innocent mgao vs mwenyekiti chama cha msingi songea mashariki 2007 tzhc 199 8 february 2007

IN THE HIGH COURT OF TANZANIA AT SONGEA PC CIVIL APPEAL NO. 1 OF 2005 (ORIGINAL SONGEA D/C CIV.APP.N0.13/2003) INNOCENT M G A O ........................APPELLANT VERSUS: MWENYEKITI CHAMA CHA MSINGI SONGEA MASHARIKI...............................RESPONDENT 5/9/2006 - Hearing Concluded 8/2/2007 - Judgment Delivered JUDGMENT KAGANDA, J. * This is a second appeal, the Respondent had filed a suit against the appellant before Songea Urban Court. He claimed payment of 34,000/= being the value of fertilizer obtained under hire purchase contract. The trial court held for the Respondent whose decision was upheld by the District Court on Appeal. Aggrieved by that decision he now appeals to this Court. 1 The evidence was clear and was not disputed by the appellant. The story in summary was that in seasonal period of 1999/2000 the appellant obtained some fertilizer from the Respondent on hire purchase valued at 34,000/=. It was agreed as a warranty that the money would be paid on sale of tobacco during same season. The fertilizer was purchased on two installments via receipt No. 0188 and 0297 for 22,000/= and 12,000/= respectively. At the end of that season the appellant did not repay the money on allegation that he had not sold his tobacco. SM I, Ahamad Haule, S.M.2. Alex Fussi testified to that effect. The appellants own testimony stated:- “Mwaka 2000 nililima tumbaku baadaye Mwezi wa pili nilikopeshwa mbolea S.A. Mifuko miwili na Urea mfuko mmoja.” He further alleged that the appellants were to buy their tobacco and deduct the debts due but that was not done. Similar evidence was adduced by SU.2 one Ernest Mwingira. The trial Court was satisfied with the Respondents evidence and ordered the appellant to pay the debt shillings thirty four 2 thousand plus interest at two thousand. The District Court held the same but increased the rate of Interest to 10% without explanation. r< The appeal is heard exparte after the Respondent had dishonored the summons. Mr. Mbogoro counsel for the appellant has advanced three grounds of appeal. He is o f the view that by nature of the disputed contract which was orally made, the appellant was to sell the tobacco in future.to the respondent who had a duty to buy it after lending the appellant the said fertilizer. He cited the definition provided by Keneth Smith and Denis Keenan in their book “Mercantile JLaw, which states as follows:- “Such terms are derived from custom or statute and in addition a term may be implied by the court where it is necessary in order to achieve the result which in Courts’ view the parties obviously intended the contract to have.” I tend to differ with that view first because their was no evidence to that effect and I do not know of any Law which gives room for the parties counsel to give unrecorded evidence. I believe the learned counsel knows very well that he has no such status. 3 Section 50 of the sale of Goods Ordinance Cap. 214 is clear for it provides as follows:- (1) “Remedies of the Seller where, under a contract of sale, the property in goods has passed to the buyer and the buyer wrongfully neglects or refuses to pay for the goods according to the terms of the contract,the seller may maintain an action against him for the price of the goods.” In the case at hand, the appellant obtained the goods i.e. the fertilizer on hire purchase all that there was in that contract was that the payment was to be effected after goods to be sold in the future. According to the evidence adduced there was no issue of custom or statute because the appellant was not the only debtor. The terms were clear on that; borrow the fertilizer today and pay after the sale of your agricultural product, in this case it was tobacco. As I have stated earlier in this judgment there was no evidence to prove that the Respondent had an exclusive duty to 4 buy the tobacco, It is interesting for the learned counsel to emphasize on un attested facts because there was no witness to support his allegations. It is true that the parties entered into an Oral contract without depositing any security. But, there was evidence that all creditors were listed down as such there was reliable record for the Respondent, that is why at the mature period the appellant was approached and reminded of his debt. Now that, there was no evidence to prove or at least indicate that the Respondent were the sole buyers of the tobacco, the appellant had a duty make sure that he sold the goods and pay the debts due to the respondent. In the event I uphold the District and Primary Courts finding. I also hold the rate of interest ordered by the District Court i.e. that of 2% of the principal sum as from the date of the Primary Courts • th judgment which was 17 March 2003 to the date of settlement of the debt. I thus dismiss the appeal in its entirety. Costs from the trial court to this Court follow the event. S.S. KAGANDA, JUDGE. - 5/2/2007 5 8/2/2007 Coram: Hon. S.S. Kaganda, J. For the Appellant: Respondent: C/C/ S. Ndunguru. th Court: Judgment read over to the appellants counsel this 8 February 2007. Right to appeal explained. S.S. KAGANDA, JUDGE. 8/2/2007. '-V , z f I < ^if% that this is a true copy o f the original. & n \ ../ / A.M. GO, DISTRICT REGISTRAR. SSK/ESY. 6