Valentine Evarist Vs Jofarin Eneriko (Civil Appeal No 2 of 2022) 2023 TZHC 198
Valentine Evarist Vs Jofarin Eneriko (Civil Appeal No 2 of 2022) 2023 TZHC 198
Valentine Evarist Vs Jofarin Eneriko (Civil Appeal No 2 of 2022) 2023 TZHC 198
JUDICIARY
(Arising from CivH Appeal No. 28/2022 ofMorogoro District Court at Morogoro Civii
Case No. 94/2022from Chamwino Primary Court)
VALENTINE EVARIST... APPELLANT
VERSUS
NGWEMBE; J;
The appellant and respondent are relatives, uncle and son
respectively. The appellant Instituted the Instant appeal challenging the
decision of the District Court of Morogoro In Civil Appeal No. 28 of 2022
which confirmed the decision of Chamwino Primary Court at Morogoro In
Civil Case No. 94 of 2022. The verdict of trial court was to the effect that
the appellant should pay the respondent Tsh. 14,900,000/= which
amount was misappropriated as an administrator of the estate of
respondent's father, the original probate case No. 63 of 2015 was also
filed In Chamwino Primary Court, at Morogoro.
For convenient purposes, the background led to this appeal can be
briefly narrated as follow/s; the respondent's father one Eneriko Evarist
Balingilaki (the deceased) who was also a blood brother of the appellant.
Untimely, the deceased died intestate on 28/05/2015. After the death of
Eneriko Evarist Balingiiaki, the appellant successfully applied for
appointment of administration of the deceased's estate. The Chamwino
Primary Court appointed him as an administrator of the deceased estate.
Due misappropriation and misuse of the deceased estate especially the
heirs' funds, sometimes in year 2022, the respondent filed a Civil Case
No. 94/2022 in the same primary court against the appellant claiming for
a total of shillings 14,900,000/= alleged to have misappropriated by the
appellant. The respondent herein proved by documentary evidences that
such amount was deposited in his bank account in two instalments as
part of his inheritance from the estate of his father. During depositing of
such amount of money to his account the respondent herein was still at
the tender age, so his account was managed by the appellant. In the
course of managing the respondent's account, the appellant withdrew
and misused all sum of money to the detriment of the heir.
In turn, the appeliant claimed that, he was only indebted for Tsh.
7,000,000/= as the appellant was taking care of him for over four (4)
years, thus the whole amount was used in caring the respondent for
those four years. The appellant also raised a counter claim of Tsh.
9,000,000/= from the deceased's estate. However, at the end,
Chamwino Primary Court dismissed all counterclaims raised by the
appellant herein and decided in favour of the respondent. Finally, the
trial court ordered the appellant to refund all sum of money to the tune
of TZS. 14,900,000/=
The appellant was dissatisfied, hence appealed to the District
Court of Morogoro, which appeal was dismissed and the decision and
orders of trial court were upheld with insistence to pay the respondent
immediate effect.
TTiis being the second bit of appeal, the appellant ventured to the
corridors of this house of justice clothed with five grounds summarized
hereunder: -
1. The courts erred in law and facts for not considering that the
respondent lived with the appellant for almost more than four
years;
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It is settled in our jurisdiction that, this being the second appellate
court, it has only jurisdiction to entertain grounds which were raised and
determined by the first appellate court. This court cannot entertain new
Issues which were not raised and determined by the first appellate
court. Above all we have an acceptable principle of law that parties are
bound by their pleadings. If an Issue/ground was not raised to form part
of grounds of appeal, how can it be entertained by this court? This
position was rightly decided by this court In the case of James Funke
Gwagilo Vs. AG TLR (2001) 455, where the court quoted the
decision of the Court of Appeal In Brown Vs. Boren [1999] 75 CA
held: -
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required. Unfortunately, the appellant either by ignorance or by design
failed to account for.
This principle is now part of our law and there are many decisions
to that effect. The rationale is on the truth that, the trial court having
seen the witnesses, is on a better position to assess their demeanor and
credibility, while the appellate court assesses the same from the records.
In this appeal and upon deep consideration in totality of grounds
of appeal, I am settled in my mind that, I have no slight doubt the
concurrent decision of the subordinate courts was founded in both facts,
evidences and the applicable laws. Thus, I find no reason to interfere
with those concurrent decisions. Consequently, I proceed to uphold the
judgement of the district court which upheld the trial court's judgement
and decree. I may add an order of refund of the whole sum of money to
the respondent with immediate effect because the respondent being still
young is living in a difficulty life while he has his money inherited from
his father's estate. For clarity, this appeal lacks merits same is
dismissed entirety with costs.
1 accordingly order.
DATED at Morogora this 23
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NGWEMBE
r r"
-li. JUDGE
' 31/7/2023
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Court: Judgement delivered at Morogoro In Chambers on this 31^^ day
of July, 2023 in the absence of both p^ies.
A.W. Mrti^ncfo
DEPUTY REGISTRAR
31/07/2023
X
V-
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EPUTY REGISTRAR
31/07/2023
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