Tanzania Revenuw Authority vs Brnad Malinga DC Criminal Appeak No

IN THE HIGH COURT OF TANZANIA AT MBEYA DC. CIVIL APPEAL NO. 4 OF 2004 Orig. Civil Case No. 49/2001 from Iringa D/Court Tanzania Revenue Authority Appellant Versus Bernard M alinga.................. Respondent. JUDGMENT MREMA J. This appeal (by M/ss Tanzania Authority) is seeking to overturn the decision of the District court of Iringa (G.G. Biyereza, esquire, learned district Magistrate), which was delivered on the 7th of May, 2003, on the following grounds, as set out in the Appellant’s Memorandum of Appeal: 1. That the trial Magistrate erred in Law and fact that there was a completed and binding sale contract made between the Appellant and Respondent; 2. That the trial Magistrate erred in law and fact in holding that there was a breach of contract on the part of the Appellant. 3. That the trial Magistrate erred in holding that the Appellant colluded with the 3rd defendant to stop the auction; 4. That the trial Magistrate erred in holding that the Appellant was a seller of goods. 5. The trial Magistrate erred in holding that the Appellant refused or neglected to receive the balance of the auction price from the Respondent. l The facts of the case, as revealed by the plaint and the evidence on record, are simple and clear. It is not a matter under controversy that the second defendant SHAN AUCTION MART CO. LTD. (SAMCO 1988), under the instructions of the Appellant (1st Defendant), issued a written advirtsement to the members of the public inviting them to bid and buy a number of motor Vehicles. That was in Mid- January, 2001, as stated in paragraph 5 of the plaint. Under the same instruction, the second defendant (not respondent in this appeal) on the 27/01/2001 conducted a public auction and Bernard Malinga (the then plaintiff in the district court), in this judgement referred to as the Respondent, is said in evidence to have successfully bidded to purchase one of the motor-vehicles in this case; it was a seven ton Isuzu lorry with registration No. TZD 1129. It is not a matter of dispute that the Respondent - plaintiff complied with the condition of auction sale by paying the requisite initial payment of 25% of the total bid - purchase of shs. 4, 200,000/= which was T.shs. 1,050,000/=. Bernard (Respondent) was then required to pay the balance of 9. Shs. 3,150,000/= within fourteen days of the date of the public auction. But that did not happen because the owner of the motor - vehicle, one Salum Chande Mbega, who was the third defendant in the Original suit, intervened through the Appellant indicating that he still needed the motor vehicle and so he was ready to refund the Respondent the amount of shs. 1,050,000/= he had paid to SHANI AUCTION MART (Second Defendant), plus any expense incurred in the course of the public auction by Bernad Malinga (Respondent). According to the Respondent (PW1), he (Bernard) confirmed that the Appellant was supporting the third Defendant (Salum). PW1 learnt this on the 8th of February, 2001 when he went to Shani Auction Mart to pay the balance of shs, 3,150,000/=. The second Defendant refused to accept the money, as he was under the instructions of the Manager of the Appellant, at Iringa, one Zawadi Sebastian Nzota (DW1) not to accept the money - balance. The reason given was based on the fact that the third Defendant (Salum Mbega) had mounted objection to the sale of his motor - vehicle. PW1 then construed j such act by the Appellant and the 2 Defendant as mounting to a breach of contract of sale. He was also of the view that the third Defendant was tortiously liable for wrongfully continuing to instigate and prevent the Appellant and the 2nd Defendant from honouring the contract of sale of the Motor-vehicle between himself (PW1) and the two Defendants (Appellant and 2nd Defendant). PW1 further complained that the third Defendant did not have any right to complain against the sale transaction because the disputed lorry was legally impounded by D W 1 (Appellant) on account of tax default on the part the third Defendant (not a subject of this appeal). Subsequently, however, PW1 decided to come out with a proposal, which was to the effect that he (Respondent) was ready to forego the vehicle in dispute but on condition that the third Defendant was to abide and execute the following conditions: (1) To refund to PW1 (Plaintiff) T.shs 720,000/= being costs for transportation of the Respondent’s maize from Iringa to Dar es Salaam; (2) To refund to PW1 shs. 30,000/=spent for purchase of pest- cide used to fumigate the Respondent’s maize; (3) Also to refund shs. 6,450/= to PW1, being penalty against PW1 for excessive luggage. Thus, the third Defendant was to refund to PW1 a total sum of T.shs. 756,450/=. Going by the Respondent’s plaint and his testimony on record, it was P W l’s case at the trial court that although on 3/03/2001 the third Defendant agreed and promised to refund the sum of money stated above to PW 1, that did not happen but instead, Salum Mbega (third Defendant) turned hostile and arrogontly told PW1 that he would not be able to meet PW1 ’s demands; and that he would take away the lorry from the Appellant (DW1) without any compensation to PW1. Following the latter stated development, PW1 construed the acts of the 1st, 2nd and third defendants as amounting to wrongful interference with P W l’s property rights and a breach of contract relating to P W l’s successful bid to buy the 3rd Defendant’s motor vehicle that was auctioned at the public auction under the authority of the 1st Defendant (Appellant). It was the contention of PW1 at the trial through his advocate Mr. Mushokorwa that by denying PW1 to buy the said vehicle, he suffered general damages for loss of use, as he was disabled to deploy the lorry for his transport business; also that he suffered from anguish of mind or disturbance on the account of unwarranted inconviniences caused to him, the loss of man-hour notwithstanding. On the basis of the foregoing contentions by PW1, the trial court was requested to grant the following reliefs: - A declaration and order for rescission of the contract, with a further order directing the 1st and 2nd Defendants to refund the purchase money in the sum of shs. 1,050,000/= - General damages of shs. 8,500,000/= as per P W l’s pleading at para 11 of his plaint. - Interest on the principal sum of shs. 1,050,000/= at Bank rate of 21% from 27/01/2001 to-date of judgement and at court rate on the decretal sum up to-date of full satisfaction. - Costs of the suit. - Any other relief the court may deem fit. The Appellant and the two other defendants, each filed his written statement of Defence (WSD). In his defence the Appellant did not dispute the fact that on the 27th of January, 2001 there was a publication, though, however he denied that his Agent, SHANI AUCTION MART CO. LTD (2nd Defendant), ever furnished him (DW1) with a report covering the events and results of that public auction. He further denied to have been contacted by PW1 regarding the balance of shs. 3,150,000/= which PW1 was required (under the terms of the auction) to pay within 14 days. The disputed lorry, according to DW1, was and is still in the physical possession of the Appellant (DW1) because the Respondent never paid the required balance of shs. 3,150,000/= so as to effectively complete the contract of sale. In the absence of payment of the said balance, according to the learned counsel for the Appellant, the contract remained incomplete, hence breach of the same soon after the 14 days had expired. Another contention that was raised in evidence by DW 1 as to why the shs. 1,050,000/= that was paid by PW1 to the 2nd Defendant on the date of the publication, is that the said initial payment automatically became a forfeiture to Tanzania Revenue Authority following the breach of the sale agreement. The case for the 2nd Defendant, not in evidence (as he did not enter appearance to testify) but through his written statement of Defence, is to the effect there was a mutual understanding between the parties that the third defendant (Salum Chande) would refund costs which were incidental to the suspension of the sale. Also, as noted above, the third defendant did not enter appearance to testify. What there is on record are his pleadings contained in the Written Statement of Defence filed by his advocate, Mr. Mkwata, Learned counsel. Essentially, the third dependant’s denial is to the effect that there was not any legal contract between PW1 and the third defendant. Annecture “E” to the plaint was disputed on the ground that there is nothing in the facts and, or circumstances of the case that would establish a good and justiceable cause to compel the third defendant to pay compensation to the Respondent (PW1); that, in effect Salum could not be held responsible for any consequences of the breach of the contract because he was not privy to the contract of sale. That he (third defendant) was not endowed with any authority to release or refuse to release the disputed motor vehicle (lorry)to PW1. j j Notwithstanding the fact that the 2 and 3 Defendants did not show up in court to high - light their defences either on oath or affirmation, whatever would be the case, the Learned trial Magistrate considered their pleadings in his judgement. As regards the 2nd Defendant, the Magistrate found that the 2nd Defendant was an Agent of the 1st Defendant who had no choice but to comply with instructions of his principal. Thus he found him not liable to any damage arising from the alleged breach of the contract. As for the case of the third defendant, I think I would be more comfortable if I use the very words used by the trial Magistrate. He said at j page 11 of his typed judgement, 2 paragraph, as follows: “ As pointed out earlier — the defendant especially the 1st and 3rd defendants had wrongfully neglected or refused the receipt of the 75% of the bid from the plaintiff and deliver to him the motor - vehicle then they are liable in this action for damages for the non delivery of the same motor vehicle. Had the motor —vehicle been delivered to the plaintiff who is undoubtedly a potential businessman in transportation he could have economically made use of his motor- vehicle but this was denied of him by the defendants”. In addition, the learned trial Magistrate further observed that since the 1st and 3rd Defendants breached the contract of sale by refusing to hand over the lorry even when the Respondent (PW1) was eager and ready to abide to the condition of the auction on sale by paying 75% within the stipulated 14 days from the date of the auction, then it was lawful for the Respondent (PW1) to avoid and rescind the contract. In the result, according to the Magistrate, PW1 wasentitled to be refunded the initial payment of 25% he had paid on the date of the public auction, plus interest at 21% based on the Bank’s commercial rate from 21-01-2001; and that the remittance of the money to PW1 was to be executed by the first Defendant (DW1). In conclusion, he also decreed that PW1 is entitled to damages for none -delivery of the motor vehicle_____ an act which DW1 and 3rd Defendant are guilty by virtue of section 52 - (2) of the sale of Goods ordinance, Cap 214. The Magistrate estimated the damage to shs. 7,000,000/=, which sum of money he ordered to be paid to PW1 by the 1st Defendant (Appellant) and the third defendant, plus costs of the suit. I would first start by saying that the appeal before me is brought by the Appellant alone, who was the 1st Defendant. As it has been noted above, the third Defendant Salum Chande who was also held liable for damages sought by PW1 did not appeal against the decision of the district court. My duty here, though needles to overstate, is to deal with the appeal by the Appellant (TRA). I have taken the trouble to scan through the grounds of appeal and my observation is that they appear interwoven and based on the evidence on record. I think it would suffice if I deal with those grounds generally and according to the evidence on record. Mrs. Mashiba, Learned counsel for the Appellant (DW1) criticises the Learned trial Magistrate for finding that there was a contract of sale between PW1 and DW1 based on the auctioneer’s fall of the hammer by virtue of section 3- (1), (2), (3), and (4) of the SALE OF GOODS AUT, CAP 214. In particular she lays emphasis on subsection (3) of section 3, which provides: “Where under a contract of sale the property in the goods is transferred from the seller to the buyer the contract is called a sale; but where the transfer of the property in the goods is to take place at a future time or subject to some condition to be fulfilled after the transfer, the contract is called an agreement to sell”. In my inclined view, it is needless to state so many words that the agreement which was entered between PW1 and the Appellant’s Agent (2nd Defendant) th • • on the 27 of January, 2001 was anticipatory, in that the contract would effectively be complete and materialized upon a condition that PW 1 was to pay the balance of 75% of the total price reached when the auctioneer’s hammer fell; and that the balance was to be paid not more than 14 days from the date of the auction. According to Mrs. Mashiba, since there was not any point in time a complete and binding sale contract was made between PW1 and DW1, it was erroneous, therefore, on the party of the Learned Magistrate to hold that the Appellant was or is in breach of the contract of sale. In the alternative, she submitted, even if there was a contract, but a fact which she had denied, her client (TRA) could not be held responsible for the breach. That communications and/ or agreement were between PW1 and the 2nd Defendant (Shani Auction Mart) and she pegged he proposition on the letter exhibit P5. The latter (exhibit P5) is a letter written by Bernard Malinga (PW1) to the Managing Director of Shani Auction Mart Co. Ltd (dated 8/2/2001) to serve as Notice intending to sue the second Defendant for breach of contract. In her view, had there been any breach of contract by nd the Appellant, the Notice of suing wold not have been directed to the 2 Defendant; that would tend show that the disputed contract was between PW1 and the second Defendant, and not the Appellant she reiterated. Further more, she contended, the contents of Exh. P5 do not point a guilty ___ j finger to the Appellant, accusing TRA for having stopped the 2 Defendant from receiving the balance money. That the evidence of Bernard (PW1) and Alfred Namwangi (PW2) does not support the contents of exhibit P5, hence their testimonies are nothing but an after thought. j As regards the 2 Defendant, it is the argument of the Appellant’s counsel that SHANI AUCTION MART is a Lawfully licensed auctioneer and court broker. Therefore the 2nd Defendant conducted the auction as a legal entity empowered to enter into a contract like this one with an offeree in public auction. Mrs. Mashiba maintains that in the present circumstances of the case before us, there was not any contract between DW1 and PW 1. The Learned counsel also touched on the issue asserting collusion between the Appellant (DW1) and the third Defendant. According to her, the Magistrate relied on none - existent evidence, hence speculation which has no room in the law of evidence. That if there was such evidence, it is her wonder as to why PW1 did not lead evidence at the trial in support of his assertion. Mrs. Mashiba went further to say (at page 3 of her written submission): In that case, my Lord, may be it was the 3rd Defendant who colluded with the 2nd Defendant to stop the auction as the Appellant was only interested in collection of taxes. My Lord, it does not come to anybody’s mind for Authority like the appellant colluding with a tax-payer to default’s Government revenue. The Appellant (TRA) is there so as to collect and account for the Government revenue not to collude with tax­ payers”. She has also criticized the Magistrate’s finding that the Appellant was the seller of the motor - vehicle. According to her, there is no oral or documentary evidence that confirms the trial magistrate’s finding. What is common ground, she emphasized, is seizure of the motor vehicle (lorry) by j DW1 for the sole reason to recover tax from the 3 Defendant. The auction, she said, was conducted by the 2nd Defendant and it was the latter who refused to receive the remaining balance as evidenced by exhibit P5. That exhibit P5 was not directed to DW1 because the latter was not the seller of n j good, but the 2 Defendant. For those reasons, Mrs. Mashiba prays this court to dismiss the appeal with costs. I have also read the written submissions of Mr. Mushokorwa, Learned counsel for the Respondent. His submissions are by and large centred on the evidence on record which has been reviewed above at length. I am proposing to examine the legal points he has raised and the evidence generally also as submitted by Mrs. Mashiba. At page one of Mr. Mushokorwa’s submission, we have the following contention, cited verbatim: “But, for the sake of argument, even if the transaction remained an agreement to sell, yet it was binding to the parties. The ordinance in section 2(1) defines contract of sale to include an agreement to sell as well as a sale. So, in my view, the property in goods was dejure transferred to the buyer, the Respondent, on the day he was declare (sic) the successful bidder and when he met the set condition by paying down payment, hence the contract of sale was complete. Payment of the balance at an agreed future date was a mere performance of such binding contract each party was obliged to honour. The trial Magistrate did not err to hold as he did on this issue”. With respect to Mr. Mushokorwa, the defination as to “contract of sale” apparently extracted from the law of contract, cap 433, cannot, in my view, read in isolation to the provisions of the sale of Goods Act, cap 214. For avoidance of doubt and for the sake of other readers of this judgement, it is worthwhile repeating in extensio the provisions of section 3 of the sale of Goods Act, which is as follow: “3 - (1) A contract of sale of goods 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 of sale between one part-owner and anthers - (2) A contract of sale may be absolute or conditional. -(3) where under contract of sale the property in the goods is transferred from the seller to the buyer the contract is called a sale; but where the transfer of the property in the goods is to take place at a future time or subject to some condition to be fulfilled after the transfer, the contract is called an agreement to sell. -(4) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled, subject to which the property in the goods is to be transferred.” Having cited the relevant law above, again with respect to the Respondent’s counsel, I think there can be no better explanatory words that can be used in the circumstances of this case to show that the property or title in the disputed lorry would only pass to PW1 soon after the latter had complied with the condition requiring him to pay the remaining balance of 75% of the purchase money to seller. The evidence on record very clearly shows that the money was never paid within 14 days from the date of the public auction and, therefore, the sale of the lorry was not absolute within the meaning of section 3 - (2) of the sale of Goods Act, Cap 214, Laws of Tanzania, Revised Edition 2002. If PW1 was stopped from paying the requisite price by the seller or his agent, that is not to say that the contract of sale which was conditional, became absolute. The contract of sale would have become effectively absolute if the seller, or his agent had recovered the balance price, but which was not the case here. The issue before the trial court, also before this court, is for breach of contract which is the centre of controversy between the parties. In the circumstances of the case, I am not convinced by Mr. Mushokorwa’s proposition that the publicauction that took place on 27-1-2001 automatically matured to an absolute contract within the meaning of the law (stated supra) A legal and central point for consideration in the instant proceedings is whether DW1 was the principal of the second Defendant. In other words, whether the public event (i.e. of auctioning the third Defendant’s lorry) that was executed by SHANI AUCTION MART CO. LTD (2nd Defendant) was transacted the way it was done for and on behalf of the 1st Defendant (Appellant TRA)? I am particularly concerned with the testimony of ZAWADI SEBASTIAN NZOTO (DW1), who was the Regional Manager of Tanzania Revenue Authority, at Iringa, when the present controversy under discussion took place. In examination in chief DW1 stated, inter alia, as follows: “On 27-01-2001 there was conducted an auction at the TRA yard whereby a number of items including the disputed vehicle were auctioned. The auction was conducted by Shani Auction Mart which is an independent auctioning company. I have not received a report regarding the auction from the auctioning company”. (Underlined by me to provide emphasis). It is common knowledge that an auctioneer is a person whose principal job is to conduct auctions at specified public places to persons who offer the highest purchase price when the auctioneer’s hammer falls. The word auctioneer is undisputedly synonimous to the word “broker” which is given defination in OXFORD ADVANCED LEARNER’S DICTIONARY by A.S. HORNBY, 5 Edition, at page 142, as being “a person who buys and sells things, e.g. shares....... in a business for others”. Thus such a person could be a public auctioneer and court broker (court Broker if appointed by the court), broker dealer, stockbroker, or pawnbroker. In our case the 2rid Defendant was at the material time a license public auctioneer, and at the same time a court broker. Now, if an auctioneer or broker is a person who buys things for others and sells them on their behalf, or receives and sells things for others, then it goes without further saying that the public event that took place on 27-1-2001 (i.e the public auction under discussion) was not the 2nd Defendant’s own creative or making. The said company, though a private entity with capacity to make contracts, or to sue or be sued, had the authority of the Tanzania Revenue Authority to conduct the auction for the sole purpose of realising revenues which were defaulted to be paid by revenue-defaulters, as it was the case of the third defendant (Salum Chande Mbeya). Although DW1 attempted hard in his testimony to avoid stating quite unequivocally and unambigously the relationship that there was between TRA (Appellant) and the 2nd Defendant (not in this appeal), there are few testimonial statements of DW1 which can be inferred to mean that j the 2 Defendant was TRA’s Agent at the public auction that took place on 27-01-2001. As for instance DW1 stated in part in examination in chief (excerpt-supra): “ I have not received a report regarding the auction from the auctioning company”. And at page 21 of the typed proceedings we find the following statement of DW1 (quoting the very words):- “It is true that Shani Auction Mart had auctioned the Motor vehicle on behalf of the TRA.” (Emphasis is mine). It requires no emphasis therefore that TRA was the principal for whom SHANIAUCTION MART CO. LTD acted as her Agent. The latter company did not just rise up from the blue sky and displayed goods not belonging to him in the public market and offered them for sale. The company’s management must have received authority from TRA to auction, among other properties, the disputed lorry for reasons already state above. It would therefore sound ridiculous or absurd on the part of the principal officer of the Tanzania Revenue Authority to attempt to hood wink the court into believing that the 2nd Defendant did not act as the Agent of the Appellant. It is incredible and naive to hear DW 1 telling the trial court (in cross examination- at page 20-21 of typed proceedings) thus: “Shani Auction Mart was not our agent and we did not pay Auction Mart the commission. Shani Auction Mart is not vet paid its commession because it has not submitted a report regarding the auction (underlined to give emphasis). The words underlined above ( the excerpt) invariably expose the conduct of DW1. Definitely he exposes himself to be untruthful witness. This is because Shani Auction Mart could not be paid a commission if that company did not conduct the auction for and on behalf of the Appellant. As it can been seen from the excerpt, DW 1 claimed that Shani Auction Mart was not the TRA’S Agent; but shortly thereafter he admitted that the second Defendant had not been paid therein commission because they had not submitted a report concerning the public auction dated 27/01/2001. For what reason then TRA would be obliged to pay commission to SHANI AUCTION MART (upon them tendering the report if their relationship on 27/01/2001 was not that of principal and agent? With respect, I refuse to agree with DW1 that SHANI AUCTION MART CO. LTD transacted the public auction (dated 27-01-2001) independently and in isolation of the Appellant. Indeed, with respect, I am in full agreement with the Learned trial Magistrate that the 2nd Defendant was undoubtedly the Agent of the Appellant within the meaning accorded under section 134 of the law of contract cap 433. At this juncture, I think I am now disposed of to a situation whereby another question, which is who then between DW1 (Appellant) and the 2nd Defendant breached the contract of sale of the said Motor Vehicle? Facts or circumstances pertaining to this question can be examined. n j Mrs. Mashiba is of a view that it is the 2 Defendant who breached the contract. At page 4 of her written submission she is on record (only the relevant portion) as follows: “........... the said auction was conducted by the licensed court broker and it was the said court broker who refused to receive the remaining balance as Exp. P5, neither documentary nor oral evidence adduced before the court showing that it was the Appellant who refused to receive the outstanding balance” (emphasis supplied). With greatest respect to Mrs. Mashiba, her contention is inconsistent with, if not against what the TRA Regional Manager (Iringa) told the trial court. For ease of reference and avoidance of doubt, I append hereunder a statement given by the Manager (in his evidence- at pg.20 of the typed proceedings) :- “I have not received a report regarding the auction from the auctioning company. There arose a misunderstanding between the auctioning company and the bidder i.e. the plaintiff over that motor vehicle. Then we sought for the legal aid from the Head Quarters of T.R.A at Dar es Salaam through our lawyers. There is a letter dated 8.2.2001 which was addressed to Shani Auction Mart wherein Bernard was complaining that the last purchase price of 75% has been denied. Bernard was also complaining that the last purchase price of 75% hadi been denied. Bernard was also complaining as to why the auction had been postponed. I remember sometime after the auction Mr. Malinga and Mbega had contacted me at My Office. I had not appointed the two to contact me. They were trying to reconcile the matter by way of refunding the money....... From that piece of evidence by DW1,1 am satisfied that the Management of TRA, both at the Regional Level and the Head - Office, knew or ought to know that there was a problem with the auction that was conducted on the th 27 of January, 2001. The auction of the third Defendant’s motor-Vehicle n j was not the concern of the 2 Defendant, but the business concern of the Appellant who initiated and directed Shani Auction Mart company Ltd. to transact that business on behalf of the Appellant. It is then the duty and responsibility of the Appellant to ensue that the auction was transacted well and according to law. DW1, having learnt that there was a misunderstanding between the successful bidder and the owner of the motor vehicle i.e. Chande Mbega (Third Defendant), ought to have summoned his Agent (2nd Defendant) and ordered him to comply with the terms of the public auction. The learned counsel for the Appellant correctly submitted that the role of the Appellant in the instant matter was nothing more than ensuring that the Government taxes were collected, and infact that was the whole essence of ordering the third Defendant’s lorry to be auctioned in order to recover unpaid taxes from the third Defendant (Salum Chande Mbega). Oce Mbega’s lorry was auctioned at a public auction and the sale went to the successful bidder, who immediately honoured the sale by paying 25% of the bid price, Mbega, the owner of the motor-vehicle could not interfere with the process of sale agreement, save by way of court proceedings. It was not explained in evidence as to why DW1 did not cause the 2nd Defendant to remit to him shs. 1,050,000/= which PW1 paid to the nd 2 Defendant. That money was not for Shani Auction Mart Co. Ltd but part of the Government’s revenue which the Appellant was all out endevouring to recover from the tax (revenue) defaulter, the third Defendant. Similarly the circumstances under which the case of the P W 1 was dealt with (when he referred his complaint to DW1) by the Regional Manager raises a serious eye-brow as to why the manager was adamant and did not summon the 2nd Defendant to cause him to receive the balance of the said money (75% of the total sale price),or even to undertake to receive the same by himself. Further more, there is not even shred of evidence showing that the Regional Manager wrote a letter to Shani Auction Mart asking him why legal action should not be taken against him: first, because, he had not remitted the initial payment of shs. 1,050,000/= to the TRA; and second, why he was not honouring the terms of the sale agreement. Another significant point is with reference to the Notice to take legal action against the second Defendant (SHANI AUCTION MART CO. LTD), issued and served by the Respondent (PW1) on the Second Defendant, with a copy to/on the Regional Manager (DW1). The Notice (Exh. P5) is dated 8/2/2001. It was not disputed, nor has it been denied that DW1 received the said copy. As noted above, DW1 confirmed to the trial court that the dispute, which DW1 called “misunderstanding” was referred to a lawyer of TRA. The contents of the Notice (Exh. P5) are aloud and clear and the same are repeated her (ipsissima verba) as follows:- “Dear Sir, Kindly but urgently be informed that I am intending to take a legal action against your company for a breach of contract of sale by auction for the above cited motor- vehicle which I paid the some (sic) of shs. 1,050,000/= th on the 27 day of January 2001 as it was part of the agreement that the balance thereof be paid within fourteen days which I came to pay the balance of shs. 3,200,000/= on 8.2.2001 just to be told that you have stopped the sale Now therefore, my claim is for specific performance, that you should deliver the said motor- vehicle as per agreement within seven days or it will be necessary for me to proceed with a legal action without further notice which will be at your own expenses. Your faithfully BERNARD MALINGA C.C. REGIONAL MANAGER T.R.A P.O. BOX 372, IRINGA. It would appear strange, therefore, that the Tanzania Revenue Authority who had the advantage of having services of a legal practioneer did not appreciate the fact that the contract of sale of a motor vehicle that they entered between themselves and PW1 had a legal problem that needed immediate attention and solution. As they openly demonstrated their inaction on this legal problem, with respect, I am unable to see how the Appellant would exonnorate herself from the wrath of the consequences stemming from that breach of sale of the said motor-vehicle. This court (Platt, J, as he then was), with approval, stated in the case of ARUSHA TAILORING V. MRS. T. PUCCI (1967) H.C.D, No. 424, to the following effect (inter alia): “(1) Generally, an agent is not personally bound by a contract made by him on behalf of a disclosed principal, (citing law of contract Ordinance, Cap 433, SS.182, 178). Here the balance of probabilities” did not suggest that the agent was to be deemed a party to the contract. (2) under cap 433, section 182 (2) (c), an agent may be sued in a case where the principal, although disclosed, cannot be sued. According to the commentary of Pollock and Mulla, 8th Edition, on the corresponding section 230 of the Indian contract Act, this provision is intended to avoid “a total failure of remedy in cases where contracts had been made with promoters of companies not yet incorporated or where principals were uncertain bodies of persons or otherwise in capable (of) being sued by the description given in the contract”. In the present circumstances of the case there cannot be any doubt that the Tanzania Revenue Authority who initiated and directed the sale of the third Defendant’s lorry through the 2nd Defendant (Auctioneer & court Broker) was undisputedly a disclosed principal. It is an organ established by Parliamentary Law, hence a disclosed principal within the meaning of the above cited authority. It is a law creature that can sue and be sued. On the basis of the evidence on record, I am satisfied that there was a concluded agreement for sale of the third Defendant’s motor vehicle between the Tanzania Revenue Authority, hereinafter referred to as the principal, and the Respondent- plaintiff, the purchaser. By refusing to sell the said motor-vehicle to PW 1, the Appellant breached the agreement of sale between PW1 and the Appellant. I have alikened the circumstances of this case to the situation obtaining in the case of GEORGE SHAMBWE V. NATIONAL PRINTING COMPANY LTD [1995] T.L.R, 262; P. 263, (CAT), where it was observed, inter alia: (i) On the basis of the evidence there was a concluded agreement for sale of the house between the appellant and the respondent; (ii) It is not correct to say that because the approval of the commissioner for lands had not been obtained therefore there was no agreement of sale between the appellant and the respondent; (iii) Though the agreement for sale of the house was in operative as it was not approved by the commissioner for lands, it did not also mean that there was no binding agreement as borne out by the evidence;”. In the instant proceedings it is not correct to says, in my view, that there was not yet a contract of sale of Mbega’s lorry (third defendant) on the ground that PW1 had not paid the remaining balance of the money. He was prevented from doing so by the Appellant, or the Appellant’s Agent, or both. • nd If it was the 2 Defendant who blocked PW 1, paying the money, as claimed by DW1, or Mrs. Mashiba, then the doctrine of vacarious liability would come into play, holding the Appellant fully responsible for the negligent, or otherwise act of the Appellant’s Agent, which caused damage or injuries to the Respondent. On the question whether the second defendant, SHANI AUCTION MART CO. LTD, could be held responsible for the breach of the said contract of sale of the third Defendant’s motor vehicle, the evidence on record does appear to answer the question affirmatively positive. First, although Shani Auction Mart Co. Ltd was one of the Defendants in the lower court, there was no evidence adduced to support their written statement of Defence, at Para 3 of the statement, which was couched as follows: “3. That the contents of paragraph 6 and 7 of the plaint are • nH admitted to the extent that the 2 Defendant were instructed by the 1st Defendant to suspend the sale”. j A copy of the 2 Defendant’s W.S.D is indicated to have been sent to the Regional Revenue Authority Manager, Iringa. DW1, who testified for and on behalf of TRA, was led by the TRA Lawyer, one Mr. Beleko, Learned counsel. In my considered view, since Mr. Beleko knew or ought to have known that his client (TRA)was duty bound to prove his denials against the Respondent’s case on the balance of probabilities, he should have seen the need to summon the principal officer of the second Defendant (who had default to appear) for the purposes of cross-examination on that assertion, at para 3 of the W.S.D. In my inclined view, the Appellant having not wished to call such a witness from the 2nd Defendant’s company for cross- examination, it would tend to mean that if they called him or her, the witness would still insist on giving adverse evidence against the Appellant. In effect, therefore, I am satisfied, P W l’s evidence remained weightier than that of DW1. Moreover, common sense always dictates that an agent must abide to and implement instruction given to him by the principal. The Appellant did not lead evidence which is acceptable on the balance of probabilities • nH confirming that it was the 2 Defendant who acted fraudulently for his interest best known to him at the detriment of the Appellant and the Respondent (PW1). It is also not sufficient to simply say that the 2nd Defendant colluded with the third Defendant to defraud P W l’s achievement on the contract of sale he had successfully entered with SHANI AUCTION MART on behalf of the Appellant. As there is no evidence of collusion or j fraud between the 2 Defendant and the third Defendant, I am lured in my mind to agree with the trial court that the contract of sale of Mbega’s lorry between the Respondent (PW1) and Shani Auction Mart Co-Ltd was in law regarded as having been made by the principal himself. Hence the principal (Appellant) could sue on it and be sued on it. This is exactly what happened in this case. j Now, if in the instant matter the Appellant was of the view that the 2 Defendant (Appellant’s Agent) went beyond the Appellant’s actual authority, then, in my openion, the Appellant was entitled in law to sue their Agent (second defendant) for acting contrary to express authority given him. But behold, my judgement is that the third party, i.e. the Respondent - plaintiff in this case, would not be prevented from holding Tanzania j Revenue Authority to the contract made by the 2 Defendant. Having settled the view point that there was principal and agency relationship between PW1 and the 2nd Defendant, respectively, and on the fact that there is no evidence that the agent exceeded authority or powers given to him to sell the disputed motor vehicle in a public auction, there would be no doubt, therefore, that the seller of the motor-vehicle (Appellant) and the buyer thereof (PW1) would be bound by section 29 of the sale of Good Ordinance, cap 214, which states “2 9 __it is the duty of the seller to deliver the goods, and the buyer to accept and pay for them, in accordance with the terms of the contract of sale”. In this case, the contract of sale was that the seller (Appellant) would deliver the lorry to the buyer (Respondent - PW1) within fourteen days from the date of sale, but on condition that the buyer (PW1) executed his obligation to pay the balance price of 75% of the total price of the purcase of the lorry. But as it has been seen from the evidence, PW1, who was supported by his witness (PW2), was prevented by the Appellant from paying the said price. In my inclined view, it is not unlikely that PW1 was stopped by DW1 from executing his part of the contract because there is not any iota of evidence depicting that DW1 had given even a minimum effort with a view to demanding the balance price from PW1; nor was there any notice by DW1 to PW1 warning him that unless he paid the balance price, the contract of sale of the lorry would cease to exist and the 25% of the price paid by PW1 at the auction would be forfeited. Therefore, in my conclusion, the Appellant (DW1) was not ready and willing to give possession of the lorry to the Respondent (buyer) in exchange of the money PW1 had and was ready to pay to DW1, or to the latter’s agent, (see section 30 of sale of Goods Act, Cap 214, laws of Tanzania, Revised Edition 2002). According to Mr. Mushokorwa, Learned Counsel for the Respondent (PW1), both the 1st and 2nd Defendant were liable for breach of contract, in that they received the balance and handed over the lorry to PW1. With respect, I do not subscribe to his view that the 2nd Defendant was liable to the breach because there is no evidence before us that shows that he exceeded the powers given to him by his principal. The second Defendant raised a prima- facie case in his W.S.D, which is to the effect that he was stopped by his principal to receive the balance money. Him as the agent, what else could he do if the principal did not want him to receive part of the contract money? As I have said above, the Appellant did not adduce evidence to prove that Shani Auction Mart C. Ltd. was in excess of authority given to him by DW1, or he did acts personally confined to him as against those in the interest of the principal. Like the trial district court, therefore, I can conceive nothing from the evidence and circumstances of the case which would justify this appellate court to interfere with the magistrate’s finding in respect of the liability of the second Defendant. He was properly exonnorated and I hereby so hold. As regards the case of the Third Defendant, whether the decision against him was rightly or wrongly reviewed, that saw him to be held not liable, that is not my concern because there is no appeal by him, or against him before this court. In sum, I hereby disallow the appeal against the Appellant. I now come to the question of damages. PW1 prayed the trial court to order rescission of the contract. With respect, I agree with the trial Magistrate that the Appellant having refused to receive the balance of the purchase price of the lorry, and at the same time unwilling to hand - over the lorry, coupled with the fact that the disputed lorry has been detained by the Appellant at her yard office premises since 2001 (almost five years now), it would be in the interest of justice to declare the contract as having been rescinded. Accordingly it is so declared. Secondly, the Respondent (judgement creditor) is entitled to be refunded his shs. 1,050,000/= with interest thereon at the current bank rate from the date of the suit to the date of full payment. Third, the trial court awarded PW1 the sum of shs. 7,000,000/= as general damages. It is not disputed in this case that the contract under discussion was partly executed by PW1 when he paid 25% of the price____ 1,050,000/=. It is not unworth to state that PW1 in actual fact did execute part of the contract when he paid shs. 1,050,000/= as per the terms of the sale agreement. In a situation like this I would borrow a guidance from an English court decision in the case of HUSSEY V. EELS [1990] 2QB 227, where it was observed, among other things, that where a contract is partly - executed, the courts should be less inclined to reduce the damages. It was further observed that a plaintiff is entitled to damages representing his lost expectation; but that, before the plaintiff can recover his expected loss, if any, it must be clear that he should do his best to find alternatives in order to mitigate unwarranted damages. A former professor of English law in the university of Oxford P. S. ATI YAH, in his book “ AN INTRODUCTION TO THE LALW OF CONTRACT, FIFTH EDITION, commented at page 458, as follows: “This principle is applied across the board to all contracts, and in pract ice makes a large dent in the theory that the plaintiff is entitled to damages representing his lost expectation. A buyer fails to pay the price of goods not yet delivered: the seller has no right, in general, simply to sue for the p ric e ____he must first try to resell the goods and then sue for the deficiency if any. A seller fails to deliver in breach of contract: the buyer must go into the market and look for alternatives. Only the remaining loss incurred after he has done this is recoverable as damages”. The Learned Author went on to subscribe his views, which with respect, I find them persuasive and applicable here, that in cases of this nature the innocent party in attempting to find alternatives, the extra expenses incurred are plainly recoverable as actual expenses incurred as a result of the breach. In other words reliance losses attract higher priority than expectation losses. A striking example to the circumstances of this case is in the case of LAZENBY GARAGES LTD V. WRIGHT [1976], WLR, 459. In that case the defendant contracted to buy a second hand car from the plaintiffs, who were car dealers, but then changed his mind and refused to take delivery. The dealers resold the car (without loss) and then sued the defendant for their lost profit on the sale. It was held that there was no loss of profit at all because the same car had been resold to another buyer without a lowering of the price. The plaintiff argued that, if the defendant had taken this car, they would probably have sold a different car to the buyer who eventually bought it, so that they would have made two lots of profit. The court of Appeal of England rejected this argument, holding that a second - hand car was a unique chattel, from which only one lot of profit could be made”. Analogous to the above authority is The SOLTHOT [1983] ILLOYD’S Rep. 605, whereby the buyers refused to accept a ship they had contracted to buy from the sellers who delayed to deliver the same and as a result the price rose up to an extra 500,000/=. The buyers did not recover any damages on the ground that the buyers made no attempt to mitigate their loss, after the refusal to accept delivery, which they could easily have done by negotiating a new delivery date with the sellers. P.S. ATIYAH (Supra) gave a good and sound comment, as follows, at 459 (of his book):- “ so it seems that a late delivery in breach of a contract (unless the goods are urgently needed and must be replaced at once in the market) will often give no remedy to the buyer despite the fact that in theory he ought to obtain full damages for his lost of expectation rights”. In the present case, PW1 after noting that the Appellant was not ready to receive the balance money and deliver the motor - vehicle to PW1 successfully bidded in the public auction, relaxed his mind and was ready to accept the refund of his shs. 1,050,000/= he paid at the auction from Salum Mbega (third Defendant), including incidental costs he incurred during that exercise. The following is what PW1 told the trial court at page 15 of the typed proceedings: “ I met with Salum Chande Mbega at the office of the Manager the 1st defendant. I went there to sent the letter exhibit P5. We agreed together he shall refund to me the costs I have incurred and the down-payment of 25% so that I may dispense with my right on the motor vehicle in dispute. The money was to be paid to me within two weeks. Mr. Nyota (DWI) was present when the above was agreed between me and Salum Chande Mbega. I used to copy all my letters to the Manager because he was the one who stopped the payment process of the 75% of the purchase price.” PW1 further stated that the third defendant dishonored the agreement and the Respondent informed DW 1 about it. This evidence is clear on record and it was not materially denied through adduction of evidence by PW1 and the third Defendant. As if nothing serious and frustrating took place, the Appellant continued to be adamant and took no steps: either to cause the contract to be j implemented as per the terms of the agreement, or to cause the 2 Defendant to return the Shs. 1, 050,000/= paid by PW1 plus incidental costs, if any. And, yet, DWI continued to withhold the lorry to-date, if one goes by the evident proceedings. The Appellant is still holding the Respondents money from 27-01-2001 to-date, which is slightly over a period of five years. Relying on the English authorities (above), I am satisfied that the Respondent did all his best to prevent more (unnecessary) damages to accrue but apparently there is nothing in the circumstances suggesting (or which could be informed) that PW 1 had other possible alternatives he would use to mitigate the damages. In my considered view, therefore, PW1 is entitled to be compensated for general damages, especially on the account that his expectations he had banked on the use of the lorry were shuttered down by the Appellant. Compensation of shs. 7,000,000/= awarded by the trial court cannot be said to be on the higher side because had PW 1 took possession of the lorry and made use it for a period of 5 years, it would not be impossible to generate ower shs. 7,000,000/= during the same period. Such damages would also cover mental injuries and other frustrations PW1 encountered following the Appellant’s refusal to comply with the sale agreement between the parties. I would therefore confirm as I hereby do the shs. 7,000,000/= granted by the district court. The appellant is also condemned to costs of the suit. Accordingly it is so ordered. A. C. JUDGE 20/07/2006 At Mbeya, in the present of Mr. Mkumbe, Learned advocate holding brief for Mrs. Mashiba, Learned counsel for the Appellant, and Mr. Mushokorwa, Learned counsel for the Respondent. b—^ A. C. MREMA JUDGE 20/07/2006. an administrator of the estate of the late Nassoro Hassan he has failed to prove ownership over the land in dispute. In the upshot I would have ended up here in this judgment, however, for the interest of justice I have been forced to comment on the claim by the appellant in general terms. It is my view where a party is claiming ownership of suit land he or she must make it very clear the size or the boundaries and the location of the suit land. In this case, the record of the Ward Tribunal shows that the appellant did not attempt to describe the land that he claims belonged to him. Worse enough the Ward Tribunal did not draw any sketch which could have been useful for the court to scrutinize and decide on the issues before it. For the reasons given above I find that the District Land and Housing-Tribunal was right in reversing the decision of the Ward Tribunal ar® therefore. I dismiss the appeal with costs. M. P. M. Mwaimu JUDGE 17/ 10/2012.