Millenium Coach Limited vs Africarriers Limited (Civil Appeal No. 323/16 of 2019) [2022] TZCA 3106 (27 June 2022)

MILLENIUM COACH LIMITED V AFRICARRIERS LIMITED IN THE COURT OF APPEAL OF TANZANIA – DAR ES SALAAM (CORAM: KWARIKO. J.A. KEREFU. J.A. and KIHWELO, J.A.) CIVIL APPEAL NO. 323/16 OF 2019 Commercial law-sale by hire purchase- whether the ownership of a commodity bought under hire purchase agreement may pass before full payment of all the installments? Civil Practise & Procedure – Law of evidence—proof in civil cases= who owes the onus of proof? (An Appeal from the Judgment and Decree of the High Court of Tanzania Commercial Division at Dar es Salaam in Commercial Case No.130 of 2017 dated 10 th September,2019 by Hon. Phillip, J) The respondent entered into agreements with the appellant in December 2014, January 2015, and July 2015 for the sale of six Golden Dragon buses at a price of USD 125,000 each. The appellant paid a down payment of USD 200,000, and it was agreed that the balance of USD 527,721 plus interest would be paid in equal monthly installments commencing in September 2015. The appellant failed to honour part of the agreement, prompting the respondent to impound three of the buses.The respondent subsequently instituted a suit claiming USD 506,721 as the outstanding balance, TZS 300,000 as general

damages (or as assessed by the Court), TZS 200,000,000 for breach of contract and business frustration, interest at 25% per annum at commercial rate from the date of filing the suit until judgment, 12% court rate interest thereafter, and costs. The court found that the respondent had failed to prove the agreed mode of payment and dismissed the suit. Concerning the counterclaim, the court held that the appellant had also failed to prove payment of the purchase price as alleged, and consequently dismissed the counterclaim.Aggrieved by the decision, the appellant lodged the present appeal, while the respondent filed a notice of cross-appeal. The Court had to decide on whether title to goods sold under a hire purchase arrangement passes before full payment of all installments, and who bears the burden of proof in such circumstances. Held: (i) The Court held that it is trite law that ownership of goods sold on a hire purchase basis passes only upon full payment of all instalments. (ii) The Court further held that the burden of proof lies on the party who alleges the existence of a fact, and such party must prove it; otherwise, the claim fails if no evidence is adduced. Statutory Provisions referred to : (i) Rule 94 (1), 106(1) and (7) The Court of Appeal Rules (as amended). (ii) Section 110 and 111 of Evidence Act (Cap 6 RE: 2019).

Case Law referred to: (i) Makubi Dogani vs. Ndogongo Maganga, Civil Appeal No.78 of 2019 (unreported). (ii) Leopold Mutembei Vs. Principal Assistant Registrar of Titles, Ministry of Lands, Housing and Urban Development Settlement, Civil Appeal No.57 of 2017 (unreported). (iii) Domina Kagaruki vs. Farida F. Mbarak and Five others, Civil Appeal No. 60 of 2016 (unreported). (iv) Africarriers Limited vs. Millenium Logistics Limited, Civil Appeal No.185 of 2018 (unreported). (v) James Makundi vs. Permanent Secretary Ministry of Lands, Housing and Urban Development Settlement & two others, Civil Appeal No.181 of 2021 (unreported). (vi) North Mara Gold Mine Limited vs Josephat Weroma Dominic, Civil Appeal No.299 of 2020 (unreported). For the Applicant: Mr. Nickson Ludovick. For the Respondent: Mr. Ngassa Mboje.