JUDGMENT EX PARTE David Elia Benson vs

IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA- SUB REGISTRY AT MBEYA CIVIL APPEAL NO. 14 OF 2023 (Arising from the District Court of Momba at Chapwa in Civil Case No. 04 of 2022) DAVID ELIA BENSON ……….…………………………….……...…….…... APPELLANT VERSUS GODFREY EDWARD NDONDE ……………….………..…………... 1ST RESPONDENT DAUDI DAMAS SANGA ……………………………………………... 2ND RESPONDENT JAMILI MASHOTO MAXWELL ………………………….…………. 3RD RESPONDENT EX-PARTE JUDGMENT Date of Last Order: 31st July2024. Date of Judgment: 21st August, 2024. KAWISHE, J. The appellant in this appeal, David Elia Benson is challenging the decision made by the District Court of Momba (hereinafter to be referred as the trial court) in Civil Case No. 04 of 2022, in which he unsuccessful sued the respondents for tort of conversion. The facts leading to this appeal can be briefly stated as follows: Before the trial court, the appellant sued the respondents alleging that they have interfered with the use of his motorcycle with registration Page 1 of 14 number MC 207 DBK, make King Lion. He alleged that, he used the confiscated motorcycle for business in carrying passengers commonly known as bodaboda. He claimed to have suffered both economic loss and psychological torture from the conduct of the respondents and prayed for the order of the court for the payment of TZS 2,303,000.00 being the value of the motorcycle claimed to be confiscated by the respondents, payment of TZS 50,000.00 per day from the date of filing the suit to the date of full satisfaction of the decree as compensation for loss of income and TZS 20,000,000.00 as general damages. He also prayed to be paid the interest at the court’s rate on the decretal sum from the date of judgment to the date of full satisfaction of the decree and costs of the suit. As stated above, the trial court found his claims unproved and dismissed the suit with costs. Aggrieved by the trial court’s decision, the appellant filed this appeal on the following grounds of complaint: 1. That the trial Magistrate erred both in law and in fact when he disregarded exhibit PE1 on the ground that it was issued in Dar es Salaam. 2. The trial Magistrate erred in law and fact for disregarding Exhibit PE2 which is the proof of ownership. 3. That the trial Magistrate erred in law and facts for failure to evaluate the adduced evidence by the witnesses from both parties so as to reach into a proper conclusion. 4. The trial Magistrate erred in law when failed to answer and decide on all issues which were framed for determination of the suit. Page 2 of 14 Prior to embarking on the consideration of the appeal, I find out that, it is imperative to state in an albeit brief the evidence which was tabled before the trial court. The appellant told the trial court that, he was formerly a supervisor of a motorcycle owned by the 1st respondent’s wife namely Theresia (deceased) but in October, 2021, the 1st respondent’s wife took back her motorcycle. Thereafter, he decided to buy his own motorcycle at Mbeya City and registered it in his name. He tendered a certified copy of receipt which was admitted as exhibit PE1 and the motorcycle registration card which was admitted as exhibit PE2. In contestation, the first respondent (DW1) told the trial court that, it is true that the appellant was given a motorcycle by his wife (deceased). That, the motorcycle which was given to the appellant was sold and a new one was bought and given to the appellant for business as it was for the first motorcycle. DW1 told the trial court further that, after the death of his wife the appellant never attended at the funeral despite the fact that he was aware of the said funeral. It was until when the appellant was forced to attend at the family meeting to handle the motorcycle and it was handled in the presence of the second and third respondents who were the guarantors to the contract between the appellant and the first respondent’s wife. Page 3 of 14 DW1’s testimony was corroborated by the second and third respondents that, they were the guarantors for the appellant in the contract between the appellant and the first respondent’s wife. That, they witnessed when the motorcycle was returned to the first respondent after the expiry of his wife’s life. They also told the trial court that, the motorcycle was given to the appellant for the purpose of doing business of carrying passengers. They also testified that, the motorcycle was taken from the appellant in their presence after discovering that he was not paying the agreed sum of money and he wanted to sell the motorcycle. As stated above, the trial court dismissed the suit for the reason that, the appellant failed to prove ownership of the motorcycle. Dissatisfied with that decision, he filed this appeal on the above grounds of complaint. In this appeal, Ms. Mwakilasa, the learned advocate appeared for the appellant. The respondents failed to appear even after serving them through a substituted service by publishing the summons in Mwananchi Newspaper a widely circulating local Newspaper in our country. Therefore, this court ordered the matter to proceed ex parte against the respondents. Submitting on the first ground of appeal, the appellant’s advocate argued that, the trial magistrate erred in deciding that the motorcycle is not a property of the appellant. The reason appended thereto being, that the receipt was issued at different place from the place named by the Page 4 of 14 appellant in his oral testimony was different from the place where the motorcycle was bought. She further submitted that the proof of ownership of the motorcycle was the motorcycle’s registration card which had the appellant’s name who is the real owner. Arguing on the second ground of appeal that the trial magistrate erred in deciding the suit without considering who had the registration card of the motorcycle, it was her submission that the ownership of motorcycle is proved by the registration card as provided for under section 15 of the Road Traffic Act (Cap. 168, R. E. 2002). To bolster her stance, she cited the case of Naki Esther Nyange vs Mihayo Marijani Wilmo and Mrs. Mariam Wilmo, Civil Appeal No. 207 of 2019 (unreported). She further submitted that the trial magistrate failed to take into consideration that the motorcycle’s registration card bears the appellant’s name who is the real owner. On the third ground of appeal, she submitted that the trial magistrate did not analyze well the evidence adduced by both sides, since the second respondent’s testimony that the appellant entered into agreement to refund the motorcycle’s money was not correct as no witness adduced any evidence for the existence of the agreement between them. To cement her argument, she cited the case of Cosmos Construction Co Ltd vs. Aro Garments Ltd [1992] T. L. R 127. Page 5 of 14 Coming to the fourth and last ground of appeal, she submitted that the trial magistrate failed to address all issues which were framed and agreed before trial. She referred this court to the case of Alisum Properties vs. Salum Selenda Msangi (Administrator of the estate of the late Selenda Msangi), Civil Appeal No. 39 of 2018 (unreported) which was referred by this court in the case of Benjamin Mungo vs. Sisi Auction Mart and General Brokers and 3 Others, Land Appeal No. 01 of 2022 (unreported). Having gone through the submission made by the appellant’s advocate, the original court records and the grounds of appeal, this court is duty bound to make determination of the appeal. In determining the appeal, I will address the grounds of appeal jointly since they relate to the issue of whether the appellant proved his claim before the trial court. The main contention on the first and second grounds of appeal is on exhibits PE1 and PE2 which are the receipt and the motorcycle registration card. Having careful considered the submissions made by the appellant’s learned advocate, I find out that she is of the view that, the trial court erred is dismissing the suit on the reason that the testimony given on exhibit PE1 which is the receipt was not trustworthy. She argued that the receipt was not the proof of ownership of the motorcycle but the motorcycle registration card (exhibit PE2). Page 6 of 14 This court having scrutinized the submissions made by the appellant’s advocate and the whole evidence given before the trial court, is in the considered view that, the proof of ownership of the motorcycle was on the motorcycle registration card (exhibit PE2) which bears the name of the appellant. The appellant in his testimony testified that the same was bought at Mbeya City on 25th October 2021, which also reflected in the registration card. This court is of the view that, the trial court should have decided that the appellant is the owner of the motorcycle since exhibit PE2 is the proof of ownership of the motorcycle as provided for under section 15 of the Road Traffic Act (supra) which reads: “The person in whose name a motor vehicle or trailer is registered shall, unless the contrary is proved, be presumed to be the owner of the vehicle”. A motorcycle as defined under section 2 of the Road Traffic Act (supra) defines a motorcycle as follows: “Motorcycle means a motor vehicle with less than four wheels, the unladen weight of which does not exceed four hundred kilogrammes”. Therefore, a motorcycle is among the motor vehicles and its ownership is proved by a registration card as stated under section 15 of the Road Traffic Act (supra). As stated above, the appellant’s claim before the trial court was based on tort of conversion. To prove tort of conversion the appellant had Page 7 of 14 to prove the following elements: First, that he has a legal right of ownership or possession of the property at the time of conversion. Second, that the respondents’ actions interfered with his right to possess or use the property. As a matter of fact, interference may be from actual physical possession or other actions that wrongfully deprive the owner’s rights. Third, that there were actual damages. The appellant had to prove that there was some form of harm or loss suffered as a result of the respondents’ actions. This could include loss of use, diminution in value or any other quantifiable damages. Fourth, that the respondents’ action of conversion was with an intent to exercise dominion or control over the converted property. This could include physically taking, using or disposing of the property without the owner's consent. It is a trite law that in civil suits, the standard of proof is on the balance of probability. See section 3 of the Civil Procedure Code (Cap. 33 R. E. 2019) and the decision made in the case of Hemed Said vs. Mohamed Mbilu [1984] T.L.R. 113. In the instant appeal, from the evidence given by both parties, it is clear that the appellant proved ownership of the converted motorcycle. Therefore, this court is of the considered view that the appellant proved his suit to the required standard. The respondents were wrong in converting the motorcycle which was lawfully owned by the appellant. Page 8 of 14 Having decided the issue raised in this appeal in affirmative, the lingering issue is what are the reliefs which the parties are entitled to? To address that issue, this court has to refer to the prayers made by the appellant in this appeal. The prayers sought by the appellant is for this court to grant the reliefs sought before the trial court. The prayers made by the appellant before the trial court were for the payment of Tanzania Shillings 2,303,000.00 being the value of the motorcycle which was confiscated by the respondents, payment of Tanzania Shillings 50,000.00 per day from the date of filing the suit to the date of full satisfaction of the decree as compensation for loss of income and Tanzania Shillings 20,000,000.00 as general damages. He also prayed to be paid the interest at the court’s rate on the decretal sum from the date of judgment to the date of full satisfaction of the decree and costs of the suit. The appellant adduced evidence before the trial court to prove ownership of the motorcycle that is PE2. It is unfortunate that the trial magistrate closed his eyes on the rest of the exhibits tendered and admitted after he quickly concluded that, I quote: “PW1’s evidence, he bought the said motorcycle in Chapaulinge store located in Mbeya City and he tendered the purchase receipt that was admitted as P.E.1. However, upon perusal of the same, I found out that it is a receipt that was issued from Ilala District in Dar es Salaam which is contrary to what the plaintiff testified on where bought the same from. …. I do not find any need of going on dealing with the rest of the raised issues as they have already been dealt with Page 9 of 14 on the first issue. That being the case, I find the suit justification and therefore dismiss the same…” The honourable trial magistrate concluded that the receipt (exhibit PE1) did not bear the name of the store where the appellant stated to have bought the motorcycle. Had taken a minute to refresh on his typed proceedings at page 25, the appellant testifying as PW1 stated, I quote: “The purchase receipt namely King Lion Company. But I bought it from Chapaulinge store. Then informed me that their receipt normally regrets the supplies company and not the agent. That is why it reads King Lion.” From this excerpt, it is crystal clear that the appellant gave a reason as to why the name of Chapaulinge store did not appear on the purchase receipt. It is so unlucky for him that the trial Magistrate closed his eyes and concluded the matter. In my view, the appellant gave a reason on the difference shown on the receipt that, the motorcycle company name is the one which is on the receipt and not that of the agent. One thing is clicking in my mind. Does a receipt of purchase of a motor cycle prove ownership in lieu of the registration card? In responding to that question, I had to revisit the trial court’s page 26 of the typed proceedings. The trial court admitted motorcycle registration card and marked as PE2. The exhibit has the name of the appellant. According to the provision of section 15 of the Road Traffic Act (Cap. 168, R. E. 2002) the proof of ownership of a motorcycle is through the registration card. The trial magistrate was duty bound to evaluate all Page 10 of 14 the evidence and make an informed decision. What he is did is half backed decision. With the evidence adduced by the appellant, I am convinced that he proved to be the owner of the said motorcycle. Thus, the appeal has merits. Being convinced that the appellant is the owner of the motorcycle as there was no evidence to the contrary, now I turn to his prayers. Which are: Payment of the Tanzania Shillings 2,303,000/- value of the motorcycle. Since this is the price of the motorcycle, not disputed, before the trial court and the receipt was tendered and admitted, it is granted. General damages of Tanzania Shillings 20,000,000/- while deciding on granting general damages, I wish to be led by authorities available. Starting with P. M. Jonathan vs. Athuman Khalfan [1980] TLR 175. It was stated that: "The position as it therefore emerges to me is that general damages are compensatory in character. They are intended to take care of the plaintiff's los of reputation, as well as to act as a solarium for mental pain and suffering." This means that, the general damages are within the discretion of the court. The Court of Appeal elaborated on general damages in the case of Cooper Motor Cooperation Ltd. vs. Moshi/Arusha Occupation Health Service [1990] T.L.R 96. The Court stated that: Page 11 of 14 "General damages are such as the law will presume to be direct natural or probable consequences of the act complained of, of the plaintiff wrong doing, therefore have been a cause if not the sole or a particular significant cause of damages." Having these authorities then, I think, considering the time passed since the appellant was confiscated his motorcycle that is 16th December, 2021 to date is almost two years and eight months. The appellant prayed for Tanzania Shillings 20,000,000/- as general damages. I have considered the sufferings and torture he underwent; I think it will be reasonable to award him Tanzania Shillings 5,000,000/-. He psychologically suffered and was embarrassed in the society as well. Payment of Tanzania Shillings 50,000/=per day from the date of filing the case to the date of full satisfaction of the decree and compensation for loss of income. In this aspect, he testified that he was gaining Tanzania Shillings 50,000 to 60,000 per day. I grant him Tanzania Shillings 50,000/- this drawn exhibit PE4 which was admitted at the trial court without objection. Since he lost his income due to the confiscation of his motorcycle which earned him income. This will indemnify him to the point as if he was still using his motorcycle as bodaboda. Interest at court’s rate 7% on the decretal amount from the date of judgment to the date of full satisfaction of the decree. Page 12 of 14 From the circumstances of this case and taking into consideration on the testimony given before the trial court, this court orders for the respondents pay to the appellant: (i) Tanzania Shillings 2,303,000.00 being the value of the motorcycle; (ii) Tanzania Shillings 10,000.00 per day from the date of filing the suit to the date of full satisfaction of the decree as compensation for loss of income; (iii) Tanzania Shillings 5,000,000.00 as general damages; and (iv) Interest at court’s rate 7% on the decretal amount from the date of judgment to the date of full satisfaction of the decree. In the event, the appeal is allowed and the respondents are condemned to pay the costs. It is so ordered. Right of appeal is explained. DATED and DELIVERED at MBEYA this 21st day of August, 2024. E. L. KAWISHE JUDGE Court: Ex Parte Judgment delivered virtually before Mr. Ipyana Mwantoto learned counsel for the appellant and in absence of the respondents. Page 13 of 14 E. L. KAWISHE JUDGE 21/8/2024 Page 14 of 14