Ali Talib Aboud & Another vs Commissioner of Zanzibar Revenue Board (Civil Appeal No. 164 of 2023) [2025] TZCA 875 (25 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ZANZIBAR fCORAM: MWARI3A. 3.A.. MAIGE. J.A. And MANSOOR, J.A.) CIVIL APPEAL NO. 164 OF 2023 ALI TALIB ABOUD SAID BAKARI ALI 1ST APPELLANT 2 nd APPELLANT VERSUS COMMISSIONER OF ZANZIBAR REVENUE BOARD RESPONDENT (Appeal from the decision of the High Court of Zanzibar at Zanzibar) flssa, J.) Dated 20th day of July, 2022 in Civil Case No. 05 of 2021 JUDGMENT OF THE COURT 16th May & 25th August, 2025 MWARIJA. J.A.: The appellants, Ali Talib Aboud and Said Bakari Ali (the 1st and 2n d appellants respectively), were the defendants in the High Court of Zanzibar at Tunguu (the High Court) in Civil Case No. 5 of 2021. They were sued by the respondent, the Commissioner of Zanzibar Revenue Board, a Government institution responsible for collection of revenue for the Government of Zanzibar. The dispute arose out of the contract entered by the 1s t appellant and the respondent on 1/7/2016. The contract was in respect of a custody of properties owned by a Company known as Nyagatim General Supplies, t/a Gichonjo Company (the Company). The properties were stored in the 1st appellant's warehouse.

The same were held by the respondent for the Company's failure to clear its tax liability. The Company had hired the warehouse from the 2n d appellant, who held the power of attorney for the 1s t appellant. The warehouse was also used as the Company's place of business. On 1/10/2014, the respondent closed the Company's business operations by shutting down the warehouse. However, after having learnt that the owner of the Company, one Gichonjo Gitonga Nyaga, had moved out of the country, the 2n d appellant wrote a letter to the respondent asking it to open the warehouse so that he could rent it to another person. The respondent agreed and opened it on the conditions stipulated in the agreement entered between the 1st appellant and the respondent on 1/2/2016. The agreement was admitted in evidence as exhibit P4. Clauses 1, 3-5 of the Agreement, state as follows: "MKATABA WA MAKUBALIANO KUFUNGULIWA GHALA LILILOPO MPENDAE, ZANZIBAR. Makubaliano haya yamefanywa leo siku ya tarehe 01 mwezi Februari, 2016 baina ya MAPATO ZANZIBAR, P.O. Box 2072, Zanzibar (ambaye katika makubaliano haya atajutikana kama ZRB kwa upande mmoja na Bw. ALI TALIB ABOUD wa Mpendae Zanzibar (ambaye katika makubaliano haya atajuiikana kama mmiliki wa Gha/a) kwa upande wa pi/i.

KWAMBA ALI TALIB ABOUD ni mmiliki halali wa ghala liiilopo Mpendae Zanzibar ambaio lilifungwa tarehe 01/10/2014 na Una vifaa vya KAMPUNI YA GICHONJO, inayodaiwa kodi za serikati venye nia ya kuuzwa na BODI YA MAPATO ZANZIBAR kwa ajili ya kupata mapato ya serikati yaliyokosekana. NA KWAMBA ZRB iniekubaii kuiifungua ghaia hiio linalomilikiwa na Bw. ALI TALIB ABOUD kwa kuzingatia masharti yaiiyotajwa kwenye mkataba huu. KWA HIVYO ZRB na Bw. ALI TALIB ABOUD wamekubaliana kama ifuatavyo:

1. Kwamba ZRB inaidai KAMPUNI YA GICHONJO, fedha ambazo zitalipwa baada ya kukamilika taratibu za mauzo ya vifaa hivyo iii kuweza kuiipa kodi ya serikati.
2. Kwamba makubatiano haya yataanza mara tu baada ya pande zote mbili za mkataba huu kuweka saini zao , na kumaiizika baada ya ZRB kuchukua vifaa vilivyomo kwenye ghaia ia Bw. ALI TALIB ABOUD.
3. Kwamba Bw. ALI TALIB ABOUD aeiewe kuwa baada ya kufunguiiwa kwa ghaia hiio, bado vifaa viiivyomo ndani yake vitabakia kuwa maii ya ZRB.
4. KWAMBA Bw. ALI TALIB ABOUD azingatie kuwa vifaa vina'/yolambuiiwa na ZRB ambavyo vimo kwenye ghaia hiio ni hivi vifuatavyo:

Compyuta - Suyan.< a 1, Deli 1, Printer HP LaserJet 1, Compyuta Speaker Altec 3, Compyuta Table 2, Coid Room 3, Container 20 feet 1, Office table 1, Generator No. 291987 Type ref. 17kg/5CR/P0 Volts 415/240-1. 5. Kwamba Bw. ALI TALIB ABOUD atawajibika kuvisimamia na kuvilinda vifaa hivyo mpaka ZRB itakapokwenda kuvichukua na kukitokea tatizo lo/ote kuhusiana na vifaa hivyo Bw. AH ataiarifu ZRB." After about three years of the Agreement, on 23/10/2019, the staff of the respondent visited the warehouse. To their surprise, they found the listed properties and accessories of the cold rooms, the subject matter of the Agreement except the generator, were missing from the warehouse. The respondent required the 1st appellant to return the properties but failed hence the suit in which the respondent claimed for TZS 758,990,000.00 as the value of the missing properties. It also prayed for costs of the suit and any other reliefs which the court would deem fit to grant. The 1st appellant did not dispute that, after the closure of his warehouse due to the company's failure to pay tax, upon his request that, the same be opened to enable him hire it to another person, he entered into the Agreement with the respondent on the terms and conditions

stated above. The discord between the parties was only on the description of one of the properties (a computer) and the value of the properties which were found in the warehouse and entrusted to the 1s t appellant for safe keeping pending their auction by the respondent to recover the unpaid tax. The value of the properties, except two computer tables, one office table and one printer, HP brand, were shown in the valuation report which was tendered by PW5 and admitted in evidence as exhibit P5. In the circumstances, at the commencement of the hearing of the suit, the High Court framed the following issues for determination; "1. What is the value of goods put in the hands o f the defendants. 2. What amount are defendants liable to pay to the plaintiff. 3. What remedies are the parties entitled." On the part of the respondent, evidence was adduced by Amina Moh'd Juma (PW1), Maryam Abdalla Ismail (PW2) and Fatuma Jumanne Salum (PW3). All of them were, at the material time, the officials of the respondent. According to the evidence of PW1, he was the one who closed the warehouse on the directions of the Commissioner of the respondent. He testified that, the closure was preceded by preparation of an inventory which was done in his presence.

As for PW2, his testimony was that she dealt with the letter (exhibit PI) in which the 2n ‘J appellant asked that the warehouse be opened so that the owner could use it after the efforts to trace the owner of the Company had become futile. Having received exhibit PI, she wrote a reply to the 2n d respondent who was required to confirm ownership of the warehouse and existence of a tenancy agreement between him and the Company, The evidence of PW2 was supported by PW3 who added that, after the 2n d appellant had informed the respondent that the warehouse belonged to the 1s t appellant and after having submitted a copy of a power of attorney document (exhibit P3) showing that, he was acting for the 1s t appellant and a copy of the contract of tenancy between him and the Company, the request to open the warehouse was granted by the respondent. He went on to testify that, the Agreement was prepared and the properties listed therein, were entrusted to the 1s t appellant for safe keeping. Evidence was also given by Evance Peter (PW4). He testified that, in February, 2016, he rented the warehouse from the 2n d appellant on the condition that, all the properties which were therein should be removed. According to the witness, later on, in September, 2016, he was approached by the previous tenant, Gichonjo Gitonga Nyaga who claimed

that, he left his properties in the warehouse. He was advised by PW4 to consult the 2n d appellant and after having done so, the three of them went to inspect the warehouse. Upon the finding that, the properties were missing, the 2n d appellant blamed PW4 contending that, the properties listed in exhibit P4 were entrusted to him. He subsequently lodged a complaint with the police against PW4 that, PW4 had stolen the properties. On his part, Gichonjo Gitonga Nyaga, the owner of the Company gave evidence as PW5. According to his testimony, he was conducting his business in the warehouse which he had rented from the 2n d appellant. Later on, the warehouse was closed by the respondent following his failure to pay income tax to the tune of TZS 1,208,000.00. In 2009, he went to the respondent's office and paid that amount. However, when he contacted the 2n d appellant, he was told that, the warehouse had been rented to another person. It was his evidence further that, when the warehouse was inspected, all the properties which were in it at the time when the same was opened by the respondent, were found missing except one generator which, according to him, was valued at TZS 50,000,000.00. He said also that, the missing properties were worth TZS 758,000,000.00. 7

For the defence, evidence was Bdduced by the 2n d appellant who testified as DW1. In his testimony, he st3ted that, on the date when the warehouse was opened, the officials of the respondent did not enter therein to conduct inspection and therefore, did not physically see the properties which the 1s t appellant was entrusted to keep as per exhibit P4. It was his further evidence that after the handing over, on the permission of the 1s t appellant, he leased the warehouse to PW4. He stressed that, the properties were not verified because of a foul smell which came out of the warehouse. He contended that, it was PW4 who was responsible for the missing properties and in fact, had promised to pay for the same, but did not do so hence the filing of a criminal charge against him. Upon his evaluation of the evidence, the learned trial Judge was satisfied that, from the contents of clause 4 of exhibit P4, the properties which were entrusted to the 1s t appellant were valued at TZS 231.240.000.00. He found that, whereas, according to exhibit P5, the value of the cold rooms accessories, which were found missing, were valued at TZS 178,940,000.00, the other six items which were listed in exhibit P4, except three of them; two computer tables, one office table and one printer, HP brand (unappraised properties), were value at TZS 51.300.000.00. For the three unappraised properties, the learned trial 8

Judge estimated the same to be worth a total of TZS 1,000,000.00, thus making the value of the six items to be TZS 52,300,000.00. In sum therefore, he was of the opinion that, the properties which were entrusted to the 1st appellant for safekeeping were worth a total of TZS 231,240,000.00. As to the appellant's liability, the High Court observed that, since out of the properties which were entrusted to the 1st appellant, the generator, which was worth TZS 50,000,000.00, was found intact at the warehouse, the appellants were not liable to pay for its value. For that reason, the 1s t appellant was held liable to pay TZS 181,240,000.00. The respondent was thus awarded that amount with costs. The appellants were aggrieved by the decision of the High Court hence this appeal which, according to the amended memorandum of appeal, is predicated on the following two grounds of appeal: "1. That, the learned trial Judge did err in law and fact by determining Civil Case No. 05 o f2021 in favour of the respondent based upon weak and contradictory evidence adduced before the trial court, 2. That, the entire judgment is illegal and problematic in that:

(a) The learned Judge in his judgment did include extraneous matters which did not completely feature in the proceedings. (b) The learned trial Judge in his judgment did entertain new facts which were not pleaded in the pleadings. (c) The learned trial Judge raised new issue and determined it without affording the parties the right to be heard/’ At the hearing of the appeal, the appellants were represented by Mr. Rajab Abdalla Rajab, learned counsel while the respondent was represented by Mr. Sadi Salim Said, learned Principai State Attorney assisted by Mr. Mbarouk Suleiman Othman, learned Principal State Attorney and Mr. Ali Issa Abdalla, learned Senior State Attorney. Submitting in support of the appeal, Mr. Rajab started with the 2n d ground of appeal. He argued that, the learned High Court Judge erred in making a finding on the value of the properties which were not appraised in exhibit P5. According to the learned counsel, that finding was not support by any evidence. He submitted further that, the learned High Court Judge erred in finding that, the Suyama Computer mentioned in clause 4 of the Agreement was in fact, a Dell brand, observing that, the same was mistakenly described as Suyama. He referred us also to paragraph 10 of the plaint in which a Suyama Computer was mentioned. 10

Mr. Rajab also faulted the learned High Court Judge for having indicated in his judgment at page 93 of the record of appeal that, the learned counsel had based the case on the contract of bailment and for having included cold room accessories in the list of the missing properties. On the 1s t ground, Mr. Rajab argued that, the amount of T7S 758,990,016.00 claimed to be the value of the missing properties which, according to the evidence, were not new, was not real. He argued further that, the respondent's witnesses contradicted themselves on the contention that, the cold rooms accessories were missing. He added that, the appraisal of the missing properties resulting into the preparation of exhibit P5, was made in the absence of the appellants and without the presence of the properties. The learned counsel admitted however that, he did not object to the admission of the said exhibit and that, what was in dispute was the value of the properties entrusted to the 1s t appellant but were later found missing. In reply to the submissions of the learned counsel for the appellants, Mr. Said contended that, the impugned decision was based on the issues contained on page 43 of the record of appeal. On the value of the missing properties, which were not appraised in exhibit P5, he submitted that, the learned trial Judge rightly estimated their value. He cited the case of Stanslaus Rugaba and Another v. Phares Kabuye ii

(Civil Appeal No. 26 of 1981) [1981] TZCA 45 and the commentaries by the learned authors of the books; Mulla, the Code of Civil Procedure, 19th Ed. Vol. 2 and Sarkar, Law of Evidence, 19th Ed., Vol. 1 at pages 2340 and 62, respectively. Relying on the cited cases and the commentaries which are, with respect, not applicable as will be apparent herein, Mr. Said submitted that, the High Court did not err in estimating the value of the unappraised properties. He added also that, the contention by Mr. Rajab that, he did not base the case on the contract of bailment, is defeated by the contents of the written statement of defence at page 13 of the record of appeal. On the argument that, the appellants were not heard on the valuation of the missing properties, the learned Principal State Attorney disputed that argument contending that, both sides were involved in the valuation. On his part, adding to what was submitted by Mr. Said, Mr. Abdalla argued that, the value of the properties was part of the pleadings as evidenced by the valuation report annexed to the reply to the written statement of defence. He argued further that, the valuation of the cold room accessories was necessary because the three cold rooms, which were entrusted to the 1st appellant, were found to be without those accessories. 12

After the reply submission by both the Messrs. Said and Abdalla, Mr. Rajab did not have any rejoinder submissions to make. We have duly considered the rival submissions of the learned counsel for the parties. To start with, as depicted by the record, the dispute between the parties was on the value of the properties which were entrusted to the 1s t appellant by the respondent as listed in exhibit P4. It was a contract in which, the respondent opened the warehouse on the 1s t appellant's undertaking to keep the properties which were in the warehouse in safe custody. It was not a contract of bailment as properly held by the learned trial Judge. As stated above, the learned trial Judge awarded the respondent TZS 181,240,000.00. In the 2n d ground of appeal, the appellants contended that, the judgment is illegal and problematic for three reasons; first, that the learned trial Judge acted on extraneous matters in making decision, secondly, he acted on new facts which were not pleaded by the parties and thirdly, that, the learned trial Judge raised and determined new issue without hearing the parties. From the submissions of the learned counsel for the appellants, the three factors arose from the learned Judge's determination of the value of the items which were not appraised in exhibit P5. It is a correct position that, the learned trial Judge estimated the value of some of the 13

properties which were entrusted to the 1st appellant vide exhibit P4. The [earned trial Judge also assumed that, the computer which was described in the said exhibit as Suyama was a Dell Computer. Although we agree with the learned counsel for the appellants that, the move taken by the learned trial Judge was improper, that did not render the judgment illegal on account of having acted on extraneous matters, entertaining new facts or denying the parties the right to be heard, on value of the unappraised properties. We hold that view because, in our considered view, the learned trial Judge did not, with respect, act on any evidence in arriving at his decision on the assessment of the unappraised properties and in his finding that the Suyama computer appearing in exhibit P4 was a Dell Computer. It is our view that, the move amounted to a misdirection rather than having acted illegally. Whereas it was a misdirection to act on assumption on the computer brand specified in exhibit P4, the finding on the value of the unappraised properties ought to have been arrived at by the court only if there had been evidence from the respondent. It had the burden of proving the value of each of the properties which were the subject matter of the claimed amount. Since there was no such evidence either from exhibit P5 or the respondent, the learned trial Judge was not entitled to make a finding on their value. The effect of such misdirection goes to the 14

weight of the evidence rather than legality or otherwise of the judgment. In that regard, we subscribe to the statement by the learned author of C. D. Fields, Commentary on Law of Burden of Proof, 2n d Ed. 2008, Delhi Law House, India at page 49, that: " The burden o f proof cannot be on the court, but must be on one or more of the parties." On the basis of the above stated reasons, we find no merit in the 2n d ground of appeal and thus hereby dismiss it. With regard to the 1st ground of appeal, after having decided the 2n d ground in the manner stated above, its determination will not detain us much. From the pleadings and the evidence adduced by the parties' witnesses, the dispute centred on the value of the properties which were entrusted to the 1st appellant vide exhibit P4. As pointed out above, the properties were listed in clause 4 of that exhibit. In paragraph 2 of the written statement of defence, the appellants did not dispute the description and the quantity of the properties as claimed in paragraph 10 of the plaint. They only disputed that, they were worth TZS 758,990,016.00, the amount claimed by the respondent. In that paragraph of their written statement of defence, they state as follows: "The form also incorporates the items mentioned in paragraph 10 o f the plaint but in an unfortunate 15

situation ; the same was and stilt is dead silent on the price of the items notwithstanding the fact that the form bears one column which requires that price per unit be filled." [Emphasis added]. In its reply to the written statement of defence, the respondent attached the valuation report which, as stated above, was tendered at the trial and admitted in evidence as exhibit P5. The same was received without any objection from the appellants. They cannot now be heard to dispute the value of the properties at this stage of the proceedings. We find therefore, that, the learned trial Judge properly acted on exhibit P5 to determine the value of the claimed properties and the amount to which the respondent was entitled after he had substructed TZS 50,000,000.00, the value of the generator which was found intact at PW5's business premises. However, having agreed to the appellants' complaint in the 2n d ground of appeal that, the value of the unappraised properties and one Suyama Computer were not supported by evidence, we hold that, the assessed value of TZS 1,000,000.00 for the three unappraised properties and TZS 450,000.00 for Suyama Computer, were wrongly awarded to the respondent. For this reason, we find that, after deducting TZS 16

1,450,000.00, the value of the jthree unappraised properties, the respondent is entitled to TZS 179,790,000.00 (one hundred seventy nine million seven hundred ninety thousand shillings) as the value of the missing properties. In the event, save for adjustment of the award, the appeal is dismissed. In the circumstances, we order that, each party shall bear its own costs. DATED at DODOMA this 20th day of August, 2025. The Judgment delivered this 25th day of August, 2025 in the presence of the Mr. Rajab Abdalla Rajab, learned counsel for the appellants and Mr. Said Salirn Said and Mr. Mbarouk Suleiman Othman both learned Principal State Attorney for the respondent connected via video conference, is hereby certified as a true copy of the original. A. G. MWARIJA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL