19890206 TZCA Dar es Salaam

'P IN THE COURT OF APPEAL OF TANZ/iNIA AT ARUSHA CIVIL APPEAL NO., 6 Op 1988 BETWEEN . AFRICAN BOOKING CONTACT G.,m.,b H., ., ., ., ., APPELLANT 0 AND TANZANITE WILDLIFE TOURS LTD. • o ., ., .. ., RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Arusha (Mwakibete, J.,) dated 10th July, 1987 in Civil Case No., 9 of 1987 JUDGMENT Op Mi.i.KAME,. J .,A.,: The appellant and the respondent were doing business together in tourism., The appellant would find clients overseas and send them to Tanzania as tourists .. The respondents would service them by providing them'wi~~ transport facilities. It would appear that the rela~ionship bEtween the two companies was quite good.,. There was an occasion when Mr., AUGUSTINE D'S0UZA, the Chairman of the respondent company, went to West Germany, to discuss business with officials of the appellant company and it is common ground that sometime after that visit the appellant company, using their own funds, purehased four Combi vehicles an~, at their own expense, shipped them out tb the respondent company i~ .., . .' Tanzania for use by the latter~ It is also not controverted that sometime after a Mr. HANS LUETTICH, the husband of the Managing Director of the appellant company and who was working with the respondent company had been dismissed by the rf' spondent company in February, 1987 th<~ appellant company tried to recall the motor vehicles which they said they had remained the owners ofo The respondent company resisted the effort and this gave "rise to a dispute which ended up in a civil suit which was tried by Mwakibete, Jo in the .. _j '__ 4 ~ -. . __. ... - . ,. .• V - ... . : ,· ~- ·' , · . j :- • : •·· ~ ' _ • ...-),.,.':... _'..'',: J • '/ ··, ;,(, . :i'gli 1:ovrt at llru·shao This is an' appeal out· of- the ..... ::,., ~ ~•'►:High: 'c~urt dP.ci sion in that case., '.• For facility of reference I shall hereinafter refer to the appellant and respondent companies as ABC and TWT n.:spcctively., ABC sued TWT for a declaration that the vehicles were ABC's and for an injunction to restrain TWT from interfering with the said motor vehicles and some camping equiprnento ABC, reprr->sented by Mro Ngall0, lP.arned advocate, failed in the suito ' The trial court was :satisfied that the vehicles and the equipment were legally TWT's and declared so accordinglyo TWT was represented by Mro- Mirambo, learned advocateo B~fore us II.BC was represented 'by Mro Ngallo again while TWT had this time two advocates Mro Mirambo as during the trial, as well as Mro D1 Souza., The respective cases of the part~es _at the trial were briEfly as follows: ABC said that thP discussion in West Germany was after a J\,ro Dorsch from ABC had signed. in Arusha what was referred to a_s a· Cooperation Agreement, ~xho Pol, with PoW.,l HANS LULTTICH who acb'"d for TWTo The four vehicles as well as .' a Toyota Pick Up sent out earlier ·were governed by the said Exh. PL Exho Pl provict,ed inter alia, that ABC would. remain the legal owners of the said vehicles and camping eqt.1ipment "until the number of 5000 (fiye thousand) tourists. have been handled by TWT or the period of 5 years . has passed" after which legal ownership· would pass to TWTo ,. The alleged Agreement furthe~ provided: ' "Should ABC for any reason decide to terminate this agre~ment before the five year period elapses, ABC will have the right to recover immediate possession of ar1 their property"o So that ABC was acting under this Agreement when they tried to recover the property, which, as aforesaid; they ·/ were entitled to do, 'for any reason'; and incidentally, at the trial PoW~2 MARGARETHA OTTO LUETTICH; the Managing Director of ABC, assigned'her company's reasons: Because her husband was no longer with 'IWT and also apparently because she ~P..1L9.E?~~ that DWl AUGUSTINE D' S01JZA, the Chairman of TWT . 3 had begun another business relationship with a person called EDGM, HERMAN in Kenyao TWT told the trial court quite a different story: They agrEE·d that ABC purchased the vehicles qnd freighted them at tr,eir own expenseo They however refutP.d the assertion that there was any agreement that the said vehicles were to remain in ABC~s legal ownership and they alleged that Exho Fl, the Cooperation Agreement, was collusive and/or fravdul~nt", or, in the words of DWl, "bogus and fraudulent" o According to TWT the vehicles were a free and unconditional gift to them from ABC in_ ABC's appreciation of the satisfactory service TWT was rendering to ABCO DoWol told the court of trial th2t the first time he saw Exho Pl was when he was summOnP.d t~ the courto The· learned tria'l judge considered the rival c?ntentiOnso · He directed himself that his fin~ing would depend on the authenticity or otherwise of Exho Pl, as contrcsted with the dOcurnentary evidence marshalled by TWT 1 more especially Exho D3o The learned trial judge subject~d Exho Pol to what was in my view a fair and very careful ·scrutiny a He was satisfied that Exho Pl, as well as Exho PolO and Exho Poll were false, fraudulent and collusiveo He scid why he believed Exho D3 was a genuine dOcumento Exho D3 purported to be a letter from ABC to TWT dated 20th May 1 1985, making rE:ferE-nce to, and confirming, a di~cussion held between ABC and TWT's D!Souza in West Germany in.which ABC said TWT's service to it was 'very good'o In the said letter ABC also confirmed that it w~s planning a full-scale marketing programme which would bring· in more tourists TWT's fleet of vehicles would not be able to cope with., B~cause ABC appred!ated TWT's forex constraints they were offering TWT four Volkswagen Combi buses FREE Op CH[\RGE., It is my view that Mwakibete, Jo was entitled to wonder about the auntheticity of Exho Plo Even if Dorsch who had, by J,BC' s own account, already left ABC, was authorized to act on behalf of PoW.2, there seems to be little point in 00000000/4 / .. 4 P'G•8dlh travelling ,, all the way from West Germany to sign Exh. D3 when the principal herself, P.,Wo2, was in Arushao She agreed in cross-examination that she never discussed the /,~reemenf with Mr o D' Souz_a, which is odd, and th at she appreciated that it was· important she personally signed it. 'Inconsistently, however, she added, and gave no reasons, that she did not think it was necessary that Mro D'Souza personally signEd Exh~ PL Then one is struck by the casualness with which the alleged d~cument was signed, as obsP.rved by the trial court" There was also the glaring failure on ABC's part to proye that Dorsch had really come into Tanzania at the material time. ABC•s version was given mainly by PoWal whose veracity was clearly suspecto He was the character who said that although he did not know why TWT had dismissed him he never bothEred to ask .. He·is the senior TWT official who would not introduce Dorsch to anyone in TwT, and "did not show the Cooperati.,n A reEment to any Other person or bOdy"a His way of discus?ing Cl the .Agreement w,ith his Chairman was, to put it in his own words, like this: "I discussed the Cooperation Agreement by simply ir(~~rming D'Souza that I had signed the Agreeme.nt"o I am perscna~iy satisfied that P.W.l was not a man worthy of bE-lief,·but rather a dubious character who, on his awn conf€ssion, would go to the extent of telling ABC to stop £10,000 payable to TWT. This was cl·early high-handed 'and irregular, and demonstrated his split loyalty which in my ' view, made him not above the ability to collude with ABC tc, manufacture Exho P.,l which, like the learned trial judge found, I am convinced was false,_fraudulent and collusiveo In finding Exh.,Pal not genuin~ the learned trial judge - nlso took into account his ViE:WtNt~t Invoice Noo 00429, ExhoPolO, was 2lso not authentic but;_.··i~WiJ'ithing produced in court merely to butt.uess .the false contP.ntion contained in Exho Polo He held the same view with regard to Exh. P.11, ~urpottedly written to TWT on 7th -.Tune, 1985., One may ask - Why rPpeat the condition that the vehicles were governed by the alleged Cooperation Agrr.E.,ment if there was· already such A~reement and the two parties had transact~d on that basis? 000000/5 ). \ ,f;. .' 5 ~,'\.,,::, was furnished with !?Y TWT were the genuine oneso - The trial court was satisfied that '·:t;G'bt:UmE,,fflts the court .· 'rhe evidence by the witnE'ss from the Bank of Tanzania, DoWo4 SAIDI CHIOUMA, was that the Invoice his office got was dated 31/2 1 85 and bore the number A 0598110 This was attached to the application for an Import Licence along with a permit from the State Motor Corporation in the name.of TWTo DoWo4 also said that they never received Exho P 0l0 0 One notes here that the BoT copy was of an earlier date than the date on Exho PalOo The BoT invoice was submitted long before the controversy aroseo · The trial court was unable to accept PoWol's suggestion that Exho D~3 was a forgery. Like the trial court I am unable to say that Exho Do3 is forgedo 'IWT's contention must be weighed along with the testimony of D. W., 3 KISA Mivf1NKIOLE from the State Motor Corporation according to which among the documents TWT submitted with theL: application was Exh. Do 3. The witness never saw Exho Pl: The combined effect of the evidence of D.W.3 and DoW.4, both public officials, was to give credence to the testim~ny of DoW.7 CLIFF D'S0UZA as to how he came by Exho D.3 - He said he got it from PoW.l himselfo Further~ the trial court, which had thP advantage of seeing and assessing DoWo7, found him "forthright and detailed in his testimory"; and that the witness 11 we:. s very truthful" o Like the trial court, I am impressed in favour of TWT by the fact that ~oW ■ l, whose vericity I am also satisfied was wanting, participated in processing the vehicle$ in the name of TwTo There was not, at the material time, any disclosure Of the existence of Exha Polo Indeed PoW.l is on .:·' record as telling the trial cou.rtctJ;:J:ifai: "It is I who processed the registration of the Motor vehicleso I did not disclose to the Central Motor Vehicle Rego the existence of the Cooperation A0reemento Yes, during Regn one has to indicate whb is the owner of the\::motor vehicle" o In my view thei trial court re?,b'.-led a correct finding that the four Combis were, on the evidence, a free and unconditional gift and that they belong to TWT., They were given to TWT for· 'chf: rrutual ben<;fit of ABC and TWT as they were intended to h~ndle ~ore touristso Both sidt=>s would ~Jain as a rPsul t., o o o o o/6 - - ij. ,. r'. !! 6 '•I R~gvrding the Toyota vehicle, TZ 68172, ABC tried to cover it also under the clleged Cooperation Agre<:!ment.. It was brought i'n long before the l l i-.llcgE,d Agreement and the trial court .acCE;pted the evidence of DoW .. l tl-12t it was given as a gift to TWT way back in 1984 for experimenting with camping serviceso It too was rt~gistered as TWT propertyo ~e ./ :J l I ' t.d.21 court found this vehicle to be TvJT 1 s and I am un;,ble to differ. .j Regarding the camping equipment, which includes, among other I i things, radio-call sets and tents, there was practically no evidence ,, ,I c.tdduced by ABC to ,support the claim that the i terns were their propertyo :J i.FJC was alleging ownership and it was ABC which had to prove. DoW .. l I, i gave evidence to show that the items were sent along with the Toyota I I vc~icle for the aforesaid camping experiment and I would respectifully t19rH with Mwakibete, J., that on a balance of probabilities TWT e sb,,t.l i shr~d __their claim to the equipment a I would the ref ore support 4:hc tr,ial court's findingo In the result I would dismiss ABC's appeal:- in toto, with costs. ..' DATED at DAR ES SAL/.\i\M this 6th daY. of. February, 19890 I I :i ! 'i! • i' Lo Mo M1'\KAME 'I 'i JUSTICE OF APPEi\L I ! ; r I certify that this is~ true copy of the original. /' ( J. H. MS01-'FE) SENIOR DEPUTY REGISTRAR. I • I .; rI lJ I IJ ' ' !' I· I . ,/ f : ..t • t"j I t