20170922 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA {DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL APPEAL NO. 84 OF 2016 {Originating from Civil Case No.29 of 2013 of the District Court of Kinondoni) WILSON LU BUA ■■ I ■■■■ I ■■■■■ •• ■ I ■■■■■■■ ••• ■■■■■■ ■■■■■■■■■■■■■APPELLANT I VERSUS MARIAM YOHANA KINGAZI .......................... RESPONDENT Date of Last Order: 05/7/2017. Date ofJudgment: 22/9/2017. JUDGMENT - I. ARUFANI, J. This appeal originated from Civil Case No. 29 of 2013 filed in the District Court of Kinondoni by the respondent, Mariam Yohana Kingazi against the appellant, Wilson Lubua. The respondent was . -, ,. claiming from the appellant refund of the sum of Tshs. 6,000,000/= she alleged to have handed to the appellant as the price of purchasing a plot of land the appellant had promised to sell to her but failed to fulfill his promise. Page 1 of 14 _., ' I After hearing the evidence from the parties and their witnesses the trial court entered judgment and decree against the appellant and ordered him to refund to the respondent the claimed sum of money together with commercial interest at the rate of 20%, court interest rate of 7% and costs of the suit. The appellant was aggrieved by the said decision and decided to appeal to this court on the following grounds:- (1) That the trial Magistrate erred in law and facts for admitting a contract which has no stamp and forged signature of the parties including the forged signature of the wife of the appellant in this appeal who was not at home and does not know anything about the contract. (2) That the trial Magistrate erred in law for failure to determine the question of res judicata as was raised by the defendant due to the fact that the respondent herein filed about three cases in the Ward Tribunal, Magomeni Primary Court and later on in Kinondoni District Court while at the Ward Tribunal she left the case at judgment stage which was pronounced dismissing her case. Page 2 of 14 . '\ (3) That the trial Magistrate erred both in law and facts by failure to evaluate the evidence adduced by the appellant herein and his witness which clearly shows that the case against him was cooked by the respondent. ( 4) That the trial Magistrate erred both in law and facts for failure to draw issues in balance to answer the case before it as it based on one side of the argument by the respondent only. (5) That the trial Magistrate erred both in law and facts for awarding the claimed amount. Interest and costs of the suit to the respondent. At the hearing of the appeal the appellant appeared in person and the respondent was represented by Mr. Charles Lugola, learned advocate who also represented her at the trial court. The appellant argued his grounds of appeal together and stated that, the respondent sued him on allegation that he received Tshs. 6,000,000/= from the respondent for purpose of looking for a plot of land for her. He said the document the respondent said he signed for that purpose shows the money was handed to his wife when he was at Morogoro. Page 3 of 14 The appellant denied to have signed the contract which was admitted in the case as an exhibit PEl and said the signature appearing on that contract is not his signature. He also denied to have received Tshs 6,000,000/= from the respondent. He wondered if he didn't hand any plot to the respondent how the respondent handed the money to him. He stated that, the trial court failed to evaluate the evidence adduced in court properly. He argued further that, before going to the trial court the respondent instituted the suit in the Makurumla Ward Tribunal but the same was dismissed. Thereafter she instituted another case at Magomeni Primary Court which was Civil Case No. 82 of 2012 but the appellant prayed the same to be transferred to the trial court where it was registered as Civil Case No. 29 of 2013. He contended that, this matter was cooked against him by the respondent as he had agreed with the husband of the respondent to look for a house for a tenant who was living in their house and after failing to do the said work is when bad relationship started between them. The respondent's learned counsel replied that, the decision of the trial court is correct as it was based on the evidence adduced at the trial court. He said the contract tendered in the case as an exhibit at the trial court has the signature of the appellant and the same was written by hand at the appellant's home and not in his Page 4 of 14 office. He said the defence of the appellant that he was not at home on the date when the contract was signed as he had gone to Morogoro was not accepted by the court as the bus ticket he alleged to have used in his journey was not received and admitted in the case as an exhibit. He added that, though the appellant is trying to disown his signature and his name but his wife said the appellant uses the name of Wilson Lubua. He prayed the court to find the decision of the trial court is correct as it based on the evidence adduced before that court. He argued in relation to the second ground of appeal that, it was not true that the case was res judicata and said the same point was raised and determined by the trial court. He said as the appellant admitted is the one prayed the suit to be transferred from the Primary Court to the District court the issue of res judicata cannot be raised at this appellant stage. With regards to the third ground of appeal the learned counsel for the respondent stated that, the decision of the trial court based on the evidence adduced at the trial court. He prayed the court to find the judgment and decree of the trial court was given in accordance with the laid down legal procedure and dismiss the appeal with costs. In his rejoinder the appellant reiterated what he stated in his submission in chief and told the court he was taken to Page 5 of 14 the court because of the grudge. He said the matter was taken to police but the police failed to settle the matter and prayed the court to find this is a fabricated case as he has never received the mentioned amount of money from the respondent. After considering the argument and submission made to this court by both sides the court has gone through the record of the trial court and find proper to deal with the grounds of appeal filed in this court by the appellant seriatim. Starting with the first ground of appeal, the appellant is stating the trial court Magistrate erred in law and fact to admit a contract which had no stamp and his signature and that of his wife appearing on it are forged. The court has found though it is appearing in the testimony of the appellant adduced at the trial court that the "stamp" the appellant is stating is missing in the contract admitted in the case as an exhibit PE1 by the trial court is the "official stamp" but the appellant has not stated clearly the basis of the said point. The court has arrived to the above finding after seeing as stated by the respondent who testified in the trial court as PW1 and Mohamed Bakari who testified as PW2 the said contract was written at the home of the appellant by PW2 and signed by the parties and their witnesses at the home of the appellant and not in any office which has official stamp. If it was written at the home of Page 6 of 14 the appellant how would it be in the headed paper and bear an official stamp as claimed by the appellant? To the view of this court though the testimony adduced in the trial court shows the appellant was a ten cell leader but it was said clearly by PWl and PW2 that, the contract was prepared by PW2 and signed at the home of the appellant and not in his office or any other office so that it can be said it would have bear an official stamp. In the premises the court has found this point has no any merit. As for another point featuring in the same ground of appeal that the contract admitted in the case as an exhibit PEl bears forged signatures of the appellant and his wife the court has found the said allegation of forgery was supposed to be proved on a higher standard than the normal standard of proof required in civil cases. (See the case of Henry Hidaya Ilanga v. Manyema Manyoka [1961] 1 EA 705). I understand the position of the law as provided under sections 111 and 112 of the Evidence Act, Cap 6 R. E 2002 the burden of proving the case was on the respondent who was supposed to establish the existence of the right she was claiming against the appellant and after establishing the same is when the burden of disproving the said right would have shifted to the appellant. Page 7 of 14 However, the court has found as appearing in the judgment of the trial court the evidence adduced therein by the respondent and her witness, PW2 who prepared exhibit PE1 which the appellant is alleging is bearing forged signatures was believed by the trial court Magistrate who used the same to enter judgment and decree in favour of the respondent. Since the trial court found the respondent had managed to discharge her duty of proving the said contract was genuine one and admitted the same in the case as an exhibit then the burden of disproving the exhibit was not genuine and their signatures appearing thereon are forged shifted to the appellant. The appellant was supposed to prove on a higher standard than the one required in normal civil case that, the signatures appearing on the said contract are not their signatures. Though the appellant and his wife who testified at the trial court as DW2 denied to have signed the said contract or even know about its existence but their evidence was not believed by the trial court magistrate. As the trial court was in a better position to assess credibility of their evidence than this court then I have failed to see any justifiable reason which can make this court to find the trial court erred in disbelieving the defence of the appellant and the testimony Page 8 of 14 of his wife which shows they generally disown their signatures without any other supporting evidence. The attempt by the appellant to establish he was not at his home on the date when exhibit PE1 is stated to have been made was not accepted by the trial court as material evidence to establish his signature and that of his wife appearing in exhibit PE1 were forged. Even his evidence of bus ticket intended to establish he was not in Dar es Salaam on the date of making the said exhibit PE1 and that he had travelled to Morogoro was not admitted in the case as an exhibit to establish he was not at the place where is stated exhibit PE1 was prepared and signed hence his signature and that of his wife appearing on the exhibit PE1 were forged. In the premises the court has found the first ground of appeal of the appellant has no any merit. With regards to the second ground of appeal where the appellant is stating the trial court Magistrate failed to determine the issue of res judicata raised by the appellant at the trial court, the court has found as rightly submitted by the learned counsel for the respondent the said issue was not established by the appellant at the trial court that is why the same was not upheld. The issue as to when a suit can be said is res judicata is provided under Page 9 of 14 section 9 of the Civil Procedure Code, Cap 33 R.E 2002 which states as follows: 'Wo court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim litigating under the same title in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court. " From the above provision of the law it is quite clear that, in order for the principle of res judicata to apply the matter before the court must be directly and substantially similar to the---fo~----> suit which parties were the same or were litigating under the same title in a court with competent jurisdiction to adjudicate it and the matter was heard and finally decided by that court. The above position of the law was stated clearly in a similar words in the case of George Shambwe V. Tanzania Italian Petroleum Co Ltd [1995] TLR 20 thus:- Page 10 of 14 ' . ''For res Judicata to apply not only must it be shown that the matter directly and substantially in issue in the contemplated suit is the same as that involved in a former suit between the same parties but also it must be shown that the matter was finally heard and determined by a competent court." The court has considered the three matters mentioned by the appellant as the basis of supporting his second ground of appeal that the matter determined by the trial court was res judicata as it had already been determined in the matter filed in the Makurumla Ward Tribunal and Magomeni Primary Court and find the same has no merit. The court has come to the above finding after seeing though it might be true that the matter tried by the trial court was referred to the mentioned Ward Tribunal but there is no any evidence adduced in the trial court from the Ward Tribunal sowing the matter was heard and decided conclusively by the said Tribunal so that it can invite the principle of res judicata to apply in the matter tried by the trial court. The court has also found even the appellant has stated himself in his ground of appeal that, the respondent left the matter in the Ward Tribunal before being Page 11 of 14 decided and he didn't adduce any decision from that Tribunal to show the matter was finally determined in the Ward Tribunal. As for the case instituted in the Primary Court of Magomeni the court has found the appellant stated clearly himself that, after being summoned to appear in that court he prayed the matter to be transferred to the District Court of Kinondoni as he wanted to engage an advocate of assisting him in the matter. Therefore if the matter was transferred to the trial court before been heard and conclusively determined by the mentioned Primary Court it cannot be said the matter adjudicated in the trial court is res judicata against the matter filed in the Primary Court as that matter was not conclusively decided in the Primary Court. In the consequences the court has found the second ground of appeal cannot be sustained. Coming to the third and fourth grounds of appeal the court has found as they are centering on the one point that the trial court Magistrate failed to evaluate and consider the evidence adduced before it by both sides then it is proper to deal with them together. Upon going through the judgment and the proceeding of the trial court, the court has failed to see any evidence which was adduced by the appellant and his witness which was not evaluated and considered by the trial court Magistrate as alleged by the appellant. Page 12 of 14 To the contrary the court has found the judgment of the trial court shows the learned trial Magistrate evaluated and considered the evidence from both sides and arrived to the finding that, there was a valid contract between the appellant and the respondent whereby the respondent handed the appellant the sum of Tshs. 6,000,000/= for the purpose of looking for a plot of land for the respondent but the appellant failed to find the plot and refused to refund the respondent's money. The argument by the appellant that the claim of the respondent against him was fabricated because he failed to find a house for their tenant has been found by this court was not believed by the trial court Magistrate and this court has failed to see any justifiable reason which can make it to arrive to a different finding than the one arrived by the trial court Magistrate that the evidence of the respondent was more probable than that of the appellant. As for the last ground relating to the reliefs granted to the respondent by the trial court Magistrate the court has found there is nothing wrong featuring in the relief granted by the trial court magistrate to the respondent. The reliefs granted by the trial court to the respondent are the reliefs prayed by the respondent from the court and in the circumstances of nature of the claims of the respondent against the appellant were fair and justifiable reliefs. Page 13 of 14 . ,. Therefore the trial court Magistrate did not error in awarding the reliefs awarded to the responde_nt. In the upshot the court has found all the grounds of appeal filed in this court by the appellant have not been able to convince this court that the trial court Magistrate erred in any way to arrive to the decision the appellant is challenging in this court and in the consequences the appeal is hereby dismissed in its entirety with costs. Dated at Dar es Salaam this 22 nd day of September, 2017 ~ I. ARUFANI JUDGE 22/9/2017 Page 14 of 14