Mericho Andrew Kihongosi vs Bejag Business And Construction Company Limited (D.C CIVIL APPEAL NO. 000020803 OF 2025) [2026] TZCA 630 (28 April 2026)

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT DODOMA D.C CIVIL APPEAL NO. 000020803 OF 2025 MERICHO ANDREW KIHONGOSI ............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS BEJAG BUSINESS AND CONSTRUCTION COMPANY LIMITED .............................. RESPONDENT / DEFENDANT JUDG MENT MASABO, J The appellant is aggrieved by the decision of the District Court of Dodoma (the trial court), which dismissed his suit. His case at the trial court was that the respondent, having secured a tender for a Government project at Tabora, sought a credit facility of TZS 400,000,000/= from Mwanga Hakika Bank for financing the project. He approached the plaintiff, and they agreed that the plaintiff would guarantee the loan by mortgaging his landed property. They concluded an agreement to that effect on 19.10.2022, after which the plaintiff surrendered the title deed for his landed property for use as collateral at a consideration of TZS 7,000,000 payable within 90 days, after which the title deed would be discharged and returned to him. A possible delay of one month was envisioned, and it was agreed that during that period, the respondent would pay the appellant a monthly sum of TZS 3,000,000/=. After the appellant had surrendered and mortgaged his house, the respondent paid him the contract sum of 7 million. He subsequently paid him TZS 12,000,000 Page. 1

(equivalent to four months' delay), but he never returned the title deed. Up to the time of the institution of the suit in the trial court, the title deed had not been returned to him, although over 800 days have already lapsed. His prayers before the trial court were for TZS 7,000,000/= being principal debt, TZS 51,000,000/= in respect of the unpaid days, that is from 19 th January 2023 to the date of filing the suit, TZS 3,000,000/= for each 30 day of delay from the date of filing his suit to the date of the judgement, interest on the decretal sum, general damages, an order compelling the respondent to return the title deed and the costs of the suit. The defendant, while not disputing the contractual relationship between them, denied any breach of contract. He claimed that in full discharge of his obligation, he paid the contractual sum of TZS 7,000,000/=. He later on paid TZS 3,000,000/= to cover 30 delay of repayment of the loan and the discharge of the mortgage. He managed to repay the loan in full within these days, and the mortgage was discharged, but for reasons best known to the appellant, he never collected the title deed from the bank. The trial court found the appellant had not proved his claim. It dismissed it, holding that the appellant had none but himself to blame for the failure to collect the title deed. Disgruntled by this finding, the appellant has marshalled the following grounds of appeal: First, the court materially erred in holding that there was no breach of contract. Second, the trial court did not properly evaluate the evidence before it and third, the court relied on very weak evidence of the respondent and ignored the fact that the appellant proved the case on the balance of probability. Hearing of the appeal proceeded in writing. Both parties were represented. The appellant enjoyed the presentation of Mr. Cheapson Kidumage, while the respondent was represented by Mr. Ezekiel Amon Mwakapeje, both learned counsels. Page. 2

Supporting the appeal, Mr. Kidumage consolidated the first two grounds and submitted on the third ground separately. In respect of the consolidated grounds, he submitted that the trial court failed to properly evaluate the evidence and, in consequence, it erroneously held that appellant did not prove his claim. Amplifying, he argued that, as per the evidence on record, the appellant proved that the respondent breached the contract. He proved this on the balance of probabilities, which is the standard of proof required by section 117 of the Evidence Act, Cap 6 R.E 2023. He proved that, in the agreement admitted as Exhibit PE-1, it was agreed that the title deed would be used as security for a period of ninety (90) days, after which it would be discharged and returned to the appellant, but the respondent failed to honour this promise. As of today, the title deed has not been returned. The failure entitled him to payment of TZS 3,000,000/= for every 30 days of default. Moreover, it was submitted further that, since the respondent did not dispute the payment of TZS 7,000,000 and the subsequent sum of TZS 3,000,000 for the first month of default but disputed the subsequent payment of TZS 9,000,000/= the court was duty-bound to interrogate and determine whether such payment was in respect of clause 7 of the agreement or a loan as alleged by the respondent. Had it properly evaluated the testimony of PW1 it would certainly have concluded that the payment was in respect of the default anticipated in clause 7 of the agreement, which means that for the defaulted months, the respondent has only paid TZS 12,000,000/=. The rest is still due. This evidence, he submitted, was more credible than the respondent's evidence, which was not backed up by any documentary proof and even the reply to the demand notice (Exhibit “ PE-3 ” ), and it was totally silent on the loan. He argued that the failure to return the title deed constitutes a continued breach, and the respondent had to pay for it. Concluding, Mr. Kidumage prayed that the court invoke the doctrine of estoppel set out under section 131 of the Evidence Act to hold the respondent liable as he had already acted and

acknowledged his obligation in clause 7 of the agreement. On the 3 rd ground, it was submitted that the trial court erred in dismissing the suit as the appellant ’ s evidence was credible, unshaken and heavier. He consistently testified that the respondent paid him the contractual sum of TZS 7,000,000 and TZS 12,000,000/= for the first 4 months of default. The respondent, while disputing that TZS 9,000,000/= was for the default period, rendered no proof of the alleged loan, which was nevertheless raised as an afterthought and inherently weak when weighed against the appellant ’ s evidence. Concluding he submitted and prayed that the appeal be allowed with costs. Mr. Mwakapeje, for the respondent, rebutted and submitted that the appeal is unfounded. It is premised on a misinterpretation of the agreement between the parties, a selective reading of the evidence on record, and an attempt to convert a contractual clause into an indefinite recurring financial obligation not provided for in the contract. The trial magistrate properly evaluated the evidence and correctly concluded that the appellant failed to prove breach of contract. Its judgment was well founded because, as per standard mortgage procedures, once the title deed was deposited with the bank as collateral, its custody and eventual release fell within the bank ’ s control. The appellant ’ s claim that the respondent failed to perform the contract is inconsistent with his own testimony as to the terms of the agreement and the fact that he surrendered the title deed at the bank and signed the mortgage deeds. It was submitted further that the appellant ’ s interpretation of clause 7 of the contract is flawed as all that is provided for under this clause is an additional period of 30 days, not a recurring obligation. The respondent discharged his obligation by paying the additional TZS 3,000,000/= and the same was well acknowledged by the appellant, meaning that there are no further claims. As for the sum of TZS. 19,000,000/= paid to the appellant, he submitted that it comprised of TZS. 7,000,000/= as contractual consideration, TZS. 3,000,000/= Page. 4

for the 30 days of extension under clause 7, and the sum of TZS. 9,000,000/= as a separate loan to the appellant, not a recurring obligation under clause 7. In the foregoing submission, it was prayed that the appeal be dismissed with costs for want of merit and the judgment and decree of the trial court be upheld. After carefully going through the submissions made by both parties, I will now determine whether the appeal has merit. From the submissions above, it is deciphered that all three grounds of appeal are predicated on the evaluation of the evidence by the trial court. I will conveniently join them and determine them collectively. I will proceed mindful that as correctly submitted by the appellant ’ s counsel, this court being the first appeal court is mandated to reappraise the evidence on record to determine the soundness of the trial court ’ s finding and where necessary, come up with a finding which is not necessarily similar to the trial court ’ s finding (see Siza Patrice vs. Republic (Criminal Appeal No. 19 of 2010) [2012] TZCA 355 TAZNZLII, Kaimu Said vs Republic (Criminal Appeal No. 391 of 2019) [2021] TZCA 273,TANZLII and Michael s/o Joseph vs Republic (Criminal Appeal 506 of 2016) [2019] TZCA 475,TANZLII). Cementing this settled position in Registered Trustees of Joy in The Harvest vs Hamza K. Sungura (Civil Appeal 149 of 2017) [2021] TZCA 139 TANZLII, the Court of Appeal held thus; “ However, re-evaluation of evidence entails a critical review of the material evidence on record in order to test soundness of the trial court's findings. In Standard Chartered Bank Tanzania Ltd v. National Oil Tanzania Ltd and Another, Civil Appeal No. 98 of 2008 (unreported) on the same subject, this Court held that; "The law is well settled that on first appeal the Court is entitled to subject the evidence on record to an exhaustive examination in order to determine whether the findings and conclusions reached by the trial court stand (Peters v Sunday Post, 1958 EA 424; William Diamonds Limited and Another v R,1 970 EA 1; Okeno v R, 1972 EA 32)". Page. 5

In line with this principle, while appraising the evidence on record to ascertain what transpired, I have observed that, the parties are at common regarding the existence of the contract between them and the performance by each of them, save for clause 7. The crux of the dispute between them is two-fold, namely the duty to return the title deed and the interpretation of clause 7 of their agreement. With regard to the obligation to return the title deed which had been deposited with the bank as collateral, Mr. Kidumage has passionately submitted that, having repaid the loan, the respondent was duty-bound to return the title deed to the appellant. For the respondent, it has been submitted that such a duty rested on the appellant who deposited the title as collateral. Mr. Mwakapeje has argued that the standard mortgage procedures demand so. With regard to clause 7 of the agreement, the respondent is of the view that it enshrined a one-term liability for failure to return the title deed in 30 days, while for the appellant, it is submitted that it caters for continuous breach. Luckily, the contested agreement is written, and it is intrinsically easier to deal with. For it is a trite law in our jurisdiction that, where the terms of a contract are clear and unambiguous, the court should give effect to them without importing extraneous meanings or rewriting them, as it is not the duty of the court to rewrite the agreement for the parties. In Uniliver Tea T. Ltd vs Benedict Mkasa Trading As Bema Enterprises (Civil Appeal 41 of 2009) [2016] TZCA 777 TANZLII, the Court of Appeal, dealing with this principle, stated thus: “ Strictly speaking, under our laws, once parties have freely agreed on their contractual clauses, it would not be open for the courts to change those clauses which parties have agreed between themselves. It was up to the parties concerned to renegotiate and to freely rectify clauses which parties find to be onerous. It is not the role of the courts to re-draft clauses in agreements but to enforce those clauses where parties are in dispute. This position we have taken was echoed in a persuasive decision which the Supreme Court of Nigeria took on 2nd day of March 2007 in Osun State Government vs. Dalami Nigeria Limited, SC. 277/2002 ( http://www.niqeria-law.orq/ ) it was stated that; Page. 6

“ the law in Nigeria is settled law on the proposition that the parties are bound by the agreements they freely entered into. No party would therefore be permitted to go outside that agreement for remedy ” . (The emphasis added) With this guidance, I have keenly looked at the terms of exhibit PE-1 to discern the rights and obligation of the parties therein. I will reproduce the most relevant clauses for easy of reference, starting with clause 4. 4. KWAMBA wote wamekubaliana kuwa MBIA WA KWANZA anakopa benki- Mwanga kiasi cha shilingi milioni mia nne Hi kufanya shughuli ya mradi. 5. KWAMBA MBIA WA KWANZA amemfuata MBIA WA PILI na kuomba hati yake ya nyumba namba 11 Kilatu B, llazo West, Dodoma kwa ajili ya kuweka dhamana ya mkopo tajwa humu ndani 6. KWAMBA, wote wawili wamekubaliana kwa pamoja kuwa MBIA WA PILI atapokea kiasi cha shilingi milioni saba (7,000,000/=) ndani ya siku tisini (90) toka siku ya kusaini mkataba huu. 7. “ KWAMBA, wote wawili wamekubaliana kwa pamoja kuwa ikitokea muda waliokubaliana umepita hivyo MBIA WA PILI ataongezewa kiasi cha shilingi Milioni Tatu (3,000,000/-) ndani ya siku thelasini (30) tu ” . (emphasis added). Going by the principle above, the rights and obligations of the parties should be strictly confined to the substances above stipulated, which as clearly demonstrated, are clear and unambiguous and do not, therefore, provide any room for rewriting by the court. Starting with the first contention on the respondent ’ s obligation to return the title deed to the plaintiff, as evident above, the contract is conspicuously silent, meaning that the respondent had no such obligation. Had the parties intended otherwise, they would have clearly stated so. Since they did not, this court cannot, in view of the above authority, rewrite the agreement and clothe the respondent with such an obligation. The phrase “ ikitokea muda waliokubaliana umepita.. / “ if the time agreed lapses ” does not, in my view, imply the time for returning the title deed. Rather, it implies the time for repayment of the loan, which would lead to the discharge of the title deed. Besides, and as correctly submitted by Mr. Mwakapeje, it is crystal clear from PWTs evidence that he did not surrender the title deed to the respondent. He surrendered it to the Page. 7

bank and executed documents. DW1 ’ s testimony that only the appellant could collect the title deed from the bank after the discharge of the mortgage is not far-fetched. As the trial court was not presented with the mortgage agreement showing that the respondent could have collected the title deed, it cannot be faulted for not holding him liable. In my further reading of the record, I have observed that the appellant ’ s evidence lacks clarity of the efforts he made to collect the title deed from the bank. In his testimony in chief he stated that, “ after my title deed was not brought back, First I went to court of law for him to give me back my title deed and he said it is with bank. ” It is intriguing why he rushed to the court before going to the bank where he had deposited his title deed as collateral and executed a mortgage deed. As for the continuous breach, while I agree that clause 7 may infer continuous breach, such inference can only arise if there is proof that the loan remained unrepaid after the expiry of 30 days. Since the plaintiff did not tender concrete proof to that effect. The respondent ’ s evidence, as drawn from his testimony and the testimony of the bank officer (DW1), was consistently to the effect that the delay for repayment was only for one month, after which the loan was repaid in full. DW1 stated further that, thereafter, the respondent requested the bank to release the title of his guarantor and a discharge for the mortgage was issued on 3/4/2023, and the plaintiff was notified to collect the title deed. This evidence was uncontroverted. Much as there were no documents to support this testimony, such absence does not negate its credibility as, in law, oral evidence is as good as documentary evidence. As I wind up, needless to emphasize that the burden of proof in a civil case is cast on the plaintiff. The law as set out in section 117 of the Law of Evidence Act, [Cap. 6 R.E. 2023] requires a person who alleges a certain fact to prove such fact on the balance of probabilities. This burden does not shift to the defendant unless it has been discharged by the plaintiff (see Jasson Samson Rweikiza vs Novatus Rwechungura Nkwama (Civil Appeal 305 of 2020) Page. 8

[2021] TZCA 699 TANZLII and Anthony M. Masanga vs Penina (mama Mgesi) and Another (Civil Appeal No. 118 of 2014) [2015] TZCA 556 TANZLII. Thus, it was upon the plaintiff herein to prove that the respondent was obliged to return the title deed to him, a duty which, in the foregoing findings, he miserably failed. The above duty means that the plaintiff must succeed on the strength of his own case and not on the weakness of the defence. As the plaintiff ’ s evidence was weak, I find no misdirection on the part of the trial court. The learned trial magistrate properly appreciated the issues in controversy and arrived at a conclusion that is consistent with both the evidence and the law. In the final analysis, I find no merit in this appeal, and it is, in consequence, dismissed in its entirety. The judgment and decree of the District Court of Dodoma dated 14th July 2025 are hereby upheld. The costs of this appeal shall be borne by the appellant. DATED and DELIVERED at DODOMA, this 24 th day of April 2026 Dated at DODOMA this 28th of April 2026 . J. L MASABO JUDGE OF THE HIGH COURT Page. 9