Ameli Lunguya vs H. M Mzuyu (DC Civil Appeal No. 34 of 1996) [1999] TZHC 461 (22 November 1999)

MOSHI, J. ~~ .... - ................ IN THE HIGH COURT OF TANZANIA AT MBEYA (DC)· CIVIL APPEAL NO,, 34 OF 1996-. (From the decision of the District Court· of Mbeya ·at Mbey~ in Civil Case No. ·35 ,-f 1995 Before: MoSo_Rurnanyi.ka - Resident Magistrate)· ... - - .. --. ··-- AMELI LUNGUYA •••• - .• - .,··• •.• ..., .• •. • • • • • • • APP ELLA.NT Versus H.M .. MZUYU 8 .. 0 0 e tt 0 oft O o () 0 o O O 0 COO O 0 RESPONDENT · JUDGMENT The-. ca.e ·befor• th d.is.trict court of Mbeya centred on' a loan :·'.g::>':'emeLi. (Ext ~ 1 } xcuted by bf!.th :parties on 19-6.92. In it the respondent advan◊ed '. shs.59B,/= to the lolppellt who, as security, mortgaged his house on-plct , No. 480, Bleok Q,, within the Municipality of Mbeya ... · The facts -established , .... ' . e•de3ce we a inteY•sti}tg as they were a puzzle. Th§8,e mQtial. facts were not in ·dispute. The appellant had initially offe~~d to oll his house to the respondent by instalments. Between J2:}le _ 1992 Then the d 9_stob!~ 1993 the respondent he.d paid a sum of shs.598 ,000/=. QSJ)Ondent decided to walk out of the oral contract of sale.,_ Both parties, hc,wover, decided to treat the money as a 'loan., Hence the loan ac:'eement . . (Ext P1)., · The puzling aspect in· Ext P1 was that _it centred only on the ·first instalment of ~~30 2 000/= paid on 19.,6. 92e It bore that date· and it was that· 1,llnou.nt. of· sh~. 130, 000/= which was to be paid by the appellant c:• 120 .'. ~~:, . tlte' mortgagft house be s.ld. Ext P1 only enumerated the subsequent instalments of peon 26.,692 and 22.,10 .. 93 but.said nothing more about them .. ~ 1.1.~ the appellant bad paia back only shs.48 1 000/= leaving an -c..,:..p?.'.:. • , . balan•e of shs.550,000/.=. On that day (1.1;95) the parties executed a tenanc3 agreement (Ex-i D1) ae ht h•w the sh.!:.550,000/= were to be paido 'In it the · responcl.ent were to occupy the ap.pllant 1 s house as a tenant for 19 mopths ai:; 2, . •· monhly ~fflt ?f shs.28,000/= ae- an .-,ff-set against the balance of 'shs .. 550,000/: ,. Ext ,1 ~,; thuG to expire on 21. 7. i6. There were tenants in the hou1=:A h,,1.1.. Q • 0 0 0 0 • 0 C ~·l ·2

Ext D1 was completely silent on that aspect. However 9 three months later, •, , on 3.4.95, the respondent -pref~rred the suit clD.irning t:nat the ppelJ.ant had • breached the loan agreement, (Ext P1) by failing to have paid him t.he shso 130 9 000/:: , .. . . ,,. by September 19th 1992 He conceded he had.not netified.the apneilant about .. - . . '-· ... \ . - any breacho At the same time he claimed 'the :app'ellant had breached the tenancy agreement term of shs.28,000/:: permontho Again he conceded he had l\ot notified the appellant,. and continued to receive money from him. Beb.,teen a .., , : • January 1995 and January 1996 he· ~.ras .,paid•.by the appelJ.ant t;tal sum of shs., 145,;000/.::. The suit, which was founded on the loan agreement (Ext P1), was for: (a) Payment· of-· the principal sum. of shs.598,;Q0q.l=. . .. • :. ,. i, ' ;·,• •.• - (b),,An order for;th.e·sale 9{ the·.mor!gaged P:-pertr;,. • ,. . ... ' .. . (c)·Interest a:t'35t per annum from.1.10.92 to the date .. · ' :' }". ,.,,. .,,.,,,-'I. o:f i,tdgment. :. )';..J. • (d) Interest at court rate on the decretal amount f'.t'om ·• jl • • ,. ; , the date of judgment until fu.:J-1 YJ.l'l!OOt.·' • - ~ ( e) Costs of the· suit. · ;, In a judgment delivered on 18.10.96, prayers (c), (d) and~~) .were .. :. . .. . ., •' . ~ J • - granted. On prayers (a) and (b) a sum of shs.1+53 7 000/=, which ,-a_13.the -· principal sum le, shs.145,000/:::: already paid, was granted with ,an• orq-er•Jo:, the sale of the mortgaged\ose in 'the event of default,in.pa:Ylnent. Br.t this was clearly an error. :There' was also the SUlll. of shs .. 48,qoo/::, earlier paid but not taken into account. So the su.rn r:ranted under prayer (a. pght to have read I?J1:r_95 1 92_,0/=• The a.pp.ellant felt aggrieved, l;,2::-: ~ 0 +.H <: f,}};::ie2.l which was preferred and argued before m'e by his learned advo·cate ,, !';Ir. l 1 1b;iil:a1o .. d reisted ' ' . , ' ' by the learned advocate for the respondent~ Mr. Mwangole, viho _b,ad a:kso . represented him at the trial. , ,, With respect, it seeins to me~ that the entire case for the respondent .~ ! .. was, in law, a misconception. The: plai11;t was. wholly based upon the loan agreement of ·19.6.92 (Ext P1). ,., . • .• . o\f .. C, • ,' But as,r•ightly raised by i1r. i'1l1ise in their I' , • ... •• written statement of defence, and befor~. me, .t):lat loan agreement had been . ' ' ..• ,'f .• ... • ' ., ...

• 2 The Respondent's Counsel also relies on the c2se authority of ABBAS G. E,SS.L.JI et ale V• GORDHAN Dr. SOLANKI t./3 SOLAN'KI TAILORS (1967) H.C.D., 227 - where the judge_refused to allow adjournment to givG Appellant opportunity to file the proper papers.. Mr. Mwakibso fm 0 ther submitted thGt the provisions of section 95 of th2 C.P .c., 1966 co1i.ld not be invoked to come to the ':lid of the Applicant becavse Order L2 ·rule 3 r:md Order 39 rule 1 - (1) of the Code are spedific provisions which 0 i ve a right to o. pc:irty regerdine; e procedure he should follow in order to obt.::::in -s relief or remedy based on an application for review, or tho steps he should t.?ke for en nppeol., On this he referred to TAJDTI'i P. MAM.DANI v "· 'l:11-IB NE,·,i G.REi\T :INSURANCE COMPANY OF_ :O\JDI/1. LTD. ( 1967) H.c.D. , .. 153. The em-phasis supdied by the Court ( in MJ\FiDANI) was in • respect gf Order 39, rul2 1 of t1e C.P.C., 1966 thet m-'.::ndorily requires a Memorc1ndum ·of Appeal to be accompanied by- a co-py of the decree applied from. The Court stressed: ' 1 The rule is • .L • 1mperal,1ve, the 3ppe2l;: ( emphGsis supplied)~ In the light· of the above exi)osi tion the Respondent's Counsel prayed for the outright dismiss:;l of the F.rpplic::;tion on the account of being incompetent before this court, Hith costs.' But Mr. Mwakilos.'.J 1 ,s contention was opposed with all rrii;;hty 2nd vigqur by Dr •.. Mwokyembe. He commenced by soying thd the Order of this court dated 30/10/2002 very clearly and correctly st.sted thc,t an arplication for, review has to be supported by an offid,'lvi t set tins out the reasons for institutin~ the Ck1mber Summons for review.·. He then opined thot this court did not make ony specific niference to c, drawn order thot is being sought to be reviewed because the .~pplication, unlike a memornndum of an appe21,, is not foroign or new metter to the -proceedings to be reviewed, ,:md. especio.lly on the fact thd it ( the application) i.s filed •• 0 ./3

• 3 in the s2me court .. In his considered vie,11, the application under impugnment is to be considered in line with :tho decision of the Court of Appeel in CIVIL APPLICATION NO. 30/1999 BEI'v!EEN CHIKU LUGONZO ANTI. Unrqiorted) .. The Court of Appec11 1 s r.3tio docidendi is to the f,-:illowing effect ( at page 6 of the typed Ruling): • 1 In our view, op2rt from the r3 requirement of the L3w under the Civil Procedure Cod~, 3s we hove endeavoured to oxplein in this Ruling, requirement for o drawn order to accompo.ny the memor2ndum for review does not 21s0 2cco: 0 d with logic in ::m opi)lication for reviet,. The re2son is th-:?:t unlike· the situation in ah cppeol, in the· case of .sn ap-plication for review involving the same ftle ncl the some court es tho case here, it wos not necessary to require the ottechment of 2 drawn order to the memorandum for review. A copy of the ruling or order ottachcd to the 2pplic2tion would, in our view bG sufficient". The judgement of the C:::iurt of Appeal went furt}1er to rm::ike it clear t:h.at Rule 3 of Order XLII is limited to the form of the memorandum fo:r revim,, unlike in the c:1se of 311 sppeal v1here the Mernor.smdum of Appeol must be ntt.?chcd vrj_th ,?. copy of the decree o:::' order S01?ht to be • oppeoled 'JG?inst. That having been settled by the Court of Appeal it goes without further ado tht:1t Mr. rh-Jakiles2' s prel:i_min2ry objection crumbles dovm. end it's hereby rejected, Before I conclude, let me digress a bit from the subject matter of this applic3tion. The case of TAJDIN P. l½f.J.1DANI (supro) has made' my mind someho/ restless. With res-poet I 0m not lured to occec;le to the view arrived ·2t by this court thot i:cross-rrppeol must be dismisseg, even thou.:;h the court ·hed before it the c0py of the decree filed with the 3ppe:::l '. My simple rc:::son is in line with the Court my of Apr>er-?l decision in OHTKU IDGOHZO'G. ~ose (supr:i) bocnu2-e, in considered .••• /4 L

• 3 - and all the circumstances of the case that the confession cannot but be true. In all the circumstances of this case, I am satisfied that the confessions of the appellants, properly considered., fell short of meeting that test, and that corroboration in material particular by other evidence, which was wanting in this case,-was required., There were, besides, the defences of alibi raised by the appellants. In all the circumstances of this case, it does not occur to me.that the trial court accorded those defences the attention they deserved. In the same case (supra) the Court of Apeal held: . As a matter of law, an accused person is not required to prove· his alib:i.; it is sufficient for him if the alibi raises a reasonable doubto In this case, the appellants did not only raise those defences of alibi but brought evidence in their support. In my view, those defences, I properly considered, were quite plaus,ible and caP.able of raising reasonable doubts as to the complicity of the appellants in the crimes. It was the foregoing reasons that I allowed the appeal, quashed the convic_tions, set aside the sentences, and ordered the ' ' immediate release of the app_ellants from prison B.P. JViOSHI JU.OOEo AT ViBEYA. ·---- 22 November 19990 " I Ci:RTIFY THAT ·TFI3 IS A TRUE GOFY OF THE ORIGINAL. ~~ /-----·-· .. ) ) _ .• _t~(•"' DI$TRICT'-RIDISTRAR.