19840720 TZHC Mbeya

IN THE HIGHCOIJRT Ot TZtNIA AT MBEYA CIVIL APPEAL N0 0 48 OF 1981 (From the decision of the District Court of Mbeya at'Mbeya in Civil Case No 0 3T of 1980. Before J. B.0 0 MAANCHE, Esq., Senior Resident Magistrate0) MOHAMED ALLY APPELLANT Versus. JASON SHABABA RESPONDENT Claim. Contractual money - Shs,6,000/ J U D G M E N T KATITI, J., .. i Jason Shababa the respondent herein, filed the action that culminated into this appeal against Mohamed Ally the appellrft hcrin, in Mbeya Dis'rict Court, claiming s.6,000/= claimed1y the cost of thirty bags of maize and accompanying empty sacks, that were delivered to the appellant by the respondent, at the instance and agreement of the former. In the District Court, the actiqn was successful, and hence this appeal by the appellant. . • This case does cover a narrow compass, exhibiting no complicated issues of fact or law. It is. not denied that the respondent, on or • about 28/7/1980, havin, brought thirty bogs of maize stopped at the shop of the appellant. It is also defying challenge, that while the respondent wanted and offered the some for sale, the appellant also offered to buy the same. On the evidence, they differ as to the price they agreed upon, the respondent testifying that he agreed to sell • at Shs.170/= per bag contents of maize and Shs.10/= for the sack • (container) and Shs.600/= as refund of transport costs - hence Shs.6000/= he was claiming. The appellant contended on the other hand, that maize wcs to sell at Shs 0 200/= per bag. Shs.10/= per sack container, and hence Shs.6,300/=. I shall visit the price aspect • later., . ,• The respondent told the Court that as the appellant had no mo:.cy • on 28/7/1980 he promised to pay on 29/7/1980,. It was his evidence supported by witnesses, that neither on 29/7/1980, nor 30/7/1930, nor on 31/7/1980 nor on any subsequent date or dotes, did the appllont ay the demanded amount. On the other hand the appellant cotended - • ',J000.-D - 2 - that he paid Shs.300/= for sacks on the very day - 29/7/1980 - and Shs.6,00/= on 20/7/1980. The jsue, a7 the trial Court appreciated, is whethr the appellant paid Shs,6,000/= to tho respondent. This trial Court answered the same issue in the negatives In this case, the action could arid can stand, or fall, depending on the credibility of witnesses, and it is noted, that the trial Court having inter alia observed, heard and seen witnesses testify came out with a conviction tht the respondent , and his witnesses were telling the truth, while the appellant and his sole witness were in conspiratorial scheme to defraud the respondent of his money.. Of course, and obviously, the trial Court had a better advantage, than this appellate Court which is depending on record above 0 But having seriously and thoroughly studied the rcorJ, I can find no fault in the trial Court's. assessment of credibility of witnesses, and I do agree with the trial Magistrate in his such assessment, and I believe as he did, that PW 0 1, PW.2, and P3 with consistence and persistence in their evidence, were tellinq the truth 0 • The respondent appears to be a honest man, for although the appellant enhanced the agreed amount to Shs.6,300/= the respondent stuck to the amount Shs.6,000/=. The appellant on the other hand appeared wavering lone sentence s - ying he got the money to pay from the bank, ar0 yet in another saying he got the money from a friend. His witness Mohamed Jambeke a peasant beggar attaching himself to the appellant, is only. an appellant's voice, with no independence of miid. I do therefore concur with the trial magistrate, first in his believing and finding that the agreed amount was Shs 0 6,000/= for maize and sacks as lid testify the respondent,., second, 1 do believe as did the trial Court, tht at no time did the appellant pay Shs 0 6,000/=, or. eny part thereof. The judgment was rightly entered against the appellant, and this appeal has to fail - and it is hereby dismissed with costs 0 2 • . • ~ '_-Q$ ±j\ E. W. KATITI • JUDGE • • • 20/7/1984 Judgment to be read'and delivered to parties on notice0 • . , . • A ' il'BEYI- 1 E. W. KATITI 0/7/1984. • • . JUDGE