19830524 TZHC Dar es Salaam

· IN THE HIGH COURT. OF TANZANIA AT ...DAR ES SALAAM CIVIL. APf'.EAL NOo 34 OF 1981 (original Dar es salaam· D/Court civil case No. 93/80) JOHN MWALOMBOLA o .• c o. O O C • ,., ., • o o • ., APPELLANT Versus STEPHEN KABEYA o ., o C O ~ _Ct ., ., ., • ., • • RESP OND ENT .JUDGMENT RUHUMBIKA, J., - The appellant in this appeal, JOHN MWALOMDOLA, instituted a suit against the -resp-ondent, · .STEPHEN KADEYA, in the Resident· Magistrate's Court.,, Kisutu, -cl aiming for a refund of shs. 6, 880/= being the amount of money he had paid to the respondent·to buy for him some chicks. The appellant ts case was that the respondent had failed to buy those chicks as arranged, and therefore was obliged to refund the money paid to him by the appellant. The appellant failed -to prove the claim in the lower court, as it was amply proved by the respondent through documentary evidence that he had bought the said chicks on 3/10/79. The respondent further proved that after some weeks those chicks were attacked. by an outbre~ of 11 new castle 11 disease and started dying in great numbers. He then sent some sample to the Veterinary Research Laboratory, . .. where t i t was scientifically proved that the chicks were suffering from the 11 new castle" disease. The respondent had tendered before the lower court the receipt for the chicks (exhibftD.1) and also the report from the veterinary Research Laboratory (EXhib,it D.3)~ The lower court was satisfied that: a) the respondent had bough~ the chic~s and b) that those chicks then died of "new cast,le1 1 disease.. Following this:1 the lower court 'dismissed the claim for a refund of shs., 6 1 880/=, but ordered that .the respondent should refund to the appellant .the money for 80 chicks which were saved from the "new castle" disease attack and sold by the respondent. The lower court, howevei::, did not specifically state the value of the 80 chicks.· " •• /2 .... -2 There is absolutely no mer:..'.:: J.n this. appeal, as ·1t is amply proved that the re~pondent bought the chicks _as-· arranged and -:•.h;o,":: those chicks. died of a known poultry ·d;Lseaseo .The two J.?arties ·,appear ·to have had business connections:, . and the appellant had approached the respondent (an experi_ei::iced·poultry keeper) so that he (the respondent) cdtild allow him to keep some pou].try in the respondentas poultry shed. The respondent agreed -co this, and ·the appellant then offered the money for the chicks~ All those·arrangements were purely on friendly and voluntary terms, and based on mutual trusto Whatever arrangements there existed between the two parties to this appeal, such arrangements were purely based on mutual trtist and understanding., It ,.-,ould appear, however, that the trial court was of the vlew that there existed so.me kind _of partnership between the two 5.n the business undertaking.. Tt).is court :ts not sure about thate But wh~t ·· has been proved, · 2nd according to ,:·hat the partie·s t . . • submitted during · the hearlng of the:Lr appeal, ::.. t is no·:: believable· that the r.esponpept defrauded the appellant o:f his shs4! 6, 880/= by deceiving him ·that he. had bough·c the chicks and that those chick:, even~:ua:.ly dled, whereas in fact the respondent di~ not buy _those chicks but pocketed the money. This Court does not also accept the explanation of the appellant, during the hearing of the appeal 9 when _he claimed that as the· respon_derit · had some friends at the Veterinary Research t;abo,:ato.i:-y~ he ccn~J.d get forged documents to show that the chicks were proved st:ient:lflr.:ally to have died of 11 new castle"" In fact, the u.ppellant would wish this Court to believe that even the recei.pts ·cendered before the trial court to show that the respondent bought those chicks were also fake documents, apart from the fact that they were all official receipts on printed :f.o..:ms f;:-om the National Chick Hatchery., This court is unable to support the appeliant•s quixotic ;.deas about these facts., - 3 - In disposing 0f this appeal, this court finds that the appeal cann.,t succeed, and therefore it is dismissed with costs. The respc,nden-i.: .:i.::. not liable to refund shs e 6: c;0O/= to the appellant as claimede ... However, as the trial court had found that not all the chicks had died of "new castle 11 and had ordered the respcndent to compensate the appellant with the value of the 80 chicks which survived the disease, this court finds that order to be reasonable, apart from the fact that the • lower court did not de.termine the actual value of the • 80 chicks. rt is for this reason that the court will have to retire to the chambers to discuss with the parties in order to determine the actual value of the 80 chicks the respondent has to pay for before the court makes a final order f_or the compensatione Delivered this 24th day 9f May, 1983, in the open court in the presence of, the appellant~ :;:r:: , respondent being absent. J81-c: (RoJ.,L., RUHUJ.IIBIKiO JUDGE Dar es Salaam 24.,5.83. ORDER As the respondent is not present, it could not be possible to discuss and assess the compensation in respect of the 80 chicks the respondent has to compensate the appellant. It is in the interest of justice that the respondent be heard before an order for compensation is made.; Let.the parties be· sent·notices to appear in Chambers before a Judge ori 9/6/83 to settle this compensation issue,o ~. rja~; i1 ,-'!1,- s:- . ;'Rod'oLo ROFIDJVIB.LKA) JUDGE 2405,._ 1983