Elias Chija Ntaganda

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF MOROGORO AT MOROGORO CIVIL APPEAL NO 26 OF 2023 (Appeal from the decision of the District Court of Morogoro at Morogoro In Civil Case No 41 of 2022 before E.C. LUKUMAI Esquire Senior Resident Magistrate dated 28''^ August 2023) BETWEEN ELIAS CHIJA NTAGANDA APPELLANT VERSUS 1. SELEMAN TOMSON KANYONZA RESPONDENT 2. ESILY MWANKENJA 2'^» RESPONDENT JUDGMENT MRUMA,J In the District Court of Morogoro at Morogoro, the Appellant Ellas Chija Ntaganda sued the Respondents for the following orders; - 1. An order to return Appellant's Motor Vehicle with registration number T.408 DHS Mitsubishi Canter truck; 2. An order for payment of shillings two Hundred Million being loss of business and mental torture; 3. An order for payment of importation costs amounting to shillings 20,000,000/= (Say Twenty Million) only; 4. An order for payment of interest at the rate of 12% per annum from the date of judgment; 5. An order for payment of interest at commercial bank rate from the expiry date of 14^ day's Demand Notice up to the day of full payment of the business loss and; 6. Costs of the suit. It was the Plaintiff statement in his plaint that sometimes in 2016 he imported into the country Mitsubish Canter Truck Model Guts (hereinafter referred to as the truck). The truck was registered as T.480 DNS. Sometimes in December 2019, the Appellant was approached by the first Defendant who wanted to hire his truck for shillings 50,000/= (Say Fifty Thousand) only per day. The Appellant accepted that offer and the hire agreement commenced on 22"''^ May 2019 when he handed over the truck to the first Defendant (i.e. the first Respondent herein Seleman Tomson Kanyoza). After the handing over of the truck the first Respondent paid the agreed hire-price for two days only before he disappeared with the truck. Efforts to trace him and the truck proved futile till on an undisclosed date when the truck was seen parked at the second Defendant's premises. It was without engine and tires. The Appellant asked the second Respondent to deliver it to him but the second Respondent refused demanding to be paid Shillings 4,000,000/= (Say Four Million) first, being costs for keeping safe the truck from the date it was parked there by its driver. The Appellant refused to pay. When the first Respondent was asked to allow the Appellant to take the truck he refused. The Appellant decided to sue both Respondents in the District Court for the following orders 1. An order for return of the Motor-vehicle while in a state and condition as at the time it was taken from the Appellant by the first Respondent; 2. An order for payment of Tanzania Shillings 200,000,000/(Say Two Hundred Million) only being loss of business and mental torture; 3. An order for payment of importation costs amounting to Shillings 20,000,000/= (Say Twenty Million) only; 1 4. An order for payment of interest at the rate of 12% per annum from the date of judgment to the full satisfaction of the decree; 5. An order for payment of interest at commercial bank rate from the expiry date of 14 days demand Notice up to the day of full payment of the business loss; 6. Costs of the suit and; 7. Any other relief(s) the court would deem fit to grant. Efforts to serve first Respondent by ordinary service proved futile and accordingly he was served by substituted service by publication through Nipashe Newspaper of October 2022 at page 26. That service notwithstanding, the second Respondent did not enter appearance. On October a prayer to proceed ex-parte against him was made and granted and matter proceeded ex-parte against him. The second Respondent filed his written statement of defence denying the Appellant's claims and stating that he did not enter into any agreement with the Appellant the breach of which would entitle the Appellant with the remedies claimed. He stated that he refused to hand over the truck to the Appellant because he had no instructions from the first Respondent who parked it at his premises to hand it over to the Appellant. After hearing both sides, the trial magistrate was of the view that the Appellant had managed to prove ownership of the truck but had failed to prove that he was entitled to the claims for loss of business and costs for importing the truck into the country. Consequently the trial court ordered the second Defendant to release (i.e. hand over) the truck to the Appellant. It made no orders as to the costs. Aggrieved with the findings and judgment of the trial court the Appellant has appealed to this court on the following grounds:- i. That the learned trial Magistrate erred in law and facts to hold that the 2"^^ Defendant disputed all the claims in his written statement of defence whereas there a lot of admissions in the said written statement of defence; ii. That the learned trial magistrate erred in law and facts to hold that the motor vehicle in dispute was found in the 2"^ Defendant's premises without tires and engine; iii. That the learned trial magistrate erred in law and facts to hold that there was no contract entered between the first Defendant and the Plaintiff; iv. That the learned trial magistrate erred In law and in facts to hold that there was no breach of contract between the Appellant and the first Defendant; V. That the learned trial magistrate erred in law and in fact to hold that the Appellant is not entitled to payment of Shillings Two Hundred Million (TZS 200,000,000/=) being loss of business and mental torture; vi. That the learned trial magistrate erred in law and in fact to hold that there was no evidence to show the condition of the Motor vehicle at the time when it (the motor vehicle) was handed over to the Defendant; vii. That the learned trial magistrate erred in law and in facts to hold that the nature of the case is not conducive to order costs; viii. That the learned trial magistrate failed totally to analyse the case properly and decide in favour of the Appellant. At the hearing of this appeal the Appellant was represented by Mr Abraham Hamza Senguji, learned advocate while the Respondent appeared in person and unrepresented. Parties agreed to argue this matter by way of written submissions. In his submission in support of the first ground, counsel for the Appellant narrated the Appellant's biography before revisiting albeit briefly the gist of the present appeal. The learned counsel explained how the Appellant acquired the suit truck and how it was handed over to the first Respondent for him to use it and pay shiilings 50,000/= per day. He submitted that on 29^^ September 2020 the Appeilant found his truck parked at the second Respondent's premises but when he requested him to allow him to take it the second Respondent refused. According to the learned advocate despite the fact that the Appellant reported the incident to the police but police did not give him any assistance as a result he decided to institute this proceeding. In the first ground of this appeal counsel for the Appellant faults the trial court for its failure to enter judgment on admission despite the fact that the 2"^ Respondent admitted to have refused to hand over the truck to the Appellant and despite the fact that case against the Appellant had proceeded ex-parte therefore there was no defence to the claim. I beg to start with this ground. Judgment on admission is a common law principle which is embodied in our civil procedure and is covered under Order XII Rule 4 of the Civil Procedure Code. The primary object of the Rule is to enable party obtain speedy judgment where there is such admission. Admission in the context of Rule 4 is not defined in the Civil Procedure Code, but borrowing the definition form Section 19 of the Law of Evidence Act the term admission is defined as follows:- " an admission is a statement orai, eiectronic or documentary % which suggests any inference to a fact in issue or reievant fact and which is made byany ofthe personsandin the circumstances herein mentioned". On the other hand Black's Law Dictionary defines admission as "Any statement or assertion made by a party to a case and offered against that party an acknowledgment that facts are true. It is an admission against interest as a person's statement acknowledging a fact that is harmful to the persons position as a litigant. An admission against interest must therefore be made by the litigant or by one in privity with or occupying the same legal position as the litigant. In the case at hand it has been submitted that the 2"^ Respondent admitted all the allegations raised by the Appellant and reference is made to paragraph 8 of the written statement of Defence. The said paragraph reads: "That the contents ofparagraph tweive are partiy noted to the extent that the piaintiff wanted to be handed over the vehicie. The rest ofavermentare denied as the second Defendant denied to hand over the vehicie to the piaintiff since there was no agreement neither instructions from the first Defendant to aiiow the vehicie to be handed over to the Piaintiff." In view of the definition of the term admission which is quoted above, paragraph 8 does not amount to an admission. The second Defendant did not admit any fact in issue. The fact in issue was whether there was any agreement between the Plaintiff, first Defendant and second Defendant relating to the said motor vehicle and on the evidence adduced there was none. In the second, third and fourth grounds of the Appellant's appeal, the learned trial magistrate id faulted for failure to find that there was no contract between the Piaintiff and the first Defendant and that the first Defendant had breached the said contract or agreement (Exhibit P3). I have carefully scrutinized Exhibit P3. To say the least it is not a contract and/or an agreement legally speaking but rather a hand over note. For a contract to be valid it must have the following features to mention but just a few: i. Offer and acceptance: A valid contract must have a valid offer and a valid acceptance; ii. Consideration and iii. Legality in the sense that it must be consistent with the law. % In the instant case Exhibit P3 is piece of paper apparently written by the Plaintiff stating in Kiswahili that:- "M/m/ Mzee EHas Chija (Ntaganda) Nimemkabidhi Gari(Canter) Tani2Ndugu Selemani Tomson, aende nayo Mjini Kikazi. The document (Exhibit P3) is signed by the Plaintiff and purportedly by Selemani Tomson (the first Defendant). But even if we assume that by signing it the first Defendant accepted the offer, however there was no offer and no consideration. The document does not state the work which the first Appellant was going to work with the truck in town and whether it was lawful or not. In such circumstances I agree with the learned trial magistrate that there was no contract between the Appellant and the first Respondent Seleman Tomson. Thus, ground of appeal No 2 is dismissed for want of merits. Having found that there was no contract between the Appellant it goes without saying that there can be no breach of a contract and this answers ground 4 of the appeal in the negative. That is to say the trial court was right to hold that there was no breach of contract, this ground is therefore equally dismissed for lack of merits. 10 Similarly as there is no evidence that there was an agreement % between the Appellant and the first Respondent, the trial court was correct to find that the said truck was found parked at the second Respondent's premises without engine and tires. That is so because there is no evidence whatsoever regarding the condition of the said motor vehicle at the time it was abandoned allegedly by the first Respondent at the second Respondent's premises. The condition of the said motor vehicle was neither pleaded no raised as an issue during the trial. In Land Appeal No 25 of 2015 between Juma Abdillah Bakari Versus Mbaraka A. Bakari, this court at Mtwara District Registry held that: "/f/s to be understood that an issue becomes a legalIssue when It Is apparent on the face ofthe pleading which commences the suit. " In the case at hand condition of the truck was not an issue during the trial and therefore It cannot be litigated at the appeal level. This finding also covers ground No 6. Accordingly this court finds that ground No 2 and No 6 have no merits and they are dismissed. Grounds No 5 and 8 attacks the trial court's findings on the ground of lack of analysis of the evidence adduced. As stated above, the 11 4 evidence adduced didn't establish any contractual relationship between the Appellant and the first Respondent. Exhibit P3 is not an agreement of a contract in the eyes of law. In absence of a contractual relationship between the parties'there is nothing else that could be analysed to enable the trial court to find in favour of the Appellant. As regards the Appellant and the second Respondent, there was no evidence connecting the two and one could simply conclude that the Appellant had no cause of action against him. The evidence on record shows that the first Respondent who was the second Respondent's tenant parked and abandoned the Appellant's truck in the second Respondent's premises without his consent. He cannot therefore be held liable for its being continuing parked there or any damages arising therefrom. To the contrary he could even sue for damages. He didn't raise a counter-claim. Grounds No 5 and 7 which is faulting the trial court for failure to award damages and costs of the suit, it is trite law that a party who fails to prove his/her case cannot be entitled to reliefs claimed therein. 12 « ^. That said and save for the order to remove his truck from the second Respondent's premises which is upheld, the Appellant's appeal is dismissed with costs. It is so ordered. 0^ A.R. MRU MA OO ■i. ■y a: % Yi JUDGE LU > 01 y •O.J 23.10.2024 13