Mbeya Garage vs T. M. N. Sanga (HC. Civil Appeal No. 17 of 1977) [1977] TZHC 519 (30 December 1977)

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• ' THE HIGH COURT OF TANZANIA AT DAR ES SALAAN (Hc) CIVIL APPEAL NO. 17 of 1977 (ORIGINAL IBEYA CIVIL CASE NO, 15 OF 197 6 ) NBEYA GARAGE ,. . , . . • • • • • .. •..... APPELLANT Vs. T. N. N. SANGA ,,a...#6o6.6,e..o.owD' RESPONDENT JUDGMENT NWI1KIBETI, J,, — This appeal arises from an unsuccessful application 9 by the appellant 9 in the District Court of Nbeya, for an order requiring the respondent to pay to the appellant 9 in advance of delivery of iotor vehicle TDS 191 Landrove back to the respondent 9 ohs. 18 9 7861= being part of the cost of repairs of the said motor vehicle — as per job card. In addition 9 the ruling purported to repeattby way of emphasis — what it claimed to have earlier held — in its judnent in Civil Case No. 15 of 1976 to be the sole liability of the respondent upon receipt of thi motor vehicle duly repaired. This is what it said- "according to the judgment given by this court 9 his liability is solely confined to the payment of the agreed ohs. 3,5001= and no more" Ground No. I of the memorandum of appeal as filed by Messrs Thkunjoha & Co., Advocates for the appellant was as follows- "The learned trial magistrate was not justified on evidence in holding that according to the job card the appellant was ordered to pay the respondent shillings 3,500/= as cost of repairs and labour charges." following

6. Basically, it is thestatemen,t in the ruling which is the sub,ject of attack in ground No,I "According to the job card applicant was to repair the said motor vehicle as indicated and On his part the respondent was to pay ohs. 3 500/= which was for labour charge and cost of spares." The operative word& in the sentence quoted are 'according to the job * card'. So that 9 in the view of the trial court, two things were indicated in the said 'job card, to wits that the applicant was to make good the defects indicated on the job card, and that the respondent would reciprocate by paying shs, 3,5007= in consideration thereof i.e. for labour and cost of spares. It is the latter, in particular, whose validity is questioned. Now, having thoroughly scrutinized the job card in question, I feel inclined to agree with Hr. rpj05 — learned Counsel for the appellant — that no where in the said job card was any agreed fees or charges stipulated, Ground No. 3 is in a way si:iilar to ground Na, I. So I propose to skip ground No. 2 and deal w±;h (ounJ. rio, 3) fixst,

-'2-- It says- "There was no order made by the court in civil case, No. 15 of 1976 that the respondent pay she, 3,500/= to the appellant after the latter had delivered the motor vehicle to the respondent duly repaired. In my view, this ground is also valid. No where in the judgment was it mentioned that respondent would pay ohs. 3,500/ or at all - towards either the repair work or cost of spares or both. All that was ordred in the alleged judgment is as contained in the last para of the judgment. This is what the paragraph stated- "In conclusion, the court enters judgment for the plaintiff as prayed viz defendant should deliver the motor vehicle - landrover TDS 191 to the plaintiff duly repaired as agreed and also he will have to meet the full costs of the suit." I now come to ground No, 2. It stated that there was no agreement verbal or written between the appellant and the respondent regarding labour and repair charges. To this, the appellant - a Nr, Sanga * who appeared in person replied - in my view quite rightly - that the matter with regard to labour and repair charges was brought out clearly in the pleadings in Civil Case No. 15 of 1976 - vide para 5 of the plaint and paras 3 and 4 of the Written Statement of Defence. The same was also mentioned in the evidence of the respondent during the hearing of the case i.e6 Civil case No. 15 of 1976. But, as already commented, the judgment is quiet on the issue. The trial court ought in the normal course to have made a specific finding on the issue. So that as at present, this question of labour and cost of repairs is still unresolved. Ground No, 4 of the memorandum of anpeal was in the following terms "The learned trial magistrate erred in holding that no regard should be paid to the increase in the cost of repair as the appellant was duly penalised in costs by the court for the delay in carrying out the repairs." Counsel for the appellant conceded negligence on the part of his client in carrying out the repairs. And, to my mind, the order of costs did nOt inc'ude penalty element for the delay or compensation as a result of increased prices of spare parts. In my opinion - on the basis of the result of appellant's application the order for costs respecting the application was justified. Of course, its weight will v3ry much depend on the outcome of this appeal. In the course of his suymissions in reply to the memorandum of appeal as elaborated by the counsel for the appellant - the respondent on the other hand raised two issues: He said, he did not know how the affidavit fed in the lower court was entertained in the first place; it being difficult to know to what specifically the affidavit related. /7 000/)

a court's order requiring o pay 9 in advance 9 the amount shown, for the repair of the engdne of respondent's landrover. Al±hough there is no copy of Chamber Summons on record, I an left in no doubt at all that all the parties concerned were under no illusion whatsoever as to the purpose of the affidavit. Not only that, but appellant's statement as recorded, read together with the affidavit filed satisfied the requirement - under 0.40 r. 2 - C.P.C. I.n any ,event the issue ought to have been raised before the lower court as a preliminary point. For had it been so raised and upheld 2 the proceedings now under consideration, would not have resulted. And as the record does not show that it was in fact sO raised, the same cannot be enterained at this stage. The other issue that the respondent raised was that the memorandum of appeal was defective, in that it was not dated, nor signed or verified by the appellant in terms of 0.6 r. 14 and 15 (b) C.P.C. He submitted that the irregularity was incapable of cure - as such it ought to be struck out. I agree with Mr. Tukunjoba that Mr. Sangs's submission is misconceived. Rules 14 and 15 of Order 6 talk of pleadings and not memorandum of appeal. And tpleadingc is defined in rule I of Order 6 as meaning

• Plaint or Written Statement of Defence (including a Written statement of defence filed by a 3rd party) and such other subsequent pleadings as may be presented in accordance with rule 13 of Order VIII. Rule 13 of Order 8 has nothing to do with meriorand4VLof appeal. On the other hand, in terms of 0.39 r.I (i), it is quite in order for an advocate to sign a memorandum of appeal on behalf of his client, as in this case. There is no requirement of verification as would be the case under 0.6 r. 15. And for that matter 0,39 r. I (i) provides "Every appeal shall be preferred in thip form of memorandum signed by the appellant or his advocate and presented to the High C0urt (hereipiafter in this Order referred to as "the Oour') or to suck officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the court dispenses therewith) of th judgment on which it is founded." The question as to a date corries into play only on presentation of the memorandum of appeal to the court. It is the court and not the appellant that is required to endorse on the memorandum of appeal the date of. presentation. This is in line with the provisions of rule 9 (1) of Order 39. 0. 39 r. 9 (1) provides-
• Where a memorandum of appeal is admitted 9 the court or the proper officer of the court shall endorse thereon the dte of presentation, and shall register the appeal in a book to be kept for the purpose."

4 For these reasons, any reference to MULLA, to reinforce the arguments intended to impeach the competence of the memorandum of appeal as filed is neither here nor there. Incidentally, when, as in this case, it is sought to challenge the validity of a memorandum of appeal, the issue ought to be raised as a preliminary point, right at the out—set i.e. before the appeal is argued on its merits. I would accordingly observe VA that on this ground too Mr. Sanga's objection is . bound to fail. As at this stage I' have substantially held that the lower court erred in holding that trespondent's liability was solely confined to payment of the agreed she. 3,5001= and no more.' But, does this mean that respondent ought now to pay the shs. 18,786/= etc - as prayed by the appellant in his affidavit? Far from tht According to the job card the agreement was for payment of charges on delivery of the motor vehicle. In the prevailing circumstances I see no valid reason to alter that understanding. To the extent indicated above the appeal is allowed. But as each one has either wonor lost on a major point each is to bear his own costs to this court and the court below. De1iverd in'Court at Mbeya this 30ti day of December 1 977, = (M J. MWAKEBEE,) :JIJDGE MBEYA HIGH C0URT / I '\ I'.