IN THE HIGH COURT OF TANZANIA
(DAR ES SALAAM DISTRICT REGISTRY)
AT DAR ES SALAAM
PC CIVIL APPEAL NO. 13 OF 2023
(Arising from Civil Appeal No. 01 of 2023 in the District Court of Kibaha which originated from Civil Case No.122 of 2022 in the Primary Court of Mlandizi-Kibaha)
MWANAHAMISI MOHAMED SAWASAWA....……………………… APPELLANT
VERSUS
ZUWENA ALLY MBONDE …………………….…………...……...… RESPONDENT
JUDGMENT
16th & 30th May, 2023
MWANGA, J.
This is a second appeal. It has a root in Civil Case No.122 of 2022 from the Primary Court of Mlandizi at Kibaha where the appellant lodged a claim against the respondent for failure to pay school fees for her child who was studying at Lumnar Day Care Centre. In the end, the trial court awarded the appellant specific claim of Tshs. 1,421,000/=.
The respondent was dissatisfied with the above decision. Therefore, she appealed to the District Court of Kibaha at Kibaha in Civil Appeal No. 01 of 2023. In the result, the appeal was allowed. When issuing a judgement, the court took into consideration that, the appellant testified to the effect that the respondent’s child was a student at Kunu School or Centre while the document which was signed by both parties and tendered as exhibit ‘A’ indicated that the child was a student at Lumnars Day Care Centre. It was also an observation of the trial court that, there was nothing stated to show whether the appellant was indebted the unpaid fees for Kunu Centre. Finally, it was the trial court holding that, the appellant failed to prove to the required standard that the respondent’s child was a student at either Kunu School or Lumnars Day Care Centre.
The appellant was grossly aggrieved by the decision of the district court, hence appealed to this court on the following grounds: -
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That the 1st appellate court misconceived itself in law and in facts for reversing the trial court’s decision and holding in favour of the respondent while the appellant proved her claim of TZS 1,430,000/= against the respondent on the balance of probability.
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That the 1st appellate court misconceived itself in law and in facts reversing the trial court’s decision by deciding in favour of the respondent while the 1st appellate court applied wrong principle in its evaluation and analyzing the evidence as there is a clear evidence from the records that the respondent agreed to be indebted to the appellant.
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That the 1st appellate court misconceived itself in law and facts for reversing the trial court’s decision on the basis that it was unknown as to which center the respondent was indebted, while the evidence was clear and never contested at all that the respondent was indebted to the Centre owned by the appellant herein, that is Lumnars Day Care center and not otherwise.
In order to appreciate the nature of the claim which resulted to this appeal, I find it pertinent to state brief background of the matter. That, the appellant is the owner of Lumnars Day Care Centre which is located at Mlandizi Area in Kibaha District within Coast Region. She also has shares at Kunu Primary School which is also located in the vicinity of the area. It appears that, the respondent’s child was registered and admitted at Kanu Primary School to pursued the studies. She paid up the school fee and transport fee up to the year 2020 where she declared to the appellant that she was unable to manage the expenses or costs for her child at the said school. As a result, the respondent initiated the process of transfer of the child to another school, only to be told by the appellant that such process can only be possible once the student registration number is obtained. In the process of waiting for the registration number, the respondent’s child continued with studies as well as receiving other services, including transport and food from the year 2020 to 2021. It is undisputed fact that, for the whole period of the studies the respondent did not pay any school fees, transport fees as well as food.
After the transfer is completed, the appellant approached the respondent and negotiated on how the unpaid fees can be settled. It is alleged that, parties entered into an agreement for the payment of outstanding debt to the tune of Tshs. 1,430,000/=.
According to the agreement, the respondent was obliged to pay the appellant Tshs. 100,000/= each month until completion of the whole amount. The available records, show that the respondent retracted the debt stating that she was mentally unfit when she signed the agreement, the claim which was raised both at the trial court and during the hearing of this appeal.
When the matter came for hearing, the appellant and respondent appeared in person to argue their case.
On the first ground of appeal, the appellant submitted that, Exhibit P1 which was the alleged written agreement proved that the respondent owes the appellant Tshs. 1,430,000/=. And further that, such amount was to be paid by instalment. According to the appellant, such exhibit contains her handwriting and that of the respondent.
On her part, the respondent strongly challenged such exhibit stating that; First, the school that was mentioned at that particular exhibit was not the school which her daughter was studying. Second, she was forced to admit that she owes the appellant. Three, she was not in good health when she entered such agreement. Four, after they have reached that agreement, the appellant added the words beneath the said agreement that the debt amount shall be paid at the rate of Tshs. 100,000/= per month until it is completed.
On the 2nd ground of appeal, the appellant contended that the respondent admitted that she is indebted by her for the service rendered to the child. According to her, she is the sole owner of Lumnars Day Care Centre and also, she has shares at Kunu Primary school. In that regard, all documents are in the name of Lumnars Day Care Centre.
The respondent on the hand, reiterated that she is not indebted by the appellant. It was her submission that, the debt complained of by the appellant was created as a result of her delay in the transfer of her child to another school on the basis of awaiting student registration number. Therefore, she does not acknowledge it.
In the third and last ground of appeal, the appellant contended that, the respondent’s witnesses admitted at the trial court that the child was studying at Lumnars Day Care Centre and all registration were done at Lumnars day Care Centre. Therefore, there was no basis for the respondent to deny the existence of debt at exhibit “A” which makes reference to Lumnars Primary School.
Per contra, the respondent rebutted such contention stating that none of her witnesses admitted such facts. According to the respondent, her father who testified as DW2 did not even knew the school which her child was studying. Further to that, her sister only knew such facts after she had been making follow up of the transfer of her child to another school.
In rejoinder, the appellant raised a point that the respondent admitted that she was the one who prepared exhibit ‘A’ but she had failed to disclose how she was forced to write it. The appellant also re-joined that, Lumnars Day Care Centre being a private school it was not proper for the respondent to continue using transport and services of the centre if she truly meant to effect transfer of her child to another school. Lastly that, the respondent had not shown to the court that she was mentally unfit during the signing of the agreement.
Having passed through the record of the courts below and the respective submission on instant appeal, I am of the considered view that, this never-ending dispute is associated with the agreement entered by the appellant and respondent concerning alleged unpaid debt relating to school fees and transport fees incurred by the appellant for the child of the respondent.
I have carefully gone through the lower courts’ proceedings and submission of the parties. The fundamental issue in this appeal is whether there was valid agreement between the parties.
Section 10 of the Law of Contract Act, Cap. 345 R.E 2019 provides that: -
“All agreements are contracts if they are made by the free consent of the parties competent to contract, for lawful consideration and with lawful object and are hereby expressly declared to be void”
As the law provides above, free consent of the parties competent to contract is one of the key ingredients of the valid contract. The appellant is alleging that the agreement in exhibit P1 was not freely signed as she was mentally unfit. On the other hand, the appellant submitted that the respondent did not produce evidence to substantiate her claim. In addition, the said exhibit showed that the school fees in relation to the agreement which was supposed to be paid for was Luminars day Care Centre, while the plaintiff in her testimonies told the trial court that, the respondent’s child was pursuing studies at Kunu Primary School. In an attempt to clear the doubts, the appellant stated that she is the Director of Lumnars day Care Centre and that she has shares at Kunu Primary School.
Furthermore, soon after the respondent had declared that she was incapable of managing fees at the appellant school, it was the right time for parties to have entered into the contract and provides for the new mode of payments and timing while awaiting the student registration number. In the circumstances, the terms of the agreement are uncertain and reveals nothing but lack of clarity, hence it become unclear whether there was free will at the time of such agreement or not. In the case of Kichele Chacha Versus Aveline M.Kilawe, Civil Appeal No. 160 of 2018 [2021] TZCA 43 it was held that;
“It is a settled law that parties are bound by the agreements they freely entered into and this is the cardinal principle of the law”
In the circumstances, it is my firm view that, the purported agreement suffers from the following shortfalls. One, it contains the name of Lumnars Day Care Centre as the name of the school which the respondent’s child was studying. Two, the testimonies of the appellant show that, the respondent’s child was studying at Kunu Primary School. Three, the appellant added beneath the contract words which has the effect of questioning the validity of the purported signed agreement as the same was not even signed. The mode and period of payments was not one of the terms of the agreement consented by the respondent. Four, if at all the agreement was freely signed, why the appellant decided to alter the terms of the contract by adding up some words below it. Five, the appellant being director of the Lumnars Day Care Centre, also a person having shares at the Kunu Primary School, why the school admission and records of payments of fees were not brought to the attention of the trial court to establish the veracity of his testimonies.
In the light of the above, I subscribe to the district court assertion that, the appellant failed to prove the case against the respondent to the required standard, which is on balance of probability. The appeal is, therefore, hereby dismissed and the decision of the district court is upheld.
In consideration of the nature of the disputed between parties, I issue no order to costs.
Order accordingly.
H. R. MWANGA
JUDGE
30/05/2023
COURT: Judgement delivered in Chambers this 30th day of May, 2023 in the presence of the appellant and respondent in person
H. R. MWANGA
JUDGE
30/05/2023
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