MAMMUT JDGT

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY AT DAR ES SALAAM CIVIL APPEAL NO. Ill OF 2021 (C/f Civil Case No.162 of2018 in the District Court ofKinondoni at Kinondoni) MAMMUT HOLDINGS INTERNATIONAL LTD APPELLANT Vs JUNIOR CONSTRUCTION COMPANY LTD RESPONDENT JUDGMENT Date ofiast Order: 5-9-2024 Date ofJudgment: 21-10-2024 B.K.PHILLIP,J Aggrieved by the judgment of the District Court of Kinondoni, the appellant lodged this appeal on the following grounds of appeal; i. The trial Magistrate erred in law and fact by failing to hold that there was no valid sale agreement between the parties. ii. The trial Magistrate erred in law and fact by failing to adhere to and answer the issue framed. iii. The trial Magistrate erred in law and fact by failing to hold that the Respondent breached the contract. iv. That the trial Magistrate erred in law and facts by disregarding the legal impact of relying on evasive denial by the Respondent. The learned advocates, Ally Jamal and Halima Semanda appeared for the appellant and respondent, respectively. A brief background to this appeal is that the appellant and the respondent were a plaintiff and defendant, respectively, before Kinondoni District Court. The appellant's case was that the Respondent breached a contract for the sale of equipment. It was alleged in the plaint that the respondent agreed to enter into a sale of equipment agreement whereby it agreed to sell to the respondent two Bulldozers at the price of United States dollars Two Hundred Forty thousand only((D7G2 Bulldozer-USD 90,000 and D8R Bulldozer-USD 150,000) VAT exclusive. The aforementioned purchase price was agreed to be paid in installments, starting with an initial deposit of USD 70,000/=. The respondent failed to comply with the agreed payment schedule. Despite the appellant's tolerance and requests for payment of the purchase price, the respondent managed to pay a total of USD 166,000/=, only leaving an unpaid purchase price to the tune of USD 74,000/=, which the respondent refused to pay. The appellant prayed for judgment and decree against the respondent as follows; a) Payment of a sum of United States Dollars Seventy-Four Thousand Only (USD.74,000) equivalent to Tanzanian Shillings One Hundred Sixty-Eight Million Nine Hundred Forty-Two Thousand Only (Tshs. 168,942,000/=) to the appellant by the respondent, as special damages being outstanding balance for payment of two bulldozers with Registration No. T 284 DJU, Model No. D7G2 and No. T 285 DJU, Model No. D8R. b) Repossession of the two bulldozers with Registration No. T 284 DJU, Model No. D7G2 and No. T 285 DJU, Model No. D8R by the Plaintiff. c) Payment of the accrued interest computed at the rate of 2% per month from the date of filing this suit till payment in full; d) An order for payment of general damages to the tune of Tshs.40,000,000/= suffered by Plaintiff for loss of business and other resultant losses and damages suffered by Plaintiff as a result of the Defendants'failure to heed the terms and conditions of the Agreement; e) An order for payment of interest on the decretal sum at the Court's rate from the date of judgment till complete satisfaction of the entire decretal sum. f) Costs of this Suit. g)Any other reliefs) the Court may deem fit to grant. In its written statement of defence the respondent made evasive denials of all of the plaintiff's claims. I ordered the appeal to be argued by way of written submissions. Mr. Jamal abandoned the 2"^^ and 4^^ grounds of appeal. He argued the remaining grounds of appeal conjointly. He started his submission by pointing out that in paragraph four of the plaint, the Appellant stated that it agreed with the respondent to sell two bulldozers worth USD 240,000/= to the respondent. He contended that the Appellant's allegations were supported by the testimonies of PWl, whose testimony was that the Appellant sold two bulldozers with registration numbers T284 DJU and T285 DJU model DSR to the Respondent. The Respondent paid USD 90,000/= only, leaving an outstanding amount of USD 74,000/=. PWl tendered in court a copy of the Registration Card for a Bulldozer with registration No. T285 DJU (Exhibit PEl), that is In the appellant's name and a letter written by Suleiman M. Suleiman, the Respondent's Managing Director, dated 30/12/2019( Exhibit PE2), following the Ruling in Misc. Civil Application No. 237 of 2019, between the parties herein, in which the court issued an order for a temporary injunction. He argued that in Exhibit P2, the Respondent admitted that it paid the Appellant USD 166,000/= and is only debited to the Appellant to the sum of USD 74,000/=. Further, Mr. Jamal argued that the two bulldozers are registered in the names of the Appellant, which is clear proof that the same belongs to the Appellant. He referred this Court to the Alice 3. Kambona Vs Elizabeth Nyangeta Kwiyolecha PC . Civil Appeal No. 20 of 2020,(unreported), in which this court held that; ".../t is my strong opinion that, in the circumstance ofour case at hand, the proof of ownership of the disputed motor vehicie can be weii estabiished through documentary evidence. Since the respondent proved her ownership through the motor vehicie registration card and the reiease order, thus it is upon the appeiiant to exhibit through documentary evidence, as to whether the deceased possess the saie agreement or any other document to disprove the respondent's daim." He went on to argue that the trial Court ought to take judicial notice of the facts relating to the admission of the claims in terms of sections 35 and 59 of the Evidence Act, Cap 6. R.E 2019. In paragraphs 4 and 5 of the Written Statement of Defence, the Respondent vehemently disputed having any agreement with the Appellant; in Exhibit PE2, the Respondent was complaining about an order issued by the Court in favor of the Appellant to repossess the two Bulldozers which are in its custody. Mr. Jamal invited this court to rely on the wisdom of the Court of Appeal of Tanzania stated in the case of Makubi Dogani Vs Ngonongo Mganga, Civil Appeal No.78 of 2019,(unreported) in which the court held as follows; It is apparent, at pages 72 to 74 of the record ofappeal that during the triai, the appellant did not object to the admlsslblllty of the said exhibits. It is settled iaw that the contents of an exhibit which was admitted without any objection from the appellant, were effectually proved on account ofabsence ofany objection. Therefore, since the appellant did not utilize that opportunity, challenging the said, we aiso find the second and fourth ground ofappeal to be devoid ofmerit' Moreover, Mr. Jamal argued that on page 7 of the impugned judgment, the trial noted that Exhibit PE2 could have been an admission of the contractual relationship between the parties in this suit. However, it contradicted itself by making a finding that the appellant did not establish the existence of a valid agreement. Relying on section 10 of the Law of Contract Act, Cap. 345 R.E 2019 read together with Sections 3(1) and 5(1) of the Sale of Goods Act, Cap 214, 2019, Mr. Jamal contended that the validity of the agreement for the sale of the bullzoders was established by PWl. He argued that a contract for sale is the process of exchanging goods between two parties, whereby one party is identified as the seller and the other is the purchaser who purchases the goods in question by payment of consideration. In the case at hand, it is undisputed facts that the Appellant, being the vendor (seller), has disposed of his two bulldozers to the Respondent, being the purchaser, for the consideration of USD 240,000/= (The purchase price), contended Mr. Jamal The records in the plaint and exhibit PE2, indicate that the Respondent had only paid part of the purchase price(USD 166,000/=), the remaining balance of USD 74,000/= has not been paid to date. Mr.Jamal maintained that the trial Magistrate erred in law to make findings that the transaction lacked essential elements capable of being called a valid contract. To cement his arguments, he referred this court to the case of Mexon's Investments Limited Vs DTRC Training Limited Company Limited, Civil Appeal No.91 of 2019,(unreported) in which the court held as follows: "7/7 the present case, after considering the conduct ofthe parties, the learnedjudge was satisfied that transaction involving the parties to this suit meant the contract continued. We entirely agree with the Respondent that the learned Judge's finding was correct to arrive at the conclusion that the respondent continued to supply and the latter received the fertilizers after the expiry of the formal contract hence establishing that the parties'contract continued." In conclusion, Mr. Jamal was emphatic that the evidence in this case was enough to prove the appellant's claims against the respondent. He implored this court to allow this appeal with costs and set aside the impugned judgment. In rebuttal, Ms. Semanda responded to the grounds of appeal conjointly. She argued that in civil cases, the relief claimed by any party to a case must be proved on the balance of probabilities. During the hearing of the Appellant's case, PWl testified that there was a deemed sale agreement between the parties, which was entered in 2016, whereby the Appellant sold her two bulldozers for USD 240,000/=. The alleged agreement was never tendered in court.PWl further testified that the Respondent paid part of the purchase price, and the balance was agreed to be paid within one month. Ms. Semanda pointed out that the Appellant did not tender any payment slips, receipts, or cheques to demonstrate that the parties had entered into the alleged agreement. She contended that the aforementioned documents would have helped to verify whether there was a sale agreement between the parties. She maintained that no evidence was adduced to prove the existence of a contract between the parties. Despite PWl alleging that the Appellant received partial payment of the purchase price for the Bulldozers, no evidence was presented in court indicating when the Respondent made those payments. The trial court cannot be faulted for dismissing the Appellant's claims since there was no proof of partial payment of the purchase price or a valid agreement between the appellant and respondent. Further, Ms. Semanda argued that before the trial Court only three issues were framed, to wit; i. Whether there was a valid sale agreement. ii. If issue no. (i) is answered in affirmative, whether there was a breach of sale agreement by the Defendant iii. What reliefs are parties entitled to. She contended that the ownership issue was not among the issues framed during the hearing. The Appellant did not institute a case to determine the actual owner of the two bulldozers, though, during the hearing, PWl tendered in court registration card for one bulldozer (exhibit PEI ), but that does not mean that he proved the case because the Appellant claimed that she entered into an agreement with the Respondent for the sale of two bulldozers. According to that agreement, the Respondent was to pay part of the purchase price upfront, and the remaining amount was supposed to be paid within a month. The Appellant claimed she had received some payment from the Respondent but still alleged that the purchase price was not paid in full. However, no evidence was presented to establish a valid sale agreement or proof showing that Defendant had made any partial payments to the Appellant. The case filed by the Appellant focused on payment issues rather than determining the rightful owner of the two bulldozers. Ms. Semanda was of the view that the case of Alice J. Kambona(supra) referred to this court by the Appellant is irrelevant since it was concerned with the issue of ownership. In contrast, in the case at hand, there was no dispute over the ownership of the Bulldozers. The dispute in this case is on the allegations of breach of contract. 10 Further, Ms. Semanda contended that Exhibit PE2 does not contain any admission by the Respondent that it possesses the bulldozers. It is a letter addressed to the District Magistrate concerning Miscellaneous Civil Application No. 237 of 2019, which was an application for temporary injunction. The court granted that application in favor of the Appellant. In that context, the Respondent's Director wrote to the court questioning the order for the attachment and repossession of the bulldozers. He asserted that they were not in the company's custody. Main purpose of writing that letter was to request the Honorable Magistrate to recuse himself from presiding over Civil Case No. 162 of 2018 and the related applications. The request was made because the actions of the former trial Magistrate had already been demonstrated. This led the Respondent to believe that if he continued presiding over the case, there would be a miscarriage of justice. Ms. Semanda pointed out that DWl, the Respondent's director, testified that he was unaware of the existence of the bulldozers since the company was established. Relying on the provisions of section 110(2) of the Evidence Act. She contended that the appellant failed to discharge the burden of proving his claims on the existence of the sale agreement for the bulldozers between the appellant and the respondent.She cited the case of Ernest Sebastian 11 Mbele Vs. Sebastian Sebastian Mbele and two others. Civil Appeal No 66 of 2019,(unreported), to support her arguments. In conclusion, Ms. Semanda beseeched this court to dismiss this appeal with costs. In rejoinder, Mr. Jamal reiterated his submission in chief. He referred this court to sections 3(1) and 5(1) of the Sales of Goods Act and section 10 of the law of the Contract Act, Cap 345 R. E 2019, which provides that the parties can enter into an oral contract. He maintained that the conduct of the parties suffice to establish an oral contract so long as the parties have complied with the requirement of section 10 of the Law Contract Act, which provides that "all agreements are contract If they made by free consent of parties competent to contract, for the lawful consideration andlawful object, and care not hereby expressly declare to be void". Mr. Jamal was emphatic that the respondent never objected to the admission of exhibit PE2 and that the parties' conduct suffice to establish that all necessary elements of a contract and transaction for the sale of the two bulldozers between Appellant and Respondent existed. He insisted that considering evidence adduced by the PWl and Exhibit PE2, it was wrong for the trial court to find that the appellant failed to establish an agreement 12 between the Appellant and Respondent. The trial court received exhibit PEI, the Registration Card for the bulldozer with No. T285 DJU, which is in the name of the Appellant. Lastly, Mr. Jamal conceded that during the hearing, the issue of ownership was not among the issues framed for determination by the court because the respondent did not dispute the ownership of the bulldozers. Apart from the evasive denial, there is no paragraph or statement in which the Respondent claimed the ownership of the two bulldozers. He contended that the case of Ernest Sebastian Mbele (supra) is irrelevant and distinguishable from the matter at hand. He urged this Court to disregard it. Having dispassionately analyzed the rival arguments made by the learned advocates appearing herein and perused the court's records and noted that the Appellant herein had applied for an order for a temporary injunction to restrain the Respondent herein from using the two bulldozers vide Civil application No 237 of 2019, one of the Respondent's argument was that it was not fair to grant the order for temporary injunction because the respondent had already paid the Appellant a sum of USD 166,000/=. Exhibit PE2 proves that the bulldozers belong to the Appellant. That fact is not disputed. As correctly submitted by Ms. Semanda, the court did not draft any 13 issue on the ownership of those bulldozers. However, the Respondent disputes the Appellant's allegation on the existence of the sale agreement for the bulldozers and the unpaid purchase price. Ms. Semanda supports the trial court's findings that the lack of a written sell agreement for the bulldozers and receipts/cheques/payment slips evidencing that the respondent paid to the Appellant part of the agreed purchase price amounts to the Appellant's failure to prove its claims to the standard required by the law. At this juncture, let me revisit the law on proof in civil cases. The law provides that proof in civil cases is on the balance of probabilities. In the case of Ernest Sebastian Mbele(Supra), the Court of Appeal discussed what it means to prove a case on the balance of probabilities, and had this to say; "The law places a burden ofproofupon a person "who desires a court to givejudgment" and such a person who asserts the existence of facts to prove that those facts exist ( section 110(1)and(2) of the Evidence Act, Cap. 6). Such fact Is said to be proven when, In civil matters. Its existence Is established by a preponderance ofprobability(see section 3ofthe Evidence Act, Cap.6.) It Is In that respect. In Godfrey Sayi VAnna Siame as Lega Representative ofthe late Mary Mndolwa, CivilAppealNo.114 of2012 (unreported) we said 14 "it Is similarly common knowledge that in dviiproceedings, the party with legal burden aiso bears the evidential burden, and the standard in each case is on a balance of probabilities" Proofon a preponderance ofprobabilities was well explained by the Supreme Court of India, and we seek inspiration, in the case of Narayan Ganesh Dastane VSucheta Nayaran Dastane(1975)AIR(SCJ1534 that:- " The normal rule which governs civilproceedings is that a fact can be said to be established ifit is proven by a preponderance ofprobabilities. This is for the reason that... a factis said to be proven when the court either beiieves it to exist or considers its existence so probabie thata prudent man ought to act upon thatsupposition thatit exists. A prudent man faced with conflicting probabilities concerning a fact supposition that the fact exists ifon weighing the various probabilities he finds that the preponderance is in favour ofthe existence ofthe particular fact. As a prudent man, so the Court applies this test for finding whether a fact in issue can be said to be proved. The firststep in this process is to fx the probabilities, the second to weigh them, though the two may often intermingfe. The impossibfe is weeded out at the first stage, the improbable at the second. Within the wide range, ofprobabilities the court has often a diffcuft choice to make but it is this choice which ultimately determines where the preponderance ofprobabifities fies." ( Emphasis is added) Applying the formula laid down in the case of Ernest Sebastian Mbele (supra), the pertinent question to be considered here is: How did the Respondent come into possession of the bulldozers? . The evidence adduced has proved that the bulldozers are registered in the Appellant's 15 name. Legally, ownership of the bulldozers is in the Appellant, as no transfer of ownership has been made. That is not disputed. The Respondent possesses the bulldozers and disputes the existence of the sale agreement for the bulldozers, but has not given any explanations on how it came into possession of those bulldozers that belong to the Appellant. The Appellant says that it sold those bulldozers to the Appellant for the purchase price of USD 240,000/=, and the Respondent just paid part of the Purchase price( USD 166,000/=). In its written Statement of defense, the Respondent did not explain how it came into possession of the bulldozers. Ms. Semanda did not address that issue. In the absence of any explanations on how the Respondent came into the possession of those bulldozers, this court finds the Appellant's assertion that it sold to the Respondent the two bulldozers is probable and gives the correct position on how the Respondent came into the possession of the two bulldozers. With due respect to the trial Magistrate, he misdirected himself by holding that since the Appellant did not produce any written agreement in court, there was no sale agreement between the parties herein. In contrast, the evidence from both sides, in totality, conveyed a clear message that there was a business relationship between the Appellant and the 16 Respondent. It is worth noting that the Court is required to evaluate the evidence adduced in its entirety. Under this case's circumstances, the evidence adduced by the Appellant was heavier than the Respondent's defence. Moreover, in its defence, the defendant made evasive denials that were unsatisfactory under the law. From the foregoing, this appeal is allowed. I hereby order as follows; a) The Respondent shall pay the appellant a sum of United States Dollars Seventy-Four Thousand Only (USD.74,000), equivalent to Tanzanian Shillings One Hundred Sixty-Eight Million Nine Hundred Forty-Two Thousand Only (Tshs. 168,942,000/=) being the outstanding balance for payment of two bulldozers with Registration No. T 284 DJU, Model No. D7G2 and No. T 285 DJU, Model No. D8R . b)The Respondent shall pay interests on the decretal sum in item (a) herein above at the interest rate of 2% per month from the date of filing this suit to the date of judgment. c) The Respondent shall pay the appellant a sum of Tshs.20,000,000/= being general damages. d)The Respondent shall pay interests on the decretal sum in items (a) and (c ) at a court rate of 7% from the date of judgment to the date 17 of payment in full. e)The Respondent shall bear the costs of the suit In this court and the District Court. Dated at Dar es Salaam this 21^ day of October 2024. B.ICFHILLIP O o JUDGE o z: 18