amiry john vs joshua sagate 2009 tzhc 42 11 march 2009

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY AT MWANZA PC. CIV. APPEAL NO. 40 OF 2007 (Originating from the decision in Mwanza District Court Civ. App. No. 20/05and Mwanza Urban Primary Court Civ. Case No. 258/05.) AMIRY JOHN .................................................... APPELLANT Versus JOSHUA SAGATE............................................ RESPONDENT 05.03.2009 - 11.03.2009 JUDGMENT G. K. RWAKIBARILA. J This is the second appeal by AMIRY JOHN (appellant) who was the plaintiff in Mwanza Urban Primary Court Civil Case No. 258 of 2004. He was until 2004, a sardine trader at a market along Mhandu street in Mwanza City's Nyakato Ward. In course of his sardines business, he engaged in shuttle business trips in some city areas and beyond. On 07.11.2002 Mhandu Street Chairman JOSHUA SAGATE who is the respondent in this appeal circulated an advertisement to invite traders who intended to secure allocation of small strips of land (commonly referred to as business tables) for conducting their business at Mhandu street market. According to that advertisement, applications were supposed to be accompanied by an annual fee for l the small strip'of Shs. 4,500/=. Appellant was one of the applicants who paid that fee. The allocation of small strips of land at Mhandu market was made by a committee when appellant was in one of his business trips away from Mhandu. But he instituted the said civil suit in Mwanza Urban Primary Court with No. 258 of 2004 when he returned to Mhandu and determined how his application for a small strip at that market was unsuccessful. He was claiming in that suit allocation of a small strip of land for his business at Mhandu market and compensation of Shs. 391,000/= for his sardines which were damaged. The sole defendant in that suit was Mhandu Street chairman JOSHUA SAGATA who is the respondent in this appeal. During hearing at that Mwanza Urban primary court, this respondent contended that appellant paid that Shs. 4,500/= sum to SM II SEBASTIAN MASALU who was a member of Mhandu street 4 leadership. But in course of his evidence SM II put it that he passed the said Tshs 4,500/= to one PRISCA who was Mhando street secretary. This appellant was unsuccessful in that Mwanza Urban Primary Court Civil Case No. 258 of 2004 and lodged an appeal in Mwanza District Court Civil Appeal No. 20 of 2005 where he failed too. In his memorandum of appeal to this court appellant. rlHsed six grounds which pivot on that both lower courts failed to evaluate evidence which was adduced in his favour. The two lower courts correctly pointed out that respondent never acted in his personal capacity to deny appellant a strip of land at Mhandu Market because there was a committee which allocated all the strips there. And it transpired from evidence of both sides how appellant handed over the said Shs 4,500/= to one committee . members SM. II SEBASTIAN MASALU, before the latter handed over that sum to the committee secretary one PRISCA. On this background, it was not proper for appellant to single out and sue respondent alone. There is nowhere in evidence by both sides where it is mentioned whether respondent at any stage received or authorized anything in his own capacity in connection with appellant's Shs 4,500/= which he handed over to SM. II SEBASTIAN MASALU. This appeal is therefore dismissed with costs. But appellant is not barred to sue the proper party, like the Mhandu Market allocation committee, subject to limitation. G. K. Rwakibariia JUDGE 07.03.2009 Date: 11/03/2009 Coram: G. K. Rwakibariia, J Appellant: Present Respondent: Also present in person B/C: Leonard Court: Judgment delivered at Mwanza this 11th day of March, 2009 a a p p e a l in time explained thoroughly to parties. G. K. Rwakibarila JUDGE AT MWANZA 11.03.2009