Grace Lumelezi vs The Board of Trustees of the National Social Security Fund (Civil Appeal No. 663 of 2024) [2025] TZCA 1057 (10 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA f CORAM: GALEBA, J.A., MGEYEKWA, J.A. And MLACHA. J.A.^ CIVIL APPEAL NO. 663 OF 2024 GRACE LUMEL.EZI ...................................................................... APPELLANT VERSUS THE BOARD O IF TRUSTEES OF THE NATIONAL SOCIAL SECURITY FUND (NSSF) .......................... RESPONDENT (Appeal from the judgment and Decree of the High Court of Tanzania at Tabora) (Sonqoro, J.) dated the 10th day of December, 2013 in Civil Case No. 03 of 2005 JUDGMENT OF THE COURT 29th September & 10th October, 2025 MLACHA, J.A. At the High Court of Tanzania at Tabora in Land Case No. 3 of 2005, the appellant, Grace Lumelezi, sued the respondent, The Board of Trustees of the National Social Security Fund (the NSSF) for breach of contract of sale and consequential orders. The case was dismissed hence the appeal now before the Court. To understand the appeal properly, the background facts are reproduced, albeit briefly, as follows. The respondent has a building on Plot No. 3, Block A, Jamhuri Street, Tabora Municipal, described as "the

old NSSF building". The appellant rented a room in the building where she runs a business of stationary and general supplies. There are 8 other rooms which are occupied by other tenants. Now, sometimes on 7/12/2004 the appellant saw an advertisement in the Daily News newspaper which had a tender for outright purchase of the building, among other properties, belonging to the respondent. She developed an interest and travelled to Dar-es-Salaam NSSF Head Quarters and purchased tender documents for Tzs. 50,000.00 on 10/1/2005 vide Receipt No. F 43355 and submitted her bid at Tzs. 10,000,000.00 together with a cheque for Tzs. 2,500,000.00 being 25% deposit as directed by the respondent. She emerged to be the successful bidder and was notified. She was directed to pay the remaining amount of Tzs. 7,500,000.00 by cash through the nearest NSSF office or by Cheque directed to the Director General of the respondent within 4 weeks, that is on or before 31/3/2005. In compliance to the directive, she paid Tzs. 5,000,000.00 on 14/3/2005 and Tzs. 2,500,000.00 on 15/3/2005 through the NBC Bank Tabora with instruction that, the money be deposited in the respondent's account at Dar-es-Salaam. However, on 21/3/2005 the respondent wrote a letter to the appellant suspending the tender processes, pending

investigation, saying that they had discovered an error in the tender process. In resistance, the appellant filed the land case at the High Court praying for the following: (i) a declaration that she is the lawful owner of the building; (ii) an order directing the respondent to give vacant possession to her; (iii) payment of Tzs. 5,080,000.00 being rent collected from the tenants illegally; (iv) payment of Tzs. 50,000.00 being general damages for breach of the sale agreement; (v) interest on the above sums at the rate of 30% from 15/3/2005 till the date of judgment; (vi) interest on the decretal sum from the date of judgment till the date of vacant possession at the court rate and; (vii) costs. In the alternative, she prayed for the following: (i) refund of the purchase price Tzs. 10,000,000.00; (ii) payment Tzs.250,000,000.00 being loss of earnings and; (iii) payment of Tzs. 50,000,000.00 being general damages for breach of the sale agreement. During the trial, the respondent accepted that the appellant emerged the winner in the tender at the price of Tzs. 10,000,000.00 and paid Tzs. 2,500,000.00 as 25% of the purchase price as a condition of the tender but alleged that the tender was frustrated by discovery of errors namely; the existence of another tender in the building and the amount 3

accepted which was much low compared to the value of the building. They defended the move to stop the tender process saying it was inevitable. Further that, the appellant was notified orally in advance accordingly. They denied breach of contract and liability to pay any damages and interests to the appellant. At the end of the trial, the High Court found that there was no good evidence to prove that the payment of the remaining amount was effected. Further, it was found that the act of suspending the tender unilaterally amounted to a breach of the contract attracting damages to the appellant. In view of these findings, the High Court ordered: (i) refund of Tzs. 2,500,000.00 paid as advance payment in the tender with 10% interest from the date it was paid to the date of judgment; (ii) payment of Tzs. 8,000,000.00 being general damages and; (iii) payment of interest on the decretal sum from the date of judgment till the date of payment in full at the rate of 11%. Aggrieved, the appellant has now preferred an appeal to this Court on three grounds which can be paraphrased to read as follows: one, that the learned Judge erred in law and fact in holding that the balance of the purchase price Tzs. 7,500,000.00 was not paid to the respondent; two, that, the learned Judge erred in law and fact in holding that there was

noncompliance of the terms of the contract contained in exhibit P2 and; three, that, the award of Tzs. 8,000,000.00 as damages for breach of contract was on the much lower side. The appellant was represented by Messrs. Mugaya Kaitira Mtaki and Akram Magoti, learned advocates whereas the respondent was represented by Ms. Grace Lupondo, learned Senior State Attorney who teamed up with Messrs. Samwel Mahuma and Geofrey Paul Ngwembe, learned State Attorneys. We should perhaps put it up front that, this being the first appellate court we are entitled to re-evaluate the evidence and come out with our own conclusions. See Daniel Severine and others v. The Republic, [2019] TZCA 498, Khalife Mohamed (As Surviving Administrator of The Estate of the Late Said Khalife) v. Aziz Khalife and Another [2020] TZCA 33 and Future Century Limited v. Tanesco [2016] TZCA 200 to mention but a few where it was stated that a first appeal is equal to a re-hearing of the case. We shall be guided by this principle in this case. When Mr. Mtaki was invited to address the Court, he opted to argued grounds one and two conjointly. He argued ground three separately. We shall follow this trend in our deliberations.

Making reference to pages 113 and 114 of the record of appeal, Mr. Mtaki submitted that, there was good evidence through the bank pay-in- slips, exhibits P3 and P4, to prove that the balance of the purchase price TZS.7,500,000.00 was credited to the respondent's account No.0011103000689 held at the NBC Bank. He contended that, the stamp in the pay-in-slips is evidence that the bank received the money. He linked this to paragraph 8 of the Written Statement of Defence which states, inter alia that, "upon receiving such information the plaintiff ignored it and rushed to the bank to pay the remaining balance o f TZS.7,500,000.00' and he contended that, this was an admission that the money was paid to the respondent's account contrary to the findings of the learned Judge. He contended further that, exhibits P3 and P4 were received without objection during trial making the current accusations an afterthought and baseless. He urged the Court to make a finding that the remaining balance of the money was paid to the respondent. On failure to comply with the terms of exhibit P2, Mr. Mtaki contended that, the appellant (PW1) explained during the trial, as appearing at page 117 of the record of appeal that she could not pay the money through NSSF Tabora office because the officials had busy schedules. Faced with this predicament, she sought assistance from an 6

official of NSSF Head office (Mr. Materu) who advised her to pay through the bank and gave her the respondent account number. On the demand to tender the bank statement, he contended that it was not practicable because the appellant was not the owner of the account. In response, Ms. Lupondo contended that, the claim for payment of TZS.7,500,000.00 was in the nature of a specific claim which was supposed to be proved strictly. She contended that the appellant did not have good evidence to prove that the money was paid into the respondent's account because she had no bank statement. He contended further that, sending the money to the bank is not conclusive proof that the money was received by the respondent in the absence of the bank statement and or the teller who received the money. He cited our decisions in Geita Gold Mine Ltd & Another v. Ignas Athanas [2019] TZCA 55 and The Registered Trusteed of Joy in the Harvest v. Hamza Kasungura [2021] TZCA 139 to support her stance. When engaged by the Court as to why the respondent could not bring the bank statement to disapprove the claim, she contended that, they had no such a duty. The learned Senior State Attorney contended further that, the learned Judge was correct to find and hold that there was noncompliance

of the terms of the contract as appearing in exhibit P2. She contended that the appellant paid through the bank in contravention of the terms of the tender making the payment qualified contrary to section 7 of the Law of Contract Act which provides that, "In order to convert a proposal into a promise, the acceptance must be absolute and unqualified. " Further, Mr. Materu who was a material witness was not called as a witness, a fact which weakens the appellant's case. She cited our decision in Hotel Travertine Limited and 2 Others v. National Bank of Commerce Limited [2005] TZCA and Aziz Abdallah v. The Republic [1991] TCZA 46 to support her stance. In rejoinder, Mr. Magoti, while reiterating their earlier position, he contended that the learned Judge rejected the fact that payment of the remaining sum was done through the bank pay-in-slips wrongly. He contended further that, after presentation of the pay-in-slips, the burden of proof shifted to the respondent to present the bank statement to encounter the claim because the appellant had no possibility of getting it. On our part, we had ample time to examine the record and consider the submissions of the learned counsel on ground one and two. As between the parties, there is no dispute that the appellant tendered for the purchase of the building at TZS. 10,000,000.00 and emerged the 8

highest bidder. There is also no dispute that she paid TZS.2,500,000.00 being 25% of the purchase price upfront. Further, it is not disputed that the appellant received instructions through exhibit P2 to pay the balance by cash through the nearest NSSF office or cheque to the respondent's Director General. The appellant did not pay the balance by cash through the NSSF office or by cheque to the Director General. She paid by cash through the NBC bank Tabora, vide exhibits P3 and P4, a fact which is denied by the respondent. The respondent questions both the act of payment and the procedure. The appellant has given defence that she paid through the bank because the NSSF staff at Tabora were busy that day and could not attend her. She thus sought assistance from an official in Dar es Salaam who gave her the bank account where she deposited the money. The respondent does not accept this defence and call for a bank statement and the teller to prove the fact. The appellant has it that getting a bank statement could not be easy because they don't own the account. She has shifted the burden to respondent. That, after filing the bank pay-in-slips, the burden shifted to the respondent to disapprove that the money was not deposited in the account. Having considered the evidence closely, we have the view that, strictly speaking, there was a deviation of the terms of the contract on 9

the mode of payment as reflected in exhibit P2. The payment ought to have been paid by cash through the nearest NSSF office or by cheque to the Director general. It follows that, if the appellant had a challenge, she was to consult the respondent and table the matter. It could then be discussed and resolved jointly. Receiving instructions from Mr. Materu whose portfolio was not disclosed and without a prior consultation, was appropriate. The follow up question now is whether this amounted to breach of a fundamental term of the contract. We think, in the circumstance of the case, it was not. The fundamental term of the contract in this case was "to pay the amount in full before the deadlind'. The mode of payment was an auxiliary term which was inserted to facilitate the process to get the desired goal which was " payment o f the contractual amount in full and before the deadline." Breach of such a term cannot therefore vitiate the contract as Ms. Lupondo wants us to believe. Things could have been different if the appellant had paid out of the prescribed time which was not the case here. That said, our next move is to examine the question on whether the money was paid to the respondent. With profound respect to the learned Judge and Ms. Lupondo, we have the view that there was good evidence 10

to prove that the money was paid to the respondent. Our reasoning is not for fetched. Exhibit P3 and P4, the bank pay-in slips show that Tzs. 5,000,000.00 and Tzs. 2,500,000.00 were credited to NBC account No. 019903006689 belonging to the NSSF on 14/3/2005 and 15/3/2005 respectively. They carry the stamp of the bank and the signature of the teller. We share the views of the appellant that, this is proof that the money was credited in the bank account of the respondent because she had no ability of getting the bank statement. By filing and tendering the bank pay-in-slips the appellant discharged her burden of proof shifting the burden to the respondent to file and tender the bank statement to disapprove the claim because they are the holders of the account. This is necessarily so because in our common law jurisdiction much as the burden of proof lies on the party who asserts a fact, in some cases, like in the situation at hand, the burden of proof may shift to the other party after establishing some basic facts. See our decision in Crescent Impex (T) Limited vs Mtibwa Sugar Estates Limited [2023] TZCA 17501 where we stated thus: "It is also elementary that the standard o f proof, in civil cases, is on a balance o fprobabilities which means that the court will sustain such evidence which is more credible than the other on a ii

particular fact to be proved. Likewise, it is the law that the burden o f proof never shifts to the adverse party until the party on whom the onus lies discharges his/her burden to prove..." "[Emphasis added]. See also Jasson Samson Rweikiza vs Novatus Rwechungura Nkwama [2021] TZCA 699 After filing the bank pay-in-slips, the burden shifted to the respondent to file the bank statement which was at their disposal to disapprove the claim. Failure to file and tender the bank statement to oppose the claim, in this case, gave more credit to the bank pay-in-slips which stood unopposed and established the fact that the money indicated there in was credited in the respondent's bank account. Further, as correctly submitted by Mr. Mtaki, the respondent accepted receiving the money at paragraph 8 of the Amended Written Statement of Defence as alluded to above. There was also an admission by DW1 during cross examination at page 131 of the record where he said: '7 have seen bank slip which is exhibit P3. In the exhibit there is a deposit o f TZS.5,000,000.00.

The deposit account is said o f NSSF. On exhibit P4 is a bank slip o f TZS.2,500,000.00 which has been deposited on 15/3/2005. The depositing account is that of NSSF. On the two pay slips which deposited to the bank amounts to TZS.7,500,000.00 which was supposed to be paid. The two payment slips were directed and deposited to NSSF Dar es Salaam " . [Emphasis added] This is a clear admission that the amount was credited in the respondent's account at Dar es Salaam. Grounds one and two are with merit and we allow them. Next is ground four. The gist of the complaint here is that the amount granted as general damages was much on the lower side. Parties are at one that, the respondent suspended the contract unilaterally without a prior consultation and agreement with the appellant. The argument of the appellant is that, by stopping the process at the time when she had already paid the final payment, the respondent caused untold suffering to her attracting damages more than what was awarded by the learned Judge. She thinks that she deserved more. The respondent contended that what was awarded was enough. 13

In making the award, the trial Judge had this to say at page 196 of the record: "... the plaintiff pleaded general damages at the tune o f TZS.50,000,000.00. With great respect to the plaintiff, I find the pleaded amount is about five times more than what she incurred in the tender process. That is on the high side bearing in mind there was noncompiiance on her part in not complying with the mode o f payment prescribed in exhibit P2, ... instead, the court assess and award general damages in favour o f the plaintiff to the tune o f TZS.8,000,000.00 to cater for the plaintiff costs incurred in the procurement and the sale process plus her precious time and energy spent in pursuing the matter." [Emphasis added]. Factors taken into account in reducing the amount were two: one, the amount was five times the pleaded sum; two, costs incurred in procuring the tender documents and for her precious time and energy in pursuing the matter. With respect to the trial Judge, we think, item one was not supposed to be considered in the assessment of damages. In assessing damages, we don't look at the subject matter of the suit but evidence on the actual 14

sufferings and hardships of a party. Once this is established, the trial court will guide itself to an assessment of money which can restore the party to his original position as far as money can do. See Eusto K. Ntagalinda v. Tanzania Fish Processors Ltd, Civil Appeal No. 23 of 2012 where we stated: "General damages are such as the law will presume to be direct, natural or probable consequence o f the act complained o f and aimed at restoring an injured party as far as possible to the position prior to the injury." See also Stanbic Bank Tanzania Limited Appellant v. Abercrombie & Kent (T) Limited [2006] TZCA 7 and Nicholaus Mwaipyana vs The Registered Trustees of Little Sisters of Jesus Tanzania [2023] TZCA 17578 to mention a few. The follow up question now is whether what was awarded was enough to cover the damages suffered. Having condiered the evidence critically, we agree with Mr. Mtaki that Tzs. 8,000,000.00 was on the lower side taking into account that the appellant travelled to Dar es Salaam and paid the initial sum of Tzs. 2,500,000.00 followed by the final payment of Tzs. 7,500,000.00 which was paid through the bank. She was also disappointed and underwent some stress after missing the tender. Taking 15

all these factors into account, we have the view that, the appellant is entitled to more than what was awarded. We assess and award Tzs. 15,000,000.00 as general damages to the appellant instead of the amount that was awarded by the trial court. Finally, we find it apposite to make some correction in the judgment on the interest awarded. The learned Judge awarded interest on the decretal sum at the rate of 11% from the date of judgement to the date of payment in full. With respect, this was erroneous. Interest rate on a judgement in the High Court and the District Court is regulated by section 29 and Order XX rule 21 of the Civil Procedure Code (the CPC). Section 29 provides inter alia that as under: "... everyjudgment debt shall carry interest at the rate prescribed from the date o f the delivery o f the judgment until the same shall be satisfied." This provision gives the right and jurisdiction to award interest on a judgement debt. The scale is provided under Order XX rule 21 of the CPC. It states as under: "21.-(1) The rate of interest on every judgment debt from the date o f delivery o f the judgment until satisfaction shall be seven per centum per annum or such other rate, not exceeding 16

twelve per centum per annum as the parties may expressly agree in writing before or after the delivery o f the judgment or as may be adjudged by consent: Reading through rule 21 of Order XX of the CPC one may note that the interest rate on a judgement debt is only 7% per annum. The trial court cannot award more than 7% without the consent of the parties. The parties must agree in advance by way of contract or otherwise. Any award exceeding 7% must be based on the consent of the parties expressed in a contract or otherwise. It follows that the High Court had no jurisdiction to award 11% interest on the decretal sum. See our decision in Robert Scheltens vs Sudesh Kumari Varma and Others [2022] TZCA. In exercise of our power of revision under section 6 (2) of the Appellate Jurisdiction Act, we revise and reduce the interest rate on the judgement to be 7% per annum. Based on what we demonstrated above, this appeal ends with the following orders: (i) the appellant to be refunded Tzs. 10,000,000.00 being the amount of money paid pursuant to the contract of sale of the house. This amount will attract interest at the rate of 10% per year from the date of payment (15/3/2005) to the date of this judgment; (ii) the 17

appellant is award general damages to the tune of Tzs 15,000,000.00; (iii) the appellant is awarded interest at the court rate of 7% per annum on the above sum from the date of this judgment to the date of payment in full. Appeal allowed with costs. DATED at TABORA this 10th day of October, 2025. Z. N. GALE BA JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 10th day of October, 2025 in the presence of Mr. Akram Magoti, learned advocate for the appellant and Mr. Samwel Mahuma, Learned State Attorney for the Respondent and Ms. Janekisa Bukuku, Court Clerk, is hereby certified as a true copy of the original.