CIVIL APPEAL 1535 BEFORWARD FINAL 2

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM CIVIL APPEAL NO. 1535 OF 2024 (Originating from the District Court of Ilala in Civil Appeal No. 92 of 2020) FRANK PETER MASHAURI …………......……….…….….…………. APPELLANT VERSUS BE FORWARD TANZANIA LIMITED …….………………..……… RESPONDENT JUDGMENT 21st August & 28th November, 2024 BWEGOGE, J.: Way back in November, 2019, through online exploration, the aforenamed appellant discovered that the respondent herein, a limited company, deals in motor vehicles. The appellant visited the respondent’s office and expressed his intention to purchase a vehicle. He was shown vehicles displayed online through a web page and chose the vehicle make Suzuki Jimmy for purchase. Consequently, the respondent’s officer issued the appellant an invoice with instruction to deposit the purchase price to the tune of USD 2853 into the respondent’s bank account. Promptly, the appellant deposited the purchase price in the respondent’s bank account provided. The respondent promised to deliver the vehicle within one month. It was not until 13/01/2020, that the appellant was informed that the consigned vehicle had been delivered at Dar es Salaam port. Having cleared the payable assessed tax and necessary charges, the appellant was handed the vehicle on 22/01/2020. No sooner than the appellant drove the vehicle from the port, mechanical defects unfolded, necessitating immediate attention. The appellant’s attempt to fix the mechanical defects proved futile. He communicated the problem to the respondent who instructed him to take the vehicle to a well-known garage for proper inspection/service. The appellant took the vehicle to the National Institute of Transport (NIT) for inspection. The vehicle was duly inspected and found with myriad mechanical faults needing maintenance. Initially, the respondent promised to foot the maintenance costs. However, later on, the respondent informed the appellant that the vehicle had no warrant obliging her to meet maintenance costs. Thus, the appellant opted to commence civil proceedings (Civil Case No. 92 of 2020) in the District Court of Ilala, claiming compensation for breach of contract. 2 During the hearing of the case, the respondent came up with a defence in that she didn’t execute a contract of sale of a motor vehicle with the appellant. That her role in the contract was merely facilitation of the importation of motor vehicle from Japan; such contractual obligation was duly discharged. The trial court having heard both parties herein found that there was no sale agreement between the parties herein, among others. Eventually, the suit was dismissed. The appellant was not amused. Hence, this appeal. Seeking to defeat the judgment and decree entered by the District Court of Ilala in Civil Appeal No. 92 of 2020, the appellant advanced six (6) grounds of appeal as rephrased hereunder: 1) That the trial magistrate erred in law and fact for failure to consider the legality and authenticity of the vehicle purchase agreement tendered by the respondent. 2) That the trial magistrate erred both in law and fact in total disregard of documentary evidence tendered by the appellant during trial court without justifiable cause. 3) That the trial court erred in law and fact in respect of the applicable laws and the right parties to the contract. 3 4) That the trial magistrate erred in law and fact in dismissing the appellant’s case despite overwhelming evidence in his favour. 5) That the trial magistrate erred in law and fact in failing to consider that the parties hereto executed a valid agreement in law. 6) That the trial magistrate erred in law and fact for failure to properly evaluate the evidence given by the appellant which established conclusively that the respondent failed to discharge his contractual obligation. The appellant had the services of Mr. Mpwaga Bernard, learned advocate; and Mr. Wilson Moses Mafie, learned advocate, entered an appearance for the respondent. This matter was argued by written submissions of which have been duly considered. I would now canvass the above-mentioned grounds of appeal, commencing with the 6th and main ground of appeal which, in substance, encompasses complaints registered in the 1st, 2nd 4th and 5th grounds of appeal. The charge in the 6th ground of appeal is that the trial magistrate failed to properly evaluate the evidence given by the appellant; hence, entered an erroneous decision. In discussing this ground of appeal, I find it pertinent to revisit the appellant’s case in the trial court in extenso. The appellant testified as PW1. In substance, he testified as follows: Having become aware of the 4 respondent’s dealings in motor vehicles he visited the respondent’s office and expressed his intention to purchase a vehicle make Suzuki Jimmy within his financial capacity. He was shown vehicles advertised online through the web page and he chose the vehicle with a tagged price of USD 2853. He was issued with an invoice and the respondent’s bank account number to deposit the cash. The appellant deposited the purchase price as he was instructed on 11/11/2019. The invoice (purchase agreement) and business card were admitted as exhibit P1 collectively. Likewise, the appellant tendered a deposit slip (exhibit P2) to prove payment of the purchase price to the tune of USD 2853. PW1 enlightened the trial court that though he was promised to receive the vehicle within one month, it was not until 13/01/2020 that he was informed by the respondent that the ship carrying his vehicle had docked; hence, required to proceed with tax clearance payment. He paid a tax clearance fee of TZS 7,615,676. The tax assessment document was admitted as exhibit P3. Likewise, the deposit slip for incidental charges dated 21/01/2020 was admitted in evidence as exhibit P4 collectively. Eventually, on 22/01/2020, the appellant was handed the vehicle by the respondent’s officer. In an attempt to drive the vehicle, the appellant discovered that the gears could not engage 5 smoothly. He attempted to mend the mechanical defect at his own expense, but the defect persisted. He reported the defect to the respondent who advised him to take the vehicle to the well-known garage. He opted for the NIT Garage for inspection. It was ascertained that the gearbox, among many other defects, was defective. The respondent promised the appellant that she would foot maintenance costs. Later on, the respondent declined to foot the maintenance expenses for the reason that the vehicle had no warrant. PW1 informed the trial court that to date, the vehicle doesn’t run. The testimony of the appellant was augmented by one Abel Masanja (PW2), the Motor Vehicle Inspector from NIT. In substance, PW2 deponed that he inspected the vehicle in question and found it with mechanical defects. The vehicle inspection report was tendered and admitted in evidence as exhibit P7. The defence case was coached by one Lazaro Elias (DW1), the system administrator/supervisor of the appellant. In substance, DW1 deponed that the respondent is a limited company dealing in facilitating importation of the motor vehicles from overseas. That they offer clients information on how to purchase and import vehicles in the country. And 6 the respondent is a distinct company from Be Forward Company Limited. That the appellant purchased the vehicle from Be Forward Company Limited through their facilitation. DW1 tendered the agreement for the purchase of the vehicle and bill of lading which were admitted in evidence as exhibits D1 and D2 respectively. DW1 concluded that the appellant received the vehicle through their facilitation but later alleged that the vehicle was mechanically defective and claimed compensation. He asserted that the respondent is not liable for the mechanical defects of the vehicle as they merely assisted the appellant in purchasing and importing the respective vehicle. During the commencement of hearing, the trial court certified the following issues for determination. 1. Whether there was a contract of sale (and importation of a motor vehicle) between the parties. 2. Whether there was breach of the agreement. 3. To what relief are the parties entitled. As I earlier mentioned, the trial court arrived at the conclusion that there was no agreement for sale of the vehicle between the parties herein. The trial court subscribed to the explanation made by the defence (respondent) in that the respondent assists the clients with necessary 7 information on how to purchase and import vehicles from overseas. Likewise, based on the document purporting to be a sale agreement (exhibit D1) between the respondent herein and Be Forward Company Limited, subscribed to the explanation given by the defence in that the Be Forward Tanzania Limited (appellant herein) is a distinct company from Be Forward Company Limited. That the appellant purchased the vehicle from Be Forward Company Limited through the facilitation of the appellant. Thus, based on the above premises, the 1st issue was answered in the negative leading to the collapse of the subsequent issues. Now, the pertinent question arising herein is whether the trial court failed to evaluate the evidence; hence, arrived at the erroneous conclusion. I have painstakingly scrutinized the records of the trial court as a whole, including the oral and documentary evidence adduced and the final decision rendered by the trial court as well as the submissions made by both counsel herein. And I have observed the following matters: One, it is in the testimony of the appellant that when he visited the respondent’s office and expressed his intention to purchase a vehicle make Suzuki Jimmy within his financial capacity. He was shown vehicles 8 advertised online and he pointed to the vehicle with a tagged price of USD 2853. He was issued with invoice and the respondent’s bank account number to deposit the cash. The exhibits P1, and P2 speak volumes of this fact. Suffice it to say that it is an undisputed fact that the invoice provided forth for the purchase of the respective vehicle bears the bank account of the respondent. The appellant relied on this evidence in asserting that he purchased the vehicle from the respondent. I am of the considered view that the conducts of the parties herein signify the existence of sale agreement notwithstanding wanting formal agreement to that effect in terms of the provision of section 5 (1) of the Sales of Goods Act [Cap. 214] of which I beg to reproduce verbatim hereunder: "Subject to the provisions of this Act and of any other written law in that behalf, a contract of sale m ay be m ade in w riting (either with or without seal) or by w ord of m outh; or m ay be im plied from the conduct of the parties.” [Emphasis mine] See also the case of Junior Construction Company Limited vs. MANTRAC Tanzania Limited (Civil Appeal No. 81 of 2021) [2024] TZCA 258 wherein the Apex Court, in invoking the provision of section 5 (1) of the Sales of Goods Act in ascertaining existence of a lawful and 9 binding sale agreement between the parties based on their conducts, had this to say: “It is as well not disputed that the respondent supplied the appellant with the machines and she received them, though the same were not of the agreed brand/make. The record of appeal reveals further that the appellant partially paid the purchase price of the said machines and the respondent accepted such payment. As such, the terms of the Credit Sale Agreement were not fully adhered to by both parties. That notwithstanding, there is sufficient material in the record of appeal showing that there was a lawful and binding sale transaction between the parties falling squarely within the ambit of section 5(1) of the SGA.” Moreso, it is common knowledge that an invoice is a formal document that a seller issues to a customer, specifying the details of a transaction. It lists the products or services provided, their quantities, and agreed-upon prices. The invoice acts as a payment request, indicating the amount the customer owes to the seller, and is used as a record of sale after the invoice is paid. Invoice is one of the elements of the formal contractual documents. The invoice, in itself, is an essential element of a contract between the parties notwithstanding lacking formal executed contract to that effect. In the case of Mollel Electrical 10 Contractors Limited vs. MANTRACT Tanzania Limited, Civil Appeal No. 394 of 2019, CA (unreported), the Court expounded thus: "Besides, it will be instructive to restate the trial court's reasoning on this aspect that, in terms of section 5(1) of the SGA, the proform a invoices (Exhibit P 5) and the purchase orders (Exhibits P I and P 4), exhibiting an offer and an acceptance by the appellant, constituted the contract.” [Emphasis mine]. See also in this respect the cases: Manyanya Oil Ltd vs Megapetrol Ltd & Another (Commercial Case No. 123 of 2023) [2024] TZHCComD 80; and Somochem Ltd vs Prince Africa Ltd (Commercial Case No. 114 of 2023) [2024] TZHCComD 248. Two, the sale agreement tendered by DW1 (Exhibit D1) depicting that the parties to the contested sale agreement are Be Forward Company Limited (seller) and the appellant herein (purchaser) was never issued to the appellant at the first instance. It surfaced after the dispute arose between the parties hereto, specifically when the respondent made her defence in the trial court. Notwithstanding the questionable validity of the document, had the respondent been honest in her dealing with the appellant would have informed him specifically that he was purchasing 11 the vehicle from Be Forward Company Limited directly on her facilitation; and the purchase price would have been paid directly to the seller (Be Forward Company Limited). I need not mention that apart from the fact that there was no direct communication between the appellant and Be Forward Company Limited in the whole process of purchasing the vehicle in question, no proof was brought to the attention of the trial court on how the purchase money reached the purported seller (Be Forward Company Limited). Given the foregoing observations herein above, I am of the settled view that there was a valid motor vehicle sale agreement between the parties herein. Specifically speaking, the appellant herein purchased the motor vehicle in question from the respondent herein. Based on the inspection report (exhibit P7) made by PW2; it is not controverted that the vehicle delivered to the appellant by the respondent is mechanically defective and remains grounded to this very date. It is the law that where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the item is required, and the buyer relies on the seller's skill of judgment and the item is of a description which it is in the course of the seller's 12 business to supply; there is an implied condition that the item shall be reasonably fit for such purpose [section 16 of the Sales of Goods Act]. The appellant expected to be handed a mechanically fit vehicle to meet his needs. The respondent failed to discharge her obligation in this respect. Based on the foregoing, I am on all fours with the appellant in that the trial court failed to evaluate the evidence tabled before it and strayed in an error in finding that there was no sale agreement between the parties hereto. In this respect, I find cogent ground to fault the trial court’s decision. That said, I find the 6th ground of appeal meritorious. As aforementioned, the 1st, 2nd, 4th, and 5th grounds are intrinsically connected to the 6th ground. Hence, the discussion above disposes of the 1st, 2nd, 4th, and 5th grounds of appeal as well. Lastly, I direct my mind to the 3rd ground of appeal. The complaint thereof avers that the trial court misdirected itself as to the applicable laws and the right parties to the contract. This ground need not detain me. It is glaring on the decision of the trial court that the 1st issue was answered in the negative based on the ground that the actual seller of the motor vehicle in question is Be Forward Company Limited of which, 13 if the appellant wishes to sue, must abide with the terms of the agreement in which the agreed forum is the court of Japan; and applicable laws are the laws of Japan. This finding was made after the trial court strayed into an error in that the appellant herein had no purchase contract with the respondent, but Be Forward Company Limited. As I found that there was a valid sale agreement between the appellant and respondent herein, I would not tarry to find that the 3rd ground of appeal has substance as well. Before penning down, I would address the following matters: Firstly, the pleadings filed by the appellant depict that the same prayed for payment of TZS 30,086, 500/= being compensation arising from the breach of contract and general damages to the tune of TZS 10,000,000/= for unutterable disturbances suffered, among others. And alternatively, the appellant prayed for the replacement of the motor vehicle subject of this dispute, among others. Having considered the circumstances of this case; I find it convenient to vouch for the alternative prayer in that the respondent to make replacement of the mechanically defective vehicle previously handed to the appellant by alternative vehicle in good running condition. 14 Secondly, I have taken cognizance of the fact that the appellant made a deposit into the respondent’s account for the purchase of the vehicle on 11th November, 2019. Good five years have elapsed since the appellant parted with his hard-earned purchase money. To date, the appellant’s expectation to have his private means of transport has been thwarted by the respondent’s failure to discharge her contractual obligation. Moreso, considering the mental torture/anguish of mind, suffered by the appellant, coupled with rigorous litigations he went through, I am of the settled view that the appellant is entitled to general damages to put him in the same financial position he would have been but for the alleged breach. Hence, in the circumstances of this case, I find that the appellant should be allowed to recover the general damages to the tune of TZS 10,000,000/= prayed for in the trial court. In summary therefore, I find the appeal herein meritorious. I would allow the appeal in its entirety. The decision and orders entered by the trial court are hereby quashed and set aside. For clarity, I hereby enter orders as under. 1. The appellant to return the mechanically defective vehicle to the respondent with immediate effect. 15 2. The respondent to supply the appellant with an alternative mechanically fit motor vehicle of the same choice, unless mutually agreed otherwise. 3. The respondent to pay general damages to the appellant to the tune of TZS 10,000,000/. 4. Interest of 12% shall lie on the decretal sum from the date of this judgment to the date of full payment. 5. The appellant shall have costs of litigation both in this court and subordinate court. So ordered. DATED at DAR ES SALAAM this 28th November, 2024. O. F. BWEGOGE JUDGE 16 2 *