Tobias Msokwa vs Ibembwa Village DC Civil Appeal No

IN THE HIGH COURT OF TANZANIA AT MBEYA APPELLATE JURISDICTION (Mbeya Registry) DC CIVIL APPEAL NO. 17 OF 2004 (From Mbozi District Court Civil Case No. 9 of 2001) TOBIAS M S O K W A ............................ APPELLANT VERSUS IBEMBWA VILLAGE ............... RESPONDENT EXP ARTE JUDGEMENT OTHMAN. J. This is an appeal by Tobias s/o Msokwa. The appellant stands aggrieved by the judgement of the Mbozi District Court delivered on 20/05/04 in which that court held him liable for the repayment a debt and interest at Tz shs. 603,000/= in respect of various farm implements supplied for the 1997/1998 coffee season, and advanced by the Respondent, Ibembwa Village. The memorandum of appeal instituted on 27/8/04 faults the District Court for having erred in law and fact in not considering that:- (i) The admitted debt amounted to Tz shs. 267,444/= only, and not Tz. Shs. 603,000/= (ii) The written agreement (Exhibit A) showed a debt of Tz. Shs. 196,650/=, interests at 26% (i.e. Tz.shs. 51, 129/=), and 10% for the Court Broker (i.e. Tshs. 19,665/=), rendering the total amount due at Tz.shs. 267,444/=, and not otherwise. At the appeal hearing on 9/06/05, the matter was heard exparte under Order XXXIX r. 17 (2) of the Civil Protrude Code, 1966. The Respondent duly served neither appeared, nor offered an explanation for non-attendance. The appellant submitted that in 1998, he borrowed Tz. Shs. 190,000/= from the Respondent. He failed to repay. Faced with such a situation, he was engaged, and worked for the Respondent. The latter deducted Tz. shs. 90,000/= from his earning. That later he signed an agreement on the sums owed, which did not contain a clause on interest payment. He admits a debt of Tz. Shs. 267,000/=, which consists of the principal amount, and all interest payable up to 20/05/04 when the suit was instituted. Now the merits. A consideration of the appeal requires this court to critically reexamine the evidence, according respect to the findings of fact by the trial court, which heard and saw the witnesses. These were the material facts of the case. Trial commenced on 22/06/02. The Respondent’s case (plaintiff) was that on behalf of Ibembwa villagers, it secured on loan farm implements from Viganga & Family Co. Ltd., for the 1997/1998 coffee season, that was to be repaid at 30% interest in 1998. That the appellant took farm implements worth Tz. Shs. 196,500/=, with interest at 36% the total of which amounted to Tz. Shs. 267,444/=. That interest accumulated to Tz. Shs. 603,000/=. PW.l tendered the written undertaking to that effect between the Respondent, the Appellant and Majembe Auction Mart (Exhibit A). Cross-examined, he responded that the original contract was concluded at the village office, and initially there was no agreement or payment of interest. He pointed out that there was no agreement for the appellant to repay the debt by working with Viganga & Family Co. Ltd. Tested on cross-examination by the 2d defendant; PW. 1 replied that there could have been no question of interest had the debt been paid in full when due. The Appellant admitted receiving a loan of farm implements valued at Tz. Shs. 196,650/= (Exhibit A). It was to be paid in 1998/99-coffee season. That due to bad harvest, he failed to pay in time. He worked as the Respondent’s coffee buying sub agent. The Respondent had been Viganga & Family Co. LTD’s main agent. That he gathered 8,313 Kgs of coffee, and was to be paid Tz. Shs. 155,000/=. In the end, he was only paid Tz. Shs. 70,000/=. An outstanding balance remained. Cross-examined by PW .l, he replied that he signed on Exhibit A to admit the debt. He insisted the debt was to be deducted from the commission due to him. DW.2’s evidence was to the effect that villagers had been loaned by the Respondent farm implements on a loan basis to be repaid by the 1997/98 coffee season. In its judgement delivered on 20/05/04, the District Court found it established on the evidence and Exhibit A that the appellant was indebted to the tune of Tz. Shs. 267,444/= comprising the principal amount of Tz. Shs. 196,650/=, interest at 26% (i.e. 51,129/=) on the loan, and 10% on the Court Broker (.e. Tz. Shs. 19,665/=). It held that the counter-claim and set off of Tz. Shs. 90,000/= was neither supported by evidence nor any documentary proof that the appellant had been engaged as the Respondent’s coffee buying agent. The court considered that on a balance of probabilities the appellant could not escape liability for the repayment of the debt or interest thereupon. Grounds 1 and 2 are interconnected. They are best considered together. After a close reexamination of the evidence on record, it is common ground that farm implements on loan were supplied to the appellant, one of Ibembwa villagers, on repayment to be made in the 1998 coffee season. The loan was to be repaid by 31/7/1998 (Exhibit A). There is no dispute that as of 8/3/99 the appellant had not repaid (PW.l, DW .l, Exhibit A). Equally, it is common ground that on 8/3/99, the parties came to a written understanding for the loan repayment to be re-scheduled, and to extend to the period 1/7/99 - 31/7/99 (Exhibit A). The appellant acknowledged that total amount of debt, interest included would stand at 267,650/= as of the latter date. This figure was composed of (a) the principal sum (i.e. Tz. Shs. 267,650/=, (b) 26% interest thereof (Tz. Shs. 51,129/=, and (c) 10% Court Brokers interest (Tz. Shs. 19,665/=). The real issue on appeal is whether or not the debt and interest claimed in Paragraph 3 of the Plaint, and by PW.l to be at Tz. Shs. 603,909.65 was established, as found out by the District Court. Having carefully reexamined the evidence on record, there are two unsatisfactory features with regard to the District Court’s conduct of the case. First, mid-trial on 20/1/2/02, the trial court ordered the Respondent to file a reply to the appellant’s written statement of defence and counter-claim. This was complied with on 7/04/03. It is trite law that pleadings, with the exception of permissible amendments, have to be concluded before the commencement of the trial (see, Order VIII r. 15, Civil Procedure Code, 1966). Else, the parties may not be in a position to know what they are expected to meet and this may also compromise the framing of issue for the real determination of controversy in the suit. In the circumstances of the case no prejudice was suffered as full length evidence was led by both parties. All knew what they were to answer. Second, and the pivot on which this appeal balances, is the omission or failure by the District Court to reconcile the evidence between the amount claimed in Paragraph 3 and Annexture A of the Plaint, i.e. Tz. Shs. 603,909.65, and Exhibit A, which the parties spoke from, and relied upon. To borrow the court’s own words it too found the exhibit “beyond argument”. This non direction went to the substantial fabric of the case, and entitled this court to have a close re-examination of the evidence, and make its own findings (Salum Mhando v. R. [1993] TLR. 170; Hassan Mzee Mfaume v.R. [1981] TLR. 167). Scanning through the whole evidence, and on the applicable principle of first appellate scrutiny of the District Court’s findings of fact, I am satisfied that on a preponderance of probabilities, as of 31/07/99 the appellant was indebted a total sum of Tz. Shs. 267,444/= comprising the principal sum and interest. The evidence establishes that no interest was agreed on the original farm implements loan, which was to have been repaid by the 1998 coffee season (PW .l, DW.l). This by 31/7/98 (PW .l, DW.2, Exhibit A. It is undisputed that by that date the appellant had not repaid the original loan, established at Tz. Shs. 196,650/=. All considered, the appellant’s liability stands at Tz. Shs. 267,444/=. That apart, there is sufficient proof to the standard required in civil cases, that interest was subsequently agreed upon on 8/03/99 on the extended repayment facility, signed and accepted by all the parties (i.e. Exhibit A). Its contents conveys the common intention of the parties. All favourably spoke from it. In its appreciation and assessment of the evidence, the district court fell in material error in considering that the principal sum and interest due stood at Tz. Shs. 603,909.65 as claimed. The evidence of PW.l was slender in accounting how the sum was arrived at, nor did the trial court attempt a tabulation of the principal sum and interest due thereon. In the upshot, Grounds 1 and 2 of the appeal have been made out. Taking into account the totality of the evidence on record, and the attending circumstances and proved facts, I am satisfied that the preponderance of probability was in favour of the Respondent for only an established claim of Tz. Shs. 267,444/=. I would, in consequence, vary the trial court’s judgement and adjust the amount entitled and decreed to that sum. In the Plaint, no claim has been made of interest from the period prior to the filing of the suit. This is a matter of substantive law, and must be specifically pleaded (Francis Andrew v. Kamyn Industries Ltd. [1980] TLR. 31). That aside, interest is awarded at the court rate of 7% per annum, from the date of judgement until full and final satisfaction thereof, consideration given to the undisputed nature of the transaction and the justice of the case. Applicable is section 29 and Order XX r. 21 (1) of the Civil Procedure Code, 1966. On the wake of all reasons stated, the appeal is partly allowed, with each party to bear its own costs. M. C. Othman Judge 20/04/06 Date: 18.05.06 Coram: Hon. Othman, J. Appellant/Respondent: Absent. B/C: Mrs. Kambadu Judgement delivered.