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,..,.I 'r . IN THE COURT OF hPPEr... L OF TANZANIA AT DJ,R ES SALAAM . (COR.\M: OMAR, J.P.., MNZAVAS, J.A. 1 And MFALILA, J.A.) CIVIL APPE!,L NO. 45 OF 1993 BETWEEN SHI~DO BEBE TONNY. • • ., • APPELLF--NT AND AIR T;,NZi>NIA CORPCRJ~TION . . . . • RESPONDENT (Appeal frnm the necisicn of the Hi•h court'•f Tanzania at nar es Salaam) (Bahati 2 J.) <lated the 4th nay of June, 1993 in Civil Case No. 356 of 1991 JUnGEMENT OF THE COURT MNZAVAS, J.A.: The appellant, Shinrlo Bebe Tonny, rlamag~s against Air Tanzania Corp~rati~n, the rlefeh~antf claiming a to~al of Shs. 7,248 7 800/=. The f~ll-wing facts were nht in c6htroversy¾ The appellant was emplnyen by the responnent/nefennant as a Traffic Liason Officer ann was stationed in Harare, Zimbabwe. S•metime in 1988 the appellant was transferred to Dar es Salaam. The respondent was, under the contract of service between him ann the appellant, requiren t• transport appellant's personal effects fr•m Harare to his new station in 11ar es Salaam. This he _did. Some ef the persenal effects were air-freighteo as shown in exhibit P.2 (airwa-1 bill) proe,ucen in the High c~_urt by the appellant/plaintiff i• ••• /2 - 2 suppnrt ryf his case. Other personal effects were transported t• Dar ~s Salaam by train. These, accer.;ing to the appellant's .. evinence in the High c~urt, were a car in which there was a jack, -ine wh·eel-spanner, 1111ne tool-hex, eight recorr1e.; radi• cassettes, blue suit case with appellant's cl•thes, a gol.; chain, a gol-1· seik• w_rilt-watch, one car ster~• cassette, ten unrecr,rae.; vi,.-,eo cassettes, 17,SOe/= Zimbabwe nt"!llars, a wnollen •lanket ann -ine complete gear-b~x. It was the appellant's case that he receiven all the persf'nal effects which were air-freighted; these were a rr<V-vine•• set, music system with its speakers, two chil~ bicycl9s an0 a TV antenna. He did n•t receive his motor vehicle or any of the items which were said to have been put in the car. c~nsequently he filert the suit in the High C~utt ~laiming Shs. 5,748,800/= the value of the prlpetty lost an1 Shs. 2 1 eoo~OOO/= for loss of use of the 1!st pripertyl After hearing evidence in support •f the claim and responnent's defence the High c~urt;· (Bahati, ·J.), said inter alia:. •••"With regarrls to the car, it cannot be sain that the nefenrlant failed to transport it try nar es Salaam because the consignment nll'lte (exh. D1) clearly shows that the nestinati~n •f the car was nar es Salaam ann Charges han been paid by A.T.C. Harare_for transporta- tion of the car to nar es Salaam. . ~ ••• /3 - I!!_ ,,r. .;-·. '; 3 H•wever the car had to be cleareo 9 t Tunnuma before proceeding ti Dai es Salaam, and the person responsible• ~or clearing it was the plaintiff. The ,1aintiff did not clear it anc it was s•10 by the Cust-,ms Department." The learhe~ trial juAge concluden that the appellant/ plaintiff had failed to pr~ve his case against the ·resp•n~ent/ defennant Jh a bal_ahce <"f prl")babilities and consequently dismissed the suit with c~sts. / Dissatisf~en with the decision bf the High C~urt the I appellaht~has c•me to this Court. Before us the appellant saiA that he had nothing to and t• his mem•randum Of appeal but reserved his right of reply t~ resp,nrlent's su~missi~n. Mr. Lukwar•, ie'arned c,:,.unsel., whi adv~ated for the responrlent. arguec'i that the appellant's case that the i tams men~i~ned abbVe were put in the car was rightly rejected -y the High"C~utt because, it was arguedi such items c•uld net ' have been Jtut,,.in the boot •f the car as they would be vivinly seen Cana therefore attract thieves) pearing in mind that the cat was a peugeot 504 s~ation-wag•n. It was the learned Counsel's submission that the saic'i itsrns were n~t hanoed ~1 nw~1 (as alleged by PWl3) i0 ~~ahsp~r~ them f~6m Harare tl Dar es Salaam. Mr. Lukwar• urged the C•urt t• upholn the l~wer c~urt's fin~ing that appellant's wife, (PW.3), ~nly han~ed t~ the A.T.C. Manager in Harare, (nw.1), the car; which ••• /4 ) I . ' car he, (nW~1), transp11rted tP nar es Salaam by the National Railways ~f Zimbabwe. On the question as to wh~ was to clear the car at Tun :iuma, 1 the learned defence Counsel submitted that it was the consignee's responsibility or his agent to clear the car. In support of his argu~ent the Court was referren to the evidence of Francis Ambelile, (DW.2). The c•urt was asked t~ dismiss the appeal. In repli the appellant argued that he was refused permissi6n by the resp•naent, his empl•yer, t~ return t~ Harare to collect his personal effects an~ that he ~as informed of the arrival of the car at Tunduma three years after it was despatched from Harare. The appellant submitte~ tha~ because the respondent refused him tog• to Harare t~ collect his belongings he (respondent) had the resp•nsi~ility to clear the car at Tunduma. He argued that his failure to dos~ resulted in the lr,ss ,._f his car ann the other itemso He urged the Court to allow the appeal ann award him ~amages against the respondent as prayed. Dealing with the question as to whether the items claimed to have been put Jn the car were in fact put in the car Bah a ti, J. said inter alia: ... "The consignment n"te simply mentions the car and nothing else. The point about personal effects Ather than the car having been transpocten to Tunnuma with the car is 6nly supported by oral evi~ence of the plaintiff. The nefennaht ·thro~~h Mr. Hangi-, (nW.1), 5 ., denies transporting to Tunriuma any other personal effects other then ttie c~r • • • • On the evinence as a wh~le I am not able to say that it has been pr~ved that apart from the car there were other pers•nal effects transp,.,rten tA Tunnuma." The question whether or not other personal effects were put in the car and transported to Tunduma was one of fact1 The trial junge saw and heard the witnesses ann was in a bette~ position to assess their credibility than this Court. As an ~ppellate Court this C•u.tt "would only re-assess the creoibi li ty l'"\f the witnesses if there are circumstances of ar. unusual ~ature which appear in the record". There are no unusual circumstances in this case entitling this Court to differ with the finning_of fact by the High Ceurt, based as it was, en the crenibility of· the witnesses. That this is the law is evident from the decisions in DAD~I MWABUSILA v JOHN MWAKFWILA - (1967) Hen 59 _and R V GOK!.LDAS K1'1NJI Kt.RIA anri Another~ ( 1949) 16 EACA 116. On the qu~sti~~~as t• who was to clear the: a= from Tunduma Cust•rns, it was not in dispute that the car was c"nsigned tn the appellant. There was uncontrove.:::ted evinence that the appellant's Seni•r Perse.nnel Administra·::i-re Officer, (DW.2), pers•nally hanned a telex message ciate<l ~~0/7/89. to the appellant informing him that his car had arrived at Tunduma. The teiex message was addressen to the ·appellant: This was only 1C ~ays after the car had been hahded to the Railways ih Zimbabwe for transp8rtati&n to Dar es salaam. HavL1g received I,: 6 the telex message that his car was with Cust~ms authorities at Tunduma he, as the c~nslgnee, was respensible for clearing it from the Cust~ms. ~hat he was aware that he was requiren te clear his car was clearly br~ught out by the evinence of n•- lesser a witness than the appellant's witness, (PW.2),. wh• told the trial C-.urt~that it was appellant's respo~sibility to clear his car fr•m Tun~uma Custems. This witness ment:•ned tw•·empl~yees -0f the responnent, ene,.Mr. Kalele and one, Mmbaga wh• had been transferred t~ nar es Salaam from Harare and nubai respectively an<l wh• clearen their pers~nal effects \ fr•m T~nduma (in respect ~f Kalele) and nar es Salaam Cust~m (in respect •f Mm-.aga). The witness (PW.2) toln the trial Court - "It is the staff himself wh• clears his personal effects when he is transferred. A.T.c. unnert~•k to transp~rt the persenal effects ~f the plaintiff fr•m Harare. This is the standard pr"cedure foll•wed in all cases." When •ne Jt, us asked the appellant what he had t' say ' ab~ut the evi~ence ~f his witness, (PW.2), he merely replied that the wi~ness said what he sain to support his em~lAyerl A.T.C. Tsi~ reply was, in •ur vicew, a lame nefence iead.n in mind th~t.it was the appellant who br~ught the witness, PW.2, in supp~t ef. his case that' A.T.C. was require~ to clear his (appellant's) car frern the Custnms. Like the trial Ceurt we find ti.,at it was the appellant's responsibility to clear his car fr~.,_ 'lu~uma Cust~ms. He was informeo •f the arrival of ais car at Tu~uma but he neglected/refuseri to clear it; and c•nsequently the Custe,ms sold the car. • •• /7 •