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Primi Aloyce Mushi Vs Kasinde Said Mzeee 2024 TZHC 7248 (10 June 2024)

The High Court of Tanzania ruled in favor of the plaintiff, Primi Aloyce Mushi, in a breach of contract case against the defendant, Kasinde Said Mzee, who failed to repay a loan of Tshs. 85,196,799. The court ordered the defendant to pay the loan amount, interest, general damages of Tshs. 20,000,000, and costs of the case. The judgment emphasizes the burden of proof lies with the plaintiff, which was successfully met through credible testimony and documentation.

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0% found this document useful (0 votes)
25 views7 pages

Primi Aloyce Mushi Vs Kasinde Said Mzeee 2024 TZHC 7248 (10 June 2024)

The High Court of Tanzania ruled in favor of the plaintiff, Primi Aloyce Mushi, in a breach of contract case against the defendant, Kasinde Said Mzee, who failed to repay a loan of Tshs. 85,196,799. The court ordered the defendant to pay the loan amount, interest, general damages of Tshs. 20,000,000, and costs of the case. The judgment emphasizes the burden of proof lies with the plaintiff, which was successfully met through credible testimony and documentation.

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jacksonmoshi094
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We take content rights seriously. If you suspect this is your content, claim it here.
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IN THE HIGH COURT OF TANZANIA


(DAR-ES-SALAAAM DISTRICT REGISTRY)
AT DAR-ESALAAM
CIVIL CASE NO. 42 OF 2022

PRIMI ALOYCE MUSHI………..………………….…….........................PLAINTIFF


VERSUS
KASINDE SAID MZEE……………………………..………………………DEFENDANT

EXPARTE JUDGMENT

23rd April & 10th June, 2024

KAMANA, J.

This is a claim of damages for breach of contract instituted against

the defendant. The allegation by the plaintiff is that, as of 8th January,

2015 the defendant was indebted to the plaintiff the sum of Tshs.

85,196,799/= which was advanced to her on different occasions as a

loan on a friendly basis. On 8th January, 2015 both parties entered into

an agreement in which the former agreed to liquidate the said debt. It

was agreed that the defendant’s business room located in house No. 5,

Block 17, Congo/Mchikichini Street, Kariakoo Area, Ilala Municipality

within Dar es Salaam be leased to the plaintiff for ten years and two

months commencing from 10th February, 2017 to 09th April, 2027 at a

monthly rent of Tshs. 700,000/=. The plaintiff further alleges that the
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defendant failed to adhere to the terms and conditions of the contract

between them, hence this current suit.

The plaintiff has alleged that as a result of the said damage, he

should be awarded the following reliefs:

(a) Payment of the sum of Tshs.85,196,799/= being an

advanced loan to the defendant;

(b) Payment of the sum of Tshs.166,843,731/= being 25%

interest of the advanced loan;

(c) Payment of 25% on (a) and (b) from the date of filing the

suit to the date of judgment;

(d) Payment of general damages for breach of contract;

(e) Payment of interest on the decretal sum at the Court rate

counting from the date of judgment to the final fulfillment.

(f) Costs of the case;

(g) Any other relief as may Court deem fit to grant.

On 5th May, 2023, this Court rejected prayers made by Ms. Jesca

Felichism, learned Counsel for the respondent for an extension of time

within which to allow the defendant to file her written statement of

defence out of the prescribed time. The record shows that, later on, the

defendant filed Misc. Civil application No. 274 of 2023 trying to set aside
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the order to proceed with an exparte hearing against her which did not

succeed. Hence current exparte hearing.

At the hearing, Primi Aloyce Mushi, PW who is the businessman

informed the Court that he is the plaintiff in this case and that the

defendant is Kasinde Said Mzee who owes him money totaling Tshs.85,

196,000/=. PW testified that the defendant took a loan in terms of

money and vitenge from him.

He went on to state that upon her failure to repay the money and

vitenge, they agreed that she should give him her business room as a

tenant. The agreement was made before a lawyer in 2017. He tendered

the said agreement which was admitted as exhibit P1. He went on

contending that according to the agreement, the defendant agreed to

pay him through the rental charges of the said room. It was agreed

further that he should rent the business room for 10 years and two

months. The rent that was agreed was Tshs.700,000/= per month.

However, the plaintiff averred that the defendant refused to hand over

the business room to him.

He kept on narrating that after such refusal, he wrote a letter to

request the defendant to hand over the room to him but she did not do

so. He tendered a copy of the said letter which was admitted as exhibit
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P2. PW further testified that after writing the said letter, the defendant

said through his advocate that she owes him only Tshs.25,095,000/=.

He also tendered that letter which was admitted as exhibit P3. He

maintained that despite the defendant stating that she owes him

Tshs.25,095,000/= still she did not pay such a sum. He argued that he is

affected as he has suffered a loss of Tshs.85,196,000/=. Given that, he

prayed this Court to order the defendant to pay such a sum and grant

him other reliefs he prayed.

After hearing the evidence adduced by the plaintiff and going

through the admitted exhibits, the question that comes is whether the

plaintiff has made out his case against the defendant on the required

standard, and if yes what reliefs the plaintiff is entitled to?

The law is trite that he who alleges must prove. This principle has

been established in numerous decisions including the case of Barelia

Karangirangi v. Asteria Nyalwamba, Civil Appeal No. 237 2017, CAT

(Unreported) where it was held thus;

‘At this juncture, we think it is pertinent to state the


principle governing proof of case in civil suits. The general
rule is that he who alleges must prove.’
In highlighting the source of the said rule, the Court went on to state

that:
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‘…the rule finds a backing from sections 110 and 111


of the law of Evidence Act, [Cap 6 RE. 2002] which among
other things state:
110. Whoever desires any court to give judgment as to
any legal right or liability depends on existence of
facts which he asserts must prove that those facts
exist.
111. The burden of proof in suits lies on that person
who would fail if no evidence at all were given on
either side.’
It was further held in the same decision that;

‘It is similarly, that in civil proceedings, the party with


legal burden bears the evidential burden, and the standard
in each case is on the balance of probabilities.’
This position was earlier stated in the decision of Anthony M.

Masanga vs Penina (Mama Mgesi) and Another, Civil Appeal No.

118 of 2014, CAT (Unreported) thus:

‘In civil cases, the burden of proof lies on the party who
alleges anything in his favor.’
In light of these principles, the burden of proof in this suit lies

squarely on the shoulders of the plaintiff. Now the question that follows

is whether the plaintiff has been able to discharge his duty on the

required standard.
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It comes out clearly that the testimony of PW on which the

plaintiff’s case hinges has given a convincing and credible account of

facts that justifies the plaintiff’s claims of breach of contract by the

defendant. This testimony, together with the documentary testimony

tendered and admitted, leaves no doubt that the scale tilts in the

plaintiff’s favour. My view is guided by a canon of justice as emphasized

in Hemed Said v. Mohamed Mbilu [1984] TLR 113 to the effect that

“the person whose evidence is heavier than that of the other is the one

who must win.” Going through the testimony of PW and Exhibit P1 gives

me the impression that the plaintiff’s claim of Tshs. 85,196,799/= has

been wholly justified.

Consequently, the claim for damages succeeds and the following

reliefs are granted against the defendant:

(i) Payment of the sum of Tshs.85,196,799/= being the

advanced loan to the defendant;

(ii) Payment of interest on the advanced sum at the simple

commercial rate of 15 percent from the date of filing the

claim to the date of the judgment;

(iii) Interest on the decretal sum at the rate of 7 percent from

the date of judgment to the date of full payment.


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(iv) General damages to the tune of Tshs.20,000,000/- from

the date of this Judgment and the interest of 7 percent

per annum from the date of this judgment until the

satisfaction of the decree thereof.

(v) Costs of the case.

It is ordered accordingly. Right To Appeal Explained.

DATED at DAR ES SALAAM this 10th day of June, 2024.

KS KAMANA

JUDGE

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