UPENDO ELINIMO MWANGA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM CIVIL APPEAL NO.1129 OF 2024 (From the Decision of the District Court of I1ala at Kinyerezi in Civil Case No. 46 of 2022) UPENDO ELINIMO MWANGA APPELLANT VERSUS SAID ALLY TWALIB RESPONDENT RULING pt October, & 13th Dec., 2024 DYANSOBERA, J.: The appellant herein filed a suit before the District Court of Iiaia at Kinyerezi claiming a declaratory order that the respondent breached the loan agreement, payment of the sum of Tshs. 104,015,750/= being the amount owed by the respondent, payment of general damages to the tune of Tshs. 40, 000, 000/= and costs of the suit. This appeal was opposed by the respondent in his Reply to the Memorandum of Appeal. The learned Principal Resident Magistrate heard the suit and, at the end of the day, dismissed it with costs on 22nd day of December, 2023. This decision aggrieved the appellant. He has now filed this appeal on the ten grounds. For the course I am going to undertake, I need not reproduce them. A brief background of the matter is as follows: the parties who were well acquainted with each other entered into a loan agreement. According to the 1 agreement which was reduced in writing on 7th December, 2021 and was witnessed by PW 2 and DW 2, DW 3 and DW 4, it was agreed that the appellant lent Tshs. 104, 015, 750/= to the respondent. As security for the loan, the respondent deposited three titles of the landed properties. The loan was repayable within three months. Both parties duly signed the loan agreement. The dispute in this matter is as to who was in breach of the contract. While the appellant told the trial court that it is the respondent who failed repay the loan as had been agreed upon, the respondent argued that it was the appellant who was in breach of the contract for failure to give the loaned money to him after the loan agreement had been executed. As hinted above, the learned Principal Resident Magistrate, after analysing the evidence of two witnesses on part of the appellant and four witnesses for the respondent together with some documentary evidence, was satisfied that the case against the respondent was not proved on balance of probabilities on account that the appellant, then plaintiff, had failed to fulfil her promise. Before me, the hearing was conducted by way of written submissions. Having considered the trial court's record, the grounds of appeal and the submissions in support and in opposition of the appeal, it is my opinion that the circumstances of the case dictate that additional evidence be taken. This is clear from the evidence. I will explain. It was in evidence at the trial as seen at p. 30 of the trial court's proceedings, that the appellant told that court/ inter alia/ 'On 7/12/2021/ according to our relationship Mr. Said (defendant) told me that he had an emergency of which he needed TZS 104/ 01~ 750/= to solve his problem and he promised me to pay the amount within three (3) months. Because 1 have already believed on him/ 1 agreed to give 2 him the said amount and he went to the lawyer for legal handling of the money at Chanika area. We went to the lawyer and he had written loan agreement and he handed the tttte deed (3) as two deeds countinous house and one tittle deed country buses tremea: Also, David Haruna Makenza (PW 2) is recorded at p. 46 of the proceedings of the trial court to have testified: 'According to the loan agreement there is no paragraph which shows that the plaintiff fulfilled her promise of giving the said loan to the defendant' The respondent at p.49 of the said proceedings is recorded to have testified: 'After having handed over the title deeds we asked to peruse the contract (loan agreement) and the lawyer read the agreement to us, Tukamuuliza hati tumekabidhiana hela tutapata wepi. Mwanasheria akatuambia hela mtapata kwa sababu ni process' According to DW 2 one Mariam Hashim Hassan, the lawyer was Steven Jamson Shitindi of Chanika. The totality of the evidence shows that the loan agreement was prepared and attested by Mr. Steven Jamson Shitindi. It is the same lawyer who promised the respondent that he would be given the money. The evidence of the appellant is clear that, '1 agreed to give him the said amount and he went to the lawyer for legal handling of the money at Chamka sree: This means that it is Mr. Steven Jamson Shitindi who wrote and attested the agreement who is placed in a better position to tell whether the respondent was 3 given that loan sum of TZS 104, 015, 750/= by the appellant. He is also a crucial witness who can tell the court when that money was given to the respondent and how. Without the evidence of this lawyer, the issue as to who is in breach of the loan agreement cannot be substantially resolved. In other words, this court is of the opinion that additional evidence should be taken for a proper decision of the case. In consequence and for the foregoing reasons, I order the record to be dispatched to the trial District Court for it to take additional evidence of Mr. Steven Jamson Shitindi on whether the appellant gave the loaned money to the respondent, when and how was it handed over. Thereafter, the District Court shall certify to this court within fifteen days from the date of receipt of this order. It is so ordered. W.P. Dyansobera JUDGE 13.12.2024 This ruling is delivered under my hand and the seal of this Court on this 13th day of December 2024 in the presence of Mr. Jackob Kaisi holds brief for the appellant's counsel, and the respondent. ' {:1: (')~. ~ \ u.l.~ '~ (~ . z. "I /\ ;;;' . Ki ..)::. I A. H. Mbadjo ''(' ~.. /".<,:<- DEPUTY REGISTRAR ~ _./ 4