IN THE HIGH COURT OF TANZANIA

(MWANZA DISTRICT REGISTRY)

ATMWANZA

PC. CIVIL APPEAL NO 48 OF 2020

(Originating from civil case o 91/2019 in Mkuyuni primary court, and arising from civil appeal no 42 of 2020)

ATHUMANI MOHAMED APPELLANT

VERSUS

VICENT NESTORY KASHUSHA RESPONDENT

JUDGEMENT

Date of last order: 31.08.2020

Date of Judgment: 14.09.2020

A.Z.MGEYEKWA, J

This is a second appeal. The instant appeal originated from the decision of

Mkuyumi Primary Court in Civil Case No. 91 of 2019. The respondent filed a

suit before the Mkuyuni Primary Court and the trial court decided in the

favour of the respondent. 1

The factual materials constituting the suit can be summarized as follows. The

debate between the parties at the trial court was on the performance of the

contract. Sometime in 2018, the respondent entrusted the appellant with a

motorcycle of valued Tshs. 1,200,000/=. The parties entered into an

agreement whereas the appellant was required to pay the respondent Tshs.

60,000/= per week. The appellant was able to pay only Tshs. 600,000/= out

of Tshs. 1,200,000/=. Then parties entered into consideration that the

remaining Tshs. 600,000/= be paid in exchange for a plot, but the value of

the plot was only Tshs. 600,000/=.

The respondent claimed that the appellant failed to perform the agreement.

Since the dispute was essentially based on non-performance of the contract,

at the end of the trial, the trial Magistrate found that the case against the

appellant was proved in the required standard of law and hence she decided

the case in favour of the respondent.

Dissatisfied, the appellant filed an appeal before the District Court of

Nyamagana. The decision of the District Court of Nyamagana was in favour

of the respondent. Aggrieved, the appellant preferred the instant appeal

2

against the judgment and decree of the District Court of Nyamagana ("the

first appellate trial court") has been challenged on six grounds as follows:-

1. That the Honourable appellate Magistrate grossly erred in law and fact for

failure to observe the appellant had established his case to the required

balance of probability.

2. That, the Honourable appellate Magistrate grossly erred in law and fact for

relying on the extraneous matter in his judgment.

3. That, the Honourable appellate Magistrate grossly erred in law and facts for

not observing the actual claim between the parties before arriving into

judgment.

4. That, the Honourable appellate Magistrate grossly erred in law and facts in

holding that the appellant did not pay the respondent the agreed amount of

Tshs. 600, 000/=

5. That, the Honourable appellate Magistrate grossly erred in law and facts by

fall to take into consideration of the oral agreement between the appellant

and respondent.

6. That, the Honourable appellate Magistrate grossly erred in law and fact by

failing to evaluate the actual price of the plot.

At the hearing of this appeal, the appellant and respondent appeared in

personal, unrepresented.

3

In support of the appeal, the appellant prayed this court to go through the

first appellate court decision and find out that it did not do justice. He

continued to submit that he had an oral agreement with the respondent and

he trusted him but the respondent was dishonest denying that the appellant

paid him the TSHS 600,000. He stated that the actual value of the land is

TSHS 1,200,000 but the respondent demanded that the land is valued at

TSHS 600,000. Thus the respondent filed a suit at Mkuyuni Primary Court

demanding a balance of Tshs. 600,000. The Primary Court decided in favor

of the respondent and the appellant was not satisfied. He prays this court to

do justice and examine the evidence on record.

Responding, the respondent submitted that the trial court decided right

because it observed that he trusted the appellant and they had a written

agreement. He argued that the contract valued at Tshs.1, 200,000/=, and the

appellant was given five months to service the debt. He continued to submit

that the appellant prayed for more time and offered him a plot of land located

at Kigoma. The value of the plot was Tshs. 600,000/= and so he demanded

the rest TSHS 600,000 and even reduced it to Tshs. 300,000/= but the

appellant denied to service the loan. He concluded that both the primary

4

court and the District Court decided in his favor and thus the appellant

decided to file an appeal before this court.

In his brief rejoinder, the appellant submitted that he leaves it upon the court

to decide the matter.

I have considered the rival arguments by both parties. For reasons that will

be apparent in the course of this appeal, I find it apt to start determining the

3'° and 4 of appeal where the appellant faulted the trial Magistrate for not

observing the actual claims between the parties. I have gone through the trial

court records and found that the respondent (original plaintiff) claimed that

on 1day of November, 2017 the parties entered into an agreement whereas

the respondent sold a motorcycle to the appellant and the appellant was

required to pay the respondent in installments. This grounds should not

consume the precious time of this Court since the proceedings of the trial

court indicate that the agreement between Vicent Nestory and Athuman

Mohamed dated 30° day of October, 2017 the contract was tendered and

admitted by the trial court as Exh. KM1.

The contract stipulated that the appellant was required to pay the respondent

a total amount of Tshs. 1,200,000/= unfortunately the appellant did not effect 5

the payment. Thereafter, the appellant decided to sale his piece of land

located at Kigoma and the respondent bought the plot for Tshs. 600,000/=.

However, the appellant did not pay the said Tshs. 600,000/=. The appellant

(original defendant) defended himself by testifying that he was required to

pay only Tshs. 600,000/= in total not otherwise.

Though, there is no any documentary evidence on record that reveals the

appellant was required to pay the respondent Tshs. 600,000/= instead of the

agreed amount of Tshs.1,200,000/=. Therefore the respondent claims that

he owes the appellant Tshs. 600,000/= were proved and as rightly decided

by the first appellate court, the appellant did not pay the respondent the

outstanding amount of Tshs. 600,000/= Therefore these grounds are

demerit.

Addressing the 5 ground of appeal, I have gone through the court records

and found that the appellant alleged that the parties had an oral agreement.

They agreed the appellant to pay the respondent only Tshs. 600,000/= after

the valuation of the said piece of land. It was not disputed that the appellant

sold the plot for Tshs. 600,000/= that means the remaining balance out of

Tshs. 1,200,000/= was Tshs. 600,000/=. I understand that the law

6

recognizes oral contract, however, if there is a written contract and there is

any variation then the variation must be made in writing. The Court of Appeal

of Tanzania in the case of Edwin Simon Mamuya Adam Jonas Mbala 1983

TLR 410Hon. Lugakingira, J (as he then was) held that:-

"It is common practice to vary the terms of a contract by a subsequent

agreement. This may be done either orally or in writing save that where

the contract is in writing or when the law requires it to be in writing

any variation thereto must similarly be in writing. [Emphasize

added].

Based on the above authority, in the instant case, the contract was in writing

therefore the terms could only be varied in writing. The appellant averred in

his submission that there was an oral agreement whereas, the appellant was

required to pay only Tshs. 600,000/=, however, the appellants' claims are

not supported by any documentary evidence. In my considered opinion, I find

that the appellant failed to prove his case on a balance of probability as it

was held in the case of Hemedi Said v Mohamedi Mbilu (1984) TLR 113.

As a result, the appellant's claims are unfounded.

In respect to the 6 ground of appeal, the appellant lamented that the first

appellate court failed to evaluate the actual price value of the piece of land. 7

I have perused the court records and found that the appellant did not raise

this concern at the trial court, the price of the plot located in Kigoma was not

disputed and the first appellate court was not required to evaluate the actual

price of the plot while the same was not disputed and was not among the

grounds of appeal before the District Court of Nyamagana.

As to the 1 ground of appeal the appellant claimed the appellant did not

establish his case on the required standard of the law. I have perused the

court records and found that the evidence adduced by the appellant (original

defendant) did not prove that he furnished the consideration of paying the

respondent the actual balance of Tshs. 600,000/=. The balance of probability

requires a fact to be proved as it was held in the case of Masumbuko Juma

v Tabu Lugembe, PC Civil Appeal No.9 of 2020. The fact in issue was

whether the appellant was required to pay the respondent Tshs. 600,000/=?

Whereas, the trial court determined the issue on balance of probability and

the trial Magistrate has sufficiently shown that the appellant owes the

respondent Tshs. 600,000/=.

8

Consequently thereof, I am satisfied that in the instant appeal there is no

extraordinary circumstances that require this court to interfere with the

findings and decision of the District Court of Nyamagana and the trial court

as the respondent's evidence overweighed the appellant's evidence.

In the upshot, and as I have painstakingly alluded above, it is my findings

that the appeal at hand lacks merit. The decision of the first appellate court

is hereby upheld. I, therefore, proceed to dismiss the appeal without costs.

Order accordingly.

.-la, JUDGE

14.09.2019

presence of both parties.

dlac, JUDGE

14.09.2020

9