samilwa jagwa others vs gabriel pepino kinyonto 2007 tzhc 202 9 august 2007

IN THE HIGH COURT OF TANZANIA AT SUMBAWANGA DC C I V I L A P P E A L NO. 4 / 2 0 0 5 . (Original Criminal Case N o. 8/2003 M p a n d a District Court) 1. S A M I L W A J A G W A ^ 2. H A S S A N U S T A F A 3. M A G U H A J A G W A APPELLANT 4. S I T T A J A G W A VEHSUS G A B R IE L PEPIN O K IN Y O N TO .............. RESPONDENT (Dated: 12/7/2007 And 9/8/2007) JUDGMENT Before B.M.Mmilla. This appeal has been instituted b y learned counsel Mr. K a y a g a on beh a lf o f the four appellants n am ely; Samilw a Jagwa, Hassan Mustapha, M a g u h a J a g w a and Sitt.a Ja g w a. T h e y have expressed dissatisfaction w it h the j u d g m e n t and decree in M p a n d a District Court Civil Case N o. 8 o f 2003. In that case the re sp ondent Gabriel Pepino K inyonto had, th ro ug h the services o f M u s h o k o r w a and C om p an y , Ad voca l es sued the appellants jo i n t ly and together (or a total o f Tshs.37, 00 0,0 00 /— as general and special damages for wrongful breach of contract, also for inciting other people to dishonour contra cts which were allegedly execu ted betw een the respondent and M b u g a n i - Mwarnkulu village g o v e rn m e n t lor and on behalf o f the p a d d y farmers, o f w h o m the appellan t s were am ong. The facts o f the ease were that the respondent was alleged to have entered into co n tra cts with the village govern ment ol Mbugani vi llagc for and on b e h a lf o f the p a d d y farmers in which t he respondent was to build a water furrow on K a lu m a river bank to permit the said p a d d y farmers to use the blocked water for irrigation in their lields (or the period o f 20 00 /2001/2002/2003/2 004 and. a m o n g other things, on condition that each paddy farmer using the blocked water for irrigation on that area was to pay to the respondent, in return three bags o f p a d d y each c ontaining six tins o f p ad d y per each acre cultivated for the first season, two ol them lor the second season and one and a half for the third season. It is alleged that while the respondent signed those contracts in person, the Mbugani Village Council leaders purported to sign the said contra cts for and on beh alf o f the said farmers in t he area. The facts allege further that the appellants were a m o n g the 578 Mwamkulu p a d d y farmers who gainfully used the blocked water for irrigation in their p a d d y farms fro m the p rojec t financed b y the respondent at the cost o f T sh s.30,0 00,0 00/= . It has been alleged further that all I he farmers publicly agreed, directly or by implication, with all the conditions to contra cts w hich were ad m it ted in court as E x h ib it s P I, P2 and P3 allegedly as co nfirm ed by minutes o f the public meeting held at iMwamkulu village on 15.10.2002, a meeting which was attended to by Ihe appellants, and which minute most o f th em signed consenting to the resolutions passed. Wh en the harvest periods becam e due, the respondent, decided to supply e m p t y bags to, a m o n g others, the appellants so that t h e y could fill in p a d d y as agreed in the contracts in p r o p o r ti o n to acreage cultivated by each ol them, but that led by the first appellant, th e y refused to fulfill their part o f the contracts, and in fact succeeded to incite other farmers to dishonour the contracts, hence the alleged breach. The respondent, c o m p la in ed against the ap p ella nts’ action to the representatives ol the p a d d y larmers at M w a m ku lu village following which a meeting was c o n v e n e d to address the p roble m , but th at the appellants p ub licly refused to hon ou r the contracts. The respondent had 110 other belter o p tion but to institute the suit whose decision in the lower court is the su bject o f this appeal. The m e m o r a n d u m o f appeal has raised seven (7) grounds as follows:- 1. That the learned Resident Magistrate grossly misdirected himself on water laws and in holding that t lie" respondent’ s transactions and permit for using water was given and blessed b y the Div isio n Secretary and District Court o f Mpanda. 2. Th at the learned Resident Magistrate grossly erred in law in his failure to hold that the respondent s construe! ion o f water furrow on Katuma River co ntra ve n e d the provisions o f the Contractors Registration A ct, J997. 3. That the learned Resident Magistrate grossly erred in both law and fact in failure to hold that the alleged con tra cts between the respondent and M w a m k u lu village council were void. 4. That the learned Senior Resident Magistrate erred both in law and fact in hold ing th at the appellants w h o were not being served with waters from the furrow const ru ct ed by the respondent were parties and bound by the contract between the respondent and M w a m k u lu village council. 5. That the learned Senior Resident Magistrate erred in holding that the respondent had proved his claim and was entitled to Tslis.42 .0 8 7 ,0 0 0 /= . 6. Tlicit, the learned Senior Resident Magistrate erred in principle in awarding ail o m n ibu s award o f Tslis. 12. 150,000/= being b o t h special and general damages to the respondent. 7. T h a t as the re spo n d e n t’ s claim was only partly allowed; the learned Senior Resident Magistrate erred in law to award full costs to the respondent. The learned counsel for both parlies applied lor and were granted leave to argue the appeal b y way of written submissions. The first, three grounds in this case relate to legality ol the construction of the water furrow on Kalum a River by the respondent. They touch on two statut.es; the Contractors Registration A c t C a p .235 o f the Revised Edition. 2002 and the W a t e r Utilization (Control and Regulation) Act Cap. 331 ol the Revise d Edition, 2002. For the sake o f convenience. 1 propose to deal with these grounds o together. o T o begin with, the learned counsel Mr. K a v a g a su bm itted that on taking up the contract to construct the water furrow on K atum a River, the re sp ondent w as a c ontra cto r wit hin the meaning o f section 2 o f the Contractors Registration Act. He su bm it te d that because he had no business licence he c o m m i tt e d an offence stipulated under section 22 (1) o f that Act.. On another point, Mr. Kayaga su bm itted that the respondent contra vened provisi ons o f law enacted under the W ater Utilization (Control and Regula ti on ) Act in that he did not seek, nor was he permitted to effect the said construct ion from the relevant water authority. His submission on this point was gro unded on the provisions o f sections 8, 10. 14, 15 and 33(3) o f that Act. He su bmitted therefore that because o f the c o n t ra v en tio n s ol’ the t w o statutes referred to a b o v e , the contracts were void. On his part, the learned counsel for the respondent has submitted that the learned trial court magistrate was justified in skipping the issue o f c on t ra v en tio n o f these laws because his learned friend had raised the ma tt er in the course o f his closing address and w hich had not been part o f the settled issues, let alone part o f the pleadings. H e backed his position with the case o f Frank Marealle v Paul Njau ( 1 9 8 2 ) T .L .R . 3 2 . Mr. M u s h o k o r w a added that even in his submission before this court., his learned friend did not do much apart from saying merely, that the court was duty bound to determine the t w o grounds he raised because they were points o f law. but without citing 6 any auth or ity for that. He therefore asked this court to dismiss those three grounds. From the a b o v e submission, I fill that there are tw o issues begging for answers at this initial stage. These issues are:- (1) W h e th e r or not there is substance in the submission that the ap p e lla n t’ s a d v o c a t e covered the aspect o f transgression o f the water laws only at the stage o f closing remarks: and (2) W h e th e r , because thev were allegedly not part of the pleadings, also that thev were not part o f the issues which were framed b y the court, the trial court justi fia bly skipped to deliberate on the point. As far as the first issue is concerned , resolve will depend on the evidence 011 record, beginning with the respondent himself w h o testified as PW1, also the defences which were offered by the appellants. The record indicates at page 7 o f the typed proceedings that in response to a question which was put to him by learned counsel Mr. K a y a ga , the respondent said 1 ha 1 :- “ I got the water right from the people - w a n a u c h i n o l from the water olficer. I have no certificate to do 7 water business. It is not an offence to use the water with no certificate” . Again, on page 18 o f those proceedings, the first appellant ( D W 1 ) one Samilwa J a g w a is recorded to have said tliat:- "T lie pla intiff was not showed me (sic) I lie permit f r o m the g o v e r n m e n t to supply the water. Th e pla in ti ff was failed (sic) to p ro d u ce the licence or permit authorizing him to deal with water business. Me is intending to defraud u s / T h e p la in tiff has no right to claim a n y th in g f r o m me. He does not own w a ter” . Further, when cross-examined b y learned counsel Mr. M ush oko rw a on the point, 1)\Y 1 is recorded to have said tliat:- *"The M bu g an i. ( Ivaseke) governm ent knows the furrow the pla intiff construct ed. T he same g o v e rn m e n t knew that the pJaintill was being paid the paddy. I have not heard that the accused (sic) breached any l a w __ This point was also to u ched in the course o f the testim ony o f D W 5 Stephano Ikemalu ji who is recorded to have said at page 28 o f those proceedings tliat:- 8 “ M y govern m en t had 110 need ol' requiring the P W 1 (sic) to seek and obtain licence and p e r m it. What the P W L (sic) did benefits (sic) the people and their g ov e rn m e n t. It is not business '. This point featured again in the closing remarks o f the learned counsel for the appellants in which he specifically pointed out the relevant: provisions o f law under the Contractors Registration A c t and the Water Utilization (Control and R e g u la tio n A c t ) relevant on the point, lie stressed that the appellant ou ght to have procured a license for business as a c o n t ra cto r and also that he o u g h t to have procured a permit to effect the construction. A l th o u g h it is a fact that this point was not c o v e r e d in the pleadings in the case, it is crystal clear that it was raised in e vid en ce at various levels as 1 have a t te m p t e d to dem onstrat e a b o v e . Similarly, the j u d g m e n t o f the trial court indicates that a finding was m a d e on the point. On page 8 o f the t y p e d ju d g m e n t , the trial court said that:- 1,4As said before, the learned counsel for the first four defendants raised some points that the P W ! (sic) was a law breaker. 'The learned counsel for the PW I and the D W 5 9 (sic) him self countered this. W ith due respect, 1 think Mr. M u sh o k o r w a is right. The legal issues Mr. K a y a g a purported to raise were not pleaded b y the said defendants; they were not made as issues at the hearing o f this suit and were not canvassed in evidence. I take not (sic) that Mr. K a y a g a was throughout been as assisting (sic) the first four defendants that is at the preliminary stage of preparing amended written statement o f defence when framing the issues and when leading the said defendants during the trial and even at the time o f c r o s s - e x a m i n a t i o n __ After all. there is no dispute that there were no accusations which were made against the HW 1 (sic) by either the jjrovernmeuL © which was aware o f this through © the contracts copied to them or the cou rt before which various contracts were e x e cu te d or by the police au th or ity which also knew the w hole c o n s t r u c t io n .” Th e issue to follow is whether in the first place the court was justified in deliberating on that point in the circumstances o f this case; and also whether its con clu si on was justified. 10 it is clear that, like in the case o f Vidyarthi v. R a m R a k h a ( 1 9 5 7 ) F.A. 527, the court stated in the case o f Frank Mareale v Paul Najau ( 1 9 8 2 ) T •L<R . 32 that it is prndent lor a court to confine itself to issues framed in the pleadings. This represented the stand o f the courts before the decision o f the Court o f Appeal o f T anz ania in t he case o f A g r o Industries Ltd v« Attorney (general ( J 9 9 4 ) T .L.R. 13. After the decision of’ the Court o f Appeal in this latter case, the decisions on the point in those two previous cases ceased to be good recedents. In the case o f A g r o Industries L i d . , counsel for the appellant filed a m e m o r a n d u m o f appeal containing seven (7) grounds. In the first ground counsel for the appellant attacked the learned trial judge for having failed to take into account issues which were not pleaded. These issues were three. Firstly there was the question that the appellant, was n o t given notice o f the Presiden t’ s intention to revoke the Right o f O c c u p a n c y . Sec ondly, that the appellant was not given o p p o rtu n ity to be heard. Lastly, whether the Minister lor Lands usurped the powers o f the President or whether the President had delegated his powers to the Minister. Counsel for the appellant pointed out that the learned trial judge dealt with those issues but as obiter in view' o f his observation that. 11 4Tt is now established tlial evidence and arguments in legal proceedings sh oidd be confined to the pleadings.” T h e learned trial ju dg e cited the case o f Vidyarthi v. R a m Raklia ( 1 9 5 7 ) E.A. 5 2 7 . The learned counsel for the appellant in A g r o Industries case subm itted that the learned trial ju d g e had erred not to decide those issues since both parties ad d u c e d eviden ce and made submissions 011 them and the court allowed th e m to be done. Appreciati ng the submission of counsel lor the appellant, the Court o f Appeal held tliat:- “ Wlien a court allows parlies to address it on any issues, the court must conclu sively determine those issues, notw it hstan d in g that the issues were not in the pleadings” . In that case, the Court ol Appeal was influenced, as regards as this point, with the decision in Odd Jobs v. Mubia ( 1 9 7 0 ) E.A . 476. It was decided in that case that a court may base its decision 011 an unpleaded issue if it appears from the course followed at the trial that the issue has been left to the court for decision. A p p l y i n g that to the situation in our present case, it is plain that because the aspects o f the co n tra ctor 's business licence and water laws were raised in evid en ce at various levels, the trial court was duty 12 bound, and rightly deliberated 011 those matters. Thai paves way lor the next issue 011 whether its conclusion was just.il ied. In the first place, 1 agree with learned counsel Mr. K ay a ga that the respondent was, in terms of the definition under s. 2 ol the Contractors Registr atio n A c t a c o ntra ctor who was dul\ bound to have obtained a license as dem and ed by law. Cnder section 2(1) (a) (ii) o f the Con tr ac tors Registration A c t, the term "c on tra ctor" is, am ong other things, defined to niean:- *;(a) any person who for reward or other valuable consideration undertakes the const ru ct ion, installation or erection, for any other person, o f any structure situate* below, 011 or a b o v e the ground or other work connected therewith or the execution, for any other person, o f any alteration or otherwise to any structure or other work co n n e cted therewith, where such person undertakes to do any such w o rk— (ii) him self supplies the labour necessary for the work or is authorized on beh a lf o f the person for w h o m the work is undertaken or any other person, to employ or select for employment, workmen to assist him in the execu tion o f the w o r k . ” It is clear that because the respondent designated himself as a co ntra ctor as indicated in the purport ed contracts , refer to exhibits P I , P2 and P3: and th roug h out acted as one, he no d oubt fits in the above definition. In v ie w o f the construction that was. he was required to have been in possession o f the said business licence as directed b y law. It follows therefore that to have not been in possession o f such license was a fragrant c on t ra v e n tion o f the lawr. The con sequen ce lor c on t ra v e n tion o f th at requirement is enacted under section 22(1) o f that same Ac t which imposes restrictions o f carrying on business as contra ctor. It provides tliat:- “ (1) A n y person w h o or an y firm w hich not being— (a) a registered co n t ra cto r falsely pretends to be such; or (b) entitled to do so under section 2 L, uses a style or title o f "Registered C o n tr ac to r '’ or an y other name, type, title or in the circumstances in which it is used that such person is so registered; (c) a registered contracto r, holds himse lf out other than for the purpose o f a p p ly in g for registration, 14 whether directly or b y im plica tion to be a qualified and experienced contra ctor ; (d) a registered c o ntra cto r, trades or carries on business as co n t ra cto r in T anzania , c o m m i t s an offence and upon c o n v i c t io n is liable to a fine not exceed ing ten percent o f the c on tra ct sum or pro je ct value bu t not less than one percent o f the c o n t r a c t sum or project value o f an e x e cu te d con tra ct or contract in hand or five million shillings,- w h ich e v e r is higher, or to im p riso n m e n t for a term o f not less than three years or to b o t h that fine and i m p r is o n m e n t.” Th anks G od that the wheels o f justice did not turn on him for he could have been prosecute d for such a violation. On the other hand, it is expressed under section 8 o f the W a t e r Utilization (Control and Regulation) Ac l that all water is vested in the United R e p u b l i c o f Tanzania. In terms o f section 10 o f thereto, it m a y be diverted or obstructed and use the same I’or do m es tic purposes conditional upon what is enacted under sections 14 and 15 (1) o f th at Act. Section 14 o f that Act imposes some limitations: it provides tliat:- 15 “‘ Subjec t to the provisions o f this Part and to the provisions o f section 53 o f the Mining Act *, 110 person shall divert, dam , store, abstract or use water or for any such purpose construct or maintain any works, e x c e p t in accord ance with an existing right or with a water right granted under this A c t / " (Underlining is supplied for purposes o f emphasis). On the other hand, section 15 (I) o f the said Act enacts for a requirement for grant o f water rights by the relevant auth orit y; it provides that A W ate r Officer may grant to an v person the right to divert, dam . store, abstract and use water from such source, in such qu a n t it y , for such period, whether definite or indefinite, and for such purpose as m a y be specified in the water right, subject to such terms and conditions as he m a v deem f i t / ' Section 33 th e re o f stipulates that it is an offence for failure to c o m p l y with what is directed by this Act. A close e x am in atio n o f the evidence on record leaves no doubt that the respondent did not c o m p l y with the demands o f section 11 o f that Act on ac c o u n t that he effected the alleged const ru ct ions on k a lum a River without h av in g been granted a right to do so as directed b y section 15 o f that same Act.. As such, the said c onstru ct io n was in abrogation o f law. therefore that the purported con tra cts were void. Th e question that follows is; what does the law say in circumstances o f Llie kind? Resort should be had to the provisions o f section 23 (I ) o f the Law o f Contract Act Cap. 345 o f the Revised Edition. 2002 which deals with the problem o f what considerations and o bje cts are lawful and what are not. That, section p ro v id ed th at :- 4iS. 23(1): T h e consideration or o b j e c t o f an agreement is lawful, unless— (a) it: is fo rbidden b y law; (h) is o f such a nature that, if permitted, it would defeat the provisions o f any law7; (c) is fraudulent; (d) involves or implies injury to the person or property o f another; or (e) the court regards it as immoral or op p osed to public policy.” 17 There are clear ex am ple s o f the situations such as these c o nte m p la te d under section 23 ( I) o f the L a w o f Contract Act. In the case o f Lalji M an gan ji ami Co. v. Sliaha lYlohamed H.C. C.S.660 o f 1959 ( U g a n d a ) cited on page 147 o f L a w o f Contract in Last Africa by R .\ V H o d g in , East, African Literature Bureau, K a m p a la — Nairobi — Dar- es- Salaam, X leased land to a n o n -A fr ic an contrary to the Land Transfer Ordinance. X later claimed arrears o f rent. The court held that the contract was illegal and therefore X\s claim was not enforceable. The case o f H a m e d Baali v. Ila m ed B a lw a lisaff 17 K .L .ll. 30 (again cited in H o d g i n ’ s (supra)) provides another e xam ple . In that case, X had various business dealings with Y but X was not licenced under the relevant Stock T rad e Ordinance. The court therefore refused X ’ s request to force Y to p a y his debts. The court expressed the view that where the contract was shown to be illegal it was not ready lend assistance to the parties involved. A further e x a m p le is to be found in the case o f Issa v. Michael and Co. 23 ( 1 ) K .L . R . 12 (once again cited in H o d g i n ’ s b o o k (supra)) in which an ordinance p r o v e d to be a stumblin g block. In that case the plaintiffs had agreed to sell a m ot o r vehicle to the defendant partnership. T h e c o n t ra ct howev er, was con tra ry to the Credit Trade with Native Ordinance. T h e lorry had been handed over and the plaintiff d e m a n d e d either the purchase price or the return o f the lorry. Th e p la in tiff failed. Bourk e J, explained:- "N ow a p ar ty cannot set up a case in which he must necessarilv j disclose an illegal O transaction as the g r o u n d w o r k o f his cla im ... In such a case the defendant possessed the ad vantage over the pla intiff for if the pla in ti ff c a n n o t substantiate his claim without p r o o f o f the illegal o c o n tra ct he has no right C to the assistance o f the court. If for instance goods are sold and delivered under an illegal c o ntra ct, the seller can sue neither for the price nor for the return o f the good s, since he is unable to make out his case except b y the aid o f the illegal contract to which he is a p a r t y . ” The position in our present appeal is not dissimilar to the examples afforded ab o v e , particularly when the provision o f section 23 (1) (b) o f the L a w o f c on tra ct Act is taken into consideration, which has been quoted abov e. T o repeat, it states that the consideration or object o f an agreement is lawful, unless it is o f such a nature that, if permitted, it would defeat the provisions o f any law. This is especially so because the respondent c o u ld not have successfully sought refuge under subsection (2) (a) ol’ section 23 o f the L a w o f Con trac t Act which states t.hat:- “ In each of cases referred to in subsection (1), the consideration or o b je c t o f an agreem ent is said to be unlawful; and every agreement o f wliieli the objec t or consideration is unlawful is void and no suit shall be brought for the recovery o f any m o n e y paid or thing delivered, or for compensation for any thing done, under any such agreement, unless- (a) the cou rt is satisfied that the pla in tiff was ignorant o f the illegality of the consideration or object of the agreement at the time he paid the m o n e y or delivered the thing sought to be recovered or did the thing in respect o f w hich c o m p e n s a tio n is sought, and that the illegal consi deration or o bje ct had not been effected at the time when the plaintiff becam e aware ol’ the illegality and repudiated the a greem en t.” In our present case, the respondent was not ignorant o f the need to possess a business licence on undertakings such as he ventured as demanded by section 2 o f the Contractors Registration Act, as well as the need to c o m p l y with the provisions o f sections 14 and 15 (1) o f the W a ter Utilization (Control and Regula ti on) Act. T h e reason is d e a r that he did not raise such a defence. Again, his awareness o f that requirement was reflected in his response to the question he was asked in court th at he g o t the water right from the peo ple — w an an ch i not from the water officer. H e was clear that he had no an y licence," adding that as such he breached no law. T h e n c e , the first, second and third grounds have merits and are allowed. Th e fourth g ro u n d seeks to address tw o issues; first whether the appellants were p riv y to the contracts; and secondly whether they utilized the water from the furrow which was construct ed b y the respondent. Resolve to the first arm o f this issue depends v e r y much on the interpretations o f the c o n t r a c t s ’ d o cu m e n ts in v o lv e d , that is Exhib it s P I , P2 and P3. W h ile exhibit P I purports to be the contract which was ex ecuted 011 10.7.2000, exhibit P2 refers to the c on tra ct said to have been entered 011 28.2.2001. On the other han d, exhibit P3 purports to be the c o n tra ct signed on 29.4.2003. I note here though that exhibit P2 is se co nd a ry evidence and 110 reasons were recorded to ju sti fy its reception as evidence. As we are aware, where a secon dary d ocu m e n t is so u g ht to be produced in court; the p a r t y seeking to rely 011 such d o cu m e n t has the d u ty to c o m p l y with the provisions o f 21 section 67(1) and (2) o f the E v id ence Ac t Gap. 6 o f the Revised Edition, 2002. Since no reasons were assigned, it is o b v i o u s that that do cu m e n t was a d m it ted in contraven ti on o f the provisions o f law I have just pointed out in this paragraph. [ mav be discussing this point at a later stage, bu t for the m o m e n t , suffice to say that the trial court had no ju sti ficatio n to accept that d o c u m e n t as evidence. The burning question is: were the appellants privy to those contracts? If so: how ? As already pointed out ab o v e , this will v e ry much depend on the interpretations o f the said roiilract docu ments . In the lirs place, we have the c o n t r a c t s ’ d ocu m en t constituted in exhibit PI. It was signed b y the M w a m k n lu village gov ernment leaders who included Samwel Kusungwa (village chaimarn), A b d alla llassan (village secretary) and Laziina S h in g ’ w e n g ’ we (cell leader) on the one hand, and Gabriel P. K i n y o n t o (the contractor) and M ajaliwa R. N g o m b e i (his whiteness) on the other. B elow the signatures ol the ab o v e mentioned personalities, the d ocu m e n t stales that "T la p a chini ni i . . . niajina na sahihi za w a k u l im a ” , meaning herein below is a list o f the I names o f and their signatures oil the farmers - (the emphasis is mine). Th e list consists o f 127 names, those o f the first, third and fourth appellants inclusive. H ow ever, none o f the persons listed therein signed that d o c u m e n t . Besides, one thing is apparent; the said 22 document, does not express that tlie village leaders signed that document lor and on behalf’ o f the farmers listed there under. i There was anoth er such contract docu ment which was executed between the respondent and! M b u y u n i Village g ov ern m e n t 011 28.2.2001. That d o c u m e n t was i d m i t t e d as exhibit P2. It was signed b y the village Chairm an o f M b u y u n i — M w a m k u lu village on the one hand whose names were not reflected on that d o c u m e n t, and the | contra ctor 011 the other. A lth o u g h paragraph 1.1 o f that docu m en t says a list o f names o f the farmers was ap pen ded, none was there. It is also important to poin t ou t that while the chairman indicated there under that he signed for and 011 be h a lf o f the village g o v e rn m en t, nowhere in that d o c u m e n t was it indicated that the village government was executing that contract for s|nd on behalf o f the farmers - (again, i underlining is mine). Similarly, it is essential to point out that it was ! made clear in paragraph 1.2 o f that d ocum ent th at the p a d d y would be paid b y an y farmer w h o wojild have utilized the water from the furrow c onstru cte d b y the respondent. Also, in par agraph 2.2 o f that 1 d o cu m e n t, farmers were required to sign against their names in the allegedly ap p en d e d list categorized as a schedule. That paragraph says, I quote:- “ Kila m m o j a wa waku lim a ataweka saliilii katika jedwali hilo mbeJe y a jina lake kutliibitisha ku ku ba liana kwake na masharti ya m k a ta b a liuu wa Serikali ya K iji ji ” Literally translated, that has the im p ort that the farmers were expected to a p p r o v e the contract b y subscribing their signatures against their respective names in a d o c u m e n t which was supposed to have been ap pended. The third c o n t r a c t was entered on 29.4.2003. This d o cu m e n t was admitted as exhibit P3. It was between M w a m k u l u Village Council and the contracto r, ll was signed b y K alp y Kalani and Musa Luse who represented the M w a m k u l u Village Council on the one hand, and Gabriel P ep in o K i n y o n t o (the Contractor) and his witness one Beda Katani on the other. P aragraph 9 o f that c o n t r a c t p ro v id e d that, 1 quote: “ Kila m m o j a wa w atum ia ji / w a k u lim a ataweka sahihi katika jed w ali litaka lo a m b atan is h w a kutliibitisha kuku baliana kwake na masharti ya m k a t a b a h u u ” . Like in the case o f e x h ib it P2, it had the meaning that the farmers were e x p e ct e d to a p p r o v e the contra ct b y subscribing their signatures 24 against their respectiv e names in a d o c u m e n t w hich was supposed to have been appended. Once again, there was 110 such a list o f names ap p e n d e d to exhibit P3. H o w e v e r, proceed ings indicate that the names allegedly constituting the list o f names m en tion ed in co n n e ctio n with exh ib it P3 are contained in e x h ib it P5. H o w e v e r , a careful perusal o f exhibit P5 readily reveals that the appellants were n ot listed there under, nor did any o f the other farmers listed under that d o c u m e n t subscribe their signatures thereto. It is plain th at because the farmers and the appellants in particular did not sign th ose contra cts themselves, it c a n n o t be said that there was any direct relationship between them and the contra ctor. On the other hand h owever, those con tra cts im p ly , and it was so c ontended b y the fifth def en dant before the trial court, the village council execu ted the contra cts for and on b e h a lf o f the farmers. The immed iate issue b e c o m es w hether the village g o v e r n m e n t council was indeed an agent of the farmers in the cir cumstan ces o f these contracts. The term agent is defined under section 134 o f the L a w o f Contract A c t as a person e m p l o y e d to do any act lor another or to represent 25 another in dealing with third persons and the person for w h o m such an act is done, or w h o is represented is called the principal. In other words, such a person m a y represent another as being e m p l o y e d b y him for the purpose o f bringing him into legal relationship with a third party. Su ch e m p l o y m e n t for that purpose is called ^ a g en c y ” . This principle is an e x c e p t io n to the doctrine o f p riv it y o f con tra ct that only parties to a c o n tra ct acquire rights and incur liabilities under it as was expressed in the old English cases ol Tw id dle v. Atkinson 123 E . R . 762 and Dunlo p P n e u m a tic Tyre Co. Ltd v. Selfridge [19 15 ] A.C. 847. It is a requir em ent o f law h ow ev er , that in order lor such a relationship to be valid, the principal must have authorised the agent to act as such. In terms o f section 130 o f the L a w ol Contr ac t A c t, the auth or ity to an agent m a y be express or implied. It is stipulated under that provision th at an au th orit y is said to be express when it is given b y words, either oral or in writing. On the other hand, an auth or ity is said to be implied if it can be inferred from the circumstances of the case or conduct of the parties. In the circumstances, it is clear that that the principal has to consent that the agent acts on his behalf. E q u a lly im p ortan t is the fact that the agent to o has to consen t so as to act. T he test o f determining agen cy 26 therefore is w hether the person is p urportin g to enter into the transaction on b e h a lf o f the principal or not. In m y perusal o f the c o n t r a c ts ’ d o cu m e n ts, I have n o t succeeded to find an yth ing suggesting that the principal (in this case the farmers) gave auth orit y to the agent (the village g o v e r n m e n t council) to act for them. In oth er words, there is noth in g to sh ow that the farmers, o f whom the appellants were a m o ng , consente d for the village g o v e rn m e n t cou n cil to c o n tra ct with the respon d ent as was purported. T o the c o ntra ry , evidence is o v e r w h e lm in g that it had 110 such mandate. T h a t being the case, this court c a n n ot av oid thinking that although the village g o v e r n m e n t council cou ld have bon a fid ely believed th at it had au th orit y to act for the farmers, it cannot be validly said the appellant s were in an y w a y the principals o f I he village govern m en t council so as to be held liable for any claims arising on such contracts. Things h ow ev er, could have been different where the appellants co uld have actually ratified the contracts in question. I am saying so because ratification is the legal w a y b y which a p p r o v a l o f w hat has been done is so m etim es treated as equivalent to a previous au th or it y to do it. 27 In our present case h ow ev er, there was the e v id en ce o f the respondent and P\V2 K a l p y K a t a n i w hich im p ly th at the farmers ratified the contracts in a mee tin g w h ich was c o n v e n e d , reference bein g t o ex hib it P8, being minutes o f the alleged meeting. T h e minutes in e x h ib it P 8 were titled “ M U IilT A S A R I WA MKUTANO WA HADHARA K A T I YA W A K U L I M A W A NSESO N A M F A D H I L I W A K IZ U IZ I CHA MAJI MWAMKULU NDUGU G A B R IE L K IN Y O N TO 17.6.2003” M y reading o f the minutes does not reveal rati ficatio n o n the part o f the appellants. It is plain that in that meet ing the appellants did n ot agree to w h a t the Chairman was saying. In p a rag rap h 5 at page 1 o f exhibit P8, the minuets state that:- . . . . **»•. - “ Baada ya w an an ch i ku ch an gia h o ja h iy o ndipo aliposim am a ndu gu Hassan M ust afa (s econd appellant) kwa ku w ash aw is hi w an an ch i w o te k u w a wasilipe m punga. B a a d a ya majadililiano mengi n d ip o aliposim am a ndugu Samilwa J a g w a akafuatia Sita Jagwra na M a g u h a J a g w a (the first, third and fourth appellants respectively) kumuunga rnkono ndugu Hassan. Baada ya v u ta n ikuvute w a n a n ch i walifikia hat.ua y a kuanzisha vu ru g u r 28 na wengine wakidai kuwa wat alip a 11 a wengine kuwa h aw atam lip a m p u n g a nclugu Gabriel K i i i y o n l o " . In view o f wliat is expressed ab o v e , exhibit P8 does n o t seem l o be an auth or ity of ratification of w ha te v e r was done bv the village go v e rn m e n t council so far as the appellants are concerned. Given the reaction th e y displayed, it means the appellants never intended the village gov e rn m e n t council to be their agent in the alleged contracts. T h e y were therefore, not b o u n d b y w ha tsoever s tem m ed from them. It was alleged that the appellants utilized the water from the furrow constructed b y the respon dent, a fact which the appellants strongly refuted. I am inclined to think that had there been evidence to establish that th ey indeed utilized waters from the furrow constructed by the respondent, that condu ct could have p ro v id ed the required ratification. T h e reason w ould be that because t h e y had known the conditions for the use o f the water from the said furrow, that is p a y m e n t o f the specified bags o f p a d d y per each acre in each given season, that could have a m o u n te d to a u th o r it y to contra ct b y implication. A careful e x a m in a t io n o f the proceedings and j u d g m e n t o f the trial court indicates th at there was no clear eviden ce to establish that the 29 appellants utilized the water from tlie furrow con stru cte d b y the respondent. T h e trial c o u r t ’ s expression on page 5, second par agraph from the to p o f its t y p e d ju d g m en t that the appellants said in their testimonies th at the M w a m k u lu village residents asked the respondent to c o nstru ct for th e m water furrow so th at t h e y utilized the water in their p a d d y fields, similarly its expression o n the same page, fifth paragraph o f th at same j u d g m e n t th a t the appellants adm itted that at various c o n v e n e d meetings they resolved thaL they were d u ty b o u n d to p ay p a d d y to the respondent d o n o t represent the truth. N o w h e r e in the trial c o u r t ’ s proceedings was it indicated that any o f the appellants said so. On the other han d, the appellants’ testim ony th at apart f ro m rain water their p a d d y fields depended on a furrow th ey themselves constructed was not satisfactorily disproved. In the premises, 1 hold that those co ntra cts were in no w a y ratified b y the appellants. T h e fourth issue too' therefore, is decided in their favour. H a v i n g said in this j u d g m e n t that the appellants were n o t parties to those contracts, therefore that th e y were not bin din g on th em , also that even where it was to be said that th ey were, w h i c h I h ave said they weren’ t, still the contra cts would h ave been v o i d and thus unenforceable for reasons I have a m p ly d e m o n str a t e d in this j u d g m e n t , tackling the fifth ground on whet her or n o t the trial court 30 properly fo u n d that the re sp ondent had p ro v e d his cla im for dam ages will definitely a m o u n t to an ac ad em ic exercise. So is the seventh ground. In view o f th at I find that there is ju stific atio n for not tackling these t w o aspects. On the other han d however, I have felt it prop er to say a few words regarding the sixth g rou n d which alleges th at the trial magistrate im pro perly aw arded an o m n ibu s amount o f sh s.42,000 ,000 /— in favour o f the re spon d e n t as being both special and general damages. Learned counsel Mr. K a y a g a su bm itted that the act o f lum ping together special and general damages caused injustice in the case. R ea ctin g on this, learned counsel Mr. M u s h o k o r w a su bm it ted t h a t ^ the trial magistrate dutifully analyzed the evid ence o f b o t h sides and arrived at the inevitable conclusion th at the r espondent had established the d a m a g e he suffered as a result o f the w ro n g fu l breach o f contra ct b y the appellants. H e intim ated th at p art o f the basis for * calculation was on exhibit P l l . H e added that the trial magistrate gave reasons h o w he reached that award w hich , he said, in the circumstances should by necessary im plica tions be regarded as general dam ages rather th an special damages. H e asked this cou rt to uphold th at award. 31 i t is incontroverti ble th at there is a clear difference betw een general and special damages. General damages are those w h i c h the law will im ply in every vio la tion o f a legal right. T h e y need n o t be p r o v e d for they arise b y inference o f law even th o u g h 110 p e cu n ia ry loss has been* suffered. T h e y are such as the court can give o n a j u d g m e n t o f a- Tn reasonable man. T h e y are sometimes k n ow n as direct dam ages or. "! 1 necessary damages. On the other h an d h o w e v e r , special dam ages are th ose alleged to have been suffered in the circumstances o f a particular w ro ng. Under 4• normal circumst ances, th ey relate to the actual loss w h i c h has been , suffered b y a party. These are also k n o w n as particular dam ages as they represent the precise amount of p ecu nia ry loss w h ich the- claimant must p rov e to have suffered from the set o f facts pleaded. In the cir cumstan ces o f the present case, general dam ag es w o u l d refer 1 to the aspect that the appellants incited other villagers to refrain from p aying p a d d y rice to the respondent, also the question""of e xpected profits. In this regard, the resp ondent was e x p e c t e d to sh ow that the loss fo llo w ere d naturally and in the usual course o f things from the breach or that it was re asonably in the c o n t e m p la t i o n o f the parties at the time o f m a king the contra ct. On the oth er han d, special 1 * damages w o u ld refer to the aspect o f the precise a m o u n t o f p ecu nia ry 32 loss the respondent could be able to prove to have suffered following the appellants’ refusal to p a y p a d d y rice during th e three alleged seasons. R e q u i r e m e n t o f p r o o f has had the oc ca sio n o f being stressed i in the cases o f M w a lw a n g e v. M w a ly a jo ( 1 9 7 2 ) I1CD 78 and Athiimani ITainisi v. A h a m a d i Akilimali, Civil App. No. 19 o f 1 9 91 . a n d TaJbom i- Registry (unreported). In both these cases the courts stated c o m m o n l y th at no cause o f ac tion w o u l d lay where a p a r t y claiming damages did sh o w that the action or c o n d u c t o f the d efe ndant .had directly or indirectly occasion ed injury or loss to him. The success of the claim would have similarly de p end e d on remoteness o f the dam ag e suffered, an aspect w hich is g o v e r n e d b y the provisions o f section 73 o f the Law o f C on tr ac t A c t w hich embraces the rule which was p r op o u n d e d b y A ld e rso n J, in the old but classic English case o f Hadley v. Baxendale (1854). 9 Excfa. 3 4 1 . I need not say m o r e 011 this because cir cu mst an ces d o n o t admit the idea o f indulging in detailed discussion 011 this* aspect. T h e intention here has merely been to demon strat e that there are differences between these t w o heads o f damages. F r o m w ha t I h ave said a b o v e h owever, this c o urt is o f the firm v ie w that it was inappropriate for the trial court to h a v e had lu m p e d these two kinds o f dam ages as if t h e y were one and the,sam e.thing.. T h e trial court ought to have come up wi t h distinct findings regarding which o f the dam ages claimed fell under the heading o f general damages on the one hand and special damages on the other. In that it failed to do so, T agree with learned counsel Mr. K a y a g a that the award was om nibus. In conclusion, for reasons 1 have atte m pted to give in this judgment., the appeal has merits and is accordin gly allowed. T h e appellants to have their costs in this court and the court below. B.M.Minilla Judge 09.08.2007. p n y jjh ttu th is is th e + fw;nri,>a ] I 4 \ 11 SUMBAWANGA 34