CIVIL APPEAL 108 2023 STAFORD VS MARIA Final

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM CIVIL APPEAL NO. 108 OF 2023 (Arising from the District Court of Kinondoni in Civil Appeal No. 93 of 2022) STARFORD GODSON NDANDAGE................................................APPELLANT VERSUS MARIA CHENGULA .................................................................. RESPONDENT JUDGMENT 26th September & 13th November, 2024 BWEGOGE, J.: This is a second appeal preferred by the appellant herein against the decision of the Primary Court of Magomeni (trial court) which was upheld by the District Court of Kinondoni. Admittedly, the background of this case discloses disturbing facts. The appellant in this case is a minister of the Good News Interdenominational Church. The respondent herein was a member of the appellant’s congregation. The dispute arose between the duo, centred on the alleged breach of the loan agreement executed on 08th January, 2018which culminated in civil proceedings (Civil Appeal No. 93 of 2022) commenced by the respondent in the court of first instance against the appellant. The respondent claimed for payment of TZS 10,200, 000/= being an unpaid loan. 1 It was the respondent’s case in the trial court that on 08th January, 2018, the appellant herein sought a loan from her to the tune of TZS 13, 000,000/= of which she readily advanced to him. However, for consecutive three years, the appellant only repaid TZS 2,800,000/. Conversely, it was the appellant’s defence in the trial court that the purported loan was sacrifice given by the respondent’s mother for the healing ministry she received from the appellant; thus, it was unbecoming on the part of the respondent to recall the sacrifice offered to God. The trial court, having evaluated the evidence tabled by the parties hereto, among others, evidence of part payment of the principal loan amount made by the appellant and written agreement made at Magomeni Police Station on 20th September, 2022, reached the conclusion that it was proved on the balance of probabilities that the appellant sought and received a loan from the respondent, not sacrifice as contended by the same. Hence, having taken into account the previous part payment of the loan’s principal amount made by the appellant to the tune of TZS 3, 470, 000/=, the court entered an order that the respondent was entitled to a decretal amount of TZS 9, 800, 000/. The appellant was not amused; hence, appealed to the District Court of Kinondoni in Civil Case No. 170 of 2022, seeking a variation of the judgment and decree entered by the trial court. The District Court, having heard both parties and considered the evidence tabled before the trial court, likewise, opined that the respondent established the contractual relationship between her and the appellant of which the appellant was obliged to 2 discharge. The first appellate court upheld the judgment and decree entered by the trial court. Undaunted, the appellant preferred the second appeal herein in an attempt to defeat the decisions of the lower courts. The appellant advanced seven (7) grounds of appeal as hereunder rephrased. 1. That the first appellate court erred in law for relying on the submission of the respondents that was filed out of prescribed time. 2. That the first appellate court erred in law in granting leave to the respondent to file written submission in reply beyond the prescribed time; consequently, the respective submission was filed without payment of statutory fees. 3. That the first appellate court erred in law in denying the appellant the right to file rejoinder submission. 4. That the first appellate court erred in law in upholding the primary court’s decision which relied on the agreement entered at Magomeni Police Station without free consent on the part of the appellant. 5. That the appellate magistrate erred in law in upholding the decision of the court of first instance which lacked geographical jurisdiction to preside over the suit. 6. That the first appellate court erred in law in holding that the parties hereto had entered an oral agreement; which was not among the issues raised during trial. 7. That the first appellate court failed to analyse evidence. Mr Rashid Hezron Kyamba, leaned advocate, represented the appellant; and Mr. Erick Paul Bakilana, learned advocate, entered an appearance for the respondent. 3 In substantiating the 1st ground of appeal, Mr. Kyamba argued that the 1st appellate court ordered the parties hereto to argue the appeal by written submissions whereas the appellant duly filed his submission in chief as per the schedule made by the court. However, the respondent filed her submission in reply belatedly. Hence, the trial court was obliged not to consider the submission in deciding the case. To buttress the point, the counsel cited the case of Famari Investment (T) Ltd vs. Abdallah Selemani Komba, Misc. Civil Application No. 41 of 2018. HC (unreported) wherein it was held: “It is now settled in our jurisdiction that the practice of filing written submission is tantamount to a hearing and; therefore, failure to file submission as ordered is equivalent to non-appearance…..” Regarding the 2nd ground of appeal, the counsel argued that the respondent filed her submission in reply on 17th April, 2023 and served the appellant on the same day without payment of the necessary fee contrary to the law. Thus, the trial court should not have relied on the respective written submission in reply in making its decision. The case of Jitesh Jayantlal Ladwa vs. Aatish Dhirajlal Ladwa & Another (Misc. Application 108 of 2020) [2021] TZHCComD 3238 was referred to validate the point. 4 Respecting the 3rd ground of appeal, the counsel charged that on 25th April, 2023, the appellant was denied the right to file rejoinder submission on the ground that the same had ample opportunity to file the document having been served with submission in reply on 17th April, 2024. That the refusal was contrary to the principle of fair hearing guaranteed by the Constitution of the United Republic of Tanzania of 1977, as amended, read together with the provision of section 3B(1)(a) of the Civil Procedure Code [Cap. 33 R.E. 2019] which instructs the court to abide with substantive justice in lieu of technical aspects of the law. Concerning the 4th ground of appeal, the counsel argued that the 1st appellate court upheld the judgement of the primary court based on the written document purporting to have been authored by the appellant at Magomeni Police Station which the appellant disputed. That the plea raised by the appellant in that the document was executed without his free consent was not heeded by both lower courts. That free consent to enter an agreement is a condition precedent for execution of a valid contract under the provision of section 10 of the Law of Contract Act [Cap. 345 R.E. 2019]. The case of Humphrey Silayo Pallangyo and Another vs. Haruna Idd Mwiru, DC Civil Appeal No. 3 of 2020 [2020] TZHC 4591 was cited to persuade this court. 5 In arguing the 5th ground of appeal, the counsel charged that the Primary Court of Magomeni had no geographical jurisdiction to entertain the matter brought before it. That the appellant who resides at Chanika was handed the purported loan at Light House Pentecostal Church located at Mawasiliano, Ubungo. Hence, the court with jurisdiction to preside the case was either Chanika Primary Court or Sinza Primary Court. The case of Daniel Godwin Mamkwe vs. Paul Temu (PC Civil Appeal 7 of 2021) [2021] TZHC 6413 was cited to reinforce the point. Pertaining to the 6th ground of appeal, the counsel alleged that the issue of whether parties hereto entered an oral agreement raised by the first appellate court and answered in the affirmative was not raised in the court of first instance. That, to the contrary, the decision of the trial court given in favour of the respondent, relied on the written note signed by the appellant at Magomeni Police Station. Hence, the finding on the issue raised suo motu by the first appellate court prejudiced the appellant. Lastly, with respect to the 7th ground of appeal, the counsel charged that the first appellate court failed to evaluate the evidence tabled before it; hence, reached an erroneous decision. That the trial court failed to apprehend that the matter was outside its geographical jurisdiction; the written agreement executed at Magomeni Police Station did not amount 6 to valid agreement, and the money given to the appellant was the property of the respondent’s mother given as sacrifice, not loan. Based on the above grounds, the counsel prayed this court to allow the appeal, quash the decisions of the lower courts and set aside the orders entered thereto. In reply to the 1st, 2nd and 3rd grounds of appeal, Mr. Bakilana briefly contended that the first appellate court exercised her discretion and judicial powers judicially and there is nowhere she acted ultra-vires. The case of Sanyou Service Station Ltd vs. BP Tanzania Ltd (now Puma Energy T. Ltd) (Civil Application No. 185 of 2018) [2019] TZCA 144 was cited to bolster the point. With respect to the 4th, 5th, 6th and 7th grounds of appeal, the counsel likewise, briefly contended that the 1st appellate court justifiably upheld the decision of the trial Court. Based on the above premises, the counsel opined that this appeal be dismissed with costs for being devoid of merit. Now, I proceed to canvass the grounds of appeal aforementioned in seriatim. I would canvass the 1st, 2nd and 3rd grounds of appeal jointly, as they are essentially related. The respective grounds of appeal allege as 7 follows; one, the first appellate court relied on the submission of the respondents that was filed out of prescribed time; two, the first appellate court granted leave to the respondent to file written submission out of prescribed time; of which was filed without payment of statutory fees; and three, the first appellate court denied the appellant the right to file the rejoinder submission. I have painstakingly scrutinized the record of the lower court. The record reveals that on 07th March, 2023, the first appellate court entered an order for the parties hereto to file their respective written submissions. The appellant herein was required to file his submission in chief by 21st March, 2023 whereas the respondent was instructed to file submission in reply thereto on 28th March, 2023; and rejoinder, if any, was to be filed by 31st March, 2023. It is glaring on record that the appellant herein failed to file his written submission in chief as scheduled. Likewise, the same served the document to the respondent belatedly. Hence, the first appellate court rightly allowed the respondent to file his written submission on 17th April, 2023, beyond the prescribed time. Further, the first appellate court observed that the appellant was served with written submission in reply on 17th April, 2023; hence, the same had 8 clear days until 25/04/2023 when he purported to pray for an extension 8 of time within which to file rejoinder. Thus, the extension was refused. The appellant’s counsel laments that the refusal was contrary to the principle of fair hearing provided forth under section 3B(1)(a) of the Civil Procedure Code which instructs the court to abide by substantive justice in lieu of technical aspects of the law. I find it pertinent to highlight that relevant provisions were meant to guide the court in vouching justice fairly and at reasonable costs; the goal being adherence to substantiative justice rather than legal technicalities. However, the respective provisions were not intended to be invoked to bless inaction and, or tardiness on the part of the litigants [Mondorosi Village Council & Others vs Tanzania Breweries Ltd & Others (Civil Appeal No. 66 of 2017) [2018] TZCA 303]. And it is noteworthy that though the relevant provisions advocate overriding objectives for attaining substantive justice, still they aim to facilitate expeditiousness and, or timely disposal of proceedings, in terms of sections 3A (1) and 3B (1) (c) of the Code. Thus, the appellant cannot invoke the overriding principles embodied in the provisions mentioned above to cover his inaction/tardiness. Otherwise, I find no cogent ground to fault the first appellate court in the exercise of its discretion to extend time for the respondent to file written 9 submission belatedly. The delay in filing the respective document was occasioned by the appellant who failed to file his submission in chief within the prescribed period. Moreso, my scrutiny of the impugned submission in reply revealed that the respondent’s counsel paid the filing fee vide exchequer receipt No. 991-008-332. Hence, the allegation of non-payment of the filing fee was misconceived. Based on the above observations, I find the 1st, 2nd and 3rd grounds of appeal without substance. At this juncture, I would tackle the 4th ground of appeal in which the appellant alleges that the 1st appellate court relied on the written agreement executed by the appellant at Magomeni Police Station which was procured without his free consent. Admittedly, in terms of the provision of section 10 of the Law of Contract Act, consent to enter the agreement, among others, is a condition precedent for executing an enforceable agreement. It is glaring in the respective agreement that the appellant admitted indebtedness to the respondent and promised to repay the remaining unpaid principal loan amount within the prescribed time. Now, can it be said that the appellant was coerced to execute the impugned agreement? I am afraid the answer is negative: The record of 10 the trial court entails that the appellant herein, during his defence in the trial court, admitted that at Magomeni Police station, in company of his wife, he sat with the respondent and the Officer Commanding Station (OCS), and deliberated on the complaint lodged by the respondent. And the OCS, having apprehended that the appellant was willing to repay the remaining amount of the loan advanced by the respondent, instructed him to put his intention into writing, which he did. The appellant never registered his complaint in the trial court in that he was coerced to bind himself by written agreement; rather he brought proof to establish that previously, he repaid the respondent a total of TZS 3, 470, 000/=; hence, the remaining payable amount was to the tune of TZS, 9, 800, 000/= which was less than the amount pleaded. Therefore, I apprehend that the appellant, on his own volition, admitted indebtedness to the respondent and reduced his promise to repay the loan advanced by the respondent in writing. Thus, I find the complaint pertaining to lacking free consent and, or coercion an afterthought. The case of Humphrey Silayo Pallangyo & Another vs. Haruna Idd Mwiru, (supra) cited by the appellant’s counsel to bolster the allegation of coercion doesn’t fit in the circumstances of this case. In the respective case, it was established by the respondent that he was induced to sign 11 the agreement admitting liability for the stolen vehicle found in his possession to exonerate himself from the charge of murder he was threatened to be charged with. Be that as may, even without the impugned agreement, there is ample evidence, including the testimony of the appellant himself afore revisited, proving that the appellant had commenced to repay the loan even prior to the execution of the impugned written agreement. Thus, I find the 4th ground of appeal without substance as well. I proceed to discuss the 5th ground of appeal in which the appellant alleges that the trial court had no geographical jurisdiction to entertain the matter herein. The provision of section 3(1) and (2) of the Magistrate’s Court Act [Cap. 11 R.E. 2019] instructs that the primary court has jurisdiction within the district in which it is established. To my knowledge, the District of Ubungo, from its inception, had no designated district and primary court(s) of its own. It depended on the judicial services provided by the District Court of Kinondoni and the nearby primary courts of Kawe, Sinza and Magomeni. It was not until 17th May, 2024 and 12th August, 2024 that the District Court of Ubungo and the Primary Court of Kwembe were designated to provide judicial services specifically in Ubungo District. 12 Notwithstanding the above clarification, it is the law that any objection regarding the place of suing is required to be brought at the court of first instance and, or at the earliest opportunity, unless consequent failure of justice is demonstrated, in terms of the provision of section 19 of Civil Procedure Code [Cap. 33 R.E. 2019]. No jurisdictional issue was raised by the appellant in the trial court. Based on the above observations, I find the 5th ground of appeal devoid of merit. The charge in the 6th ground of appeal is that the 1st appellate court raised the issue of oral contract and answered the respective issue in the affirmative, which was not raised in the trial court. This allegation need not detain me. As I mentioned earlier, the trial court observed that the evidence adduced by the appellant pertaining to the part payment of the loan demonstrated the contractual relation between the parties hereto which ascertained the respondent's claim against the appellant. Hence, the observation made by the trial court was not a new issue raised during the decision-making, but a conclusion based on facts/evidence adduced by parties to the case. The 6th ground of appeal likewise, fails. Lastly, in the 7th ground of appeal, the appellant alleges that the first appellate court failed to analyse the evidence; hence, reached an erroneous conclusion. In substance, the only ground buttressing the 13 allegation that the trial court failed to evaluate evidence brought to its attention, is the assertion that the money which the respondent demanded repayment was sacrifice given by the respondent’s mother for healing services ministered by the appellant, not loan. This assertion was not proved by the appellant. The purported beneficiary of the healing ministry was not procured to testify in court. To the contrary, the respondent herein who handed the fund to the appellant maintains that the appellant sought and obtained the loan from her with promise to pay, which he failed to honour. I find it pertinent to restate that in civil cases, the standard of proof is on the balance of probabilities whereas the court will be inclined to sustain such evidence which is more credible than the other on a particular fact to be proved [Crescent Impex (T) Limited vs. Mtibwa Sugar Estates Limited (Civil Appeal No.455 of 2020) [2023] TZCA 17501]. This is the mainstay of the provision of section 110 (1) and (2) of the Evidence Act [Cap. 6 R.E 2022] which instructs that who allege must prove. Suffice it to say that the respondent discharged her burden of proof in this case. And I would reiterate that the appellant augmented the respondent’s case in admitting under oath that he had made partial payment of the loan’s principal amount claimed before the respondent filed her complaint at 14 Magomeni Police Station which culminated in the execution of the agreement which he sought to avoid. It is noteworthy that it is on the basis of the evidence adduced by the appellant pertaining to part payment of the principal loan amount that the trial court reduced the loan’s principal amount claimed from TZS 10,200,000/= to TZS 9,800,000/. The above factual matrix negates the appellant’s contention that he received sacrifice from the respondent, not loan. Having revisited the evidence adduced in the trial court, I find no cogent ground to fault the findings of the lower courts in that the respondent proved that the appellant sought and obtained loan from her which he failed to repay. The 7th ground of appeal is found without merit as well. For the foregoing reasons I endeavoured to give, I find, the appeal herein bereft of merit. The appeal is hereby dismissed with costs. The decisions and orders entered by the lower courts are hereby upheld. Order accordingly. O.F. BWEGOGE JUDGE 15