harith said vs martin ngao 1987 tzca 61 7 may 1987

IN THE COURT; OF APPEAL OP TANZANIA ' AT MBEYA ■Mi <&.. . C O R A M : MUSTAFA. AG. C.J.; MAKAME. J‘ .A. AND OMAR. J . A . 'v -v ' CIVIL APPEAL NO, 2 0 ‘ OF 1986 HARITH SAID BROTHERS ......... APPELLANTS And . , -■ MARTIN NGAO .... i......... .;.. RESPONDENT (Appeal from-the Decision of the High Court of Tanaania at Mbeya) (B.A, Samatta, J.) dated Ilth May, 1983 in Civil Case No. 29 of 1980 JUDGMENT OF THE COURT MUSTAFA, AG. C. J . »• The*appellant Company (hereafter called the Company) had pur*- 1 chased' a .bus TZ 38992 from Kampuni ya Usafiri Sumbawanga (hereafter called Kausu) for Shs,305,000/fc during August/September I980t It appeared that tho respondent Martin (hereafter called Martin) had earlier on, In May 1980 purchased the same bus from 'Kausu for Shs,200>000/=» and had paid for the said purchase by feup cheques, -.-three of them post-dated, dated 3rd May 1980, 3Ist.May 1980, 30%h June 1980 and 30th JUly 19^0 ^espeotiirely. The first cheque for S h s .100,000/= dated 3rd May 1980, when presented for payment at the bank was returned unpaid with the remarks endorsed thereon "Refer to drawer”. Obviously Martin had t \ > no money ;in ^ the bank ,to meet* tho said cheqtie. .i. Although the said ■cheque was' presented’ .for payment later than 3rd May (it was in ■ * .iJ.V \ e fact presented for payment on June 2, 1980) t h ^ did not alter the ' |situation that t h o "cheque was dishonoured. \ TV* HovyeVer Kausu ^managed to arrange for the seizure.^of the bus the .'help of the Police,.-and tho bus was 'out'pf thV',p Q88eeaion | of ..Martin- after .Martin* s failure to pay. It also appeared '"’ Wjat ‘Kausu was in possession of the registration card-;of the said b^Sj and Kausu atill remainad registered as the owner of the bus, \ ' On or about 6th: August 1980, Kausu, by advertisement in the Daily News and the Uhuru newspapers, invited public tender, for the- purchase of tho said bus. The Company tenderod for thopurchaae. of the bus and on 9th Soptembor 1980 its tender was approved by. Kausu, The Company paid thq price of Shs.305,000/;s for the bus, ancjf Kausu handed over possession of tho bus and the registration card to the Company on 20th September 1980. The Company used that bus fyora 20th September 1980 to IOtli October. 1980 when it \vas seizecl by the Police,'in an action apparently initiated hy Martin^ who had claimed ths bus as hia property, 1 The Company filed a plaint in tho High Court seeking a deola*. ration that it was the rightful owner of motor vehicle No« TZ 38992, and for the said vchicle -to be r o t U m e d to it* It*also claimed damages for loss of business due to tha soizure of the I vahiole. • The trial judge (Samatta, J) held that Kausu had sold the bus to Martin when Kausu accepted the cheques drawn by Martin as pay-* mont. He held that on the ^alc, the property in tho bua had passed to M.artin, and ICausu1s only remedy for the cheque or cheques being dishonouredwas to sue and claim for the purchase price from Maytin^ ■ ‘With rospect we think that the trial judge was correct in Qoncixision concerning tho transaction botwoon Kausu. and Martin* In its claim before tho High Court, tho Company inter alia relied on the provisions of section 27(1) of the ^ a l e of Goods Ordinance. Section 27(1) reads: k > i -‘'When a person having sold goods continues or is in > possossion of tho good3, or of tho documents of title, to the goods, the delivery or transfer by that person, or by a mercantile agent acting for him, of the goods or documents of title, under any sale pledge or othej* disposition thereof, to any person receiving the same. ■in good faith and without notice of the previous sale, shall have the came effect as if the person"making tho delivery or transfer wore oxprassly authorised by the owner of the goods to make the same”. W - 3 - 1- The trial judge found In cffect that the Company had purchased the vehicle froui ICav.au in good faith, and without noticc of a pre­ vious sal*e. However the judge held that 3eg. 27(1) wa3 entirely irrelevant to the ease before him. He was of the view th-.t at the 'tine the "bus was sold to Kart in Kau.su had divested itself of posse^ ssion of the vehicle and delivered possession of it to I-artin, He held that the registration card of the vehicle was not a documenj * ~Qf title to the goods. The* judge was correct in h u d i n g that a motor registration • ;| ■'card is .not a document of title to the motor vehicle. However, as'$& pointed .out by Kr, Bateyunga for tiic Company, one who is registered ? • as ownez* in the card is presumed to be the vehicle owner -until t^e gontr^ry is proved, And as stated by Denning L,J. (as he then was) >• xn Bishopgate Hotor Finance Corp. v Transport Brakes Itdf - W insor G a r t h i r d party (1949) I KB 322 at 3^8 "The registration book of a car or the log book as i^ is called, may not itself be a document of title, but it is the best evidence of title Be that as it may, we think that the trial judge'erred in not finding that the time of the sale by Kausu to the Company, Kausu was in possession of the vehicle. The vehicle might have Tjee^in ■{jhe possession of "artin at the time he purchaaed it, but i ^ c l e a r ; that Kausu had recovered possession of it when it sold it to the •; Company _ ' fche trial P7/I, the manager of the appellant Company testi- " fied, He* stated inter alia “Mr, Sadala (the general man.-.ror jf ICa.isu) physically handed I over the motor vehicle TZ 38992 to .o ut Su'T.biwanga Police Station , on 2O/9/0O ... My driver drove the vehicle to Upanda, A mont^ II later we received the registration card in respect af tne. vehicle^*' ■ 4' Mr.1Sadala also gave evidence. :-:e said “ This Company (i.e. appellant) paid 3hs.305,000/- for' the purchase of the motor ve. j.clc,. This was on 20/9/Q0t I received the money on behalf of the Company. I physi­ c a lly handed over tile uotor vcliicle to Harith 3aldi & Brothers Company". / This testimony regarding the handing over of the vehicle by Kausu to the Company was not challenged and it *va3 clear that Kausu had possession of the vehicle when it sold it to. the Company. •f The trial judge appeared to have held that the motor vehicle was out of the possession of Kausu and in the possession of Martin at the time of the sale transaction of the vehicle by Kausu to the Company, In this he was clearly in error. As; Kausu was in possession of the motor vehicle at the time of the sale, we are satisfied that the provisions of Sec. 27(1) of tha S'ale of Goods Ordinance were applicable, as all the other conditions had been complied with. Y/e may also mention that hers the sale was certainly open and advertised to the public. It was in affect by public tender. Thej?e was evidence which strongly suggested that I'artin knew of the advertisements for the.sale of the motor vehicle which were public shed i n the newspapers, but took no action. Kausu had the registra­ tion card.of the vehiclc in its possession, as well 33 the physifal possession of the vehicle. This was as near a sale in market over^ Qondvtions as it is possible in certain parts of Tanzania. Mr-. Bateyunga also submitted that Kart in should be est-opped ftom challenging the sale by Kausu to the Company. 7e do not think •it is necessary to deal with that issue as we are satisfied that the Company must succeed under the provisions of "Sec.. 27(1) of the Sale of Goods Ordinance. The trial judge dealt with the claim for special damages by the Company but came to the conclusion that no special damages had been satisfactorily proved. ,7e concur with that view. We.allow the appeal of the Covapa:n.y and set aside the order £ and decree of the High Court. 7e substitute therefor an order d§glaring that the appellant company is the rightful ownejr of motor vehicle TZ 38992. We also order that if the said vehicle is wit la the respondent Martin, he must forthwith return it to tha appellant- Company in the ^ ditiaii-n which the respondent took it. \7e award costs to the appellant Company both here and below^ DATED at MSEYA this 7th day of Hay, I987» A. K U 5 T A F A AG. C H I E F JUSTICE L.I.I. I’ i AKAEE J U ST I C E OF A P P E A L A.L.A. Oi'.'AR J U S TICE OF A P P E A L •* •X certify that this is a true copy of (J.H. IJsoffe) DEPUTY REGISTRAR