20071213 TZHC Arusha

'I')--- ....-(Pl ...-=-- -;~··; 1 IN THE HIGH COURT OF TANZANIA AT ARUSHA (PC) Civil Appeal No. 20 of 2003 (Originating from Babati District Court Civil Appeal 42/ 2002 Original Babati primary Court Civil Case 45/2002) GURTU MALLAS ..............................................APPELLANT VERSUS JUMANNE SWALEHE ...................................... RESPONDENT. l U D GM ENT. R. SHEIKH, J. This is an appeal against the concurrent findings of fact by the two lower courts that the respondent's claim against the appellant had been proved on a balance of probabilities. The appeal arises out of an action on a contract for the sale of a grinding machine. On 22/01/2001 the plaintiff/respondent herein entered into a written sale agreement with the defendant. The appellant GURTU MALLAS agreed to purches a second hand/used grinding machine from the respondent JUMANNE SWALEHE at an agreed price of shs. 700,000/= by the appellant by 29/02/2001. The appellant/defendant had not paid the balance by the agreed date and was clearly not 1 2 ready to make the payment claiming that the grinding machine sold to him by the respondent was defective. The respondent thereupon plus two goats. It agrred that the appellant would immediately pay an advance of shs. 500,000/= and that the balance was payable by 29/02/2001 and that the grinding machine aforesaid would be taken to the appellant's place successfully sued the appellant in Babati Primary Court for full performance of the contract claiming the balance of the agreed purchase place being shs. 200,000/= and two goats. However his claim for an order requiring the appellant to remove the machine from his premises was not granted. On appeal the Babati District Court in Civil Appeal No. 42 of 2002 upheld the judgment/decision of the Primary Court, and in addition ordered the appellant to remove the machine from the premises of the respondent; this second appeal by hence the appellant/defendant. The Petition of Appeal raises the following grounds of Appeal:- 1. That the two lower courts erred in law and fact to hold that the appellant who had inspected the grinding Machine at the time of entering a sale agreement and found it in good condition had no right to inspect the same at the of collection when he found it had been changed and was not in good condition an it were on the date of signing the sale agreement. 2 3 2. That the two lower courts erred in law and fact in not finding that since the grinding machine was in actual possession of the respondent from when the sale a·greement was entered and an advance of shs . 500,000/= paid, the appellant had the right to inspect it on the date of delivering and on paying the balance, and that if found not in good order as it was on the date of the agreement, the respondent had the right to refuse possession and demand the refund of the deposit/advance. 3. That the first appellate Court erred in refusing the appellant the opportunity to be represented by counsel. 4. That the trial court erred in law to proceed with the suit ex parte while there was information that the appellant was sick on that date. There is no dispute as to the formation of an agreement for sale between the parties in this case, and that the appellant had at the time of entering the sale agreement had inspected the grinding machine and found it in good condition Rather the question is whether the respondent had the right to inspect the granting machine for a second time at the time of collection/delivering. Mr Lundu counsel in his oral submissions was emphatic that the respondent had the right to inspect the machine immediately he took delivery thereof, and that upon discovery that the granting Machine was defective and not in 3 4 the condition that it was on the date of the sale agreement, had the right of refusal of delivery on the other hand the respondent has maintained that the decisions of the two lower courts cannot be faulted. It is clear on the evidence(P.W.1, and PW3) that the respondent had before in the sale agreement reasonable opportunity to inspect and examine the grinding Machine, that he actively did examine it and satisfied himself that the grinding machine was in good working condition, that upon signing of the sale agreement and payment of the first instilment of shs, 500,000/= the appellant (P.W.1, P.W.2 and P.W.3) was given possession of the machine and he actually started using it whilst it was still in the respondent's premises. There is evidence that the buyer decided to leave the machine at the respondent's place while he looked for a plot where he could a building where the machine could be kept. As the alleged defect in machine were detected long after the appellant was put in possession and after he had made use of it then the appellant cannot be held liable for the aforesaid defects. The appellant cannot be said to have sold to the respondent a defective machine I find that grounds I and 2 have no merit and they are accordingly hereby dismissed. 4 5 As regards ground 4 the record shows that on 14/03/2002 the plaintiff/appellant herein filed Civil Case No. 45 of 2002 in the Babati Primary Court against the respondent. On 14/03/2002 when the case came up for mention before the trial court both parties were present. The respondent/defendant did not dispute entering into the sale agreement or the terms thereof. Nor did he dispute the fact that he had not paid the balance of the purchase price claimed by the plaintiff. The reason advanced for the non - payment is that the plaintiff had sold him a defective grinding machine. He claimed that the plaintiff had put into the machine defective spare parts. This was denied by the plaintiff. Thereupon the Court framed the issues and the case was fixed for hearing on 20/03/2002. There is no dispute that both the parties were aware of this hearing date the case duly for hearing of the plaintiff's case on 20/03/2002 as schedule and both parties had appeared. After hearing the plaintiff the Court adjourned the case to 25/4/2002. On 25/4/2002 the plaintiff's witnesses were not in court, and the case was again adjourned to 14/5/2002. The defendant was not in court. Instead are ABDI JUMANNE appeared on his behalf and reported to the Court that the defendant was indisposed. This was strongly resisted by the plaintiff. Thereupon the court held that the defendant had deliberately absented himself and ordered that the matter. 5 6 Would proceed ex parte. The hearing of the plaintiff's two witness thereupon proceeded ex parte. At the close of the plaintiff's case, the case was adjourned to 23/05/2002 for the defence case. On 23/05/2002 both parties appeared. The defendant had farm witnesses. The Court adjournment until 13/06/2002 without assigning any reasons. On 13/06/2002 the defendant told the Court that he was sick and had no confidence in the trial magistrate for having heard the matter ex parte despite the fact that he was sick. Thereupon the court fixed the case for judgement. It is Mr. Lundu's contention that the trial court erred in low in proceeding to hear the suit ex parte after hearing P.W.1, that the court had denied the defendant the right to be heard. Rule 29 of the primary courts Civil Procedure Rules, G.N No. 310 of 1964 states:- " 29. Where a court has given leave for a claimant to prove · his claim in the absence of the defendant appears at any before the proceeding is denied and gives a reasonable explaination for his previous non - appearance the court shall commernce the hearing afresh: Provided that it shall not be necessary to record evidence again which has evidence is read over to and confirmed by the person who gave it." 6 7 As stated above the hearing of P.W.l's evidence was inter parte. After the ex parte hearing of P.W.2 and P.W.3 the case fixed for hearing of the defence case. Under the proviso to Rule 29 reproduced herein it is not necessary to record evidence again which has already been recoded, if that evidence is read over to and confirmed by the witness. Admittedly the record does not disclose if the evidence of P.W.2 and P.W.3 was read over to the defendant and confirmed by the witness. However this omission or irregularity has in my view not in fact occasioned a failure of justice to the appellant and is one that may be wired or disregarded under Section 37 (2) of the Magistrate Court Act, 1984. It is clear on the evidence that the defence was given the right to present his defence, but he declared to do so. The defendant simply stated that he was sick and had no confidence in the trial Magistrate for having heard part of the plaintiff's in his absence. This does not in my view amount to a reasonable exploration for his non - appearance on the day fixed for the hearing of the plaintiff's witness warranting the commencement of the hearing afresh. Admittedly the record does not disclose if the evidence of P.W.2 and P.W.3 was read over to the defendant and confirmed by the aforesaid 7 8 I I I witnesses. This omission o'r irregularity has however in my view not in fact occasioned a failure justice to the appellant and is one that may be wired or disregarded under section 37 (2) of the Magistrate Courts Act,1 1984. Since the appellant had I clearly refused to exercise his right to defend himself he cannot new properly be heard to co:mplain. On the other hard in yiew of the provisions of rule 29 of G.N. No. 310/1964 the trial court had erred in law when he held that the defend could appeal against the order granting leave to the plaintiff/respondent to proceed ex parte. ' I More importantly once the ex parte decision was granted the defendant ought to have applied to the court under rule 30(1) of G.N. 310/1964 for an order to set aside the decision aforesaid. Having failed to do so he cannot now complain that ' he was denied the right to. be heard. For the same reason the appeal in the District Court was improperly filed in view of the clear provisions of rule 30 (1) of G.N. 310/1964 which provides that a person aggrieved with an ex parte decision may apply for the order to set aside the· decision. The appeal to the District was premature in my view in the light of rule 30(1) of G.N. ' 310/ 1964. 8 \ 9 ' Since the appeal itself was incompetent ground 3 must fail. For the above reasons in the final result the appeal fails. The appeal has no merit and is hereby dismissed with costs. The decision of the District Court is upheld. Sgd: R. SHEIKH, JUDGE 28/11/2007. Judgment delivered this 13/12/2007 in the presence of my Mughwai holding brief for Mr. Lundu, learned caused for the appellant and in the absence of the respondent, and Mariam B/C being present. Sgd: R. SHEIKH, JUDGE 13/12/2007. I hereby certify this to be a true copy of the original. . 9