20000119 TZHC Dar es Salaam

IN THE HIGH COUFT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM CIVIL APPEAL N0.121 OF 1998 EMILY ~LLYA ••••••••••••·•••• APPLICANT VERSUS EZEKIEL p. KAIVi.BANGA " •••••••••• ~-~ JUDGMENT ,,B~,tl.!• J : ~. Uronu. learned eo\Jnsel has filed this appeal 011 behalf of the appellant• The appeal is against the deei.i.on of the trial court which ¾lad d; smi.s~ tbe- .aw.t. filed ·i,,c. -t.he plaJ.nti.tf .noJrit .llan:t~ .sie has filed some ten grol..Ulds ·17U.t .in course of his submis4ion, argued only (7) grounds and,.a.bandonned tbe- rest. In :tounds (1) and (2) M.w ~ et~-t~ t~-t 'the- trie)- magi8tl'a1-.ta er.ed- to 4.i.UiP'el'Wiate the issue no (1) and (2) fromed., That while in dealing with the 1st issue he found for the appellant and yet in issue no 2 he resolved that both the eppellant and CRDB own the vehicle under dupute. Mr,- lJr.c,mJ, ~ateQ. -thax on evidene-9 the v.ehicl..Q. -'1l!C& owned by~ appellant. In ground no (3) eoun$el oomplained that the trial magistrate ex-red to confuse ownership and liquidation of the loan. He argued that the matter at issue was who owned the vehicle; the matter dealing with liquidation of the loan was not in issue. He also added that section 23 of Sales of Goods Ordinance povides that when a setter has a voidable title which has not been voided at the time of sale, the buyer acquires good title to the goods, provided he buys the same without notice. That the buyE:r is estopped from denying title merely to escape liability. He artued that the appellant had cleared his loan by JUl.y, 1993 and that this piece of evidence was not contr'overted by DW 6 Nsekela Mi tike. On whether the remedy ·sought was unreasonable. Mr. Uronu submitted truit parties were, bound by the terms of their agreement; that the respondent was obligated to pay by 30/4/94 or else the security pledged was to be resorted to. :'i . In gtound 7 he complained that the principles of impartiality and fair play were not followed in that the · judgment took one year before it was delivered and when it was ready, the appellant was not notified • . He prayed for the appeal to be allowed and dismissal. of the qounter claim. The respondent on his part prayed for the dismis$al of this appeal. He stated that the appellant co woned the vehicle with the CRDB - DW_6 Nsekela Nitike'~ evidence.· That he was co erred into signing the agreement without .understanding the contents of the agreement• He also lamented being given a defective motor vehicle and st~ted that PW 1 and PW 3 lied in court. He also added that the value of the house he mortaged is far in excess than that of the vehicle. In reply Mr. Uronu stated that to sign the agreement and that he understood the contents. As to the value o~ the house being far in excess man the pri•e ot the motor vehicle, the appellant stated· that this is a new issue. It was not argued during trlal. -Having considered arguments raised by both the appellant and. the respondent, thi$ court has come to the following conclusion. on grounds 1 and 2 the trial magistrate.decided issue not in the affirmative in that the appellant was the sole proprietor of the motor vehicle and yet in issue no 2, he stated that the appellant ~o owned the motor vehicle with CRDB. Indeed I agree with Mr. Uronu that, on evidence on re~ord and in particular that given by !M 6 Nsekela Nitike, that as on the date of sale of the motor vehicle ie 23/9/93, the vehicle was co owned by both the appellant and CRDB. The last instalment was made on 27/12/93-and the appellant did not challenge this evidence. I am satisfied that the trial magistrate meent to say that issue no l isanswered in the negative. , ••• /2 ln the second iss~, the tr!al mag~strate concluded that on the date of sate ie, 2~/11~,, ~ne appellant and· the tftDB co owped the vehicle~ · What I Gan re~~rk here~&~~ ~ere issues were badly framed. Issues (i) and(?) 61j£ht ~o have beeh framed as: w~e~her on ~he da}~ of sfle of motor.•.· vehii~e ~he platnt~tf owtJ,ed the vehicle jo.tnlly wj, th ;tw ffU'BJ ' The way the ~o ~ss~~§ were f~am~d are in my firm view super!lau~ and repe~i~v~ 1 Op ~he ev~dence on record the trial magistrate eam.e to a proper finding of fact that the vehi~le in ql¼etrtion was 11ot owned by the appellant ~~ al.One. · · On iss~e,s 0£ owner9hip and tnat of liquidation of the loan,. wh!le I agt>~e qhat the ;f,.ss\Je here was ori ownership of the_vehic1~ and t,herefore if the appellant couJ_d_pass good title to the res.pendent, The trial magistrate,· in view o-f the· ~vtdenf~ tendered that the vehicle was . " .. brought by loan from CRPB, had to consider whether the loan i:ia,ct been 1½4\l~da"t~d so as to give 1fe appellant soie propr'ie-t;orqbip~- -!, · ~annot fault the t~ial magistrate ih this l!!per~, 'the &ssue of th~ lqan r.annot be divorce i'rom is$ue· _of owhershipe'' 'rhe appellant's conJentiort that he had· repaid his loan by JV,ly l993_wa~ controverted by DW 6 Nsekela Nitike ~vj_gen9¥-~ It was vpon the appellant to satisfy the ~ourj ~the had eieaned his wan from CRDB. He did not do .so "tnd called no official from the Bank to support hi~ clai~. +would reject this ground too. On whether the remedy sought being consciounable. Here again the_dift~culty come about largely because on .. was framed. This issue ought to.have been how the issye framed a:s: "what· ~eliefs are part~es entttled to." .. 4 '!'he trial court would then have considered what remedie·s are the parties entitled to in view of the value of the motor vehicle and the security pledged~ on issue no· 3 - whether or not the t~rrn~ of sale is 9I' valid I must confess I am at a loss ~s to what this issue means~ ·'i-~d have framed it as under: If the-. answer to issue no J. abo~e is i.n the affirmative \iJhether ·there was a val id -cal.e .agr.e~cnt: b~twecn the partie-s on ;r~/9/9,~ ... In the ~nal event I think justice will only b·e done . ' this matter is heard de nova . and the relevant officer . summoned from -the Crum, ± would propose. the following iasue:s: 1; whether on the date of sale of motor vehicle; the plaintiff co owned the ~2bicie, join:tly · with the Bank CRDB ~ 2.· If the answer to (1) above is answered in the affirmative, whether there was a valid sale agreement between the . plaintiff and the defendant • . 3. What reliefs are parties entitled to_. The appeal is allowed to the extent that on the misdirections that are apparent let the matter be tried de novo. I make no order as to costs.. .. :AC~.1?) ,.,J~J.\A· Delivered before A.G. BUBESHI Mr. U;roni ·for the Appellant, JUDGE and in absence of the 19/1/2000 Respondent