PC CIVIL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM PC. CIVIL APPEAL NO. 179 OF 2024 (Arising from the decision of the District Court of Kibaha in Civil Appeal No. 6 of 2023 (Hon. F. Kibona, RM) dated 8th June 2023: Originating from the decision of the Primary Court of Mailimoja in Civil Case No. 19 of 2023) __________________ SUBILAGA AMILIKIE MWAKANIEMBA……..………………….APPELLANT VERSUS CENTEGIC GENERAL (MUKTARY OMARY KANGALE).…. RESPONDENT JUDGEMENT Date of last order: 29th August 2024 Date of Judgement: 24th September 2024 MTEMBWA, J.: In the Primary Court of Mailimoja, the Appellant commenced proceedings against the Respondent. In view of the Complaint Form dated 13th February 2023, the Appellant complained that the Respondent failed to drill the water borehole as per the Contract entered into on 9th May 2022, thereby causing loss of Tanzanian Shillings 2,000,000/=. She prayed for specific performance and payment of Tanzanian Shillings 2,000,000/= as costs of the case. During hearing, 1 the Appellant brought two witnesses and tendered two exhibits. The Respondent resisted the claim, alleging that the contract was accordingly performed as agreed, only that the area had insufficient water. Having evaluated the evidence, the trial Court resolved in favor of the Appellant. Dissatisfied, the Respondent successfully appealed to the District Court of Kibaha. The Appellant was not amused at all by the decision of the District Court of Kibaha, which overturned the decision of the trial Court. As such, she has appealed to this Court fronting the following grounds of appeal and I quote in verbatim. 1. The District Court erred in law and fact for failure to analyses evidence as the first appellant Court, which resulted into wrong and unjust decision. 2. That, the District Court erred in law and facts when it failed to evaluate properly the evidence and testimony of the both parties by expunged exhibit PEI and PE2. 3. The District Court erred in law and fact for failure by not considering the evidence which adduced by the Appellant during hearing. The Appellant tiredly failed to secure the attendance of the Respondent. As a result, on 15th May 2024, an order of publication was entered and the summons were publicized. On 6th June 2024, when 2 the matter came for orders, the Appellant was represented by Ms. Magreth Kisoka, the learned counsel, while the Respondent was absent. At her request, this Court ordered arguing of the Appeal by way of written submissions. Having passed through the records, I am satisfied that the agreed schedule was accordingly adhered to, which I intensely recommend. In his Written Submissions in Chief, Mr. Mluge Karoli Fabian, the learned counsel, compressed all grounds of appeal and argued them altogether. He complained that the Appellate Court wrongly failed to analyze and evaluate the evidence presented during hearing. As a result, it reached into an unjust decision, thereby overturning the decision of the trial Court. He added that there was no dispute that the Appellant engaged the Respondent in drilling a water borehole, and, having been assured, he entered into the contract value at Tanzanian Shillings 12,000,000/= as exhibited by exhibits PEI and PE2. He referred this Court to pages 3 and 4 of the Judgement. Mr. Fabian continued to argue that considering the evidence available, there is nowhere the parties denied to have entered into the contract on 9th May 2022. He referred this Court to article 5 of exhibit 3 PE2, which was admitted by the trial Court and expunged by the appellate Court. He faulted the appellate Court to expunge the said exhibits, thereby resulting in an erroneous judgment. In his further submissions, the learned counsel argued that the contract was to be abided by the parties, and thus, the Respondent failed to fulfill the terms of the agreement. To fortify, he cited the case of Mohamed Idrissa Mohamed vs. Hashim Ayoub Jaku [1993] TLR 280 and George Shambwe vs. National Printing Limited [1995] TLR 26. He insisted that exhibits PE1 and PE2 were report and contract, respectively, showing that the Appellant paid to the Respondent the sum of Tanzanian Shillings 12,000,000/=. He also referred this Court to section 73(1) of the Law of Contract Act Cap 345 RE 2019. Mr. Fabian also submitted that the appellate Court's decision was unjust and incorrect because it failed to analyze the evidence adduced during hearing. He added that this Court has a duty to step into the shoes of the first appellate court, re-evaluate the evidence, and come up with its findings. He cited the case of Director of the Public Prosecutions vs. Jafari Mfaumc Kanawa (1981) TLR 149 and 4 Saltrni Mliando vs. Republic [1993] TLR 170. He was of the view that the Appellant’s testimony proved that there was a contract of drilling a water borehole between the Appellant and the Respondent, and payment of the sum of Tanzanian Shillings 12,000,000/= was accordingly made to the latter. He thus argued that the District Court had an obligation to analyze evidence. He cited the case Kaimu Said vs. Republic, Criminal Appeal No. 391 of 2019, Court of Appeal of Tanzania. In the spirit of the foregoing, Mr. Karoli implored this Court to re-evaluate the evidence adduced. Having dispassionately considered the grounds of appeal and arguments in support thereof, the question is whether the appeal is meritorious considering the evidence available on records. Indeed, the District Court of Kibaha, being the first appellate Court, had a duty to re-evaluate the evidence on records, put it under critical scrutiny, and come up with its conclusion. This being a second appeal, the Court rarely interferes with the concurrent findings of fact by the lower courts except where there has been misapprehension of the nature and quality of the evidence and other recognized factors occasioning a miscarriage of justice. This was ably emphasized in the case of 5 Wankuru Mwita vs. Republic Criminal Appeal No. 219 of 2012 (unreported) where it was observed that; The law is well-settled that on second appeal, the Court will not readily disturb concurrent findings of facts by the trial Court and first appellate Court unless it can be shown that they are perverse, demonstrably wrong or c/ear/y unreasonable or are a result of a complete misapprehension of the substance, nature and quality of the evidence; misdirection or non-direction on the evidence; a violation of some principle of law or procedure or have occasioned a miscarriage of justice. While guided by the above principle, it is also a trite law that whoever alleges the existence of any fact bears the duty to prove the same. This principle is gathered from sections 110, 112, and 115 of the Evidence Act, Cap 6 RE 2019, and judicial precedents, including the case of Manager NBC Tarime vs. Enock M. Chacha (1993) TLR 228. Reading between the lines of the three grounds of appeal, one discovers that they are related to the first appellate Court's failure to evaluate the evidence adduced during hearing. To appreciate this, I shall first examine what it takes to be the second appellate Court. In the case of Mapambano Michael @ Mayanga vs. Republic, 6 Criminal Appeal No. 258 of 2015, the Court placed a special duty on the first appellate court as follows; The duty of the first appellate court is to subject the entire evidence on record to a fresh re-evaluation in order to arrive at decision which may coincide with the trial court decision or maybe different altogether. Since the District Court of Kibaha was the first appellate court, I am aware of the salutary principle of law, which states that a first appeal is in the form of a rehearing. Thus, the first appellate court has a duty to re-evaluate the entire trial evidence on record by reading it together and subjecting it to critical scrutiny and, if warranted, arriving at its own conclusions of fact. In this regard, I would have expected the District Court of Kibaha to re-appraise the evidence to determine the appeal. I shall address this in length hereinafter. Suffices here to note that the first appellate court has a duty to re- evaluate and analyze the evidence of the trial Court. The relevant part of the impugned Judgement states as follows; Failure to read out to a document admitted as exhibit denies the right to know the information contained in the document and therefore puts him in the dark not only on what to cross examine but also how to effectively align or arrange his defence. The denial, therefore, abrogates right to a fair trial 7 See the case of Mwinyi Jamal Versus Republic TLR [2020] pg. 508 From the court records exhibits PEI and PE2 were not read by the trial court the content therein hence puts him in the dark not only on what to cross examine but also how to effectively align or arrange his defence. Failure to read out the said documents PEI and PE2 are expunged from the record. Having expunged exhibits PEI and PE2 what remains is oral evidence testimonies which was not sufficient to prove to the balance of probability because nothing was agreed all terms and condition were set out in the PE2 which is expunged from the record. In view of what I have outlined, I find and hold that, the respondent failed to succeed to discharge the burden of proof as required by law at the trial court and. I therefore I quash the judgment and orders of the trial court and, do hereby allow the appeal with cost. From what can be gathered from the quoted part of the Judgement, the appellate court expunged Exhibits PE1 and PE2 for having not been read over after admission. Having done that, he then considered whether the remaining oral testimonies can warrant a Judgment in favor of the Respondent (claimant). In the next 8 paragraph, the learned Magistrate resolved that the Appellant failed to discharge her duty on the balance of probability to prove her claim, and thereafter, he proceeded to quash the Judgment of the trial Court. With respect, re-evaluation of evidence means more than that. Going through the Judgement, I have failed to see where and how he evaluated the evidence, having expunged Exhibits PE1 and PE2. Evaluation of evidence corresponds to an act of the Court to exercise its mind in testing the reliability and credibility of every piece of evidence on record before it and accord the evidence the deserving weight. That duty must be seen as done by looking at the decision itself. The learned Magistrate made a general or sweeping statement that the Appellant failed to discharge her duty. In the case of Hassan Twaha @ Ramadhani vs. Republic, Criminal Appellant No. 290 of 2017, Court of Appeal of Tanzania at Arusha, the Court said; However, with due respect, re-evaluation of evidence means more than that, it entails a critical review of the material evidence on record in order to test soundness of the trial court's findings. Indeed, there is a plethora of authorities by this Court emphasizing the need for the first appellate court to subject the evidence of the trial court to critical analysis before arriving to an independent finding. 9 The first appellate court therefore is expected to exercise its mind in testing the reliability and credibility of each and every piece of evidence on record before it and accord the evidence the deserving scrutiny, and where a given principle of law was applied in the conviction of the appellant like in the instant case, the doctrine of recent possession, then the first appellate court is expected to subject every element of the principle of law to the evidence on record and put them to test in order to ensure that they all apply. Ordinarily, the first appellate court is not expected to give merely general or sweeping statements while determining the appeal from the lower court. It is one thing to summarize the evidence and another thing to subject the entire evidence to an objective evaluation in order to separate the chaff from the grain. Similarly, it is one thing to consider the evidence and then disregard it after a proper scrutiny or evaluation and another thing not to consider the evidence at all in the evaluation or analysis. The question would be what should be done considering the fact that this is not the first appellate court. Indeed, since the first appellate Court failed to exercise such powers, this Court may step into its shoes and re-evaluate the evidence as the second appellate Court. It may also remit the records to the first appellate Court for it to exercise its noble duty. In Hassan Mzee Mfinanga vs. Republic [1981] TLR 167, the Court said, "where the first appellate court fails to re-evaluate the evidence and to consider the material issues 10 involved, on a subsequent appeal the Court may reevaluate the evidence to avoid delays or may remit the case back to the first appellate Court." Among the two options, I am constrained to step into the shoes of the District Court of Kibaha and re-evaluate the evidence. In Hassan Twaha @ Ramadhani (supra), the Court said; This Court is empowered as rightly argued by the learned Senior State Attorney, to step into the shoes of the first appellate court and reevaluate the evidence of the trial court. It must be noted, however, that this Court will not interfere with the findings of the first appellate Court regarding Exhibits PE1 and PE2. This is because, looking at the records, the same were not read over after the trial Court admitted them as exhibits. On the spirit of the holding in the case of Kanyinda Abdallah Mnuta vs. Obocha Credit (T) Ltd (DC Civil Appeal 5 of 2022) [2022] TZHC 15350 (27 December 2022), Exhibits PE1 and PE2 stand expunged from the records for having been not read over after they were admitted (see also Mwinyi Jamal Kitalamba @ Igonzi and Others vs. Republic [2020] TLR 508). Having observed this, I will evaluate the oral evidence adduced during hearing. 11 According to PW1 (Appellant), she came to know the Respondent through her brother. Initially, she was in search of the water borehole drillers and was then introduced to the Respondent. Her brother researched and was satisfied with the Company's availability and presence. The brother made an appointment with experts who visited the area and assured her of the availability of the water if drilled. She tendered the Report as Exhibit PE1. The Respondent’s experts came with the contract (Exhibit PE2), indicating that the drilling will be 160 meters down from the surface at the cost of Tanzanian Shillings 12,000,000/=. She paid the agreed money, and the borehole was drilled, but very unfortunately, there was no water. She informed the Respondent, who required her to buy a water pump and generator. PW1 testified further that the drilled water borehole could not produce enough water as expected. It was added that the one who conducted a visibility study and issued a report (Exhibit PE1) was introduced to her by the Respondent. Ultimately, the Respondent required her to pay additional costs so that another borehole could be drilled. They disagreed on that. She implored the trial Court to order 12 the Respondent to drill another water borehole at her cost, pay the sum of Tanzanian Shillings 2,000,000/= as specific damages and the sum of Tanzanian Shillings 2,000,000/= as advocate fee in view of Exhibit PE3. On cross-examination, PW1 testified that she had an opportunity to go through the visibility study report and the one who prepared it explained to her some of the issues contained therein. When re- examined, PW1 testified that the Respondent brought the one who prepared a survey report, and she had an opportunity to go through it. PW2 joined hands with PW1. He testified that he visited the Respondent’s offices and applied for the drilling services. The Respondent promised to send a surveyor to conduct a visibility study to determine whether there was water. The surveyor came and was paid Tanzania shillings 300,000/=. After the survey, the surveyor reported that there was enough water. The water borehole was then drilled, but no water came from it. The Respondent suggested securing another surveyor. The second surveyor reported that the 13 area had no water. On cross-examination, PW2 testified that he knew the surveyor by face who had been reported dead. The Respondent brought two witnesses. According to DW1, on an unknown date, Exavery called him and informed him of the job to do at Zumba. He asked whether the visibility study or survey was done and was informed that it had already been done. Exavery and the Appellant negotiated and agreed that the borehole would be entirely drilled at Tanzanian Shillings 12,000,000/=. When the survey report was brought before them, it was discovered that it was not proper due to the mud-rotary system. Four days later, the machines were assembled in the Appellant’s area and drilled a 160-meter water borehole with insufficient water. The issue was reported to the Respondent, who did research and discovered that the generator had been overpowered. She was advised to secure another one. Later, there was enough water production, and it was learned that the same could no longer produce beyond that capacity. The Appellant was not amused at all. DW1 informed her that, according to the survey report, the quantity and quality of the water would be known after drilling and that there was no 100% assurance 14 that there would be water after drilling. Then another surveyor was secured, and it was discovered that the area still had water. It was proposed that another water borehole be drilled, and each party contribute to the associated costs. No agreement was reached between the parties. According to DW2, they contracted with the Appellant to drill a water borehole, which took a week. After that, they installed a compressor, which was later on uninstalled after being overpowered. There was water by the time. Later, it was reported that the borehole could no longer produce water. He told the Appellant that nothing was at fault on their party as they did what was supposed to be done even if the water was salty or insufficient. He continued to tell her that the quantity and quality are known drilling exercises. The Appellant was told to thank god for getting 500 to 1000 liters because some clients get nothing after drilling. He was surprised that he was brought to court as if nothing had been done. After the second survey report, they advised the Appellant to drill up to 250 meters down to get water and not 160 meters. She was advised to drill another water borehole, but she disagreed. On cross-examination, DW2 testified that a survey 15 report might indicate that there is water, and after the drilling, you find nothing. The trial Court’s framed issues which can be summarized as follows: whether the Respondent breached the contract and to what relief parties are entitled. From what I have observed, there is no dispute that parties entered into an agreement whereby the Respondent, in consideration of Tanzanian Shillings 12,000,000/=, undertook to drill an underground water borehole. According to the appellant (claimant), the borehole was not drilled as agreed. The evidence adduced by the Respondent (the contractor) was to the effect that the 160-meter borehole was drilled accordingly, although there was insufficient water. Parties are at per with regard to the fact that the borehole had no water. Before I delve into the nitty-gritty of the appeal, I feel instructive to look into whether the procedures for drilling underground water boreholes were complied with. In furtherance of the National Water Policy of 2002, the Parliament enacted the Water Resources Management Act, Act No. 11 of 2009. The Act covers various aspects of water resources, 16 including developing and managing surface and groundwater resources. The Act also addresses issues of groundwater governance such as groundwater control areas, exploration and abstraction. It further requires anybody lawfully engaged in groundwater drilling or exploration activities to record and submit any relevant data on groundwater to the Basin Water Board. It also gives power to the Minister responsible for water to regulate the profession of groundwater drilling. Under section 62 thereof, the Minister is empowered, in consultation with relevant authorities, to make regulations that require any person who undertakes works relating to groundwater prospecting, construction, or enlargement of a well or borehole to be licensed and carried out in such a manner and under such conditions as may be prescribed. Consequently, in 2013, the Groundwater (Exploration and Drilling) Licensing Regulations were made. To facilitate the cited law and regulation, in December 2019, the Ministry of Water issued the Guidelines for Ground Water Exploration and Well Drilling. The main objective was to ensure that groundwater exploration and waterwell drilling activities are 17 conducted professionally. According to the guidelines, despite the presence and application of Groundwater (Exploration and Drilling) Licensing Regulations since 2013, unprofessional drilling of water wells has continued to be a challenge in the country. This has resulted in poor practices in groundwater development, resulting in complaints to the Government for failing to regulate the industry. The main cause of poor practices has been found to be a lack of knowledge among groundwater development actors. The guidelines were issued to ensure compliance with standards and procedures by emerging – unprofessional – groundwater development actors, hence minimizing the possibilities of unsuccessful wells and high costs incurred in water well drilling. According to the Guidelines, groundwater exploration should be done by a licensed person (an individual, a company, consulting firm/contractor, Government Agency or Non-Governmental Organization) as stipulated in the Groundwater (Exploration and Drilling) Licensing Regulations, 2013. The following should be observed in conducting groundwater exploration in mainland Tanzania: One, before conducting groundwater exploration at any 18 area, the client is advised to consult the respective Basin Water Board for advice on the appropriateness of the proposed area; two any licensed groundwater exploration person, before embarking on groundwater exploration activities, shall inform the respective Basin Water Board, three, groundwater exploration shall be carried out in four stages, namely: Desk study/literature review; Hydrogeological survey or mapping; Geophysical method and Exploratory Borehole. For purposes of this Judgement, I shall only discuss the last requirement, which is an Exploratory borehole, which is a relatively small diameter borehole drilled to ascertain the findings of both geological and geophysical groundwater surveys. The exploratory borehole is important in determining the extent of drilling the final borehole, in terms of depth and diameter, hence for the final investment plan for a particular well. Drilling of exploratory boreholes is done by following normal drilling procedures. When that is done, there must be a Groundwater Exploration Report that will give a clear direction on what should be done. When the report is so promising, the contractor will drill the borehole. 19 Groundwater drilling should be done by a licensed firm (company, consulting firm/contractor, Government Agency or Non- Governmental Organization) as per the Groundwater (Exploration and Drilling) Licensing Regulations of 2013. Through a licensed driller, the firm is obliged to comply with the relevant laws and regulations and carry out the drilling activities professionally, observing general and technical requirements. The standards or requirements can be traced from pages 10 to 11 of the guidelines. One of the requirements is that before starting the drilling operations, the licensed driller should accurately fill in Form No. 1 (General Information). During drilling operation, the site Hydrogeologist should, where applicable, collect water samples for every water strike and perform the preliminary in-situ water quality analysis using Water Quality Test Kit to determine colour, pH, salinity, taste, temperature, turbidity and electrical conductivity. After completion of drilling and construction of the water well, well development by airlift, surging, over-pumping, or any other technically acceptable method must be carried out until the water becomes clear. The pumping test serves two primary objectives. The 20 first is an assessment of the production capacity (yield potential) of the borehole and the second is to address the productivity of the groundwater resource. Evaluation of pumping test results shall be used to determine safe yield, aquifer and well parameters such as Specific yield (Sy), Storability (S), Transmissivity (T), well efficiency, safe yield, storage coefficient, and Hydraulic Conductivity (K). For domestic water supply boreholes, disinfection must be undertaken after well installations and pumping test has been completed to ensure that the water will be safe for human consumption. After all the drilling operations have been done, the contractor should hand over the well to the Client. The handing over should include the submission of all records properly compiled in a Well Completion Report to the owner, Basin Water Board and Water Resources Division. The Borehole drilling Supervisor will prepare a borehole completion report that will include maps, borehole geological logs of the lithology, design, number of plain and screen casings, casing materials, development, test pumping data analysis and results, the values of hydraulic parameters such as Transmissivity (T), Hydraulic Conductivity (K) and Storativity (S), well efficiency, safe 21 yield, pump position, water quality assessment, aquifer assessment and classification, protection zones and the delineation of potential target areas to mention but few. The Hydrogeologist will ensure that the appointed contractor has signed the relevant technical specifications. From what I have tried briefly to demonstrate, the question would be whether the Respondent adhered to the standard and acceptable procedures. According to the evidence, the water borehole was accordingly drilled as agreed; however, no water could be drawn therefrom. A survey report from the surveyor preceded the drilling operation. The drilling, therefore, was conducted in accordance with the report. The question would be whether standards and acceptable procedures were applied after drilling. According to DW1, a compressor was installed; however, the pumping results could not be divulged. As said before, the pumping test must be done professionally to assess the production capacity (yield potential) of the borehole and to address the productivity of the groundwater resource. When everything is set, the Borehole drilling contractor must prepare a Borehole Completion Report to the 22 owner indicating everything done and steps taken. The report must be preceded by the Groundwater Exploration Report. It is when the procedures indicated under the law, regulations, and guidelines the contractor is said to have drilled the borehole professionally. Had the Respondent applied and or followed the procedures or acceptable standards, she would have discovered the productivity capacity of the borehole at the early stage (especially during Exploratory borehole), and the Appellant would have been accordingly professionally advised. The records are silent as to whether each and every step was adhered to by the Respondent. As said before, parties entered into an agreement in which the Respondent agreed to drill the underground water borehole. In my conviction, apart from abiding by the contract, the Respondent was also required to abide by the laws, practices and standards of the profession. From what I have seen, the Respondent was blatantly unprofessional, leading to a wastage of time and costs to the Appellant. In that stance, I am constrained to agree with the trial Court that the Respondent breached the contract by failing to adhere 23 to the acceptable standards or procedures established by the law and profession. Although I agree with the Respondent that the survey report may be different from the result after drilling a borehole, with respect, I am also of the considered opinion that water insufficiency may be as a result of failure to follow the acceptable standards or procedures. Having so observed, the question would be what relief parties are entitled to. The Appellant, in her Complaint Form, prayed for specific performance, payment of Tanzanian Shillings 2,000,000/= as specific damages, and Tanzanian Shillings 2,000,000/= as money she paid as advocate fee. Considering the available records, I hereby grant the claimed sum as prayed. A prayer for a specific performance of the contract is also granted in favor of the Appellant. The Respondent is ordered to comply with the acceptable procedures under the laws and established standards and norms of the profession by drilling a water borehole within 60 days from the day this judgement is communicated to her. The Appellant shall recover the costs arising out of this Appeal. 24 I order accordingly. Right of appeal explained. DATED at DAR ES SALAAM this 24th September 2024. H.S. MTEMBWA JUDGE 25