20030527 TZCA Arusha

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IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA · (CORAM: LUBUVA, J.A.; MUNUO, J.A, And NSEKELA, J.A.) ' . CIVIL APPEAL NO. 30 OF 1995 MATHIAS MALLYA as Legal. } Representative } ••••••••••••••••• APPELLANT Of REV. J.P. MALLYA } ··~T . AND r ·----~) ,,.,J I .

1. A · HONY THOMAS TEMBA } 2. TEMA ENGINEERING . } ........ RESPONDENTS WORKS LIMITED } (Appeal from the judgment of the High Court of Tanzania· . At Arusha) {Mroso, J.) th date~ the 18 day of December, 1989 . in . Civil Appeal No.34 of 1989

JUDGMENT . . This is a second appeal from Civil Appeal No.34 of 1989 in the High Court of Tanzania at Arusha originally Civil Case no. 46 of 1986 · · in the Court of Resident Magistrate at Moshi within Kilimanjaro Region. In the Court of first instance, per the Amended Plaint, the plaintiff, Paul John Mallya, now deceased, sought; (a) a declaration that he is the lawful owner and sole proprietor of the business trading in the name and style of Motor r · -) / I Cycle mart and owner of the property on Industrial Plots No.53 and 54 - I - IV Majengo, Moshi under Title No.42432; (b) An . order that the defendants, Anthony Thomas Temba and Terna Engineering Works Ltd; produce the statement of account of the Motor Cycle Mart business from 1974 to date; (c) An order that the defendants account to the plaintiff for the profits of the business with effect from 1980. (d) An order restraining the defendants · from entering or otherwise meddling in 2 anyway with the plaintiffs business and property of the Motor Cycle Mart. (e) · Any other relief deemed fit by the Court. Rev. Father Paul John Mallya died when the first appeal was pending. Upon application, one Mathias Michael Mallya was duly substituted as the legal representative of Paul John Mallya. On the· 21 st November, 1974, the sale agreement, Exhibit Pl, the late Reverend Father Paul John Mallya, bought a Motor Cycle Mart business

from one Mrs. Badrudin. The business was located at the premises of the Registrar of Buildings a long Arusha Road in Moshi Municipality. The Motor Cycle Mart business was registered under the Certificate of Registration, Exhibit PS. Upon purchasing the Motor Cycle Mart business, fhe appellant continued with the tenancy . . . . at the material premises along Arusha Road as evidenced by the tenancy agreement, Exhibit P3. The appellant authorized his agent, the first respondent, Anthony Thomas Temba to be the signatory of the_ Motor Cycle Mart Bank Account at the then National Bank of 3 Commerce,_ Boma Road Branch, Moshi. The signatory authority of the appellant is shown on the bank account, Exhibit P7. The appellant stated that as ~he proprietor of the Motor Cycle Mart business along Arusha Road, Moshi, he retained one set of keys to the premises and handed the duplicate keys to his agent cum supervisor, the first respondent. At the material -time, the first respondent was employed at the International Motor Mart, Moshi Branch as a Stores Clerk. He therefore then worked at the Motor . . Cycle Mart on part time basis. The appellant stated _that he authorized the first respondent to use 50% of the net profit of the Motor Cycle Mart for renumeration for the first respondent and also for the other employees. In "1987 the Motor Cycle Mart business was destrqyed by fire. It was the

evidence of the first respondent that after fire ravaged the workshop, he personally~ and on his own initiative, used the Motor_ Cycle Mart business name to apply for and acquire Plots Nos. 53 and 54 Block C Section IV Majengo, Moshi. The first respondent then looked for another partner, the late Nicol_as Tibrus Materu, with 4 whom he formed a partnership which was later converted into a company, the second respondent. The first respondent and the late Nicolas Tibrus Materu also processed, and had Plots Nos. 53 and 54 transferred to the second respondent of which the first respondent is Director to date. Title deed No.42432 for Plots Nos. 53 and 54 Block C Section IV, Majengo, Moshi is also in the name of the second respondent, Terna Engineering Works Ltd. I The appellant was therefore completely excluded from the acquisition and possession of Plots No. 53 and 54 Majengo, Moshi where the respondents trade as "Corner Motor Spares and Hardware". Being excluded from Plots No.53 and 54 in terms of title and development, the appellant· whose Motor -Cycle Mart business had been used to acquire the plots was dismayed. Hence, he instituted the .suit against the respondents. The first respondent and his co-director, the late Nicolas Tibru_s Materu, categorically 'denied the claim. The former stated that he 5 acquired the Motor Cycle Mart business after purchasing the same

for Shs.20,000/= he borrowed from the appellant which he repaid later. The purchase story of the first respondent is fallacious because the sale agreement for Motor Cycle Mart, Exhibit Pl, speaks for itself. · Exhibit Pl shows that the appellant purchased the Motor Cycle Mart business from Mrs. Badrudin. However, from 1977 onwards, the first ·respondent had the ten~ncy over Motor Cycle Mart alo.ng Arusha Road, Moshi, issued in his name per the tenancy agreement, Exhibit D1. Agapit Gabriel Mosha, PW.2, testified for the appellant to the effect that Plots Nos. 53 and 54 were acquired by the appellant. The evidence established, however, that P.W.2 Agapit Gabriel Mosha, was a self-employed mechanic who was not involved-in·--the:Motor Cycle- Mart business. The first· respondent, · for his part, called D.W.2 Nicolas Materu, to corroborate his defence and· claim over the title and property on Plots no.53 and 54 Block C, Section IV, Majengo, Moshi. 6 The trial court entered judgment for the plaintiff after finding that the first respondent, Anthony Thomas Temba, breached his trust as an agent of the plaintiff, the appellant, the late Reverend· Father Paul John Mallya. The latter was declared the owner of the Motor ' Cycle Mart and Plots Nos.53 and 54 Block C Section IV, Majengo, · Moshi. The defendants appealed to the High Court. On appeal, the learned appellate Judge found no clear

evidence to prove fraud on -~ .... the part of the first respondent in acquiring Plots Nos: 53 and 54 to the exclusion of the appellant. The learned Judge also found that the appellant had not involved himself in the application and acquisition of the plot in dispute. · The appeal was partially allowed. The. appellant was allowed to retain the Motor Cycle Mart business along Arusha Road, Moshi and the respondents were declared lawful owners of Plots,,Nos.53 and-54, Majengo, Moshi. The High Court also ordered the first respondent to produce the accounts of the Motor Cycle Mart from 1974 to 1980 as well as the profit account under which the appellant and first respondent would equally share the profit. Dissatisfied with the decision of the appellate High Court, the 7 appellant, through the services of Mr. C. Maruma, learned advocate, lodged this second appeal. The first respondent appeared in person. At the hearing, Mr. Maruma dropped ground four and consolidated grounds 5 and 6 of the appeal. Submitting on grounds 1 and 2 · of the appeal, he contended that the trial court lacked jurisdiction to determine the suit, which he said falls under Section 12 (1) ·(s) of the Rent Restriction Act, 1984 and that it ought to have been instituted in the Regional Housing Tribunal. . Mr. Maruma cited the case of AG versus Lahay Akonaay 1995 TLR 80 at Page 92 wherein this Court held; " Courts would not normally entertain a matter for which a specified forum has been established, unless the aggrieved party can satisfy the court that no appropriate remedy is available in the specified forum". Counsel further cited the cases of- 8 : M/S DAY AND NIGHT PHARMACY LTD, Versus

TANZANIA SEWING MACHINES COMPANY LTD. Civil Case No. 22 of 1999, High Court of· Tanzania at Arusha [unreported] and Burka Coffee Estate and Another versus Tanzania Revenue Authority Civil Case No. 28 of 1998, High Court of Tanzania at Arusha [unreported] in which the High Court struck out suits which ought to have been instituted in specialized tribunals created for handling such cases. To our minds, the case before the· trial court did not involve a dispute between landlord and tenant. For that reason there was no basis for it being filed in the Regional -Housing Tribunal under Section 12 (1) (s) of the Rent Restriction Act, 1984. This is evident from the · pleadings and framed issues which show that the parties are contesting the ownership of the Motor Cycle Mart business along Arusha Road, Moshi and the property on Plots No. 53 and 54 Block C · Section IV Majengo, Moshi Municipality. The framed issues were: 9 1. Who owns business MCM? [Motor Cycle Mart] 2. Who is entitled to the property on Plots No.53 and 54 Block C Section IV Majengo, .Moshi?

3. What reliefs. 4. · Who is tenant where MCM runs its business? We are of the firm view that because the jurisdiction of the trial court was not challenged, the same cannot be questioned at the late · stage of a second appeal. Grounds 1 and 2 of the appeal are therefore without merit. In ground three of the appeal, Mr. Maruma contended that the High Court erred in fact in making conflicting findings on the fact of the tenancy of the business premises. We find no merit in ground three of the appeal principally because the record of appeal, at Pages 10 28, 29 and 81, shows that the late Paul John Mallya agreed to the transfer bf the tenancy of the Motor Cycle Mart premises along Arusha Road to his · agent, Anthony Thomas Temba,. the first respondent. That explains why, commencing the years 1977, the tenancy for the Motor Cycle Mart busin.ess along Arusha Road, Moshi Municipality, was issued to the first respondent. · From the evidence and circumstances of this case, we find no . conflictJng findings of fact as regards tenancy. We wish to observe · that this beirig a second appeal, the Court is restricted to questions of law, or law and fact arising from the first appeal. The same was pronounced in the cases of Shantilal Maneklal Ruwala 1957 E.A. 570 and Dinkerraj Ramkrishan Pandya versus R 1957 E.A 336 in which the-then Court of-Apf)eal·for-Easf•Africa held that it iscthe.duty-

of-a first appeal court to carefully consider and re-evaluate the facts in all respects before .confirming the findings of the magistrate and the correctness of those findings which is what ·the learned appellate Judge did in this case. 11 The learned .counsel for the appellant, . having abandoned ground 4 of the appeal tackled grounds 5 and 6 together. He subfllitted that the High Court set out an unduly high standard for the appellant to prove that the resp~ndents had fraudulently acquired Plots Nos. 53 and 54 Block C, ·Majengo, Moshi to the exclusion of the first respondent's principal, the late Paul John Mallya, by using the Motor Cycle Mart business name which the first respondent dropped in. favour of a. new business name known as "Corner Spares and Hardware", which business now operates on Plots Nos. 53 and 54 Block C Section IV, Majengo, Moshi Municipality. Although. Mr. Maruma vigorously urged the Court to find that the respondents had fraudulently acquired Plots Nos. · 53 and 54 Majengo, Moshi, the appellant adduced no .-evidence___at_a·11 to .prove· the alleged fraud. In the circumstances, we find no merit in grounds five and six of the appeal. In the light of the above we uphold the decision of the High Court. The appeal is accordingly dismissed with costs. 12 AT ARUSHA this 2ih day of May, 2003. E.N. MUNUO

JUSTICE OF APPEAL H.R. NSEKELA

JUSTICE OF APPEAL I certify that this is a true copy of the original. r.·~ (F.L.K. WAMBALI) DEPUTY REGISTRAR . 13