Jonas Jeremiah Macha vs Thobias Leon Moshi (D.C CIVIL APPEAL NO. 000032124 OF 2025) [2026] TZHC 3121 (5 June 2026)

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI D.C CIVIL APPEAL NO. 000032124 OF 2025 JONAS JEREMIAH MACHA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS THOBIAS LEON MOSHI .............................. RESPONDENT / DEFENDANT JUDGMENT KILIMI, J At the District Court of Moshi at Moshi ’herein the trial court’, the respondent herein sued the appellant herein under the small claims claiming a total of Tshs. 66,000,000/= the amount he stated to have loaned the appellant herein on 10.12.2022. According to their agreement the said borrowed money was to be paid within four months as at 10.04.2023. The appellant failed to repay the borrowed money on time leading to the institution of the small claim at the trial court by the respondent herein against the appellant. In his reply to the statement of claim, the appellant herein refuted the claim and stated that he did not owe the respondent any money as he already paid the sum claimed through bank accounts. After the full hearing of the said claim, the trial court was satisfied that the respondent herein proved his claim on balance of probability, the trial court proceeded to enter the judgment in favour of the respondent herein where the appellant was ordered to refund respondent Tshs 66,000,000/= and other orders as prayed in her claim. Aggrieved with the trial court decision, the appellant is in this court seeking the trial court decision be quashed and set aside premising his grievances on the following grounds; Page. 1

a) That the trial Court erred in law and fact by entertaining the suit which was hopelessly time barred. b) That the trial Court erred in law and fact by entertaining the suit which was res judicata. c) That the trial court erred in law and fact by declaring that the loan of Tsh.66,000,000/= was payable at a lump sum on 10/4/2023 contrary to the adduced evidence. d) That the trial court erred in law and fact by ignoring the documentary evidence by the appellant. e) That the trial court erred in law and fact by delivering the judgment on favour of the appellant who had weak evidence and who did skip to tender the bank statement where all payments were made. f) That the trial court erred in law and fact by granting a relief which had never prayed by the Respondent. That the trial Court erred in law and fact by failure to analyse evidence properly hence reaching at erroneous decision. Before I delve into the above grounds, I find apposite to state albeit brief facts of evidence adduced at the trial court as discerned from the trial court records; the respondent (PW2) at the trial court, testified that on 10.12.2022 he did lend Tshs. 66 million to the appellant as per exhibit P1 (the loan agreement contract). The security for that debt was the supermarket, and it was agreed by 10.04.2024 the appellant was supposed to have already repaid the whole amount of money. The evidence further reveals that the same parties had previous agreement in respect to the sale of a Supermarket which was still due and payable on monthly instalments at Tshs. 15,000,000/=. In his defence refuting the respondent claims, the appellant testified that the respondent did lend him Tshs. 66 million but he repaid all of his money which he deposited through the respondent’s NMB accounts. The appellant presented slips indicating that he affected payments of the said money as per exhibits DW1 or D1a and Db as it was labeled by the trial court. He further said some of the slips evidencing payments got lost when he had an accident and when the respondent took over his supermarket. He presented the police loss report for the lost statements which was received as exhibit D2. Page. 2

Upon a full trial, the trial court was satisfied that the respondent proved his case on balance of probabilities and gave orders as stated above. The appellant herein is dissatisfied with the trial court decision, hence the appeal at hand. When this matter was called for hearing the appellant enjoyed the legal service of Mr. Muhalila learned Counsel whereas the respondent stood himself. Introducing first his case Mr. Muhamila opted to abandon the sixth and said the seventh ground of appeal will be discussed jointly withthe rest of the grounds. Arguing in respect to the first ground, the counsel submitted that since the suit was a small claim, thus as per Rule 16 of the Magistrates’ Courts (Small Claims Procedure) Rules, 2022 Government Notice 159 of 2023, (hereinafter ‘the rules’), the hearing of the suit was supposed to be heard and determined within five months from the date of its institution. Mr. Muhalila added that, the suit before the trial court was instituted on 30.04.2025 and was finalized on 15.12.2025, thus it was out of the prescribed six (6) months with no extensions prayed or granted by the court, thus the trial court erred in determining the same. Reacting on the above submission, respondent argued that this argument is misconceived since the same does not extinguish substantive rights nor operate as a limitation statute. He supported his position with the following decisions; National Bureau of Statistics vs The National Bank of Commerce & Another (Civil Appeal 113 of 2018) [2021] TZCA 201 (18 May 2021) at page 10 and Airtel Tanzania Ltd vs OSE Power Solutions (Civil Application No. 336 of 2017) [2017] TZCA 140 (20 October 2017). He further argued that no injustice was occasioned to parties as the delay in disposal was caused by the court’s own adjournments and contributed by both parties’ absence as evidenced in the trial court proceedings at page 30. He therefore prayed this ground to be found with no merits. In determining the first ground above, I have gone through the trial court proceedings, and the record reveals that the matter was indeed determined outside the prescribed timeline within which it was supposed to be finalized. (see rule 16 of the rules). Now the issue is whether such delay to determine the case within the prescribed time ousted the jurisdiction of the trial court and hence nullifies the decision which parties were heard on merit. As evidenced by both parties, the matter was determined outside the prescribed time by the law, however, neither party including the appellant herein, reminded the trial court for Page. 3

extension of time on the speed track. Nevertheless, the said law which was not abided, is a procedural law which in my view should be tested on whether the said procedural irregularity in determining substantive rights of parties occasioned failure of justice on the part of the party complaining of the omission. I have entirely considered the circumstances of this matter whereby both parties participated on the case and were heard on merit. I am of the considered opinion that the omission occasioned no injustice; therefore, this court should gloss over the omission and treat it as inconsequential. In the premises, I proceed to dismiss this ground forthwith for want of merit. Faulting the trial court decision that the case entertained was res judicata , Mr. Mhalila argued that the proceedings of the trial court at page 39 and 40 revealed that the respondent filed the case against the appellant at the trial court vide Civil case No. 13 of 2023 claiming Tshs. 66 milion arising from exhibit P1. He said the said case was withdrawn without leave to refile, thus instituting the matter again at the same court, the respondent was barred with the principle of res-judicata as per page 44 and 45 of the trial proceedings where the appellant tendered the plaint admitted in evidence as exhibit P3. Counter attacking the above, respondent contended that for a doctrine of res-judicata to apply, the former suit must have been heard and finally decided as per section 9 of the Civil Procedure Code. He argued that there was no trace of the final ruling of the alleged case to conclude that the same or determined to its finality. In support of this view, respondent referred the decisions of Zanzibar Telecom Co. Ltd vs Hai Dary Y. Rashidi t/a Narasisa Enterprises (Commercial Appeal No. 2 of 2009) [2013] TZHC 2666 (4 October 2013), and Isaak vs Republic of Eritrea (Communication 428 of 2012) [2018] ACHPR 135 (27 April 2018) (TanzLII). Having heard the above rival submissions of the parties and upon examining the trial court record concerning this ground, it is evident that the exhibit relied upon to prove that the respondent had previously filed the case was the plaint marked as Exhibit P3. Further, the testimony of the respondent at the trial court reveals that he attempted to institute proceedings against the appellant but the appellant was untraceable. I am mindful that for the doctrine of res judicata to apply, it must be established that the former suit was determined by a competent court to its finality, it involved the same parties, arose from the same cause of action and sought the same reliefs. However, upon perusal of the plaint produced before the trial court, the same does not establish those elements as the plaint is not a decision of the court rather a pleading. Moreover, no ruling, judgment or order was Page. 4

tendered to demonstrate that the alleged previous suit was heard and determined to its finality. Thus, in the absence of evidence showing the status and outcome of the said case, including whether it was withdrawn, at what stage, and for what reasons, this court is left without sufficient material upon which to conclude that the matter that was at the trial court was res-judicata . I therefore find that, the claim that the suit was res-judicata did not met the threshold of the law, hence I am settled was not substantiated. I therefore proceed to dismiss this ground as well. Concerning the third ground that the trial court erred in law and fact by declaring that the loan amount of Tshs. 66,000,000 was payable at a lump sum on 10/4/2023 contrary to the adduced evidence. The appellant argued that he was not disputing that the respondent advanced to him Tshs 66 million. He also submitted that he did purchase the supermarket from the respondent and he was affecting repayments by instalment. Further he said he presented payment slips for both payments of the supermarket purchased and the loan he took from the respondent. He added that the respondent failed to provide the clear amount repaid to him thus in absence of such clear paid amount, then respondent failed to disclose the actual amount which was already paid to him by the appellant. He argued further that the trial court erred in ruling out that the money was for supermarket and not for the loan debt. Responding on this ground, respondent submitted that at the trial court, he proved the existence of the loan and the appellant admitted partial payments but failed to show appropriation to the loan. Respondent proceeded to argue that the loan agreement contract was separate from the supermarket sale agreement which provided for monthly deposits of Tshs. 15 million. Respondent further argued that the appellant made partial payments without indicating to what debt he was repaying. He supported his argument with the principle that where a debtor owes two distinct debts and makes payments without specifying to which debt his payments are made, the creditor is legally justified in choosing which debt to allocate them as per the decision of Devaynes vs. Noble (Clayton’s Case) (1816) 1 Mer 572. Thus, the respondent concluded that the appellant sums were therefore properly applied to the supermarket purchase debt he had with the appellant leaving the loan outstanding. I have considered the above argument and passed through the trial court record, as alluded above, the respondent claimed Tshs. 66 million from the appellant being money he advances to him as loan. The appellant did not dispute the same, rather he contended that Page. 5

he had already repaid the debt. In support of his position he tendered pay slips as evidence of repayment. The appellant further argued that apart from that loan agreement, he had also entered into a separate agreement with the respondent concerning the purchase of a supermarket. According to him the instalments he paid to the respondent were intended to settle both of his debts which are the loan of Tshs. 66 million and the purchase price arising from the supermarket transaction. In view of the foregoing, I am of the considered opinion that the trial court properly held that the respondent payments were for the payment of the sale debt of the supermarket. I say so because the appellant argument is that he was affecting payment for both of his debts owed to the respondent. But he did not clarify as to whether the agreement of repayment was to be deposited jointly. Further I have scanned the pay slips tendered at the trial court ‘exhibit D1’, the same does not reveal the payments deposited were for which debt. Therefore, since the appellant had two debts with the respondent, Thus, the argument presented by Mr. Mhalila that the trial court erred in concluding that the money was for supermarket and not for the loan debt is misplaced because the said supermarket agreement existed first before the loan advanced of Tshs. 66 million, therefore logically the money he was paying went to clear the previous existed agreement, this backed by the principle of appropriation that the first item on debit side is discharged or reduced by the first item on the credit side. In other words, it is the sum first paid in that is first paid out. (see Clayton’s Case (supra)). In the circumstances, I find this ground devoid of merit hence dismissed. Next as to the ground on whether the trial court erred in holding that the loan of Tshs. 66 million was payable in a lump sum on 10.04.2023 contrary to the evidence, I find it necessary to revisit the agreement between the parties which was admitted in evidence as Exhibit P1 before the trial court. The agreement reveals that the repayment period for the loan was within four months meaning from 10.12.2022 to 10.04.2023. During his testimony, the appellant did not dispute the existence or validity of that agreement. In my view, the trial court was correct in holding that by 10.04.2023, the appellant was supposed to have repaid the entire loan amount to the respondent and this is in accordance with Exhibit P1. Although Exhibit P1 is silent on whether repayment was to be made by instalments or in a lump sum, the agreement clearly provided that the full amount was to be repaid within four months. Therefore, regardless of the mode of repayments the obligation remained that the entire loan amount had to be settled by 10.04.2023. I therefore find no fault in the trial court’s conclusion that the amount was repayable in a lump sum by that date as the evidence on Page. 6

record supports such finding. Accordingly, this ground of appeal also lacks merit. Coming to the fourth ground where the appellant is faulting the trial Court decision that it erred in law and fact by ignoring the documentary evidence by the Appellant. Mr. Muhalila argued that the appellant at the trial court adduced sufficient evidence by tendering bank slips (exhibit D1) evidencing the repayments of the loan amount. The learned counsel further submitted that the appellant also tendered a loss report (Exhibit D2) in proving that some other slips got lost, and a plaint (Exhibit D3) indicating that the suit was res-judicata . In reply of the above, respondent said the trial court considered exhibit D1 to D3 and found them insufficient on balance of probabilities. In Civil cases, the side whose evidence carries weight is usually termed to have proved his claim. The appellant at the trial court presented the above-mentioned exhibits coupled with his oral testimony. Having scanned the impugned decision, I am of the view that the learned trial magistrate in her judgment did consider the said exhibits. In her decision she documented that; “Having gone through the pleadings, testimonies, and exhibits tendered, it is my view that the respondent is still indebted to the claimant to the tune of TZS.66,000,000…. It is not disputed respondent had two distinct loans to the claimant, that is TZS 66million loan and the TZS 180million in instalments for the supermarket sale. It is also not disputed that DW1 specific deposits included TZS 6,000,000/= made on 31.10.2022, TZS 13,962,200/= on 21.03.2023, TZS 7,500,000/=and TZS 16,000,000/= both made on 26.05.2023, TZS 3,035,000/= on 27.06.2023 and TZS 2,000,000/= on 14.08.2023” From the above excerpt, the same reveals that the trial magistrate was referring to the slips and evidence tendered by the parties in the case, therefore in my considered view the trial learned magistrate did accord weight on the documentary and oral testimony presented before her as the judgment indicates that she did reason after evaluating the evidence presented and find as depicted above the same paid the prior existed agreement of purchasing supermarket. In the circumstances, I find this ground lacks merit hence Page. 7

dismissed forthwith. Lastly, the appellant on the fifth ground of appeal is complaining that the trial court erred in law and fact by delivering judgment in favour of the respondent despite the alleged weakness of his evidence. I have carefully considered the arguments advanced by both parties as well as the findings already made under the fourth ground of appeal above. It is undisputed fact that the appellant owed the respondent under two separate debts. As already determined under the fourth ground, the respondent elected to treat payments made by the appellant as one of his debts he had with him being partially paid. In that regard, although the burden shifted to the appellant to prove repayments, I am of the view that despite the evidence he tendered and relied to demonstrate that he had made some payments of Tshs 66 Million as debt, the fact that respondent chose to treat those payments to be related to the supermarket sale agreement entered with the appellant which is supported by principle of appropriation depicted above, and not the loan transaction which formed the subject matter of the case before the trial court. I am satisfied that the trial court properly evaluated the evidence adduced by both parties and was right to find the claim for repayment of the Tshs. 66 million loan was still due. In the light of the foregoing, and looking at the totality of the evidence, I entertain no doubt that with the available circumstances, the trial court properly found the respondent to have proved his case to the balance of probabilities, I therefore find no sufficient reason to interfere with the findings reached by the trial court and I accordingly uphold its decision. In the final result, I find the appeal lacks merit and I hereby dismiss it in its entirety with costs. It is so ordered. Dated at MOSHI this 5th of June 2026 . A. P KILIMI JUDGE OF THE HIGH COURT Page. 8