19970709 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA DAR ES SALAAl·;. DISTRICT RE~asTRY AT DAR j£S SAI-,,:.\A,!! CIVIL CASE N0.175 OF 1990 Cl Cl • ~O • • . • . . " .PLAINTIFF VERSUS DIA.·,OND l·.tOTORS LL·,ITED .. . • • ·• • DEFENDANT IJ.ll)jJ;;_SHI.......L. The plaintiff, Rabdiel f'hile.rc.on Muro sued the defendant Diarr.ond Motors Lilr.i ted clair:ring from the defendant for the f oJ.lowi ng. truck regi3tration No. TZA 6137. '":' interest due to Karadha loan frorr date the. defendant wrongfully withheld the truck till when deliver.y is ~ade. special damages oi Shs~500,000/=. loss of profit at the rate of Shsol30,000/= per day from 23/3/1990 till when delivery is J11ade and interesto thereon as per mercantile custo~ till date of judgeJ11e nt. interest ·on the decretal among at the courts rate frorr/ j1.,1dgement till payment full cost.s, and any other retief(s) that the court ~ay just and equitable. The defendant has resis•ted the claiP" and filed in court their written staterr,ent of defence. According to the evidence tendered in court, the plaintiff bougl].t the suit truck !-r.i tsubishi Isuzu tanker with registratio:::,. No TZA '1137 in 1990 fron: the Defendant. The plaintiff 0 tendered in court the registration card which was adrni tted .as ~'Chibit .aPX. He testified further that the said truck formaly belonged to Bukoba Machinery and that the defendant did .not transfer it to his name. He added that on 10/3/90 he handed the ttehicle to the Defendant for finalization of minor details and test and then he received it, •."' That ')TI 18/3/90 he took the vehicle for service and later when he went to take it, the defendant refused to hand over the said vehicle on reason that there had been an increese in the price and he was required to pay more. According to the plaintiff he paid the final arnount to the Defendant a total surn of T.Shs.1,540,000/= being price and interest vide proforma invoice issued to him by the defendant on 30/1/90. The plaintiff tendered the consolidated receipts in copies in lieu of the origi~Bls and same were admitted as ~WJJll.:.t. "P 2" collectively. The plaintiff further testified that he had no debt at all that is why the transfer was done and waa allowed to i·nsure the vehicle. He tendered the original cover note fro~ the National Insurance Cowpany which was ad!Tli tted as ~hibi t . !.T. 311 , The plaintiff testified further that he was surprised when the Defendant refused to release the said truck and demanded to be paid an additional amount of T.Shs.275,202/=. The demand 1ett~r was tendered and admitted as Exhibit "E ·4 11 • The plaintiff said the additional sum was claiwed by the defendant after he had stayed with the truck for about 10 days. The plaintiff testified that he refused to pay the additional amount and the defendant has refused to release the vehicle to hi~ since March, 18th 1990. The plaintiff has stated that there was no agreerr.ent between hire purchase him and the defendant. That the/agreement was between him and Karadha Company. He tendered the oaid agreement which wa-s adrritted as Exhibit "P 5". He added that Karadha did not corn.plain on his being registered the owner neither did Karad:1a object when the truck was handed over to the plaintiff. As a result he claiTJ1s he has suffered substantial loss, damages and inconveniences due to an unreasonable and unlawful act of the defendant seizing the truck. . .... /3 3 rte clairred to have failed to repay the loan he got from KARADHA and the<~de bt had ~~sn_ to the tune of T.Shs.S,140,054/35 as per Exhibit ·11 P ,;ii. He further testified that he used to get Shs .130 ,000/= per tr.:a..-p ferrying petrol betvreen A.ru,sha and ~Jioshi as per the agreerr.ent with CAL TEX. He tende.ced in court the said agreerrent which was adrni tted as Exhibit 1 ~:e_ 7", He testified that for the Dar es Salaam - Arusha tltr~eG trt.rps :::. weeK he was getting TShs.390,000/=. That as a result of the defendants act, he has failed to pay school fees, roedical expenses and general family v121L~re. He has prayed for the court to enter judgement in his favour plus costs. The defendant cqlled only one wi t-ness - RUPIN RA.JAN th,2 executive director of the defendant corr,pany. In his evidence rnv 1 ad:nitted that the plaintiff was oLe of the purchasers of r-"i tshubishi FK 455 trucks. That he explained to the plaintiff that he had to pay 100% of the purchase price.::- ar.d that he could procure finance fron: KA1l:\)J-i!i, 11)3C_~or CRDB. DW 1 testified that KARADHA wrote him a letter advising that they (Ki-\R.ADHA) would pay 50% and balance by plaintiff himself~ He told the court that their validities were on specific dates - back to back agreerent on exchange rate .. DW 1 testified that they issued the 1st proforJT1a invoice in the ri..arne of the plaintiff on 30/11/89 whose validity was up tc 15/12/89. Then the second invoice was dated 30/1/90 wi t 1·1 v2.lidi ty up to 10/2/90. He testfied that they rnade the sec..;nd offer becal.l:tse -)f the exchange rate. A•corJing to Dw 1, i:;u,2 1)1.:1.intiff hac: n;t rri:.1ie full payr.ert by 30/11/09. He testi::; '':O. f1..J.rther that tne 3rd Pruforrra Invoice du.ted ·23/3/90 had sarnf_ details but price quoted was TShs.G,287,300/= with vo1i-di.1yi up to 5/4/90... That the pl,3.hTtiff has not to date rn3.de th2 full :payr ent. That Exhibit 1P 4, was addressed to the plaintiff so 0 that he- pays the balance of TShs.275,200/=. He tendered the 3 frofoJ""a Invoices as Exhibit "D 2:, 11 D 3" "D 4 11 respectively, 3.nd reply fror,, the plair1tiff I s lawyer as Exhibit 11 D 5", DW 1 testified that the plaintiff was required to pay an additiom.l 4 arnount of TShs.5i;O,OOO/= cos-t of building the tanker; and that this vias a separate i tern. That the pla-intiff decJ.inecl to pay as per the price quoted on the 3rd Profo!!'!rna Invoice but that he agreed to pay on the basis of the 2nd Proforrna Invoicet The issue fra~ed by the court are:- is the plaintiff entitlGd to clairn owners.hip of Isuzu truck i'-~i tsubishi Isl.~zu Tanker TZA ,;137. was the defendant entitled to clo.im for the addi tion-3.l costs frorr the plaintiff• has the plaintiff suffered any dar:riage as a result of the defendants actione reliefs tb parties. The plaintiff's case ,is rnade up frorr the evidence he ter:d,2red in court. He was the sole -witness and in the,rrain the recapitulation of the contents of the plaint. For the def,.::ri.dant cornpany l~r. Rupin Rajani, the executive director was the sole witness. His evidence was that he knew the plaintiff through correspondence and had advised hiIL to procure f imnce s from banking institutions since they did not offer credit terTT's. He told the court that the plaintiff entered agreel"'ent with Karadha and that both KarG.dha and the plaintiff were to pay 50% each of the price. He testifif?d that their validities of the Profornia Invoice were for specific periods - the fir.st was on 30/11/89 valid up to 15/12/89, the, second was on 30/1/90 up to 10/2/90 and. that they made the second Proforrria Invoice due to fluctuatL;ns in exchange rates r,-rr. Rajani testified that-the price quoted on the second i=·rofor:ma .Invoice was TShs. 7,4t:..C..,100/=. That sirce tho plaintiff had not rr'ade full payrrents as per 1st and 2nd Profor~a Invoices, the defendant sent hi!Y' another Profor~a invoice of TShs,~8,287,30,,/=, dated 23/3/90 with validity up to 5/4/90. He· ·testified that up to 5/4/90 the plaintiff had r:.ot paid infull. He told the court that they are clail'l"ing shillings 275,:?-00/= as p1$r Exhibit P 4 frorn--the plaintiff. This vvi tness tendered in court the 3 Proforrra Invoices which were adrni tted collectively as Exhibit 1D 2', 11 D 3" and 11 D 4 11 ,. Mr. RajarJ. told the court that they collected the money frorr custorrers but valu2 of the trucks changed from day to day -~ due to exchange fluctuation rates. He ins.is.te:d that the plaintiff was aware of this procedure but that the plaintiff agreed to pay on the basis of the 2nd Profor:rria Invoice . ,. . . . 1 . ,. Exhibit D 3 and not Exhibit D 4. According to this witness the vehicle was to be registered in the m6e of Karadha as well as the plaintiff. He testii'ier;l that the plaintiff had not even paid as per the 2nd Proforrn3. Ivoic2, which quoted the price of the truck as Shs.7,227,300/=. He decliri..ed to have released the vehicle to the plaintiff as tr::e final figure had not been paid. As to the Registrat-ion Carel bearing a. different nal'Y'e before it bcr.c karadha' s ..tlla.JT1e, the witness told court that +heyb~ave not at any tiTT'e handed th2 card to the plaintiff.That /had reported this incident to the police, and e:rnphasized that they have not at anytiTPe handed the vehicle to the plaintiff and he does not know-who paid for the insurance. He said that they credited hirn with the interest accrur.ed and the plaintiff was to pay the outstanding balance of Shs.275,000/=. He contended that although the plaitiff was told how that figure was arrived at, the plaintiff has declined to pay. There is no dispute that the tlaintiff agreed with K~radha t'"' nurchase the fJTits-JJJ.ubj,shi Cargo truck for Shs.7,227,300/= 1, -t 1 t carre "to at · hire purchase price/of Shs.G,571,578. The vehicle was therefore to be co-owned by plaintiff and Karadha as per Exhibit P 5 the Hire Purchase Agreement signed on 11th Jaruary, 1990. In that regard the Exhibit P,l registration card which does not b0ar the name of Karadha ought to be the disregarded. The court would considef Exhibit 'D lYregistration card bearir~ both na~es of plaintiff and Karadha to be authentic as it reflects the state of af.fairs in as far as Karadha and the plaintiff are concerned. The plaintiff paid to the defendant a total of Shs.7,227,300/= by 10/2/90 vide receipts he received from the defendants which were collectively ad111i tted as Exhibit 10 2 11 • And he ...paid Shs.418,800/= on 10/3/90 TPaking a total of Shs.~,S:~•100/=. that The defenda.nt claiTJ1s/ in terrrs of the Froforrna Invoices sent to the customer, there was an increase of price indicated due to the excl:.ange control fluctuations. According to I .. . to Exhibit 11 D 5 11 1,vhich was a letter written in response to the -- one sent to theTT' by the plaintiff counsel_, the plaintiff - started paying TShs~l,000,000/= on 27/9/89, then Shs.1.:5 m, oh 18/10/89-. Then prices were revised and a new ProforTT'a Invoice dated 30/11/89 was sent to him and plaintiff was asked to pay full aTT'ount by 15/12/89. The full price indicated by this Proforma Invoice Exhibit D 3, was Shs.7,227,300/=t The plaintiff did not meet the deadline on 15/}.2/89. Yet what did the defendants do - nothir~ and instead accepted part pay~ent frorn plaintiff on 30/1/90 - Shs.1,835,380/= and Shs.2,890,92"0/= on 10/2/90. And again he pa-id Shs.41E3,800/= on 10/3/90. So the validities of the Proforrna Invoices were not adhered to even by the defendants thewselves. Instead of paying the full aTT'ount on 15/12/89 the defendants accepted firBl payrrent from plaintiff on 10/3-/00-. By this time the plaintiff had paid a total of Shs.7,64~,100/=. Was therefore the defendant~ claim valid on 22/3/90 when they wr0te to the plaintiff claiming an extra paywent of Shs.275,022/=. It has to be borne in mind that the Proforma Invoice E,xhibit D 2 dated 23/3/90 was prepared after the plaintiff had ~ade full payments on 10/3/90. I think it was wrong on the part of the defendant to send a clai!T' on 22/3/90 without explanation. The details were prepered vide Exhibit D 2 of 23/3/90. The plaintiff in rny view,was right to reject that. I hold therefore that title of the truck passed- on 10/3/90 and the defendant had no right to sent another Pr _f Jrrria Invoice on 23/3/90. I hold therefore that the pla..1ntiff was entitled to clairri ownership of the truck as of 10/3/90. In any event the truck was registered in the naTT1es of K rid.ha and plaintiff on 23/3/90 - as per Exhibit D 1. Kanadha did not challenge this and therefore the truck could · not·-be reg~stered in the plaintiff DaTT1e without rriaking full payments. The defence witness Rupin(D W 1)accepted that Exhibit D 1 to be the correct registration card. •-• .... /"/; 7 A.gain there is Exi:libit ;rp "3" origi1ial cover note from the insurers. This will tend to ..:show that he was allowed to insurer the truck after it was transferred in his naTPe. All in all,I aTP satisfied that,on balance the plaintiff has established his claim over the truck and issue WTPber one is answered in the positive·. On the second issue namely whe:ther the defendant was entitled to claiJT> for the additional costs from the plaintiff. I have already said that the plaintiff n,ade full payme-nt to the defendant on 10/3/90. The explanation regarding tue 2xtra. Shs.275,022/= was rpade on 17/4/90vide a le.tter Exhibit'n 6J .. ;~- I am satisfied that the defendant ac~ed improperly to claiT1" 1 that sum on 22/3/90, prepare a proforrrainvoice Exhibit D 4'on ·· 23/3/90 and give an explanation regarding the extra Shs.275,022/= on 17/4/90. The plaintiff was entitled to reject that explai'nation. Had the defendant been serious and vigilant in-their business they would not have received the full payment on 10/3/90, and at same ti,.,.,e . send the plaintiff r another clairn. I hold therefore that the defendants are not entitled to receive the extra Shs.275,022/= from the plaintiff. I so hDld because this figure has its genesis out of ProforJ'l"a Invoice rn~L/PFl/44/90 Exhibit D 4 quoting the price of TShs.8,227,300/= which Proforma Invoice was to be sent to the plaintiff of 23/3/90. Next is the question whether the plaintiff has suffered any daJT>age with res~eG-t, he did. He has been denied the truck has paid for Sh. , 7, S4t; ,100/= since 23/3/90. He was going to use if for his business as a fuel transport. The defendant has refused to release the truck since that day \J rtainly as 1 a businessman and on2 who sought to buy the truck for a specific use is entitled to damages in the following i teJ11S •·~: As per item (a) I order that the truck be delivered to hi~ as prayed! I tew (b) to the prayer is also granted. On ite~ (c) the court allows on1y Shs.200,000/= out of the ,, V - Shs.500,000/= clairred as.travelling, boarding and lodging expenses while in Dar es salaarr. As to iterr (d), the plaintiff has clai111ed da!T'ages for loss of- profit at the rate of Shs.130,000/= per day frorr 23/3/90 to date of delivery. The court declines to grant this relief because the tl:l.e plaintiff/Gq.l tex agreeJ11ent signed on 2~/8/85 was not proved to be valid as of - .23/3/90 •. The court further allow the claim on interest(item f) and costs. V ') . :)} .l.lJ LtO;;c/lu.' A.G. BUBESHI JUDG~ 9/7/97' Delivered before · Rengia for the Plaintiff Shayo for the Defendant.