20010419 TZCA Dar es Salaam

0 ' " IN THE OOURT OF APPEAL OF TANZANIA AT DAR ES SALAAN (CORAM: E!~_HANI,~f~~ L LUBUV~h-~LUGAKINGIRA, J .A.) CIVIL APPEAL NO. 77 OF 1999 BE'IWEEN MOUNT USAMBA...-qA HOTELS LIMITED APPELLANT AND NYEMBELA GANDAW'.8GA o e o o o o • o o • o • o • o o • o RESPONDENT (Appeal from the judgement and docree of the High Court of Tanzania at Dodoma) (!:1_~:;.l~.!1~.,~.!..:.) dated th~ 5th day of December, 1994 I in JUDGEMENT OF THE COURT This appeai arises from the decisi•n of the High Court ~ (Mwalusanya, J,) sitting at Dodoma. In Civil Case No. 20 of ~ 199:::l, the respondent had filed a suit against the appellant, ,·_j/_, .,_ . _;,{_~,. Mount Usarnbara Hotel Limited and one Hamisi Salehe now deceased, /1 ~;,~~f-- }j,:J:· who, ·at the trial were referred to as se~-,nd and first defendants f~~-;.,·· -~:-:,· '. . respectively. . The suit involved a claim 4-i shillings 1,204,000/= :~;/:'; ( . the worth of 50 head of cattle the respondent had sold to the f;. f., appellant. The respondent also claimed shillings 152,000/= ~:~#··;-:- ~~~:~. . ·· ~.~i~Penses incurred in pursuing the claim. As Hamisi Salehe had r· "~~~t,;,::.·:·:. i .. ~!.ai1bd to file written statemei;it of defence, judgement was :: . ·~ ' . 1-~~!t_'. .• ~'.%i}~\ered against him. He has not appealed either • ... ··: 't;';f • I the trial, evidence was led on behalf of the :zr.espondent -·af oh 31.80 1989 Hamisi Salehe on behalf of the appellant hotel credit 50 head of cattle worth Shs. 1,204,000/= from 2 the respondent. It was also in evidence that Mohamed Kihiyo, now deceased was the owner and Managing Director of the appellant hotel. After the death of Mohamed Kihiyo, Nuru -s/~ Kihiyo, (DW1) the young brother of the deceased was the successor irt office as the: Managing Director of the appellant hotei. On oh~ occasion when the respondent was following up paYJllent for the 50 head of cattle, he was assured that payment would be paid by the successor in office the Managing Director of the appellant hotel. Further evidence was also led in support of the respondent that the 50 head of ~attle purchased were driven to the kraal of the deceased Hamis Kihiyo at Kimara for safe keeping. On the basis of such evidence, it was contended that the appellant, (original second defendant) as successor in office to the deceased could not avoid paying for the claim in the suit. The second respondent, the appellant in this appeal, denied the_claim. It was strongly contended for the appellant that though Hamis Salehe was a relative of the deceased Managing Director, Hamis Kihiyo, he was neither an employee nor an agent of the appellant at the time of the purchase of the cattle. For this reason, the appellant maintained, there was no legal b~sis upon which to accept the claim. The learned trial judge in a well reasone.d judgment analysed and evaluated the evidence, he came to the conclusion that the respondent was liable to pay the claim. This appeal has been preferred against the decision. Before us in this appeal the appellant was represented by Mr. G,.c. Mbezi, learned counseJl. He vigorously contended that the trial judge se:r:-iously erred! in his :finding that Hamisi Sa:lehe ... /3 was an agent of the appellant, Mount Usambara Hotel Ltd. In the first place he contended, the question of agency was not in issue at the trial. Secondly, there was no evidence to show that Ramis Salehe who was also a businessman dealing in buying cattle was an agent of the appellant or that he had received the cattle on behalf of the appellant. While conceding that some times Ramis Salehe.went to the cattle auction in the company of the d~ceased, Mohamed s/o Kihiyo and on other occasions he went alone, Mr. Mbezi contended that on the day the 50 head l".>f cattle were purchased, it was not established on the evidence what mandate Ramis Salehe (original 2nd defendant) had. Mr. Rweyongeza, learned counsel for the respondent countered these submissions. According to him th0re was sufficient evidence to establish agency relationship between the appellant and Ramis Salehe. To support this contention he referred to the following instances: first, Ramis Salehe (DW2) at times went to the cattle auction purcha 9 ing cattle alone and at others in the company of Mohamed Kihiyo, now deceased, second, cattle purchased at the auction either by Hamis Salehe (DW2) or the deceased Mohamed Kihiyo we_re kept at the kraal of Mohamed Kihiyo at Kimara; third, Hamis Salehe (DW2) sometimes purchased cattle from the respondent by signing delivery notes in respect of which payment was later effected by Mohnmed Kihiyo; fourth, subsequent to the purchase of 50 head of cattle the subject of the suit, the respondent supplied another 37 head of cattle. This, Mr. Rweyongeza urged, is indicative of the fact that it was an established practice that the respondent sold cattle either through Ramis Salehe (DW2) or the deceased, Mohamed Kihiyo for which payment was .eventually made by the appellant hotel. From such evidence and the faet that .1 Mount Usatnbara Hotel Ltd. had a numb.er of side line activities I including supplying of meat, Mr. Rw~yongeza further. urged that .1 the learned trial judge's finding that Hami~ Salehe (DW2) bad purchased the cattle on behalf of the appellant canrtot be fauited~ In this appeal we think the issue faiiing for consideration is whether Hanlis Salehe (DW2) purchased the cattle; the subject of the suit as an agent of the respondftnt, Nyembela Gandawega. In resolving this issue it is imperative to consider the whole circumstances pertaining to the purchase of the cattle. This, we think is what the learned trial judge was striving at when in his finding of agency relationship when he stater. inte;r alia: 11 0n the evidence on record it is my finding that the 1st defendant though he was not an employee of the 2nd defendant, yet he was the age}1'\; of the deceased Mohamed s/o Kihiy6 and thereof (sic) the second defendant as heir and successor in office to the said deceased are liable for the claim. I am satisfied on the evidence on record that the 1st defendant was often receiving the cattle on behalf of the deceased. The cattle were being kept at the deceased's kraal at Kimara and it was the deceased who was paying the·money to the Plaintiff. It was the deceased who had the tender business of supplying meat to the institutions and 1st defendant had not such business •••11 The learned trial judge's finding is further supported by the evide_1ce of Abdallah s/o Salimu (PW2) who in part, said: - 5 - -, I was meeting Mohamed s/~ Kihiyo, with Ramis s/n Salehe, their employee. Ratriis s/o Salehe was taking the cattle on behalf of Mohamed s/~ Kihiyo his empl6yer. On 31.8.89 I was there at Pugu Road and I saw Ramis s/o Salehe but not the deceased. He sent the 42 heads (sic) of cattle to the kraal 1 of Mohamed s/o Kihiyo at Kimara. Regarding the fact that Mohamed s/A Kihiyo used to come to the cattle auction either alone or in the company of Ramis s/• Salehe 1 at the ~trial the respondent (PW1) inter alia stated: one of those special clients 11 • • • was Mohamed s/o Kihiyo ... At times he was coming alone at Pugu, but sometimes he came with Ramis s/o Salehe wh~ was signing the delivery note. I would send the signed delivery note to Mohamed s/o Kihiyo who would pay me. I knew Ramisi s/P Salehe as he was staying with Mohamed s/o Kihiyo. 11 From the evidence extracted, we are satisfied that the learned trial judge was entitled to the finding that Hamisi Salehe purchased the cattle as an agent of the appellant. In that capacity according to the evidence on record the respondent sqld his cattle to Ramis Salehe for which payment was effected by Mohamed Kihiyo.· lf that was not the case we can see no reason . 'l• ~ . w):ly Mohamed Kihiyo the deceased Managing Director of the appellant hotel made payment for the cattle purchased by Ramis Salehe. In arriving at this conclusion we are not unmindful of some of the inadequacies in the evidence in support of the case for the eoe/6 respondent. For instance, Annexure nA", a delivery note signed by . .I the appellant acknowledging receipt of the cattle was not tendered at the trial. It is common knowledge that annexures to the plaint are not part of the evidence unless they are tendered during the trial. Here, the annexure was µat tendere_d and so, it was not of any·evidential value. However, the inadequacies notwithstanding, we are in agreement with the learned trial judge that on the balance of probabilities, agency relationship be~ween Hamis Salehe and the appellant had been established. Mr. Mbezi's submission that the issue of agency was not in issue at the trial is, with respect, groundless. On this, we need not be delayed because part of the only issue framed was to the. effect whether the first defendant (Hamis Salene) received the cattle on behalf of the second defendant, the appellant. From the evidence, it is sufficiently shown that Hamis Salehe (original first defendant) received the cattle not as an employee but as an agent of the a;;ellant hotel. In the event, we find no merit in the appeal, it is dismissed with costs. DATED at DAR ES SALAAM this 19th day of April, 2001. A.S.Lo RAMADHANI JUSTICE OF APPEAL D. Z. LUBUVA JUSTICE OF APPEAL KoSoK. LUGAKINGIRA TICE OF APPEAL < a true copy of the original. ··~ ,. \ ': . • • I' Ni\AfA).,I Q~ ~ · ( N. , • MWAlX'lfGThE: ) REGIS'rR/tR