Registered Trustees of Congregation of BrOthers of Charity of Tanzania vs Timoth Kayuni & Another (Civil Appeal Case 242 of 2019) [2022] TZHC 9813 (13 May 2022)

TanzLII

Automated Summary

Key Facts

The appeal concerns the Registered Trustees of Congregation of Brothers of Charity of Tanzania (Appellant) challenging the District Court of Kinondoni's judgment in Civil Case No. 27 of 2017. The Appellant raised six grounds of appeal, including procedural errors, failure to consider a Memorandum of Understanding, and inadequate evaluation of evidence. The trial court found no enforceable partnership agreement and dismissed the case. The appellate court upheld the trial court's decision, finding all grounds of appeal meritless and dismissing the appeal with costs.

Transaction Type

Joint venture in dispensary management and operations

Issues

  • Whether there is exhibited a partnership agreement between the parties
  • Whether there was a breach of contract agreement by the defendants
  • What are the reliefs entitled to the parties?
  • Whether the plaintiffs are the owners of the dispensary

Holdings

  • The sixth ground of appeal was dismissed as the trial court framed and determined all issues, including the Counter Claim, which was addressed in the judgment. The court highlighted that four framed issues encompassed the Appellant's Counter Claim and that the judgment discussed ownership, breach of contract, and reliefs.
  • The first ground of appeal was dismissed because the Respondents' final submissions, although filed out of time, were deemed non-fatal as they are merely guidance to the court's decision and not new evidence. The court cited SUNLON GENERAL BUILDING CONTRACTORS LTD. AND OTHERS VS KCB TANZANIA LIMITED, CIV. APPEAL NO. 253 OF 2017 and SOUTHERN TANGANYIKA GAME SAFARIS & ANOTHER VS MINISTRY OF NATURAL RESOURCES AND TOURISM & OTHERS [2004] 2 E.A 271 to support this determination.
  • The third ground of appeal was dismissed because the Appellant failed to cross-examine witnesses or challenge the credibility of the Audit Report. The court cited ATTANAS NGOMA V. R CRMINAL APPEAL NO. 57 OF 2018 and KWIGA MASA V. SAMUEL MTUBWATA [1989] TLR 103 to state that unchallenged witness testimony is deemed true.
  • The fifth ground of appeal was dismissed because the issue of resuming the dispensary's services was not pleaded by the parties and the trial court correctly avoided deciding unpleaded facts to prevent setting bad law. The court referenced ABEL MALIGISI VS PAUL FUNGAMEZA PC CIVIL APPEAL NO. 10 OF 2018 to support this principle.
  • The second ground of appeal was dismissed as the trial court properly evaluated the evidence and held that the oral partnership agreement, rather than the defective Memorandum of Understanding (DW1), governed the parties' relationship. The court referenced section 118 of the Law of Evidence Act to affirm that the burden of proof lay on the Appellant to challenge the oral agreement.
  • The fourth ground of appeal was dismissed as the trial court evaluated DW1's testimony and found the Memorandum of Understanding lacked legal enforceability due to non-compliance with the Notary Public and Commissioner for Oaths Act. The court reviewed pages 11, 12, 13, and 16 of the trial judgment to confirm this.

Remedies

The appeal was dismissed with costs, as the court found no merit in any of the grounds raised by the Appellant. The costs of the appeal were ordered to be borne by the Respondents.

Contract Value

262683650.00

Legal Principles

  • The court emphasized that it is a 'bad law' for courts to raise new facts or decide unpleaded issues, citing multiple precedents. This principle was applied to dismiss the fifth ground of appeal, as the trial court did not order the closure of the dispensary and the issue of resuming services was not pleaded.
  • Under section 118 of the Law of Evidence Act, when the question is whether persons are partners, the burden of proving that they do not stand in that relationship is on the person who asserts it. The trial court applied this principle to determine that the parties were bound by their oral agreement rather than the defective Memorandum of Understanding.

Precedent Name

  • ATTANAS NGOMA V. R
  • SUNLON GENERAL BUILDING CONTRACTORS LTD. AND OTHERS VS KCB TANZANIA LIMITED
  • SOUTHERN TANGANYIKA GAME SAFARIS & ANOTHER VS MINISTRY OF NATURAL RESOURCES AND TOURISM & OTHERS
  • ABEL MALIGISI VS PAUL FUNGAMEZA PC

Cited Statute

  • Law of Evidence Act
  • Notary and Commissioner for Oaths Act
  • Civil Procedure Code

Judge Name

  • Deputy Registrar J. Luambano
  • Justice Mgonya

Passage Text

  • The trial court held that the Memorandum of Understanding lacked essential elements to be legally enforced. Hence, the parties are bound by their oral agreement on partnership referenced to the operation of the dispensary, joint account and division of dividends.
  • where witness version during examination in chief is not challenged by way of cross examination the same is taken to be true
  • From the above position by the Court of Appeal, this court is of the view that, the final written submission filed out of time was of no effect. This ground of appeal fails.

Damages / Relief Type

The appeal was dismissed with costs, and the respondents are ordered to bear the appeal costs.