19980312 TZHC Tabora1

ft\c

IN THE HIGH OOURT OF TANZANIA

AT TABORA C"~~"'~=- P.C •. -CIVIL APPEAL NO. 17 OF 1997 (Origins.ting from TABORA URBAN' P/COURT CIVIL CASE NO. ·34/96 & D/COURT CIVIL APPEAL N0.4/96) ALLY MSABAI-L'I. • • •••••••••• • •••••••••••, •••• • • • APPELLANT versus 1 .HAHLS NRISHO ) 2 .HL11I,S HUSSEI!T ) )··········~···~·••.•·········· RE:SPONDENTS . ' ,.

JUDGMENT =--·:t :=♦,-· . .., _ . " % ; : . ; : s . ; ; . ~ ~ - - ~ , ~ This appeal has very interesting facts.- The appellant Ally Msabaha Et building contracter, had approached the two responde~ts,J!p~i@.t_J1~~~.2.2 and Ham~~si Hus~eJ-.n, for perform2nce of a job. The respondents are carpenters. On that day o:i' 14/2/96 the appellcnt went to the reopondonts' ond osked them to do some carpentry work for him. 'l1'r:i.e two agreed to do the job for Shs. 50,000/=, but on t::1e sarne day they were. given Shs. 10 1 000/= as odvance poyrnent. This wos besides Shs. 3,000/= which was given out to the respondents for smoothing out the timber planks that were to be used in making the cupboaPds. The agreement was th8t the wor.k was to be done swiftly~ On 18/2/96, about three dGys later, one of the respondents decided to travel to ettend s fun.erol. While this one wos sway attending o funersl the one who h~d remained decided not to pPooeed with the work. The reasons for not proceeding with the work ore not clear. It would seem that the second carpenter, 2 just decided, without weighing consequences of doing so i.e. of not going to work on an assignment which b.oth sides agroed was urgent. so, the work of the appellant was not st;tended to for ~ nine - d?ys. .. Thnt is when the nppellant decided to call ·i1i off',· and engaged _other carpenters to fin:i.sh the job. The appellant demanded

his .Shs- 1 o, 000/= back. He again, seized the working tools of the ·respondents dernEJnding thot he be paid his expenses_ for engaging new C2rpei1ters. 'l1he respondents sen,t the oppellent to the prir,rnry Court of '.~e: boTD. Here , the· jud2,1·,1ent · w213. entered for them'. . The np~)ellsnt wos ordered tO pay Shs •• 50,000/= for locking in the ·bools. t. .. _-.,,.:.:..0.(.._.-t __ ...,_...1-..::r ':-Che respondents irnre ordered to pay to the appellant :Shs. 5,000/=. The pr::j_r:1ary Court said that this W£1s r,JO:ney which they were paid for doing nothing. 'I'he 8ppellont was ogg:ri:eved by thnt decision. He ~• I ' :, apoeoled to the District C$µrt~ Here he lo~t. He now appeals to ·chis . Court. '.['his is o second apPeal. I have therefore, sc1"'utinized the two rec?rds of the two Courts below very r.rnticulously. I disorree ·with the two Colll'ts below who hove held that 8J"Jong the two sides, it is the appellimt 111ho preached the contrsct. It H8S the two respondents who bre8ched the contract b;y them unilc:terslly stopping worldng on the ossig:nraent thot is, witli.out cons,.__1.l·cinc: the appellant.. Nine days of in2ction on tl:rn'. contrsct, os -we ere told, was rather too much for the appellant. I am no·b surprised thot the appellant h9d to look for other carpenters to tukc up the job. It wos, however., ungentlemanly for the But this. oppeilsnt to seize the working tools of the respondents. 3 .. sc·~io~1, in the bockgr,ound of the case, was no,t uncalled for. '.i:his appeal is allowed. with cos·ts. · '

JUDGE ~~- At Tabora 12th March, 1998 Parties: ~,:t--:.i&:--:fC.: ....... t;,_.~.,, Absent.