Lucy Wilbard Anthony vs Anna Crispine Kilawe @ Anna Pantaleo Kilawe (Civil Appeal 11 of 2023) [2023] TZHC 17456 (26 May 2023)

IN THE HIGH COURT OF TANZANIA

(DAR ES SALAAM SUB DISTRICT REGISTRY)

AT DAR ES SALAAM

CIVIL APPEAL NO. 11 OF 2023

(Arising from the decision in Civil Case No. 146 of 2022 at Kinondoni District Court dated 29/12/2022 before Hon. J.H. Mtenga-PRM)

LUCY WILBARD ANTHONY………………………..………………..…….....APPELLANT

VERSUS

ANNA CRISPINE KILAWE @ ANNA PANTALEO KILAWE………….…RESPONDENT

JUDGMENT

Date of last Order: 09/05/2023

Date of Ruling: 26/05/2023

 

E.E. KAKOLAKI, J.

Respondent herein before the District Court of Kinondoni at Kinondoni filed Civil Case No. 146 of 2022, against the appellant claiming for the following reliefs; payment of Tsh. 15,150,000/= as the actual outstanding amount of money owed by the respondent/plaintiff from the borrowed assortment of sundries, Payment of Tsh. 25,000,000/= as specific damages suffered by the respondent when secured loan from CRDB to support her business, Payment of Tsh. 84,000,000 for loss of business profit, interest on the decretal amount from the date of judgment till when the decree is satisfied in full and any other reliefs this court may deem just to grant.

For a better appreciation of the issues in contention, it is necessary to explore the factual setting giving rise to the appeal as discerned from the trial court records, appellant borrowed different commodities from the respondent’s shop of a total amount of 44,700,000/= in which she managed to pay to Tsh. 29,550,000/= thus remaining with the outstanding debt of Tsh. 15,150,000/=. It was averred that, despite several demands for payment, the appellant remained adamant to pay the respondent as agreed the fact which made the respondent’s shop run bankrupt, thus forcing her to borrow from CRDB Tsh.25,000,000/= so as to rescue her business which was in bad conditions. In recovery of the damages incurred, the respondent filed Civil Case No. 146 of 2022, before the District Court to Kinondoni claiming for the reliefs alluded to above. The case was heard ex-parte as the appellant despite of being served did not appear, whereby the trial court decided in favour of the respondent. It was ordered that; appellant should pay the respondent Tsh. 15,150,000 as the outstanding balance of the debt, Tsh. 26,936,135.28 as the loan facility applied and secured by the respondent from CRDB Bank for rescuing her business from bankruptcy following default in payment by the appellant, Tsh. 2,000,000/= as compensation for default to pay the outstanding debt, Tsh. 5, 000,000 as general damages and costs of the suit. Aggrieved by that decision delivered on 29/12/2022, the appellant is before this Court challenging the judgment of the District Court of Kinondoni on the following grounds:

1. That the trial Magistrate erred in law and in fact by delivering decision in favour of the respondent by ordering the appellant to pay sum of Tsh. 49,086,135,28 instead of 15,150,000/= which was the outstanding debt and contrary to the evidence adduced in court.

2. That the trial magistrate erred in law and in fact in entertaining the Civil Case No. 146 of 2022 ex-parte without justifiable reasons while the appellant was at Segerea custody for criminal case No. 46 of 2021 from Kisutu Dar es Salaam,

3. That, the trial magistrate erred in law and in fact by fail to prove the case on balance of probability

On the basis of the above grounds of appeal, she prayed the court to allow the appeal, quash the decision of the trial court in Civil Case No. 146 of 2022 and set aside its decree, award cost of this appeal and any other relief this thee court deems just and fit to grant.

When the appeal was called for hearing, Appellant appeared represented by Ms. Agatha Fabian, while the respondent had the services of Mr. George Msangi, both learned advocates. The appeal was disposed by way of written submission. Submitting on the grounds of appeal, Ms. Fabian silently dropped the 3rd ground of appeal and submitted on the remaining seriatim. On his side, respondent’s counsel responded in all grounds including the third ground of appeal. In determining this appeal, I will determine only the 1st and 2nd grounds, and for the better deliberation of the same, I wish to start with the second ground followed by the first ground of appeal.

Submitting on the second ground of appeal Ms. Fabian contended that, while aware that the appellant was in remand custody at Segerea and not dully served both in prison and by way of substituted service as provided under Order V Rule 16 (1) and rule 20 of Civil Procedure Code, [Cap 33 R.E 2019], the trial magistrate wrongly proceeded to entertain the case ex-parte. She said, as the appellant who was facing Criminal case No. 46 of 2021 and remanded in prison without money to engage the legal services, it was difficult for her to enter appearance in court on time as when the prisoner’s car arrived at the court’s premises, the said Civil Case No. 146 of 2022 was already mentioned. Relying on Article 13(1) (6) (a) of the Constitution, she argued that, the trial court and prison officers of Segerea had to make arrangement on possible starting time of hearing of Civil Case No. 146 f 2022, to accord the appellant with an opportunity to appear as defend her case as the case was mentioned at 8:00 am while the appellant arriving in court premises at 4: am.

In response, Mr. Msangi contended that, before proceeding with ex-parte hearing, the court satisfied itself that, there was proper service of summons to the appellant served on 14th June, 2022, before prison officer in charge. That aside he argued that, the appellant had option to move the court to set aside the said ex-parte hearing but failed to advance good cause as to why she did not file her Written Statement of Defence. It was his argument that the appellant misleads the court on contention that, she was not dully served, the respondent fulfilled the requirements of the law as provided for under Order V rule 20 of the CPC.

Mr. Msangi contended further that, appellant admits that she had information concerning the case, hence served as she could not have stated that, when the prison vehicle arrived in the court premises, the said Civil Case No. 146 of 2022 was already mentioned. In her short rejoinder, Ms. Fabian almost reiterated her submission in chief and stressed that, the respondent fail to understand the situation facing the person who is in prison, and contended that, failure by the appellant to appear in court was beyond her power as she was coming from prison faced with criminal case while her case was of civil nature. She was insistent that, the respondent had to apply for substituted service which is the last resort for one to appear before the court.

I have accorded the deserving weight both parties’ submissions on this ground. The issue for determination is whether the appellant was not served as alleging. In my view this issue need not detain this, as one, the appellant concedes in her submission that, service was not the problem, but rather the timing of arrival of the prison vehicle in Court premises as it used to arrive late. Thus even the submission that the respondent had to apply for substituted service, I hold is misplaced. Secondly, gleaned from the recorded of this case, the same was transferred from Kimara Primary Court by the appellant through her advocate via Misc. Civil Application No. 163 of 2021, whom the record shows at pages No. 4 to 5 of the typed proceedings disclose that, her advocate appeared in Court on 06/10/2022 seeking to set aside ex-parte hearing order. It is noted further that, in that course she never mentioned the late coming of the appellant from prison cause by late transportation as one of the reasons for his failure to attend and defend her case. I do not therefore subscribe to Ms. Fabian’s submission that, the appellant was not served. Since appellant’s complaints is not premised on refusal by the trial court to set aside ex-parte hearing order, I find no need to discuss it. This ground is destitute of merit and the same is dismissed forth with.

Next for consideration is first ground, in which Ms. Fabian submitted that, the trial court erred in law and in fact by ordering the appellant to pay sum of Tsh. 49,086,135,28 instead of 15,150,000/= which was the outstanding balance of the debt and in contravention of the weight of evidence adduced in court. She contended that, the loan of Tsh. 25,000,000 plus interest of 14% taken from CRDB by the respondent, which makes a total of amount of Tsh.26,936,135.28, was not part of the contract between the appellant and the respondent. She contended further that, respondent had to consult the appellant before securing the said loan and that, there is no evidence to prove that the said loan was used to meet the loss/expenses incurred after the appellant’s failure to pay her money. She was of the view that, respondent was required to prove on how she used the money or loan secured from CRDB. Ms. Fabian referred the Court to section 110 (1), (2) of the Law of Evidence Act, [Cap 6 R.E 2022], requiring the one whoever alleges existence of any fact to prove the same. She argued that, there is no agreement or promise that the appellant would pay the money borrowed by the respondent from CRDB. In this point she referred the court to sections 10 and 25 (1) of the Law of Contract Act, [Cap. 345 R.E 2019].

In response, it was Mr. Msangi’s submission that, the trial court was correct to decide in favour of the respondent by ordering the appellant to pay the respondent a total amount of Tsh.49,086,135.28/, as it included the outstanding balance of 15,150,000/ and the loan applied to CRDB of Tsh.26,936,135.28, compensation for default to pay outstanding balance of Ts. 2,000,000/= and general damage of Tsh. 5,000,000. According to him the trial magistrate decided the matter basing on the evidence adduced by the respondent herein, due to default of payment on the borrowed commodities from the respondent’s shop, which compelled the respondent to borrow money from the bank to rescue her business. He contended that, rescuing respondent’s business does not need consent from anybody simply the respondent made all efforts requesting the appellant to pay her money but the appellant remained adamant, hence was liable to pay the same.

I have dispassionately considered and weighed the rivalry submission by the counsels from both sides as well as thoroughly examined the records. In answering this ground, I wish to be guided by the settled principle on proof of civil cases as enunciated in sections 2(b), 110 and 111 of the Evidence Act, [Cap. 6 R.E 2019] that, he who alleges must prove and the onus of so proving lies on the party who would lose the case if the alleged existing facts are not proved, as the standard of proof is on the balance of probabilities. See also the case of Abdul Karim Haji Vs. Raymond Nchimbi Alois and Another, Civil Appeal No. 99 of 2004 (CAT-unreported).

Going by the records, it is not in dispute that, the appellant is indebted to the respondent for borrowing different assortment of sundries, but partly managed to pay while remaining with the outstanding debt of Tsh.15,150,000. In her submission respondent alleges that, since the appellant delayed payment of the outstanding amount, she had to secure loan from CRDB to rescue her business from running bankrupt. My scrutiny from the record reveals that, there is no single evidence proving that, respondent and the appellant had agreed that respondent should take the loan from the bank to rescue the business in pendency of payment of the outstanding debt from the appellant. It is a trite principle of law of contract that, parties are bound by the agreement freely entered into and that there should be sanctity of contract. This sound principle was stated in the case of Abualy Alibhai Aziz Vs. Bhatia Brothers Ltd [2000] TLR 288 at page 289, the case which was cited with approval by the Court of Appeal in the case of Simon Kichele Chacha Vs. Aveline M.Kilawe, Civil Appeal No 160 of 2018. Much as the agreement between the parties was for borrowing of different commodities in which the outstanding due amount in which the appellant does not dispute is Tsh.15,150,000, I find the respondent’s decision to secure loan from CRDB Bank with interest to the tune of Tsh.26,936,135.28, as the terms of that loan do not bind the appellant at all for not being a party to. Even when it is to be assumed the same was obtained with appellant’s consent which is not the case, still I would hold the appellant is not entitled to compensate the same as hold otherwise is to allow the appellant to benefit twice which is contrary to the object of payment of damages. Further as rightly submitted by Ms. Fabian, there is no piece of evidence suggesting that, the loan taken from the bank by the respondent was directly applied to the respondents business as she did not even account for the loss incurred by the appellant’s delay to pay her the outstanding amount. In absence of that evidence and for the reasons stated above, I find it was wrong for the trial court to order the appellant to pay the said Tsh.26,936,135.28 taken by the respondent as loan from CRDB. Therefore, the first ground of appeal has merit and the same is upheld.

Before I pen off, I wish to touch on other reliefs granted by the trial court in this case. Among other reliefs are payment of Tshs. 2,00,000 as compensation for default to pay the outstanding balance and the general damages of Tsh. 5,000,000. To start with compensation Tshs. 2,000,000/ for defaulting in payment of the outstanding balance, I find the award by the court was not justified as compensation being specific damage ought to have been specifically pleaded and proved as it was held in the cases of Zuberi Augustino Vs. Anicet Mugabe, (1992) TLR 137 and Reliance Insurance Company (T) Ltd and 2 Others Vs. Festo Mgomapayo, Civil Appeal No. 23 of 2019 (CAT-unreported). As the pleadings and record stand in the present matter, the said compensation was never pleaded in the plaint nor proved, hence wrongly awarded by the trial court.

As regard to the general damage of Tshs. 5,000,000, the trite law is that, general damage is awarded under discretion of the court, as its object is to put the party who has suffered as a result of the breach in nearly the same position that he would have been had the other party not broken the contract; (restitutio in integrum) and not for enrichment as it was held in Hodgson Vs. Trapp (1989) 3 All ER 807 where it was stated that:

’’The underlying principle is of course that, damages are compensatory. They are not designed to put the (injured party) … in a better financial position that in which he would otherwise have been if the accident had not occurred.’’

General damages are limited to those claims that the law presumes to be direct, natural or probable consequences of the act complained of and not otherwise. See the case of African Marble Co. Ltd Vs. Tanzania Saruji Corporation, Civil Appeal No. 38 of 1993 (CAT-unreported). It is also settled law that in awarding the same, the trial court must assign reasons justifying the award. In this case the trial magistrate did not assign any reasons in reaching the decision for award of Tshs. 5,000,000/ as general damages. This being the first appellate court enjoys the powers of re-evaluation of evidence and come up with its own findings particularly where the lower court has misdirected itself, acted on matters it should not have not have acted or has failed to take into consideration matters which it should have taken into consideration. See the case of Credo Siwale Vs. The Republic, Criminal Appeal No. 417 of 2013 when cited with approval the case of Mbogo and Another Vs. Shah (1968) EA 93. From the evidence in record and the submission by the parties there is no dispute that, the appellant defaulted payment of the outstanding amount of Tsh.15,150,000/-, since 2019 to 2022, the default that prompted institution of the suit subject of this appeal. There is no doubt the respondent being a business woman would have used the said money in improving her business, but for the appellant’s default she could not manage hence suffered damages. It is from that reason I find her entitled to general damages. In my view Tshs. 3,000,000/ will suffice to compensate her which amount I hereby award.

In the premises, the appeal is partly allowed and partly dismissed to the extent explained above.

For avoidance of doubt, appellant is ordered to pay the respondent the following:

1. Total sum of Tsh. 15,150,000/= as the outstanding balance of the debt.

2. Tshs. 3,000,000 as general damages.

3. Costs of the suit in the lower court.

As to this appeal, I order each party to bear its own costs.

It is so ordered.

DATED at Dar es salaam this 26th May, 2023.

E. E. KAKOLAKI

JUDGE

26/05/2023.

The Judgment has been delivered at Dar es Salaam today 26th day of May, 2023 in the presence of Ms. Agatha Fabian, advocate for the appellant, Mr. George Msangi, advocate for the respondent and in the presence of Ms. Asha Livanga, Court clerk.

Right of Appeal explained.

E. E. KAKOLAKI

JUDGE

26/05/2023.