members of the primary court signed the judgment. The fact that all members unanimously signed the judgment signifies that the trial magistrate consulted assessors who solidly agreed to the outcome. I therefore, find the first ground of appeal baseless and based on speculation. I dismiss it. I will move to the second ground of appeal. I was not able to appreciate the second ground of appeal. I think the appellant must have intended to state that the trial court wrongly interpreted the contract and the district court failed to see that. The appellant submitted that it was wrong for trial court to contend that the respondent was required to remit Tzs 3,200,000/= within two weeks. He submitted that according to paragraph 2 and 4 of the contract the respondent was required to remit a minimum of Tzs. 70,000/= weekly, which is 10,000/= per day and 140,000/= for two weeks. He conducted that the trial court raised a new issue that is to what extend and how respondent can afford to collect three million and two hundred thousand per two weeks? He contended that the issue raised by the trial court was not backed up by record. He contended that the trial court was trying to put words in the witness' mouth. He cited the cases of Juma Ramadhani Lukindo v. Halima Ally Land appeal no. 100/2008 (unreported HC Tanga) DPP v. Mirzai 5 Pirbakhishi @Haji& 3 others Cr. App No,493/2016 and Fatma Idha Salum v. Kahlifa Ikhamis Said, Civil Appeal No. 28/2002 where it was held that: - "it is for this reason that we are saying that both District and Regional Court had no mandate to decide upon issue which was not raised before the said courts through pleadings". He prayed the second ground of appeal to be upheld. The respondent submitted that the trial court did not advance the issue of raising Tzs. 3,200,000/=suo mottu. He submitted that the court proceedings accelerated the issue. He submitted that paragraph 4 meant that failure to pay the amount mentioned within two weeks the appellants was to take his motorcycle. He reproduced paragraph 4 of the agreement. Parties to a contract have a duty to respect the terms of contract. Courts have to give effects the terms of contract unless they are vague, ambiguous or unreasonable, it is when court may interfere. Paragraphs (2) and (4) of the contract under consideration stated that:- (2) Mwendesha pikipiki atatakiwa kuwasilisha hesabu za marejesho kwa wiki ambapo kiwango cha chini kwa wiki kitakuwa ni shilingi 70,000/= (3)N.A 6 (4) Endapo atashindwa kurejesha pesa hiyo tajwa hapo juu kwa muda wa wiki mbili bila sababu za msingi, mwendesha pikipiki atanyang'anywa pikipiki hiyo bila kuangalia kaiendesha muda gani? The trial court interpreted paragraph 4 as referring to Tzs. 3,200,000/= and not to Tzs. 70,000/= as stated in paragraph 2.1 am of the firm view that the trial court wrongly construed paragraph 4 as referring to Tzs. 3,200,000/= instead of weekly remittance of Tzs. 70,000/=.. The first appellate court upheld the trial court findings. Both courts erred. It is clear that paragraph 4 refers to paragraph 2 as it stated that upon the respondent's failure to remit the specified amount for two weeks he has breached the contract. The respondent was required to remit Tzs. 70,000/= weekly and not Tzs. 3,200,000/=. I am alive of the settled law that a second appellate court can only interfere with concurrent findings of facts of the two courts or tribunals below where it is satisfied that the courts or tribunals have misapprehended the evidence in such a manner as to make it clear that its conclusions are based on incorrect premises. See Salum Bugu vs Mariam Kibwanga Civ. Appeal No. 29/1992. The Court of Appeal in another case of Amratlal Damodar Maltaser and Another t/a Zanzibar Silk Stores Vs. A.H Jarlwalla tla Zanzibar Hotel [1980] T.L.R 31 where at page 32 the Court of Appeal stated- 7 "Where there are concurrent findings of facts by two courts, the Court of Appeal, as a wise rule of practicing should not disturb them unless it is clearly shown that there has been a misapprehension Of evidencing a miscarriage of justice or violation of some principle of law or procedure." In the present appeal, two courts below misinterpreted evidence, hence, this second appellate court may interfere. The contract is clear the respondent was required to pay Tzs 3,200,000/= with 11 months and retain the motorcycle. He was required to pay at least Tzs. 70,000/= weekly. Paragraph 4 of the contract referred to paragraph 2, thus, if the respondent failed to remit 70,000/= weekly for two weeks the appellant was entitled to take the motorcycle. I uphold the second ground of appeal that the trial court and the District Court erred to hold that the contracts required the respondent to pay Tzs. 3,200,000/=within 2 weeks. The appellant argued the third and fourth grounds of appeal jointly. He stated that the respondent did not adduce evidence why he failed to remit the agreed amount. It was during the cross- examination when he stated that he could not remit the agreed amount as his child was sick for two weeks. The appellant contended that the respondent did not tender evidence to show that his child was sick nor did his witnesses prove that they had a sick child. 8 He submitted that the respondent was required to prove the allegation that his child was sick. He cited the case of Mohamed Selemani v. Fatuma Ally Land Appeal no. 178/2010 (Tanga HC unreported). He added that the respondent had not paid Tzs 896,000/= at the time he seized his motorcycle from the respondent. He contended further that the respondent's default was for more than two weeks. He contended that even if it was accepted that the respondent had a sick child for two weeks, the respondent was not in the position to pay Tzs. 896,000/= for two weeks. The respondent's submitted that he had paid Tzs. 2,106,000/= out of Tzs. 3,200,000/= which was agreed so that the respondent may retain the motorcycle. He submitted that due to inhumanity of the appellant and without considering the amount of money he had remitted, he took over the motorcycle without giving the respondent more time to accomplish the contract. The respondent submitted that he failed to pay Tzs. 896,000 because of sickness of his children. He contended that the respondent committed himself to make all remittances and balance due within the remaining term of the contract but the appellant unreasonably declined and took the motorcycle before expiration of the contract term. 9 Having heard the rival submissions, I state that parties had agreed that the respondent should remit at least Tzs. 70,000/= weekly. They agreed further that if the respondent fails to remit Tzs 70,000/= for two weeks without assigning good reasons the appellant may take the motorcycle regardless of the amount the respondent has already remitted, f The terms might be too harsh and the respondent's advocate referred to as inhuman, but that is what parties agreed with free will to be bound. The respondent did not dispute that he had not remitted a certain amount of money as per the contract. He argued that the appellant took the motorcycle without taking into consideration the fact that the respondent had sick children and before the contract came to an end. It is settled that terms of agreement parties freely entered, bind them and this is a fundamental principle of law of the contract. Unless the terms are illegal, ambiguous or against the government policy, courts must enforce them. Courts must give effect terms of contract parties entered with free will. See Simon Kichele Chacha v. Aveline M. Kihawe Civil Appel No. 160/2018(CAT unreported) where the court of appeal quoted its decision in the case of Abualy Alibhai Aziz v. Bhatia Brothers Ltd [2000] T.L.R 288 where it was held that: - "The principle of sanctity of contract is consistently reluctant to admit excuses for nonperformance where there is no incapacity, io no fraud (actual or constructive) or misrepresentation, and no principle of public policy prohibiting enforcement" I reviewed the contract to find out if there was any actual or imputed fraud or misrepresentation. Having considered the respondent's evidence, I could not find any reasons for not remitting the agreed amount of money. It was during the respondent's cross- examination when the respondent stated that he could not remit the agreed amount of money as his children were sick. I find this to be an excuse. The agreement bound the respondent to give reasons for failure to dispatch the agreed amount to the appellant. There is no evidence in his testimony that he informed the appellant that he was unable to remit money as he had sick children. The respondent violated one of the terms of the contract by his failure to notify the appellant reasons not remitting the agreed sum. I am of the view that the appellant did not breach the contract. It is the respondent who defaulted to remit the agreed amount for two weeks. The appellant was entitled to take possession of his motorcycle. Having answered the third and fourth grounds of appeal that the appellant did not breach the contract I have answered the fifth and six grounds of appeal. I will not waste time to consider them. In the end, I allow the appeal and hold that the appellant did not breach the aoreement bv seizino his motor cycle. He acted as per the 11 contract. I quash and the set aside the judgment of district court and that of the primary court. According to the agreement, the appellant has right to repossess the motorcycle and retain the amount of money the respondent had remitted. Given the nature of this case I make no order as costs. It is so ordered accordingly. DATED at Mwanza, this 31st day of August, 2022 II J. R. Kahyoza V JUDGE Court: ^^uSgnjerrtfldelivered in the presence of the presence of the appellant and'in-th'e absence of the respondent. B/C Ms. Jackline (RMA) present. J. R. Kahyoza JUDGE 31/8/2022 12