20070621 TZHC Tabora

IN THE HIGH COURT OF TANZANIA

AT TABORA DC. CIVIL APPEAL NO.19 OF2003 (Arising from Kahama District Court Civil Case Nol5/2001) DEOGRATius· M. HUBERT ................. . APPELLANT

VERSUS MW ANZA HASSANI ........................... RESPONDENT

JUDGEMENT 29TH May,07 & 21 st June,07. MZIRAY, J. By an agreement dated 9/3/2001, the respondent sold to the appellant his motor vehicle registration No. RR - 3405 A, Toyota ' . Landcruiser at an agreed price of Tshs. 4,000,000/= payable as follows: Tshs. 1,600,000/= at the time of execution of the agreement, Tshs. 1,100,000/= on 3/3/2001 and Tshs. 1,300,000/= 1 on 30/6/2001. The appellant paid the first installment of shs. , ! 1,600,000/= and then the motor vehicle was handed to him. The respondent on the other hand retained the vehicle registration card until the final installment was to be paid. Having paid the first installment, it would appear the subsequent installments were not paid by the appellant. 1 ' i The respondent then successfully sued the appellant in. the . . . District Court of Kaham a for breach of contract whereby the appellant was. ordered to pay .the remaining balance. o.f .shs. 2,000,000/= after he had paid shs: 400,000/= and damages in the· sum of shs: 100,000/= per month ft.om the date of filing· the suit to final settlement plus the costs of the suit. . . . The respondent as decree holder, filed before the trial court an application for execution of the decree which was successful. The appellant failed or neglected to ·satisfy the decree as a result, in another application by the respondent, the trial court ordered the.· · I appellant to satisfy the

decree or he be committed to prison as a . . civil prisoner. The appellant filed an application in this court for stay of execution pending the he~ring of an appeal which was already _filed. The court on hearing the appHcation ordered the appellant to pay the respondent the sum of shs. 2,0_00,000,000/= by or before 12/8/2005 in default distress. This order was ·-of ·course · ~ made pending the determination of the appeal filed. What transpired in the course of hearing this appeal' is that after the parties have executed the undisputed agreeinertt~ the respondent handed the motor vehicle to the appellant and it was 2 agreed that the respondent should complete · the process of registration. While the appellant was using the n1otor vehicle it is alleged that it was seized by police on suspicion that it was a stolen property. The appellant was then told to produce documents from Interpol which will satisfy that the motor vehicle was not a stolen property. The appellant demanded these documents but the respondent failed to furnish them. The appellant states that he could not complete paying the remaining installments because the contract had been frustrated after the motor vehicle had been impounded. He is ready to pay the balance if and only if the respondent furnish him with the documents which will result the release of the motor vehicle. In outline that it the synopsis of

the case. Parties through their respective Counsels opted to argue the appeal by way of written submissions. Mr Kayaga, . learned Counsel for the appellant submitted by amplifying the grounds he filed in his Memorandum of Appeal. In elaborating ground one of appeal, the learned counsel argued that failure on the part of the trial court to notify the appellant or his counsel the date and place of delivery of judgment breached the provisions of Order XX rule 2 of the Civil Procedure Code which is mandatory and for that reason it occasioned a failure of justice on the part of the appellant. 3 On ground two, the learned• Counsel submitted that the trial court erred both in law and fact in holding that· the Interpol . confirmation is a thing created by the appellant and is not a legal requirement. The learned Counsel brought in aid the provisions of . Regulation 4(2) of the Road Traffic (SARPCCO Vehicle Clearance Certificate) Regulations, 2000, G.N.31 of 2000, which spell that Interpol .confirmation is a legal requirement. He said that this submission also answers ground three of appeal. Iri ground four, he submitted that the trial court failed to evaluate the evidence of the appellant in line with the spirit of the aforesaid regulation thus ending in an erroneous decision. He concluded with ground five by stating that' the award of damages of shs. 100,000/ per month is

unconscionable with no any justification as there is no evidence to support such award hence it should be rescinded. Mr. Kabunga, learned Counsel for the respondent attacked all the grounds of appeal and the submissions made by the appellant's counsel to have no merit. In response to ground one of the appeal the learned counsel submitted that failure by the trial court to give notice of judgment to the appellant did not vitiate the proceedings and such omission did not occasion failure of justice as the appellant did nof state and name the injustice caused. Reacting to 4 ground two of the appeal Mr. Kabunga submitted that there was no · ·evidence adduced by the appellant to substantiate the assertion that the said vehicle was seized and impounded by the police hence the issue of Interpol confirmation is an afterthought calculated to deceive the respondent. It is argued that as the· appellant has an · obligation to fulfill the agreement entered then he must be forced to perform his part and adhere to the terms agreed upon . . Responding to the ground of appeal related to damages it is · submitted by Mr. Kabunga that in terms of paragraph 6 of the contract executed by the parties it was agreed that any defaulting 1 . ~ party should pay compensation on to the other party· hence the trial court was. justified to award such damages to the respondent. It is argued that this court

cannot enterfere with the award made by the trial court unless it is satisfied that the trial court acted on wrong principles or that the amount was too excessive in the circumstances. In th~ end the respondent prayed for the appeal be dismissed to its entirety with costs for having been misconceived and filed without any merits. 5 Having heard parties submissions through their respective . Counsels it is upon this court to decide on the matters raised by the appellant in his grounds of appeal. The first issue to resolve is that of notice of judgment. The appellant has attacked the trial court that it delivered judgment in the absence of the appellant which was against the spirit of order XX rule I of the Civil Procedure Code. It is true that the appellant was entitled to know the outcome of his case but in my view I • failure to give notice of judgment to the party to the proceedings cannot vitiate the proceedings :unless such omission had occasioned failure of justice. In the instant matter the appellant has not shown how he was prejudiced for failure by the trial court to give him notice of the date of judgment. To my mind he was-not prejudiced because he even manage4 to appeal in time. I therefore consider that there was no injustice occasioned. The second issue to determine is whether the trial court erred in holding th~t the Interpol confirmation is not a legal

requirement. ~irst, in order to determine whether Interpol confirmation is a legal requirement, we must be satisfied if there is evidence to prove that the motor vehicle is seized and impounded by- police. According to record of the trial court, there was· no evidence produced to 6 ' I substantiate the assertion that ·the motor vehicle in dispute was seized and impounded by police on allegation of theft to required Interpol confirmation. The trial court,· I think was right in its decision to say that, "in order the court to believe the defendant's allegation that his motor vehicle is really seized, he must show the seizure certificate..." It is possible as submitted by Mr. Kabunga that the issue of Interpol confirmation is an afterthought. After all, it was not covered in the agreement executed by the parties. ·It was proper the way the trial court dealt with this issue. l t \ . The other issue worth discussing in this appeal is on damages. The appellant relies on paragraph 6 of the contract executed that it allowed damages in event the other party violates the terms of the agreement. ·This is true but there must be justification or evidence to support such award. The respondent did not prove before the trial court to show that he suffered loss to warrant him the award of Tshs. 100,000/= per month. The trial . court failed to _show the creteria on how it arrived at this figure. I therefore agree with the appellant that the damages awarded have . no legal justification. Accordingly I rescind the order awarding damages to the respondent. 7 In total, save for the order for damages which has been rescinded, I dismiss this appea] with costs. Right of appeal explained. ,,_.......:•·· ..... . . '- JUDG: ~ 21/6t07 :8 -. Iii ' < •