20000627 TZCA Dodoma2

IN TH:c; COURI' OF i.PPE.i.L OF TLNZi..i'f[l. CIVIL J'.PPEI.L NO. 38 OF 1995 Btn.'vJEEN 0 0 0 0 • • • • • APPELI.u\NT 0 0 0 0 . . P.ESPONDbN'l' (ii.ppeal from the order of the High Court of 'ranzania at Dodoma) (Mwalusanya, Jo) ·-···-···· .... -· ..... .... -~- . _.......... ~ dated the 6th day of November, 1992 in JUDGt-\bN'l' OF '.rB::t ....,.COURI' •...,.,.._,.._,__,..,. ••.•.:,..,. _.......,._ .• •-•_ .• _..r __ ,_ The appellant wd the respondent jointly purchased a tractor in October 1987, for cultivation and incidental uses• They were to alternate in its use and share any profits when it wns hired out. However, in a suit filed by the appellant ag2.inst the respondent before the High Court at Dodoma, the appellant alleged , that the respondent retained the tractor for three years end even registered it in his name alone. But the appellant also came round to say that the respondent released the trc:,.ctor to him i11 December 1989, but it was unservice2ble. He had to spend 546,580/~ on its repair after which the respondent seized it. He prayed for (a) 163,036/==, being his contribution to the purchase rrice, (b) 546,580/=, the cost of repair, and (c) 3,96o,OOO/.:: in lost earnings for inability to cultivate his 220-acre farm for three ye2rs; or (b) and ( c) and an order for scle of the tractor and division of the proceeds. /;.t the conclusion of the trial, judgment was

entered ••• /2 ,1 ,· 3 one year, i.e. from 26 December, 1989 to 22 December, 19900 ii.lthough the learned judge spoke of 1'use 1 rather than 11 possessiort' of the tractor, for that period, he did so with qualification. He was aware that the appellant actually used the tractor for a few months as most of the time it was undE:r repairo Hence he equally said that the respondent i; used0 the tractor for two years but added that it was similarly under repair for part of the periodo Indeed PW5 stated that he repaired it three times while it w&s in the respondent's possession. Third, there is some merit in the criticism on the judge's finding that the appellant contributed only 110,000/= to the purchase priceo He seems to have misdirected himself on the number of maize bags that the appellant gave out ih lieu of cash., Whereas the appellant stated that he first gave out 80 bags w6rth 80 ,000/=-=, the learned judge said that he gave out 4o bags, apparently taking into account the version of the respondent and his son~ It was ui1s.s,_fe to rely on the two in view of the contradictio:>:1s between them on the subject. ~foreover, the appellant himself arrived at 163 ,036/;;_ by also taking into account not only another 30 bags worth 30 ,000/=, but which the respondent claimed tb have been loaned to him, but also 30,000/::: for the first repair on the tractor, 10ib00/:;, which the

respondent admitted to have borrowed, 12 ,000/= the appellant pa:i.d the Sungusungu to arrest the respondent, and 1,500/= he gave out for oil. The sungusungu and oil aspects lacked cogent evidence and are not worth considering; the rest of the items add up to 150 ,000/=o 'v✓ e think the learned judge should have found this to be the appellant's contribution to the purchase price. ..••• /4 4 The vague charge in the fourth ground taken with Mr. Rweyongezai s submissions appear to state that the appellant was awarded less in value as his contribution thab. the respondent who was given the tractoro That may be theoretically true, but conside~ing that the tractor was purch&Sed for only 280,000/== in October 1987, .snd was \ frequently garage-ridden, one is not encouraged to hazard its value at the judgment in November 1992. Be that as it may, we intend to make an order:. in this judgnent which would hopefully be more equitable; Sixth, the only reliable evidence of repair costs was that. of PW5, the mecha_l'lic, who put them at 286,000/==. 'l'ge judge therefore decided that each party was liable for 143,000/==. The appellant had already paid 121 ,000/= to the mechanic and was therefore still indebted to the tune of 22,000/==. It was on account of this indebtedness that the judge ordered the respondent to pay his share of 143,000/== to the appellant so that the latter could pay it

over to PW5o The better alternative would have been for the respondent to refund 121 1 000/== to the appellant and for PW5 to look to the respondent for the balance of his claim as the respondent had in fact advised him. Finally, we think the appell.snt should hhve been considered for costs as the respondent's conduct was less than honest: he strenuously denied the appellant's partnership in the tr&ctor, fraudw1eittly L r0gistered it in his name only and forcebly seized it from the police station in December 1990~ I Mro Rweyongeza also complained that the judge awarded a paltry 20 ,000/== for loss of ecrrnings whereas the e.ppellant had prayed for 3 ,9.6o ,000/==, but we think the complaint was unavailable and unjustified.- It was unavailable because it was not among the grounds of appeal and was taken without leave of the Court. It was unjustified because the award was in fact gratui taus since there was no tangible evidence ..•/5 ' . l1 I of the appellant's farm earningse Moreover, the appellant 1 s own estimate had procee~ed on the footing tha.t he owned 220 acres, that each acre yielded five bags of maize annually and that each bag sold for 1,200/=. However, his own evidence was to the effect that he owned 37 acres only and that a bag for 1 ,000/:.::o We will not disturb the award. In the circumstances, we allow the appeal to the following extent: The respondent will refund

the appellant his contribu_tion of 15(),000/= to the purchase price, 121,000/= repair costs and 20 ,000/= loss of earnings I making a total of 291 1000/==. Vie had toyed with the idea of deducting whatever the appellant might have gained while he was in possession of the machine but the idea proved problematic for lack of evidence. The appellant will also have his costs here and below. K.S .K.LUG,JCINGIRi. JU.S'rI •·••-.> i•-...-... CE i.PPEi.L OF_.,..,..,.~ _.,...._., .._ _,_ I certify that this is a true copy of the original.