20030729 TZCA Dar es Salaam

J (·

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM (CORAM: MAKAME, J.A., KISANGA, J.A., And RAMADHANI, J.A.) CIVIL APPEAL NO. 34 OF 1998

BETWEEN RABDIEL PHILEMON MURO ...................... APPELLANT AND DIAMOND MOTORS LTD . ..................... RESPONDENT {Appeal from the decision of the High - Court of Tanzania at Dar es Salaam) {Bubeshi, l.) dated the 9 th day of July, 1997 in Civil Case No. 175. of 1997

JUDGMENT OF THE COURT RAMADHANI, J.A.: The appellant sued the respondent company seeking a number of reliefs: the delivery of a Mitsubishi Yuso truck with registration number TZA 6137, the payment of some damages and the payment of the interest that ·has accrued on a ·1oan the appellant took from Karadha Co. Ltd. The learned trial judge (BUBESHI, J.) made a number of findings: She was satisfied that the appellant entered into a loan agreement with Karadha Co. Ltd., Exh. P 5, which a·dvanced half of the purchase . . price of the vehicle. Therefore, the learned judge found that the 2 Vehicle was co-owned by the appellant and Karadha Co. Ltd. As portrayed by the vehicle registration card Ext. D 1. The Terms and Conditions of Sale with regard to price provided as follows: Prices, levies, charges quoted are subject to change without notice and those prevailing on the actual date of collection will be applicable irrespective of when the order payment has been made or accepted. As a result of that provision the respondent company issued a couple of pro-forma invoices prescribing validity dates for the ·offered prices. The first pro-forma invoice was dated 30/11/89 with a validity of up to 15/12/99 (Exh. D 2) for shs. 7,227,300/=. The second invoice was of 30/01/90 for shs. 7,646,100/= and was valid up to 10/02/90 (Exh. D3). The learned judge found that the appellant made payments

on various occasions and that by that date, 10/02/90, he had paid a total of shs. 7,227,300/= as evidenced by a number of receipts which were collectively admitted as Exh. P 2. A month later, on 10/03/90, the appellant paid shs. 418,800/= bringing the total payment to shs. 7,646,100 prescribed by Exh. D 3, the second pro-forma invoice. On that very day, that is on 10/03/90, the vehicle was handed over to the appellant. Where is a dispute as to why that was done. 3 According to the appellant, the vehicle was handed over because the purchase price had been fully paid. The respondent company, on the other h~nd, claimed that the vehicle was handed over to the appellant to enable him to fix a tank and hence make it a tanker. The appellant conceded that during that period he fixed the tank on the vehicle. However, on 18/03/90 the appellant sent the vehicle to the respondent company allegedly for maintenance as it was still under a guarantee. But the respondent company took it that the appellant returned the vehicle after he was through with the job of fixing· the . tank. The respondent refused to release the vehicle despite a number of demands by the appellant. On 22/03/90 the respondent company wrote to the appellant, Exh. P 4, claiming that the appellant was in arrears in the payment of tne purchase price by shs. 275,022/=. There was no explanation of how that figure was arrived

at. After enquiries by the appellant's advocate, the respondent company wrote a letter to the appellant explaining that that outstanding balance was due to exchange control fluctuations (Exh. D6). The appellant refused to make any further payments and the respondent company refused to part with the vehicle. The learned judge, after traveling through the maze of evidence, formed the opinion that: 4 I hold therefore that the title of the truck passed on 10/3/90 and the defendant had no right to send another proforma invoice on 23/3/90. I hold therefore that the plaintiff was entitled to claim ownership of the truck as of 10/3/90. In any event the truck was registered in the names of Karadha and the plaintiff on 23/3/90 - as per Exhibit D 1. Karadha did not challenge this and therefore the truck could not be registered in the plaintiff's name without making full payments. The defence witness Rupin (DW 1) accepted Exhibit D 1 to be the correct registration card. Again there is Exhibit P 3, original cover note · from the insurers. This will tend to show that he was allowed to insure the truck after it was transferred in his name ... All in all, I am satisfied that, on balance the plaintiff has established his claim over the truck and issue number one is answered in the positive. So, the court ordered that the vehicle be returned to the appellant as prayed. The learned judge also

ordered the respondent company to pay the interest on the loan that Karadha Co. Ltd. advanced to the appellant. However, the court did not grant the appellant's other claims and that is what aggrieved the appellant and hence this appeal. On the other hand, the court's finding was unacceptable to the respondent company and consequently it cross-appealed. The appellant claimed that on 26/08/85 he contracted with Caltex Oil Tanzania Ltd. for the transportation of petroleum products between Arusha and Moshi and also between Dar es Salaam and Arusha (Exh. 5 p 7). At that time, the appellant explained, he relied on hired transport to perform that contract. The appellant went further to say that he bought the vehicle in dispute precisely for that business as well as for transporting products for his own petrol station in Moshi. The appellant daimed that he was getting shs. 130,000/= per trip between Arusha and Moshi and that he was paid the same amount per trip between Arusha and Dar es Salaam. So, the appellant claimed loss of business from the time the vehicle -was taken fror:n him to the time he would recover possession. On loss of business, the court said: The court declines to grant this relief because the plaintiff/Caltex agreement signed on 26/8/85 was not proved to be valid as of 23/3/90. The appellant also claimed shs. 500,000/= for fare between Moshi <► i · and Dar es Salaam

and for accommodation while in Dar es Salaam during trial. For this claim the court merely said: On item ( c) the court allows only shs. 200,000/= out of the shs. 500,000/= claimed as traveling, boarding and lodging expenses While in Dar es Salaam. The appellant filed two grounds of appeal: first, that the learned judge erred in not granting damages for loss of business when the 6 Court found that the truck was bought for purposes of doing business; and two, that the learned judge erred in granting an amount less than that claimed for travel and accommodation expenses. - Dr. Angelo Mapunda, learned advocate, argued on behalf of the appellant. On the part of the respondent company was Mr. Gamba, learned counsel, who argued the remaining two grounds of cross-appeal, after one ground was dropped. The first ground of the cross-appeal was that since there was a loan from Karadha Co. Ltd. then the vehicle should have been on hire to the appellant until the liquidation of the loan. The second _ground was that the learned judge erred in finding that the appellant had fully paid the purchase price. We shall start with the cross-appeal because if we uphold it then the appeal will have to be dismissed. As for the first ground of the cross-appeal, that is, the vehicle belonged to the Karadha Co. Ltd. until the loan was liquidated, we agree with Dr. Mapunda that that argument belongs to

Karadha Co. Ltd. and not to the respondent company. The respondent company · being a stranger to that loan agreement, cannot rely on it. On the second ground Mr. Gamba referred to . the Terms and Conditions of Sale which provided for changes in price without notice and pointed out that as a result there were three different quotations 7 each with its validity period. He argued that the validity period of the · second pro-forma invoice ended on 10/2/90. On that date, he pointed out further, the appellant was in arrears by shs. 418,800/=. He argued that when that amount was paid on 10/3/90 the validity period had lapsed a month ago. So, he submitted, the respondent company was entitled to issue the new quotation in Exh. P 4 of 22/3/90. Dr. Mapunda argued that payments were always accepted outside the validity periods and so, he argued, the respondent company waived the validity periods and that is what he did on 10/3/90. He also submitted that the fact that the vehiele was registered in the names of the appellant and the Karadha Co. Ltd. is proof of the fact that payments had been completed. First of all, we find that there are some unexplained discrepancies. The appellant on 10/3/90 had paid a total of shs. 7,646,100/~. The letter (Exh. P 4) of 22/3/90 demanded from the appellant shs. 275,022/= more. So, the. new price should have been: shs.7,646,100/= plus shs. 275,022/=, that

is, shs. 7,921,122/=. But the third pro-forma invoice of 23/3/90 (Exh. D 4) quoted the new price as shs. 8,287,300/=. Now, which is the new quotation? Then Exh. D 4 cites shs. 660,000/= as the price of a "TANKER (10,000 LTRS)". Presumably that refers to the tank that was fitted to the vehicle. But it was said that the tank was fixed by the appellant. If l ' . 8 so, what are those charges for? Even if those charges were excluded the new price would then be shs. 7,627,300/= which is less than what the appellant had already paid. So, on what figure are we supposed to act? And was the appellant really in arrears? The learned judge did not address herself to this and none of the advocates did. These give us nagging doubts. But what beats us is why on that very day when the third pro-forma '· I invoice was prepared the respondent company went to register the vehicle in the· names of the appellant and the Ka rad ha Co. Ltd.? Again, why did the respondent company take all that long from 10/3/90, when the appellant paid last, to 22/3/90 (Exh. P 4) and 23/3/90 (Exh. D 4), to make two differing claims? In our_ con?idered opinion if the validity period of the second pro-forma invoice expired on 10/2/90 then the respondent company should have hastened to quote the new price. In any case, when the 9ppellant turned up a month too late with the balance to complete the price quoted in

the second pro-forma invoice, the respondent company should have refused to accept that payment or should have at least accepted it with a caveat. None of those was done. This Court said in Harithi Said and Bros. V. Martin s/o Ngao, Civil Appeal No. 20 of 1986 at page 3 of the typed script that ... a motor registration card is not a document of title to the motor vehicle ... However, one i I \ . 9 who is registered as owner in the card is presumed to be the vehicle owner until the contrary is proved ... Here the contrary has not been proved and so, the appellant and Karadha Co. Ltd. are the owners. Therefore, we cannot fault the learned judge in her finding that on 10/3/90 the appellant completed paying for the venicle. The respondent company is estopped by its conduct to claim otherwise. So, this ground of cross-appeal is dismissed, too. Having upheld the learned judge we are now confronted with the two grounds of appeal. However, with due respect to Dr. Mapunda, we think that the two grounds should not detain us. The learned judge was right that there is no proof that the agreement of 26/8/85 between the appellant and the Caltex Oil Tanzania Ltd. existed on ( 23/3/90. The appellant in cross-examination by Mr. Evarist Mbuya, learned counsel for the respondent company in the High Court, said: The 1985 Caltex agreement is still in force - it was renewable. I do not have the

current agreement here with me. But I am prepared to bring it. Nothing further was said about "the current agreement", not even in the written submission by the appellant's counsel. ' . ' 10 As for the second ground of appeal we think that the appellant was extremely lucky. to get shs. 200,000/= when he had not produced receipts or tickets to firm up his claim for traveling and accommodation expenses. Mr. Gamba repeated what this Court said in Masolele General Agencies v. African Inland Church Tanzania, [1994] TLR 194 that once a claim for a specific .item is made, that claim must be strictly proved. The appellant has failed to do so here. So, the appeal is also dismissed. We order no costs in this appeal. R. H. KISANGA

JUSTICE OF APPEAL A.S.L. RAMADHANI

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

DEPUTY REGISTRAR