PC

IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA PC CIVIL APPEAL NO. 22 OF 2023 (Arising from the District Court of Kilwa District at Kilwa Masoko, Civil Appeal No. 03 of 2023, originating from the Primary Court of Kilwa District at Kilwa Masoko, Civil Case No. 15 of2023) CASE REFERENCE NO. 20231031000537116 PRASHANT SHUBIKHARAN DETHA---------------------------- -------- APPELLANT VERSUS MATHIAS KINGALU -------- ---------------------------------- ——— RESPONDENT JUDGMENT Ifh October & SF* November 2024. Ebrahim, J.: Having been unsuccessful at two courts below, the appellant has preferred the instant appeal challenging the decision of the District Court of Kilwa at Kilwa Masoko (the appellate court) in Civil Case No. 03 of 2023. The impugned decision was made in favour of the respondent after the court found that the appellant failed to prove his case on balance of probabilities. Before the trial court the respondent, MATHIAS KINGALU was a plaintiff. He instituted a suit against three persons namely; the appellant i.e., PRASHANT SHUBIKHARAN DETHA, AIZAK SHABANI and MWINYIKAMBA HAMISI Page 1 of 15 RAMADHANI (who were the 1st, 2nd and 3rd defendants respectively) for unlawful repossession of a motor vehicle, TATA make with registration No. T. 565 DHT. The respondent/plaintiff prayed to the trial court for orders; compelling the defendants to hand over a motor vehicle with registration No. T. 565 DHT. The 1st defendant admitted the claim that he repossessed the motor vehicle because the plaintiff (respondent herein) defaulted payments for three years. He owed the respondent/plaintiff Tshs. 10,000,000/=. The 2nd and 3rd defendants denied the claim and contended that the respondent/plaintiff defaulted payment of Tshs. 7,000,000/=. After hearing the evidence of all parties, the trial court found that the respondent had no claim against the 2nd and 3rd defendants but the 1st defendant only. Thus, the 1st defendant (the appellant herein) was condemned for breach of contract and ordered to return the motor vehicle to the respondent; and the plaintiff (the respondent) was ordered to pay the appellant the remaining debt of Tshs. 7,000,000/=. Dissatisfied by the decision, the 1st defendant/appellant herein is now before this court. The brief facts of the case as gathered from the record are that; on 16.07.2021 the respondent purchased a motor vehicle from the appellant's agents Aizak Shabani and Mwinyikamba Hamisi Ramadhani (the sellers) for Page 2 of 15 a consideration of TZS. 15,000,000/=. It was agreed that the purchase price be paid in instalments. On the same day, the respondent paid TZS. 8,000,000/= and issued a post-dated cheque of United States Dollars (USD) 3050/- of 16.08.2021. It happened also that according to them payment arrangements, 16th August 2021 would be the last instalment date. Unfortunately, the respondent defaulted payment hence the appellant repossessed the motor vehicle. It was alleged that the respondents default occurred on 16.08.2021 and the repossession by the appellant was made in February 2023. The respondent was not amused with the repossession therefore he instituted a suit which is a subject of the instant appeal. Before this court the appellant preferred four grounds of appeal as follows: 1. That the appellate Magistrate erred In law and fact for the failure to quash and set aside the decision of the Primary Court entertained the matterout of its jurisdiction. 2. That the appellate Magistrate erred in law and fact for the failure to quash and set aside the decision of the Primary Court since the respondent has no locus standi to institute the case. 3. That the appellate Magistrate erred in law and fact for the failure to Page 3 of 15 erroneous decision withoutproperevaiuationofthe evidence adduced by the parties to the suit 4. That the appellate Magistrate erred in law and fact for the failure to quash and set aside the decision of the Primary Court since the proceedings andjudgment of the court are vitiated by irregularities as it was contrary to the law. At the hearing of the appeal, the appellant was represented by advocate Mohamed Manyanga whereas the respondent had the services of advocate Mafuru Mafuru. The appeal was argued by way Of written submissions. Parties duly filled their respective submissions as per the set schedule. On his submission, Counsel for the appellant opted to abandon the 1st and 4th grounds of appeal. Both parties made detailed submissions for and against the grounds of appeal respectively * Mr. Manyanga began submitting on the third ground of the appeal. He said the two courts below improperly evaluated the evidence adduced during the trial by disregarding the credible and watertight evidence from the appellant the act which was contrary to section 110 (1) of the Evidence Act [Cap. 6 R.E 2022] and took into account the incredible evidence from the respondent. He invited this court to exercise its inherent power to re- Page 4 of 15 evaluate the aforementioned evidence as per the principle set by the Court of Appeal in the case of Paulina Samson Ndawavya vs Theresia Thomasi Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453 (11 December 2019) which cited the cases of Jamal A. Tamim vs. Felix Francis Mkosamali & the Attorney General, Civil Appeal No. 110 of 2012 (unreported) and Martha Wejja vs. Attorney General and Another [1982] TLR 35 where the Court of Appeal of Tanzania accepted to re-evaluate evidence adduced during the trial. Counsel for the appellant invited this court to consider the respondents failure to fulfil the terms of the contractual agreement of sale of which he only made part payment of Tshs. 8,000,000/= on 16.04.2021 and failed to honor the terms of the agreement for sale to make good payment of the remaining debt of Tshs. 7,000,000/= which was to be paid by 16.05.2021. Advocate Manyanga submitted that the respondent changed the use of the motor vehicle from fuel tank to water tank and repaired the motor vehicle without the consent of the appellant. He complained therefore that the courts below failed to evaluate the evidence adduced by the appellant. Page 5 of 15 Mr. Manyanga further contended that the motor vehicle was procedurally handed over to the appellant as per Order 1 Rule 10(2) of the Civil Procedure Code Cap 33 RE 2019. On the second ground of the appeal, Mr. Manyanga contended that the respondent had no legal capacity to sue on behalf of the company without board resolution from the said company. He prayed that the appeal be allowed with costs. Mr. Mafuru made his reply as per the order set by the Counsel for the appellant. As for the third ground of appeal he said that Order 1 Rule 10(2) of the Civil Procedure Code Cap 33 RE 2019 and the Evidence Act cited by Advocate Manyanga are not applicable in this appeal as the case originates from the primary court. He distinguished the principle set in the case of Paulina Samson Ndawavya and Martha Weja (supra) with the circumstances of the instant case that in Paulina's case the Appeal to the Court of Appeal originated from the High Court whereas the suit was conducted under the Civil Procedure Act, Cap 33 R.E 2019. He argued therefore that the jurisdiction of this court to re-evaluate evidence on the law which is not applicable is not legally tenable since in Primary Court the law applicable in taking and administering evidence is the Primary Court Page 6 of 15 Rules of Evidence, 1964 and not the Evidence Act as submitted by the Counsel for the appellant. Mr. Mafuru referred this court to the case of Hassan S. Makolosi vs Graudence Paul, PC Civil Appeal No. 02 of 2002, HC-DSM (unreported) where it held that the Civil Procedure Code Cap. 33 does not apply in Primary Courts and that Primary Courts apply the Primary Courts Civil Procedure Rules, 1963 [GN 310/1964]. He concluded therefore that the District Court properly evaluated the evidence and reached its findings by upholding the primary court's decision. Submitting on the second ground of appeal, Mr. Mafuru argued that the motor vehicle was bought in the name of the respondent and not as a company as per exhibit "A". The sale agreement was executed between the parties in their own capacity. He prayed for the appeal to be dismissed with costs. Having gone through the rival submissions, the issue for determination by this court is whether there was a contract of sale between the parties; and whether failure by the respondent to make good payment of the remaining balance as agreed entitled the appellant to repossess the motor vehicle. I am mindful of the fact that this being the second appeal, the second appellate court is discouraged from disturbing the concurrent findings of Page 7 of 15 facts of the lower courts unless there has been misapprehension of evidence, miscarriage of justice or violation of some principles of law or practice. This principle has been enunciated in the cases of Issa Mgara@ Shuka V Republic, Criminal Appeal No.37 of 2005 (Unreported); and Dickson Joseph Luyana and Another V Republic, Criminal Appeal No. 1 of 2005 (Unreported), to mention but a few. Indeed, the determination of this case depends on the weight of evidence adduced at the trial court in tandem with the principle of the law that whoever wishes the court to believe on the existence of a fact, has a duty to prove the existence of such fact - section 112 of the Law of Evidence Act [Cap 6 R.E 2022], I shall therefore determine all grounds of appeal generally. Before starting to discuss the merit of the appeal I shall discuss on the laws cited by Mr. Manyanga as raised by Mr. Mafuru, counsel for the respondent, he contested that Mr. Manyanga has cited the provisions from the Civil Procedure Code, Cap. 33 and the Evidence Act, Cap. 6 which are not applicable in Primary Court as the suit at hand originates from the Primary Court. Page 8 of 15 I concur with Mr. Mafuru on the point of law he raised much as the Civil Procedure Code, Cap 33 R.E 2019 and the Evidence Act are not applicable on matters originating from the Primary Court as there are specific laws governing its functions. Consequently, I will not go into deep on that intricacies for the reason shall be apparent soon. Part III (c) of the Magistrates' Court Act, Cap 11 R.E 2019 conspicuously caters for Appellate and Revlsional Jurisdiction of the High Court in Relation to Matters Originating in Primary Courts. From the that law, it is obvious that unless otherwise provided by any other written law, the powers of appeal/revision by the High Court on matters originated from the Primary Court is Magistrates' Court Act, Cap. 11 R.E 2019. The said principle of the law is well interpreted in section 2 of the Civil Procedure Code, Cap 33 R.E 2019 where it is stated that: "Subject to the express provisions of any written law, the provisions of this Code shall apply to ail proceedings in the High Court of the United Republic, courts of resident magistrates and district courts. " Again section 3 of the Cap 33 defines "court" to mean "the High Court of the United Republic, a court of a resident magistrate or a district court presided over by a civil magistrate and references to a district court Page 9 of 15 are references to a district court presided over by a civil magistrate." [emphasis added]. Also, the Evidence Act, Cap. 6 is not applicable in the Primary Court. Consequently, the Civil Procedure Code, Cap 33 R.E 2019 is not applicable on matters originating in the Primary Court as there are specific laws governing its functions. And the law on evidence is the Magistrates' Courts (Rules of Evidence in Primary Courts) Regulations, 1972. In the determination of this appeal, I would start with the issue of locus standi. The appellant contended that the respondent had no legal capacity to institute this suit the reason being that he purchased the motor vehicle for his company. At the trial, the respondent herein (SMI) testified that he purchased the motor vehicle from the appellant through his agents. The facts are clear from the Primary Court that the respondent purchased the said motor vehicle in his own capacity. Therefore, the issue of board resolution does not have a bearing in this case. This case is hinged on the issue of payment of the balanced amount on the sale of the motor vehicle as sale agreement. Page 10 of 15 It is salutary principle of the burden of proof that "he who alleges must prove" as per section 110 of the Evidence Act [Cap 6 R.E 2022]. As this case is civil in nature, the standard of proof is on the balance of probabilities simply meaning that the court will sustain such evidence which is more credible than the other on a particular fact to be proved. A statement by Lord Denning in Miller v. Minister of Pensions [1937] 2 All. ER 340 suffice to emphasize on the point as reproduced hereunder: "If at the end of the case the evidence turns the scale definitely one way or the other, the tribunal must decide accordingly, but if the evidence is so evenly balanced that the tribunal is unable to come to a determinate conclusion one way or the other, then the man must be given the benefit of die doubt. This means that the case must be decided in favour of the man unless the evidence against him reaches the same degree of cogency as is required to discharge a burden in civil case. That degree is well settled. It must carry a reasonable degree ofprobability, but not so high as required in a criminal case. If the evidence is such that the tribunal can say - We think it more probable than not the burden is discharged, but if the probabilities are equal, it is not...". [Emphasis added] Page 11 of 15 Contracts of sale of goods are regulated by the provisions of section 3(1) The Sale of Goods Act, [Cap. 214, R.E 2002]. Which defines a Contract of Sale as hereunder: "5 (1) A contract ofsale ofgoods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration,, called the price, and there may be a contract ofsale between one part owner and another." Further, section 5(1) thereof states: "Subject to the provisions of this Act and of any other written law in that behalf, a contract of sale may be made in writing (either with or without seal) or by word ofmouth, orpartly in writing and partly by word of mouth, or may be implied from the conduct of the parties. "[Emphasis added] As a matter of fact and law both parties do not dispute to have entered into a contract of selling a motor vehicle with registration No. T. 565 DHT. Therefore, I am satisfied that the transaction involving the parties to this suit was oral contract of the sale of motor vehicle under which the appellant sold his motor vehicle vide his agents to the respondent. I have scrutinized the records and specifically the respondent's sale agreement (exhibit "A") and noted that the same was neither signed by the buyer as aforementioned nor Page 12 of 15 his witness. The omission is doubtful as his signature was useful for evidential purposes. Hence, since their sale encounter is not in dispute, I would not give it any attention. Reverting to the issue as to whether the appellant is indebted to the respondent for the motor vehicle sold to him. Section 40 (l)(b) of The Sale of Goods Act, [Cap. 214, R.E 2002] provides that: "40(1) The setter ofgoods is deemed to bean "unpaid setter" within the meaning of this Act— (a) -....... -.........-....................... ........ -.......... (b) when a bitt of exchange or other negotiable instrument has been received as conditional payment, and the condition on which it was received has not been fulfilled because it was dishonour of the instrument or otherwise." For one to qualify as an unpaid seller the buyer must have defaulted in making full payments as per the terms of the contract and where conditional payment is used; for instance, the bill of exchange or other types of negotiable instruments must have been dishonored. On such circumstances, the unpaid seller has two classes of rights open to him that is; the right against the goods and rights against the buyer Page 13 of 15 as provided under sections 40 -49 of The Sale of Goods Act, [Cap. 214, R.E 2002]. In the case at hand, the respondent testified before the trial court that on the remained debt of Tsh. 7,000,000/=, he issued cheque No. 053173 of 16th May 2021 to Aizak Shabani. The respondent told Aizak that he would inform him when he (Aizak) should go to withdraw the money before the lapse 30 days. Unfortunately, after the expiration of 30 days, the cheque was dishonored and the payment was not effected. The respondent averred during cross-examination that he had neither confirmed nor received any information from the bank that the appellant withdrew the money. Basing on the above observation, I am of the position that the respondent was indebted to the appellant for the motor vehicle sold to him for the remained unpaid balance of Tsh. 7,000,000/=. The law under section 42 (l)(b) of The Sale of Goods Act, [Cap. 214, R.E 2002] provides for the seller's right of lien where the property in the goods has passed to the buyer. The unpaid seller who has not given up possession of the goods may retain them as lien until the buyer pays his debt. Page 14 of 15 In the instant case the respondent (the buyer) is indebted to the appellant (the seller). Therefore, the appellant had a right of lien of the said motor vehicle from the respondent. In view of the above observation, I find that the two lower courts misapprehended the evidence on record by wrongly giving no weight it rightly deserves the evidence of the appellant. If at all, the respondent failed to prove that he paid the remained sales amount to the appellant. In the circumstances, I accordingly order the respondent to pay the appellant Tshs. 7,000,000/=. After the payment, the appellant shall return the motor vehicle to the respondent. The appeal is therefore allowed with costs. Accordingly ordered. R. A. EBRAHIM Judge 08.11.2024. Page 15 of 15