final VALANCY RICHARD 1 Tanzilii

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA THE SUB-REGISTRY OF MOSHI

AT MOSHI CIVIL APPEAL NO. 18642/2024 (Appeal from the Judgement of District Court of Moshi at Moshi dated 20th February,2024 in Civil Appeal no. 14 of 2023 and originating from the decision of Moshi Urban Primary dated 30th June, 2023 in Court Civil Case no. 20 of 2023) VALANCY RICHARD T/A KILI VIKING LTD.……..……….……..…APPELLANT

VERSUS ALFRED MICHAEL T/A VIVA AFRICA TOURS SAFARIS..…………….………...…………….……………1ST RESPONDENT AIDANO ERASTO KAY..……………………………………………2ND RESPONDENT

JUDGMENT 13th February & 27th March, 2025. A.P. KILIMI, J.: This is second appeal, the matter started at Moshi Urban Primary Court ‘the trial Court’ wherein the appellant sued above mentioned respondents claiming for payments of Tshs. 26,000,000/= as costs for repairing his motor vehicle after the accident, loss of incomes and costs of the case. He lost the case in two courts below, and now is in this court praying the decision and entire proceedings of the appellate court be nullified. 1 The facts gave rise to this matter are not difficult to comprehend, appellant being a tour operator and trading as Kili Vikings Ltd entered into an oral agreement with the 1st respondent herein who trades as Viva Africa Tours Safaris Ltd. The contract was all about the hire of the appellant land cruiser car with registration No.T.198 ASK to be used in transporting the tourists from Moshi to Tarangire National Park for four days with a consideration of USD 600 (Tshs 1,422,000/=). Unfortunately, on the first day of transporting the tourists to Tarangire National Park, the said car got into accident at Mto wa Mbu area. Subsequently a traffic case was filed against the 2nd respondent who was a driver to that car. The 2nd respondent was arrested and taken to Monduli District Court for the traffic case where he was convicted with 4 counts and sentenced to pay Tshs 30,000/= or in default to serve six

months imprisonment in each count. After that, the appellant herein contacted the 1st respondent for payments of costs to repair the damaged car but with no success. He decided to repair his car at his own expenses. He repaired and replaced the whole board of the car incurring a total of Tshs 26,000,000/=as expenses. Proving how he incurred that amount in repairing his car, the appellant presented a proforma invoice admitted as exhibit P4 at the trial court. 2 In their response at the trial court both 1st and 2nd respondents denied the claims of the appellant to be not true. The 1st respondent told the trial court that he hired the appellant car for four days with the agreement of payment of USD 600 to transport his tourists. Thereafter the appellant was responsible to pay the driver (the second respondent), he then admitted about the said accident, and maintained that he took trouble himself to secure the health of the victims after the accident while the appellant neither helped him with anything nor the insurance of the car. The 1st respondent also told the trial court that a proforma invoice tendered had the figure of Tshs. 31,280,000/= different from what the appellant was claiming to have incurred Tshs 26,000,000/=. He also denied the claim by saying that he was rented a Toyota Land cruiser (short chassis) and not a car that was described in a proforma invoice

presented by the appellant at the trial court. In respect to the 2nd respondent’s testimony at the trial court was that, he referred the appellant as his boss and that it was the appellant who introduced him to the 1st respondent. He further said that it was the appellant who paid him to drive the tourists of the 1st respondent to Tarangire National Park for four days but unfortunately the car got into an 3 accident on the first day where he was then convicted with offence of carelessly driving and paid a fine. After hearing both parties, the trial court was of the view that the appellant failed to prove his claims of Tshs 26,000,000/= against the defendants on balance of probabilities. The trial court reasoned that exhibit P4 a pro forma invoice showed the lists of changed items along with the change in entire structure of the car (from item 1-9) costing a total of Tshs 31,280,000/=. The trial court was of the view that the appellant ought not to have changed the entire structure of the said car but to have repaired the car on areas seemed to have been damaged from the accident. It reasoned further that the appellant ought to have even brought a vehicle inspection report so as to show the extent his car was damaged from the accident. As no evidence was brought evidencing the same, his case was dismissed. Aggrieved with the trial court decision, the appellant preferred

his appeal to the District Court of Moshi at Moshi with several grounds. The appeal was determined exparte upon respondents faulted to appear. Upon hearing the appellants’ grounds of appeal, the learned District Magistrate dismissed the appeal. On the ground as to who was to be responsible for 4 damages if at all occurs while the car was in possession of the respondents, she reasoned that since the appellant car was the business car and had a permit to operate as the tourists’ transport, it was obvious that the same was insured in case of any calamity occurs. Further the learned District Magistrate was of the view that even if the 1st respondent was responsible for the damages incurred after an accident, still the appellant evidence was lacking due to the fact that the amount allegedly incurred differed with the exhibit tendered at the trial court as no evidence were presented showing the extent of damages occurred to the appellant car. The learned appellate Magistrate further reasoned that exhibit P4 cannot be used as a conclusive proof of the costs used by the appellant in repairing the car as a pro forma invoice can be drafted by anyone and that it could have been different if the appellant brought a receipt showing he paid the said workshop (garage) for the car repair. Still undaunted, the appellant has preferred the current appeal marshaling on four grounds to the effect

that; first; that the trial court while it was tainted with several illegalities. Second; that, the judgment by the appellate court contradicts itself hence violates principles of law. Third, 5 that the learned magistrate exercised biasness as the trial magistrate did hence reach wrong decision. And fourth; that, the learned Magistrate failed to evaluate evidence hence reached wrong decision At the hearing of this appeal which was agreed to be by way of written submissions, the appellant appeared for himself unrepresented whereas both respondents were represented by Ms. Angel Edgar Mongi learned Advocate. Arguing in support of first ground, the appellant submitted that the learned appellate magistrate erred with her reasoning that the evidence presented differed with the pro forma invoice presented by the appellant. The appellant was of the view that claiming of twenty-six million instead of thirty-one million did not vitiate the appellant’s claim. He was of the view that there is no law compelling the appellant to state exactly to what was indicated in a pro forma invoice proving that in fact the appellant incurred expenses. In respect to the second ground that the appellate decision contravened principle of law, the appellant submitted that the appellate judgment lacked qualities of a good judgment which should bear the 6 material facts of the case, point for determination

and reasons for such decision. He submitted that the reasoning of the learned District magistrate did not tally with the point for determination, thus should be treated as a defective judgment as per the decision of ORYX Energies Tanzania Ltd vs. Oil Com Tanzania Ltd, Civil Application No. 90 of 2014. As to the third ground, the appellant failed to argue on this ground, I assume the same was abandoned, however since it was listed as one of the grounds of appeal, in due course of this judgment, I will consider it. Finalizing his grievances on fourth ground, the appellant argued that the trial court and the appellate court erred in believing that the 2nd respondent was employed by the appellant. He said that the appellate magistrate failed to evaluate whether there was a tendered contract of work for the 2nd respondent, mode of payment or mode of instruction if any to the 2nd respondent. He submitted that the court had the duty to inquire as to the existence of employment relationship between the appellant and the 2nd respondent and not only relying on a mere assertion. For failure to evaluate evidence by the court, the appellant relied to the decision of Standard Chartered Bank vs Anitha Rukoijo, Revision 7 Application No. 470 of 2020 [2022] TZHC 122. The appellant added that the Court was aware that the 2nd respondent was convicted with a traffic case but it failed to require

the vehicle inspection report so as to be tendered in court to prove the extent of damages. The appellant concluded that he did not know which law or jurisprudence that were used by the learned magistrate that the damages incurred by virtue of accident are to be covered by insurance. He said that was not the agreement of the parties as the implied term within their contract was that the respondent was to return the vehicle to the owner in a good condition as he took it before and in case of any damages or defects, he had to repair first. In reply, Ms. Mongi argued against the appeal. For the first ground she submitted that the learned trial magistrate did not error her decision as there was no evidence to support the appellant claims against the respondents. She was of the view that the appellant failed to prove her claims against the respondent as no evidence were presented to show how the car was damaged, and no contracts were presented evidencing the liability to the respondents in case the car got into an accident. She added 8 the question to the appellant that why the insurance was not a part to the case. The learned counsel further said that at the trial court the appellant presented evidence that was a proforma invoice indicating how he upgraded his vehicle from a small land cruiser (Land cruiser short chassis) to a larger one which accommodates a lot of passengers. To

support her point, she referred to section 110(1) and (2) of the Evidence Act Cap 6 on who alleges must prove the allegations. On the argument that the appellate judgment lacks principles of good judgment, the learned counsel reply was that the appellate judgment had all prerequisite of a good judgment as it reasoned to why the learned Magistrate arrived in the said decision. She relied on the 8th Edition of the Black’s Law Dictionary at page 858 on the meaning of judgment. She also cited Order XX Rule 4 of the Civil Procedure Code Cap 33 R.E 2002 on forms and contents of a judgment. She cemented her views with the decision of Nkungu vs. Mohamed [1984] TLR 46 on what shall be contained in a valid judgment. For the cited decision of Standard Chartered Bank vs. Anitha Rukijo (supra), the learned advocate said the same were distinguishable with the circumstance at hand as it was irrelevant and inapplicable to the case at hand. 9 On the claims that the appellant did not know what law stated that damages were to be covered by insurance, she argued that since the vehicle was insured, all insurance claims was to be channeled to the person who caused the accident then the insurance agent as per the Insurance Act 2009. She said as per section 10 of Insurance Act; the appellant had a duty to claim from insurance company for the sake of the first respondents’ clients who were tourists and

were badly injured but taken care of by the 1st respondent. Thus, the learned counsel prayed for the appeal dismissal with costs. In the light of the foregoing submission, the vexing issue which stands for my determination is whether this appeal before has merit. To start with the argument concerning insurance in my view it is a new issue and was neither discussed nor argued with at the trial court as it was not an issue, thus being a new issue, I will not consider it. (See Hassan Bundala @Swaga vs Republic Criminal Appeal No.386 of 2015 CAT at Bukoba and Hamisi Bushiri Pazi & 4 Others vs Saul Henry & 4 Others Civil Appeal No.166/2019 CAT at Dsm. In Hamisi Bushiri Pazi & 4 Others the Court at page 18 directed that; 10 “It is now settled that as a matter of general principle this Court will only look into matters which came up in the lower courts and were decided; and not new matters which were neither raised nor decided by neither the trial court nor the High Court on appeal” In view of the above authority, although Ms. Mongi suggested in this appeal that the appellant ought to have joined the insurance as the party to the proceedings, I have perused the records of the trial court and found the issue on whether the appellant car was ensured or not was neither subjected into discussion nor being as one of the grounds at the first appellate court. Therefore, though it was a

misconception for the learned magistrate to discuss the same, still was not an only reason she used in dismissing the appellant appeal, there were other reasons the learned magistrate considered to determine the appeal before her, thus the same did not infringe the appellant appeal. Back to the first ground of appeal on whether the appellate decision was tainted with any illegalities. I have gone through the entire first appellate decision in order to grasp as to whether it had any illegalities as 11 claimed by the appellant. The appellant is faulting the reasoning of the first appellate magistrate on the minor difference of figures on her original claims of (Tshs 26,000,000/=) and Tsh 31,280,000/= that such difference does not vitiate his claims that his car got an accident while in possession of the 1st and the 2nd respondents. In my view as correctly argued by Ms. Mongi, the learned appellate Magistrate decided the matter before her basing on the trial court records. Since the rule in civil cases are on balances of probabilities, that whoever alleges must prove the allegations, see section 110 of the Evidence Act Cap 6 R.E 2019. And the same was emphasized by the Court in the case of Paulina Samson Ndawavya v. Theresia Thomas Madah (Civil Appeal No. 45 of 2017 [2019] TZCA 453 (December 2019) Tanzilii. "...It is equally elementary that since the dispute was in civil case, the

standard of proof was on a balance of probabilities which simply means that the Court will sustain such evidence which is more credible than the other.” 12 Furthermore, it is settled law that parties are bound by their own pleadings and that a party shall not be allowed to depart from his pleadings to change its case from what was originally pleaded. Strengthening this stance, the case of James Funke Ngwagilo vs Attorney General [2004] T.L.R. 161 was cited by the Court of Appeal in the Jovent Clavery Rushaka and Another vs Bibiana Chacha, Civil Appeal No. 236 OF 2020 (unreported), wherein the Court restated that: - "The function of pleadings is to give notice of the case which has to be met. A party must therefore so state his case that his opponent will not be taken by surprise. It is also to define with precision the matters on which the parties differ and the points on which they agree, thereby identify with clarity the issues on which the Court will be called upon to adjudicate to determine the matters in dispute..." According to civil form No. 1 filed at the trial court, the appellant claimed Tsh 26,000,000/= from the respondents being costs of repairing the said motor vehicle, thus he had a duty to prove the said amount by presenting evidence and or receipts on how the same was incurred if at all was used in repairing his car. Thus, I’m constrained to agree with the

first 13 appellate findings that the appellant ought to have proved the amount he claimed of Tshs 26,000,000/= without leaving the duty to the court to calculate from a tendered exhibit P4 (a proforma invoice) having a total claim of Tshs. 31,280,000/=. Be that as it may, the tendered exhibit did not prove even the amount claimed, I am saying this because a proforma invoice is a preliminary bill or estimated invoice sent to a buyer before a sale is finalized, outlining the goods or services, their prices, and other details, thus is used to provide a buyer with an idea of the expected cost of goods or services before a transaction is finalized. According to the handwriting trial record dated 5th May, 2023 the appellant is recorded saying as follows; “Pia kuna gharam a nilizotum ia za Tshs. 26,000,000/= za kutengeneza gari hiyo naomba kutoa kielelezo cha proforma invoice ya matengenezo ya gari nililotengeneza” The appellant wording above vividly implies that he paid the said amount to repair the said motor vehicle, thus we expected him to tender receipts of the said amount from the service provider and not a proforma invoice which as alluded above is a request to pay service incurred, thus 14 cannot be a legally binding document to evidence the payments or costs incurred. In view thereof, I see no any illegalities with the reasoning of the learned appellate Magistrate. Nothing

was proved, neither the claimed amount nor the claim in exhibit P4. I therefore find this ground has no merit hence dismissed. Coming to the second ground, the appellant is claiming that the appellate decision contravenes principles of a good judgment as it lacks reasons for the decision. I had time to cross check on the impugned decision, and from pages 9 to 10 of the appellate decision, learned appellate magistrate did gave reasons for her decision and it was simply that the tendered exhibit P4 in which the appellant relied was ambiguous and was not to be relied upon as it can be drafted by anyone. She was of the view that had it been the appellant presented the receipt proving the payment to the said garage on repairing the said car then atleast the same could have been proved. For ease reference, the excerpt of the impugned appellate decision is hereby reproduced and I quote; “…the appellant’s evidence is still lacking. This is because of the following reasons; first, the amount of costs allegedly incurred by the appellant differs with the exhibit tendered 15 before the trial court. as per evidence, the appellant’s claim against the respondents is the total of Tshs 26,000,000/= and not 31,280,000/= appearing on the proforma invoice. Secondly, there was no direct evidence showing the extent of damages occurred to the appellant’s car. Third, Exhibit P4 which was relied by the

appellant, cannot be regarded as a conclusive proof of the costs used by the appellant while repairing the said car. This is so considering the fact that, Exhibit P4 is just a proforma invoice which can be drafted by anyone. It could have been different if the appellant had a receipt which proves the amount he paid to the said workshop for the repair of his damaged car, Fourth, the amount claimed by the appellant before the trial court had no justification.” From the above extract, it can be discerned that the trial court Magistrate reasoned and explained the basis of her findings in respect to the issues raised, thus in my considered opinion above, I see this ground lacking merits and thus dismissed. In respect to the third ground as to the complaints that the appellate Learned Magistrate decided the appellant case with biasness, although the 16 same was not argued by the appellant on how the said learned magistrate did biasness in her decision. In my view as depicted above, since the learned magistrate did evaluate the grounds of appeal before her which in fact at the appellate are point for determination and reasoned thereto, in my settled view I see no biasness indicated to either parties. Therefore, I find also this ground also lacks merit and is hereby dismissed. The last complaint was that the appellate court failed to evaluate evidence properly, and in this respect the

appellant claimed that the learned magistrate failed to take a heed in knowing as to whether the 2nd respondent was an employee to the appellant. According to the trial records, it reveals that it was the appellant who took the 2nd respondent to the 1st respondent and introduced him. Also at the trial court I have seen how the appellant questioned the 2nd respondent on how and if they knew each other. From that, it indicates that the 2nd respondent and the appellant knew each other, thus the issue at this juncture is whether the appellant was entitled to be compensated Tshs. 26,000,000/= as in accordance to the pleading filed at the trial court. In my settled view the status as to 17 whether the appellant knew the 2nd respondent as employee of the first respondent or not was irrelevant, therefore as correctly reasoned by the first appellate learned Magistrate in respect to exhibit P4, the same did not suffice as evidence in proving how he incurred costs, as no evidence of receipts were tendered to substantiate the appellant claims as depicted above, I also find this ground devoid of merit thus dismissed. In view of our above finding, I find no reason to fault the concurrent decisions of the two courts below consequently this appeal is devoid of merit and is hereby dismissed in its entirety with costs. It is so ordered. DATED at MOSHI this 27th day of March, 2025.

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JUDGE Signed by: A. P. KILIMI 18 Court; Judgment delivered this 27th day of March, 2025 in the presence of Ms. Angel Mongi learned advocate for all respondent and appellant present in person. Sgd; A. P. KILIMI

JUDGE 27/03/2025 Court; Right of Appeal explained. Sgd; A. P. KILIMI

JUDGE 27/03/2025 19