20091023 TZHC Arusha

IN THE HIGH COURT OF TANZANIA

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AT ARUSHA CIVIL APPEAL NO.6 OF 2002 1 i (C/F Arusha district court Civ.Case No. 39 of 1999) I ANS ELIM K. OISO ..................................... APPELLANT

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VERSUS DAVID N. KESSY ...................................... RESPONDENT

JUDGMENT R.SHEIKH, J. I This is an appeal against the exparte I decision of the Arusha District Court in Civil Case No. 39 of 1999-instituted by I , I the appellant ANSELIMU K. OISSO. The appellant- plaintiff had I unsuccessfully sued the defendant-respondent for damages for I breach of contract, loss of. earning and loss 1of goodwill, and . I recovery of the sum of shs 305,200/= · tine plaintiff had contributed to a partnership business, a restdurant-bar known I by the popular name " SHADE HOTEL LTD", established by and I initially Operated by the parties pursuant to am oral agreement entered into by the parties somJtime in mid 1998. It agreed I also (according to the plaint)· that the defendant would ' 1 contribute shs. 270,000/= as he wds the owner of the premises in I I which the partnership business would be run wos also agreed I I however that the partnership business would pay rent for the • i I use of the premises. The plaintiff ls also claiming a television set 1 I I valued at shs 330,000/= empty crates of beer a nd empty beer 1 ' bottles and soft drunk bottles vlhich he had availed to the I 1 partnership business but which w:ere not part of ,the partnership ' property and remained the personal I proparty of the plaintiff. It I ' is averred in the plaint that some:time in January 1999 in breach I . ' I of the partnership agreement, and with the objective of I ' pushing

the plaintiff out of the business pressed false charges for theft against the plaintiff. I In the written statement of defence' filed by the defendant DAVID N.KESSY certqin facts were qdmitted by him. ' In the ex parte judgment the trial Magistrate made a finding to I • I the effect that plaintiff had fa.iled to prove his case due to I i failure to call witnesses who witnessed th e 1 partnership I agreement to testify in his support I The Memorandum of Appeal contains the following I grounds:- i l. That the trial Senior District Magistrate erre~ in law and in I fact in holding that My claims were not proved and in I particular our partnership ~ue to the fatt that I never I called any witnesses while I informed the Honourable I I court under oath that our agreement was oral and was I . I between us two, a fact which was never challenged. I I 2. That since the matter was heard exparte tihe evidence of I the appellant was never challenged and thus the trial I senior district Magistrate o~ght to have g:iven reasons for disbelieving the appellant's evidence . • I 3. That the employees of the bar in question were employed 1 I I by the two partners, the trial senior Magist;rate erred when I he held that they ought to .be called as witnesses I to prove I that the appellant and respondent 1 had a joint agreement. 3 I At the hearing of this appeal Mrj Kinabo learn~d counsel for r , the

respondent took objection to ithe Memorandum of Appeal ' I I contending that the appeal is incompetent ! by ! reason of the I I ' fact that the Memorandum is not accompanied by a copy of I I the judgment of Civil Case No. 39; which is the cci)se form which I this appeal arises. Upon careful c·onsideration of the respective 1 I I arguments on this preliminary poiht of law I hav$ no doubt the I judgment which was filed with the Memorandur7 of Appeal, is , I 1 that of Civil Case No. 63 of l 999 as disclosed in the judgment. I I Cleary the difference in the nurbering of the,; judgment is a typing error. I will accordingly disregard the same and 1 I I proceed as though the judgment shows the :number of the I case as Civil No. 39 of 1999. : The preliminary I objection is overruled. On merits Mr. Kinabo has maintained that the decision of I I the trial court cannot be fouited. He subirnitted that the I I appellant had failed to prove ris claim, havirtig failed to call I any witnesses, in particular, any employees tq prove that the I partnership business was carrieb on by the aqpellant and the I 4 I I 1 Respondent as partners. in the numbering of the judgment is a 1 typing error. I have carefully considered the record of the trial court I I and the submissions by the respective I counsel. 1 I Admittedly the plaintiff ~id not call any I witnesses. ' I However as stated earlier herein

the defendant ~ad by his WSD I 1 made some admissions. It is also not disputed Hflat the hearing I of the case had proceeded exparte. In I the WSD the I I defendant admits that sometime in mid -1998 the parties had I i entered an oral partnership agreement for ru,nning the bar- I~ ! restaurant on the terms stated . by the appellant but alleges I I that the rent has never been paid for by either the appellant or ' I I respondent. The respondent alsq does not in thr WSD deny the I claim that the appellant had contributed 12 ~mpty crates of I beer containing empty beer bbttles and 7 cr:ates containing I . empty soft-drink bottles, and fhat these crdtes and empty

I I I bottles remained the personal property of the appellant. The 1 respondent has also admitted that the partnership has created I and that he is now carrying on the business on his own without ' I I I 5 I I the participation of the appellant.i He is however alleging that , I I the business is now over-capitalisea and that the appellant had

I I I stolen the sum of shs 608,295/= from the business. 1 i I I I will say without further a d6 that due to the admissions I 1 1 made by the respondent in the WSD, the oral agreement 1 I having been admitted, the appel.lant- plaintiff is ~ithout further I I proof entitled to his claim for /the return of his 12 crates 1 1 I I containing empty beer bottles arnd 7 crates co~taining empty I 1 1 soft-drink bottles or payment of sh s 330,000/= as ~laimed. ' I I I As the partnership is no longer in existence the appellant is I I I j also entitled to refund of the! shs. 305,200/~ that he had I indisputably contributed in the business. ' I In his testimony the appell'ant testified that he was the I I I manager of the bar and that th~ bar business yvas earning shs 1 I 170,000/= per day. However thk claim for divjsion of profits is I I not pleaded nor is it provedl as it is one which requires 1 1 I documentary proof. Having saiJ that I find that the appellant's

I I I testimony is sufficient to prove his claim for th$ TV set despite I I the denial in the WSD. I agree 1 with the appellant that as the

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I I I 6 l\ I I evidence of the appellant was not challen4ed the trial I I magistrate ought to have given reasons for disbelieving I the appellant's entire evidence. As the matter droceeded ex .j I parte, in the absence of evidence to the cbntrary, I am I I satisfied that the appellant had proved on ? balance of probabilities that the responde~t had breac~ed thein oral agreement to carry on the blsiness, entitli~g to general I I damages of shs. 600,000/= I For the avoidance of doubt it is my view +at due to the admissions made in the WSD cind on the basis df the testimony of the appellant in the ex parte hlaring the app~llant is entitled I to judgment for the following:- I I l) 12 Empty Beer Crates and Bottles and 7 empty crates I containing soft drink bottles and a TV set. I I I 2) Refund of shs 305,200/= contributed tDy I him to the I business. 1 I • I 3) General damages 1n the sum of shs 600,000/= I 1 4) Interest at court rate (7%) on the judgmIent- doubt until I satisfaction.

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I I I 5) Costs I I I In the final analysis, therefore', this appeal, partly I succeeds I and partly fails. The appellarit will have his 9:osts. Sgd:- R. SHEIKH

JUGDE 30/04/2009 I Judgment delivered this 23/ l 0/2009 in the absence

I I I I of the parties who were not traced/served::!, with Mariam

I I I B/C in attendance. I I

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I I I ! Sgd:- ~- SHEIKH I

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JUDGE 23/l0/2009 I hereby certify this to be a · e .copy of ·the original. ~ ' i

DISTRI

ARUSHA /mm I g'