CIVIL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB-REGISTRY AT ARUSHA CIVIL APPEAL NO. 4 OF 2023 {Arising from Civil Case No. 121 of 2016 in the Resident Magistrate's Court ofArusha at Arusha.) STEFANO DI GIULIO (Legal Representative of) GIUSEPPE DI GIULIO APPELLANT VERSUS GIFT JOSHUA RESPONDENT T/A NOVUS ATTORNEY JUDGMENT 04/06/2024 & 19/07/2024 BADE, J. The dispute in this appeal arises out of a contest for payment for services. The Appellant herein who is the legal representative of Giuseppe Di Giulio appealed in this court having been aggrieved by the judgment and decree lof 13 of the Arusha RM's Court, Mhenga SRM, which dismissed their claim in the suit with costs for want of merits. To understand the context that gave rise to the present Appeal, I have to look at the factual background. The Appellant who was the Plaintiff in the court below instituted a suit against the Defendant now Respondent Gift Joshua T/A Novus Attorneys for payment of TZS 53,515,520 as an amount paid by the Plaintiff and had by the Defendant for the provision of legal services which was never rendered to the Plaintiff, now Appellant. On the passing of the Plaintiff, his legal personal representative has pursued an Appeal and has preferred the following grounds of appeal, viz: 1. That the trial court erred in law and fact when it held that, the Appellant had failed to prove his case on the balance of probability in the presence of proof of claims against the Respondent which was adduced before it. 2. The trial court erred in law and fact when it denied the value of exhibit Pl which showed that the Respondent is indebted to the Appellant a sum of TZS 13,000,000 as part of the claimed amount. Page 2 of 13 Both parties enjoyed legal representation with the Appellant enjoying the services of John Mseu, learned Advocate and Alex Yunga, learned Advocate for the Respondent. Arguing the grounds of Appeal generally with no particular order, the counsel for the Appellant prefaced his submission informing the court that the Appeal is resulting from a Civil Case No 121 of 2016, in Arusha RM's Court. He maintains that the said grounds revolve around proving the case on the balance of probability, and the weight accorded to Exh Pl which in the counsel's view, was denied value. He insisted that the Appellant at the trial court proved its case on the balance of probability as per the requirement of section 110 of the Tanzania Evidence Act. Propounding, he argues that at the lower court, the Appellant claimed TZS 53 Million based on the fact that they were to receive legal services from the Respondent. PW1 testified that they had agreed with the Respondent to provide legal services including instituting various cases that were never delivered by the Respondent. He further argued that DW1 admitted to having had an agreement with the Appellant but denied to have received any Page 3 of 13 amount. Exh Pl showed that the Respondent acknowledged being indebted at TZS 13.4 Million and admitted to not having paid the same. Based on this account, he insists that the trial court was wrong when it held that the Appellant could not prove its case while there was an acknowledgement that was not denied or made good by the Respondent. Opposing the Appeal and in response, the counsel for the Respondent retorted that the court was right in discarding Exh Pl and refusing to accord any value to it because Exh Pl does not specify the amount indebted to the Respondent. Secondly, there was no payment voucher proving that there was any payment, as fees for instituting the various cases. The purported exhibit was denied to have been drafted by the Respondent, insisting that it was a document that was brought to court by the Appellant, bearing only the stamp of the Respondent's trading name. Arguing further, he contends that even if it were true that Exh Pl was issued as purported by the Appellant, the same could not have been issued in the present form since a trading name does not enter into a legal agreement as it has no capacity to contract. Page 4 of 13 Arguing further, the counsel contends the claim by the Appellant counsel that there was an oral agreement, questioning if there was any performance to justify the existence of the oral agreement. He insisted that there was no evidence provided in court to prove or indicate there was any performance. Neither was there any instruction letter from the Appellant to the Respondent. As if that is not enough, he argues there has not been provided a Payment Voucher that was brought in court to prove there was any engagement. He insists that much as the Appellant tendered Exh Pl, it could not suffice by itself as it bore a trading name. The court could not rely on this document as it lacked legality and enforceability before the laws. Rejoining, the counsel for the Appellant picked on the value of the tendered Exh Pl, which in his view, clearly stated that the Respondent was indebted to the Appellant, containing the name of the Respondent, his signature and stamp, insisting that the Appellant had proved his case. In his further view, even though the Respondent argued to have never admitted the said debt, he admits to having been indebted to the Appellant, nor did he deny that he was instructed to provide legal services to the Appellant. Page 5 of 13 Having heard the submission by both parties and considered the grounds of Appeal and record, I am of the considered view that the issue to be determined is whether the Appellant proved his case before the trial court. To start with, I would restate the law on the evidential burden and standard of proof in civil cases. He who alleges must prove is a common maxim whose value is increasingly on determining which party has the legal and evidential burden. It is trite law unless specifically prescribed, that the party with legal burden also bears the evidential burden, and the standard in each case is on a balance of probabilities. In discharging this burden, the weight/ quality, and certainly not the quantity of evidence adduced is considered. See sections 101, 102 and 103 of the Evidence Act, Cap 6 R.E 2022. The Court of Appeal of Tanzania in Anthony M. Masana vs Penina (Mama Ngesi and Another, Civil Appeal No. 118 of 2014 (unreported), approvingly cited the case of Re B [2008] UKHL 35, where Lord Hoffman in explaining what we mean by a balance of probabilities states: "If a legal rule requires a fact to be proved (a fact in issue), a judge... must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates in a binary system in which the only values are 0 and 1. The fact either happened or it did / Page 6 of 13 not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden ofproof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened" Now, armed with this principle in mind, I will have to re-evaluate the evidence adduced in the trial court to be able to establish if the Appellant in fact discharged the said burden. In the case of Selle and Another vs Associated Motor Boat Company Ltd and Others, [1968] EA 123 it was succinctly held: "Where it is apparent that the evidence has not been properly evaluated by the trialjudge or wrong inference have been drawn from the evidence, it is the duty of the appellate court to evaluate the evidence itself and draw its own inference." Revisiting the pleadings and the evidence at the trial court, the Appellant and the Respondent agreed to the provision of legal service. The Appellant claimed against the Defendant for TZS 53,515,520 as per the plaint in paragraph 3 and 4 stating that up to December 2014, under a mutual agreement, he had paid the Respondent various fees in exchange^ of legal services such as pursuing claims and court cases against others, a fact that was outrightly denied by the Respondent. This is despite the guidance that pleadings should not be technical documents, and in particular that the Defence will set out the defendant's detailed response to the claim and make clear the real issues between the parties in his written statement of defence. The defence is completely evasive and vague in answering the question did the Respondent represent the Appellant as his client? but so is the Plaint in putting a claim that it did pay the Respondent. The questions that one would ask are what amount was paid, how was it paid, in cash or banked? Was the amount acknowledged and receipted? The evidence gathered on the lower court from the Plaintiff then is through the testimony of PW1. He testified that his claim against the Defendant now Respondent is for payment of TZS 53,000,000. He claimed to have given the money to then Defendant in 2014, in different installment and for legal services, which were never rendered. His further testimony is that he claimed the money back from the Defendant in refund, and in January 2015, the Respondent agreed to pay the sum of TZS 13,442,517 only. He testified further that even this amount was never repaid. PW1 tendered in £ourt Exh / Page 8 of 13 Pl as proof of the agreement signed and acknowledged by the Defendant then and the Plaintiff. His further testimony was that as the Defendant despite admitting to have this amount refunded, he failed to honor the undertaking. On being cross-examined, PW1 prayed the court to order the defendant to pay him the TZS 13,442,517 that the Defendant had admitted to refund despite the initial claim that he brought to court of TZS 53,516,520 which figure comprised of possible damages and the costs of the suit. See pp 25 and 26 of the typed proceedings. On the other hand, when the Defendant testified, he refuted any relationship with the Appellant, and denied knowing him or the Exh Pl, however on cross examination, he admitted to not only have met Dr. Giuseppe, but that he performed some tasks for him, and that he was paid some amount of money. Again he feigned memory loss as to how he was paid or what amount of money. He also admitted to have been the one signing on transactions in his trading activities. See pp 28-29 of the typed proceedings. In my considered view, the Defendant had acknowledged the Plaintiff and the legal engagement that the two had. In the evidential burden equation, I think through the testimonies of the parties, the Appellant had proved on the balance of probabilities that he does claim the amount of money that he / Page 9 of 13 has exhibited in court. The trial court erred when it held that the Appellant could not prove its case as there was an acknowledgement by the Defendant in his capacity as the person trading in the style of Novus Attorney, a fact that was not denied by the Respondent or made good by him. In my considered view, the analysis of the evidence for both sides does not support the finding of the trial court as justified on the evidence. See the case of Paulina Samson Ndawavya vs Theresia Thomas Madaha, Civil Appeal No. 45 of 2017 (unreported) where at page 17 it was held that it is a duty of the trial court to evaluate the evidence of each witness and make findings on the issues. Between the Plaintiff and the Defendant on trial, I see no reason on the part of the Appellant / Plaintiff then who was a Medical Doctor to cook a story against the Respondent / Defendant who is an Attorney at law, both being persons of professional calling. As it is trite law that in civil proceedings, the alleging party's legal burden is to prove the case on a balance of probabilities. I have made clear that in discharging this burden, the weight/ quality and not quantity of evidence adduced is pivotal, and it is my finding that this burden has been discharged by the Appellant, albeit not in the amount he had claimed. zx / 10 of 13 The Appellant has also submitted on the denial by the trial court to assign any probative value to the acknowledgment of debt document Exh Pl. Legally speaking, probative value is the probability of evidence in reaching its proof purpose of a relevant fact in issue. It is one of the main elements of admitting evidence, as the admitted evidence must be relevant, tending to make the fact in issue more likely or less likely to happen, no matter how slight its probability is. After admitting Exh Pl, the trial court discarded the value of Exh Pl where the trial court's judgment reasoned: " .... that it was expected for the plaintiff to present to court documentary evidence to prove payment of the said money...... The plaintiff only tendered the acknowledgment of debt (exhibit PI), which shows that the defendant acknowledged being indebted to the plaintiff a sum of Tanzanian Shillings Thirteen Million Four Hundred Forty-Two Thousand Five Hundred and Seventeen (13,442,517). Although the document was signed and bears the seal of Novatus Attorney (the defendant's trade name) the same does not suggest any relationship with the claims at hand." See P 5 of the trial court's judgment. In my considered view, I find the trial magistrate has misled herself in discarding this piece of evidence. y\s I read / Page 11 of 13 through the judgment, it seems to me she was torn between needing more documentary proof, and denying it has any bearing to the case. I find that as Defendant had admitted to knowing Plaintiff and being engaged to provide services to him, then Exh Pl corroborated in proof what was admitted in the cross-examination. I find further value in this piece of evidence in proofing the claim by Plaintiff and at the same time contradicting Defendant's testimony, that logically, there is a higher probability that Plaintiff did obtain the acknowledgment of the debt and the promise by Defendant to repay the same. In the final analysis, I am persuaded that the Appellant / Plaintiff is entitled to the amount acknowledged by the Respondent / Defendant. For the avoidance of doubt, the Appellant is entitled to the claim of TZS 13,442,517; and interest at the court's rate until the date of final payment. Consequently, I allow the appeal to the extent shown. I also award the costs of the suit to the Appellant. It is so ordered DATED at ARUSHA this 19th day of July 2024 /V /Page 12 of 13 A. Z. Bade Judge 19/07/2024 Judgment is delivered in the presence of the Appellant and the Respondent I their Representative in chambers on the 19th day of July 2024. A. Z. BADE JUDGE 19/07/2024 /v *• Page 13 of 13