SWEETBERT CRONERY MUSHONGI VS NDOMWANA COMPANY

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MWANZA SUB REGISTRY) AT MWANZA CIVIL APPEAL NO. 12059 OF 2024 (Originating from civil appeal case No. 23/2023 in the District Court of Nyamagana, original civil case No. 396/2022 at Mwanza urban Primary Court) SWEETBERT CRONERY MUSHONGI............................. APPELLANT VERSUS NDOMWANA COMPANY.............................................RESPONDENT JUDGEMENT 03?D July & 4thSeptember, 2024 A. MATUMA, J. In the primary Court of Mwanza Urban within the District of Nyamagana in Mwanza Region, the Respondent successfully sued the appellant for claim of Tshs. 10,600,000/= being outstanding debt for various building materials supplied to the appellant by the Respondent. The Respondent's evidence at the trial Court was to the effect that she supplied various building materials to the appellant on credit basis but the appellant defaulted to repay for the products. Several witnesses for the respondent testified to that effect and several documentary exhibits were tendered to substantiate the claim. i The Appellant on his part denied completely the claim arguing that he never took any material from the Respondent nor he knew her or had any business relation with her. He also brought a witness to backup his evidence. At the end of the trial, the trial Court found that the Respondent's evidence was heavier than that of the appellant and allowed the claim of Tshs.l0,600,000/= plus 15% termed as "faida" and costs of the Suit. The appellant was aggrieved of the decision hence appealed to the District Court but lost the appeal with costs. He is now before this court for the Second appeal armed with four grounds to the effect that; 1. The first appellate court erred to rule out that there was a contractual agreement between the parties on assumption that the mobile phone messages which were rejected during trial could prove that contractual agreement. 2. The first appellate court erred to believe the evidence of SM3 who was not part to the alleged contract nor she testified to have heard the appellant instructing one Baraka to receive the goods from the respondent. 3. The first appellate court erred to assume that Baraka was an employee of the appellant capable of receiving the goods on behalf of the appellant. 4. The first appellate court erred to draw inference that the invoices and delivery notes which were tendered in evidence without objection from the appellant werp them alone a sufficient proof to the respondent's case. 2 All these grounds as summarised in context above are tending to challenge the weight of evidence of the respondent at the trial Court and thus the appellant is wondering how could the first appellate court relied on such evidence to find the appellant guilt of the claim by the respondent. At the hearing of this appeal, the Appellant was represented by Mr. Adam Robert learned advocate while the Respondent was represented by M/S Abela Hosea learned advocate. Mwanahawa Selemani, the Director of the Respondent Company was as well present. I would first like to draw the attention of the parties to the respondent's name as brought in the Petition of Appeal. The appellant has named the respondent in the Petition as Ndomwana Co. LTD. But going through the trial court claim form (Plaint), the trial court proceedings and judgement, the Petition of appeal in the District Court, the proceedings and judgment thereat, all reflected the respondent as Ndomwana Company. I have not taken the differences as a big deal to disturb this appeal but instead I have taken it as a slip of the pen by the appellant in drafting the petition but all what he intended was to challenge the decree issued in favour of Ndomwana Company and not Ndomwana Co. Ltd. That is why in the instant judgment I have chosen to cite the respondent's name in its appropriate wordings as against themanner she is written in the petition. Let us now go back to the matter at issue. 3 Arguing for this appeal, Mr. Adam Robert learned advocate submitted in the first ground that the District court erred to assume existence of the contract between the appellant and the respondent on the ground that had the phone messages not technically rejected they would have proven the existence of the contract between the parties while in fact such sms did not form part of the evidence on record. Responding against this ground M/S Abela Hosea argued that the contractual agreement between the parties was established by oral evidence and not the sms which were in fact rejected and not admitted in evidence. On this I must at the outset join hands with Abela Hosea learned advocate that neither the trial court or the first appellate court relied on the rejected phone messages to adjudge that there was contractual relation between the parties. Both the lower courts relied on the oral evidence by the respondent's witnesses and documentary evidence (invoices and delivery notes) to conclude that the parties had a valid contract. For instance, the primary court at page 4 and 5 of its judgment determined the first issue as to whether there was a contract between the plaintiff and the defendant. It held; "kwa kuanza na hoja ya kwanza mdai alieleza kwamba walikuwa na makubaliano ya mdomo na mdaiwa^na mdaiwa alikuwa anatoa 4 maeiekezo kupitia simu. Mdai katika kuthibitisha hiio alileta mashahidi walloshuhudia akiwa anape/eka vifaa eneo la site na pia aiiweza kutoa delivery note zilizokuwa zinasainiwa eneo la site na foreman a/ikuwa anasaini. Mdaiwa yeye alieleza kwamba hajawahi kufanya biashara na mdai na waia hakuwa anamfahamu. Mahakama baada ya kupitia maeiezo hayo Pamoja na Ushahidi uiioietwa mbeie ya mahakama hii imejiridhisha kwamba mdai na mdaiwa waiikuwa na makubaiiano." From the bold part of such decision, it is obvious that the trial court did not use phone messages to determine the issue. It relied on the oral evidence of the parties, oral evidence of their witnesses and the documentary evidence. At the District Court, the learned Principal Resident Magistrate at page 7 and 8 of its judgment scrutinised the evidence of SM3 who saw the consignments being offloaded at the appellant's site and the invoices and delivery notes. Thereafter concluded that such evidence in itself was enough to establish the claim of the respondent against the appellant even if it was the evidence of a single witness; "This court finds the evidence of a single witness is enough to substantiate the case as the law does not require that to prove the case you must have many witnesses; a single witness suffices to prove the case." Issues of phone messages were discussed by the District Court just by the way when the Principal Resident Magistrate made an observation that the rejection of such sms was done on technicality basis as against article 107(2)(e) of the Constitution of the United Republic of Tanzania. This observation was made at page 9 of the judgment while the issue of contact between the parties was already determined and concluded at page 6 and 7 of such judgment. The District Court did not therefore rely on the rejected sms to assume existence of the disputed contract. It made just an observation that had such sms not rejected on technical base, it would have added value to the respondent's case by establishing the manner the appellant was communicating with the respondent on the matter relating to the goods. In that respect the first ground is without any substance and accordingly dismissed. In respect of the second ground the learned counsel of the appellant argued that the evidence of SM3 was wrongly relied upon because she was not part to the alleged contract nor she testified to have heard the appellant instructing the said Baraka to receive the goods on his behalf. He contended that even if it is believed that,SM3 saw Baraka receiving the 6 consignment there was no evidence that he received them for the appellant. On her part, the learned counsel for the respondent argued that the fact that SM3 witnessed Baraka receiving the goods at the site that was enough and failure of such witness to have heard the appellant instructing Baraka to receive the goods is immaterial. On this ground I find that the District Court rightly valued the evidence of Beatrice Beatus Moyo (SM3) who according to the evidence on record was "mama Lishe" who used to cook for the appellant's workmen at the site. She witnessed Baraka the appellant's agent at the site receiving such building materials. The site was fenced by iron sheets and therefore in no way Baraka could have received the goods at the site for himself as it would be difficult for him to take them off the site. But again the evidence of SM3 was just corroborating the evidence of SMI Mwanahawa Selemani who had testified that the appellant introduced her to the said Baraka who shall be receiving the goods from her. Therefore the fact that Sm3 did not hear the appellant instructing Baraka to receive such goods is immaterial as rightly argued by Abela Hosea learned advocate. This is because the evidence as to why Baraka received the consignments from the respondent SM3 was further corroborated by SM2 Denis Samsoni Kinipwi who was the transporter. He testified that he transported at one time some building materials from the Respondent to the appellant's site at Bugarika. In the circumstances, the second ground is hereby dismissed for want of any merit. On the third ground of appeal Mr. Adam Robert learned advocate argued that the first appellate court erred to have assumed that Baraka was an employee of the appellant be it by permanent terms or casual terms and that he could act for the appellant. Abela Hosea learned advocate on his part was of the argument that so long as the goods were received at the site, they were received for the site owned by the appellant. I agree with her. The building materials as reflected above by the evidence on record were transported to the site by instruction of the appellant himself. Baraka was the known agent of the appellant by Sm3 who was one of the people in the site as a site cooker. Therefore, whether or not such Baraka was an employee of the appellant, it is immaterial. What matters is that he acted as an agent of the appellant by receiving the goods at the site and acknowledging receipt by signing the delivery notes. It was the appellant to state how could his site be open for unknown people to receive strange goods not ordered by him. Was it a crime site? I find that the appellant is^tfying to avoid liabilities on technicalities which has no room in Civil trials. I accordingly dismiss this ground of appeal. In the last ground of appeal, the learned counsel for the appellant argued that despite the fact that the invoices and delivery notes were tendered in evidence without objection by the appellant, it was wrong to draw inference that such documents proved the claim as they required corroboration to establish that such documents linked the appellant and the respondent to the alleged transaction. In other words, the learned advocate was arguing that the said documents had nothing to do with the appellant. On the other hand the learned advocate for the respondent opposing such last ground argued that so long as the appellant did not object admissibility of such documents nor cross examined on them, he was legally accepting the truth of such evidence to the effect that he received the building materials in question. It is my firm finding that the learned advocate M/S Abela is absolutely right. Those invoices and delivery notes are clearly reading that the recipient of the materials was Eng. Mushongi now the appellant. Yet there was no objection to their admissibilities; "Wakili wa mdaiwa: Sina pingamizi zipokelew^ ma Ushahidi" Thereafter the trial court received the delivery notes as exhibits PW1 Al- A4 and invoices as PW1 B1-B4. The appellant did not cross examine on the contents of such exhibits in the meaning that he had no dispute in them. He cannot therefore be allowed to dispute the truth of such documents as rightly held by the learned principal resident magistrate. Even though the decision of both courts below did not solely rest on the contents of such exhibits. The oral evidence was as well considered in addition to the contents of such documents. I therefore find no merit in this complaint and accordingly dismiss it. Up to this juncture, the appellant's appeal is already dead due to the fact that all grounds of appeal have been dismissed as reflected above. I however find it important to state that the respondent's case was further corroborated by Jerome Joseph SM5 who was the chairman in the locality of the appellant's site. He testified that the appellant approached him and introduced himself to have acquired a site at that locality and started construction. The witness went on that some time later he received so many complaints from the workmen of the appellant who complained that they were working without being paid by the appellant. He made several interventions whereas some herein that she supplied the appellant building materials an credit but was not repayed. According to this witness he talked to the appellant and the appellant asked him to cool down the respondent for a while as he shall pay her. He did the needful but later the appellant changed telling him that he don't recognize him because he was not part to the contract. The matter is between him and the respondent. It is upon such appellant's response, the chairman (SM5) advised the respondent to seek legal redress to the relevant authority hence this case at the primary Court. This evidence takes further the respondent's case. When the evidence on record is generally measured, that of the respondent is heavier than that of the appellant. This is because the evidence of Mwanahawa Selemani the Director of the Respondent's company to the effect that she had oral contract with the appellant to supply building materials was corroborated by other witnesses as reflected supra. It was as well corroborated by documentary evidence as shown above. To the contrary the appellant's evidence was just a general denial. The appellant who testified as SU1 made a general denial to the effect that he had never been in business relation with the respondent; i " Kuhusu madai yake kwa ufupi sina biashara yoyote ambayo ni/ishafanya nae, niHkataa polisi na hapa naende/ea kukatad' Such general denial does not to away the corroborated evidence of the respondent as reflected Supra. He also made a general denial about Baraka as his agent; "Baraka mimi simfahamu" Unfortunately, he did not attempt to bring in court the roster of his staffs and at least the payroll for the court to scrutiny whether Baraka was not among the appellant's staffs. But on record as reflected above, there is sufficient evidence establishing that Baraka was in fact the appellant's agent. The appellant brought another witness Mwanvua Ramadhani (SU2) who testified that he was a forelady (Msimamizi) of the appellant's site at Bugando. She did not speak anything relating to the site at Bugarika which is the subject matter at hand nor she stated anything about Baraka. Her evidence therefore did not cast any doubt to the respondent's evidence that Baraka was an agent of the appellant and receiyedthe goods on his behalf. 12 In the circumstance the respondent's evidence heavier and credible enough for having been coherent and corroborated as against the appellant's evidence which was merely a general denial. In fact I could not find anything on record suggesting that this case was cooked against the appellant by all these witnesses and documents. The respondent's witnesses are not related any low. There was a director of the respondent on how the business started, a free transporter who was merely hired by the respondent to transport the goods to the appellant's site, the local chairman who happened to talk with the appellant about the claim and used by the appellant to cooldown the respondent, and the appellant's site cooker. All these witnesses are not linked to a certain chain that would connote a conspiracy against the appellant. I therefore credit them as credited by the two lower courts and believe in their evidence against the general denial by the appellant. That being the position, I find that this appeal has been brought without any sufficient cause. It is hereby dismissed accordingly. It is dismissed with costs. Right of further appeal explained. It is so ordered. ,__ A, M ATU MA Judge 04/09/2024 13