19730104 TZHC Mwanza

•• III THL' HIH CCTJ1T CT TTANIA AT Il.4AhZA (nc) CIVIL IPP2:AL iC 51 ui' 1971 (From the decision of Gh3 District Cost of Beacoba a± Bukoba in Civil Appeal ITo. 17 of 1971) (Before A.II. Iseeta, District 1.iadistrete) TiD0iIIIST KjICITITYI APPELL.A1TT VS. BUTA3fliZIBJiA l(jlGllTYI ..........,,,..•... .....,.,.,.....,..,,.. RL'SPCITI)..: T. JUDGL hI ITT r1 TT.-- 1-- d . This is a dispute ov :r a sowing machine worth about 400/=. The ap?CllatC ooue't iieic Gleet £de sowine, eachinc was porte rstip prop:r±y end tirefore, the arpellant, HPCElST KAGEITYI, osunot claim Owil snip to it It held that it was t1l joint property, of th. c ':llant and th. rospoflilcirL : PIJTAUZIB.IA i(ACLnYI. eec appealed to tIllS Court. The appellant and th rspor±dcnt ucre present at the harin of tnis appcal. The main issue was whether the alleged sewing machine was the joint property of the appellant and the responcLdilt. The undisputed facts disolosed that the appellant and the raspounent formed business partnership. It was a shop with tailoring work. The respondent was to run the shop and tailor clothes from the customers. The appellant was a sitting partcrncr. Both contributed a sun of shs. 220/= as the capital for starting the shop,. Each paid half the amount. It was agced that the appellant would call at the end of each month' to count thc procecds of the business. The respondent was the older brother of the appellant. Originally the respondent had boon working as a tailor 7 with one Francis Balemba (P11.2), but hc had resigned in order to join the said partnership. As he was knoim to Francis Balomba, he was tie one who aoproaclicd him and asked him if he could sell them a second hand sewing machine • Balemba arocd, and he sold them one for a sun of shs. 400/=. The receipt (Bxh.E) was made out in the name of iho appellant. The amount was paid in two instalments of shillings 200/= each, and the money was pid out by the appellant. The said sowing machine was delivered and it was used by th.. respondent in the service of their partnership shop. It was bought on the 29th day of October, 1963. The joint business wont on until Sept. 1970 when a dispute arose between them. Tue exact nature of the dispute was not relevant to this case. Both sides agreed to terminate th_ said venture, at the sug:estiop of tee respondent, who proposed that he. should bu him out. The appellant agreed to sell the sowing machine, but when the sale agreement (Exh.A) was beieig written a further dispute arose and the respondent came to be in possession of the unsigned sale agr:oment (Hxh.A). Following that dispute, the aiipellant commenced criminal proceedings against the respoeedo: for alleged assault 7 but the respondent was accuiitied. He then cornmeiecd these civil proceedings. As I have said, the issue was whether tie alleged sewing machine was part of the partnership property. The appellant cont.nded that it was his prperty because he was the one who paid the amount of slis. 400/=, and thc respondent contended that although ho was the one who paid the purchase price it was partnership property as lie contributed his skill as a tailor. The issue was one of evidence, and I need not go in—to any groate detail. It was truc that it was the appellant who paid the shs. 400/= as per purchase receipt (Exh.B), but, according to Franci•Ba1emba 1 the appellant and the rospondciit, wlo appeared at the transactions tog-cteer, lc him know that it was being bought jointly and'thatitli amounts of money was bought by UthcmU although he was 'requested to isako the purchase receipt in the name of the appellant. i -Ic said that : respondent, who was doing the sale negotiations, told him that it was to 'be used in partnership business with ti. aprc1lant The respondent said that it was agreed that, . ./ 2 00 . . -2-- as his conTtrihution, ha would do tha tailoring work withou -t any chargrs, and that is what ho did from the tima of th incoption of tho husinass to tho timc wiicn it was dissolvad. Although tho p:'cilant sought to lay claim on the scwing machina, he did admit, on appal bcforc tha district court, that it was agrocd that ha would buy tho sdwing mac1ii1c and the rcspondcn -t would do the tailoring work. If Oct was so, than, cicarly, as ll court hold, tho scwin machin': was a jointly ownod proparty. the apprato It was not his ontira proparty just h::oausc. ho :-aid th. full prico. Ha had agrccd that the sorvicas of tho rcspondon - 'c would bo his oontribu±ion in so fax as the sowing rciachino was ConCcrn:,d. Hc could not, tlicr:foro, lciti.- rnatcly claim that tho sawing machino was his rop:.rty alono. Apart from this, thcrc ws tio unsign.:d.. alc agracmcnt (xh.) whic ho admictod having soon madc by thom at tho timc of the transaction which ondcd b:for-: .thc documcnt was finall -1 - sic - nod. Tho docuinont spo.a.hin Cl or torms that tho appcllant was cl,ling his ."shcr.-iu yangu boi yoke ni shilling mia mbili tu'. Tha Swahili word chamu" in the contaxt moan't sharo" 1'Jhcthor the solo was in fact cfL;ctad or not is bcsidc the ioint. It support d tn ri'spondcnt's casa that h.: had a "schomu' in the sowing machinc. Thcrcfora, having rogard to the natuxo of tho cvidcncc on rocord, I can sco no ground for thinking that the appcllatc court crrcd in sctting asida the judgomont ofthc trial court, as the appolant contcndcd in his lcngthy mcmorandum of appoal. The dccision is quitc sound. For th: sakc of ciarity, it is cicar that the rcspondon -t, who is pTos:ntlr in possassion of the sowing machino, has -half sharc Of the sewing machinc, If the appcllant wishos to takc possossion of the sowing machinc ho can iicgotiatc, as thcy worc doihg bcfora a. disputc flared up, to buy 'tho rospondcnt shara in the machinc, or, altarnativcly, ho can sail, his A shara to 'tho rcsondcnt, whichavar suits him. In the circumstanccs 1 this appoal is dismissad with costs. If tharc i-s any disputc as to th: amount of costs to ho paid, tha District Court of Bukoba should Max and dctcrmina the issue; and as I said, the partios should ho notified tha rosults of this appcal. Dclivcrcd on the 4th day of January, 1973, at Mwanza. (Z.N.El—Itincl.y, j) - 4/1/1973. I L ..................... '' . . -