20120829 TZHC Dar es Salaam

.. 1

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CIVIL APPEAL NO. 3 OF 2010 ( Originating from Civil Case No. 252 of 2006 Resident Magistrates Court of Dar es Salaam at Kisutu) ISSA IDRISA . . . . . . . . . . . . . . . . . . APPELLANT

VERSUS 1. GADAFI SALUM . . . . . ; . . . 1 sT RESPONDENT ~- 2. FEREJI SAID . . . . . . . . . . . 2N° RESPONDENT - Date of last order- 7/6/2012 Date of Judgment -29/8/2012

JUDGMENT Shangwa, J. Issa Idrisa, Appellant herein, was aggrieved by the decision of the Court of the Resident Magistrate at Kisutu in Civil Case No. 252 of 2006, Mteite, RM wherein his suit against the Respondents was dismissed with costs. Having 2 been aggrieved by the said decision, he decided to appeal to this court. His appeal is based on three grounds namely:- 1. That the trial Magistrate grossly erred in law and fact for failure to properly evaluate the evidence given for the Appellant which established conclusively that the motor vehicle in dispute belongs to the Appellant.

2. That the trial Magistrate erred in law and fact for having properly found that the 1 st Respondent sold the disputed motor vehicle to the Appellant but granted the same to the 2 nd Respondent who purported to have also purchased the same from the 1 st Respondent without revoking the first sale agreement between the 1 st Respondent and Appellant.

3. That the trial Magistrate_ erred 1n law and fact for applying the Principle of N ovation 1n the .. . 3 circumstances of the case basing on the document which was executed by duress at the Police Station. First of all, I wish to observe that the 1st Respondent was duly notified but he did not appear to respond to the Appellant's grounds of appeal. The three grounds of appeal above listed were argued by way of written submissions. The Appellant had no legal representative. He was assisted by street lawyers. The 2 nd Respondent was represented by Mr. Kishaluli, Advocate. It appears to me that the grounds of appeal are interrelated. For this reason, I will consider them jointly and together. As a whole, the dispute between the parties centres on a motor vehicle with Reg. No. TZ 94191 make Nissan Pick up (Model 1993) which the Appellant averred before the trial Court and before this Court that he bought 4 it from the 1st Respondent Gadafi Salum on or about 22nd January, 2002 at a sum of Tshs.1,600,000/=. As a matter of fact, the trial Magistrate found that the Appellant bought the motor vehicle in issue from the 1st Respondent. However, by applying the Principle of Novation which is incorporated in section 62 of the Law of Contract Act Cap. 433 R.E. 2002, the trial Magistrate ordered that the motor vehicle in issue should be given to the 1st defendant Fereji Said who is the 2nd

Respondent herein. After taking due consideration, I have come to the conclusion that after selling the motor vehicle in issue to the Appellant, the 1st Respondent decided to re-sell it to the 2 nd ·Respondent Fereji Said so that he may benefit twice from the proceeds of sale of the same motor vehicle. The question now is was the act of the 1st Respondent to re-sell 5 this motor vehicle to the 2 nd Respondent legally and morally acceptable. The answer is a big No. Therefore, I entirely agree with the Appellant that after selling the motor vehicle to him and receiving the agreed purchase price, it was wrong for the 1st Respondent to re-sell the same to another person namely the 2 nd Respondent. The next question is if at all it was not legally and morally acceptable for the 1st Respondent to re-sell the motor vehicle in issue to the 2 nd Respondent after having sold it to the Appellant, was the trial Magistrate correct in finding that the Appellant has no claim of right over this vehicle as against the 2 nd Respondent. Also, the answer to this question is a big No because the 1st Respondent had no legal right to re-sell it to the 2 nd Respondent after selling it to the Appellant. 6 I wish to comment here that the principle of novation is not super-natural. It has to be used in certain categories of circumstances. This principle only applies in cases where there is an agreement

between the parties to substitute a new contract with the existing one. In this particular case, there was no agreement between the Appellant and the 1st Respondent to substitute or rescind the sale agreement of the motor vehicle in issue previously entered into by them with a new agreement. In my view, the agreement which was signed by the Appellant and 2 nd Respondent Fereji Said in which the Appellant admitted to have been cheated by the 1st Respondent who sold the motor vehicle to him and 1n which he surrendered his right to own it to the 2 nd Respondent and agreed to receive Tshs.350,000/= as compensation for the expenses he had incurred 1n 7 repairing it after it had been sold to him, was wrongly interpreted by the trial Magistrate to be a novation. I am of the view that the said agreement was wrongly ' interpreted to be a novation because the 2nd Respondent had never before entered into any contract with the Appellant over the motor vehicle in issue. Let that alone, the appellant, averred that he signed that agreement with the 2 nd Respondent under duress at the police station called Mchikichini within the city of Dar es Salaam where he had been reported by the 2 nd Respondent to have obtained the motor' vehicle in issue by fraudulent means. He said, that agreement was reduced in writing by one police man called Edgar Andrew (DW.2). _ For these reasons, I hereby quash

the decision of the court of the Resident Magistrate at Kisutu in Civil Case No. 252 · of 2006 and I order that the motor vehicle in issue 8 namely motor vehicle with Reg. No. TZ 94191 make Nissan Pick Up should be restored by the 2 nd Respondent to the Appellant. In case the 2 nd Respondent has any issue with the 1st Respondent concerning the motor vehicle in issue be it criminal or civil, he should take it up with the relevant Government Authorities. Consequently, I allow this appeal with costs.

JUDGE 29/8/2012 Delivered in open court this 29 th day of September, 2012 in the presence of the Appellant and in the absence of the Respondents. ~ A.Shangwa

JUDGE 29/8/2012