Sylvester Chacha Korosso vs Africarriers Limited (Civil Appeal No. 615 of 2022) [2025] TZCA 851 (12 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: NDIKA, J.A., KENTE. 3.A.. And MANSOOR. J.A.l CIVIL APPEAL NO. 615 OF 2022 SYLVESTER CHACHA KOROSSO ........................................................... APPELLANT VERSUS AFRICARRIERS LIM ITED .......................................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, at Dar es Salaam) (Kulita, 3 .) dated the 31st day of March, 2020 in Civil Appeal No. 63 of 2019 JUDGMENT OF THE COURT 21st July & 12th August, 2025 KENTE. 3.A: This appeal is against the decision of the High Court of Tanzania (sitting at Dar es Salaam), in Civil Appeal No. 63 of 2019. The impugned decision was in respect of an appeal from the decision of the District Court of Ilala (the trial court) in Civil Case No. 70 of 2007. For purposes of better understanding of the dispute between the parties, it is necessary to preface our judgment with its brief history. The events culminating into this appeal are briefly that, in 2006, the appellant and respondent entered into an oral agreement for hire-purchase of a motor vehicle (Toyota Hiace make) with Registration No. T 462 ALR.

Whereas the respondent was the owner and seller of the said motor vehicle, the appellant was the hirer and buyer. The hire-purchase price was TZS. 12,000,000.00. Under the said agreement, the appellant was required to make down payment which he duly made of TZS. 5,000,000.00 and was to pay the balance of TZS 7,000,000.00 in what appears to be an asymmetrical plan. After making initial payment which was followed by several instalments allegedly amounting to TZS 3,635,000.00 (rebased), the appellant made default in payment thereby falling into arrears. Consequently, the respondent in exercise of its right under the agreement to recover possession of the vehicle, went on seizing and repossessing it thereby unilaterally terminating the contract with immediate effect. This prompted the appellant to take out an action in the trial court against the respondent for breach of contract. In his statement of claim before the trial court, the appellant pleaded that, the respondent's acts of repossessing, repairing and painting the motor vehicle with a view to selling it to any other willing buyer without his permission, was both unlawful and unjustified. As a result, the appellant sought to be paid TZS 38,000.00 per day by the respondent allegedly being specific damages for loss of income in the passenger transportation business. He pleaded that, he had been using the seized vehicle to provide 2

public transportation services within the city of Dar es Salaam. The appellant further alleged that, he suffered general damage in the form of mental anguish, inconveniences and agony owing to the respondent's breach of the hire purchase agreement. He accordingly sought to be paid by the respondent general damages in the sum of TZS. 50,000,000.00 and beseeched the trial court to order the respondent to release and return to him the seized vehicle, without any condition. In the alternative, the appellant entreated the trial court to compel the respondent to pay him TZS. 12,000,000.00 being the value of the vehicle together with interest and the costs of the suit. In support his claim, the appellant testified before the trial court that, he had fulfilled his contractual obligations by paying the sum of TZS. 8,635,000.00 to the respondent as part of TZS. 12,000,000.00 which was the purchase price in a contract that, from his perspective, was open ended. He accused the respondent for breach of the said contract and claimed for the earlier - mentioned monetary and declaratory reliefs. The respondent as defendant in the action, denied being in breach of the contract and recriminated the appellant for breach of the said contract. To that end, the respondent filed a counter-claim alleging that the appellant owed it TZS 5,205,000.00 being the total amount of money still owed on 3

the agreement together with accumulated interest. In this regard, the respondent claimed that, after conclusion of the hire-purchase contract and, having made the down payment on, and taken possession of the vehicle, the appellant failed to meet his contractual obligations to pay the balance in time thereby falling into the aforementioned hire purchase arrears. After considering the evidence and the arguments by the parties, the trial court found that, indeed the appellant was in breach of the hire purchase contract assignable to his failure to honour the terms of that contract. Regarding the appellant's contention that the contract was for an unspecified period, the trial court found that, contrary to the appellant's view, the contract was for a specified period of one year which came to an end on 3rd March, 2007. As to the balance due, the learned trial Magistrate took the view that, it stood at TZS 5,203,000.00 which was inclusive of accumulated interest. It should be pointed out in this regard that, the trial Magistrate found that the interest rate was 19.2 % a factual finding which was strongly disputed by the appellant for allegedly lacking in evidential support and the disputed interest rate being sky-high. Proceeding from the foregoing premise, the trial court found that on the whole, the respondent was justified to repossess its motor vehicle.

However, having made the foregoing factual findings which would have nolens volens led to the dismissal of the appellant's claim and a sustainment of the respondent's counter claim, the learned trial Magistrate preferred to sort of placate each party. Choosing a startling line of appeasement, he then ordered the respondent to refund the appellant's TZS 8,135,000.00 and retain the vehicle. Unhappy with the decision of the trial court, the appellant appealed to the High Court advancing eleven grounds of appeal. Essentially, the appellant's grievances faulted the trial Magistrate in his evaluation of the creditworthiness of the appellant's evidence when measured against the evidence of the respondent. Specifically, the appellant contended that, the respondent had no worthwhile evidence to show that the hire purchase contract duration was one year, the interest rate was 19.2 % and that until the occurrence of the present dispute, he had paid TZS. 8,135,000.00 only rather than TZS 8,635,000.00. Moreover, the appellant complained to the first appellant court that, there was no evidence before the trial Magistrate to debunk his claim for specific damages and, by the same token, there was nothing to justify the respondent's repossession of the disputed motor vehicle. All in all, the appellant charged that, the force of evidence and the 5

circumstances obtaining in this case, militated against the trial court's findings of fact and the ultimate decision. Having heard the parties, the first appellate court took the view that, when considered holistically, the evidence on the record shows that the appellant was in breach of the hire purchase contract. In an effort to reinforce his finding of wrongdoing on the part of the appellant, the learned Judge of the High Court reasoned that, in as much as the appellant bought the motor vehicle from the respondent on a hire purchase contract, he was in breach of the said contract when he failed to fulfil the most fundamental contractual obligation which was to pay the whole of the purchase price within the prescribed period. Proceeding from the above stand-point, the learned Judge went on and concluded, correctly so in our view that, the respondent had the right to repossess the vehicle upon the appellant's default. In view of the above finding, the learned High Court Judge did not consider and make any determination of the appellant's claim for special damages. He also found that the trial court had correctly imposed interest on the amount payable by the appellant. Premising his decision on the well known decision in an old English case of Hutton v. Warren (1836) 1 M & W 466, the High Court Judge took the view that, where, as in the present case, a commercial contract is 6

silent, extrinsic evidence of customary practice and usage is admissible and can be incorporated into the agreement. Accordingly, the Judge found that, there was an implied term of the hire purchase contract that the appellant would pay the remaining balance together with interest. The learned High Court Judge then went on and determined that, all in all, there was no merit in the appellant's appeal and consequently dismissed it. Aggrieved by the decision of the first appellate court, the appellant has now come to this Court advancing four grounds of appeal. Ground number one, faults the High Court Judge for holding that the balance of the purchase price was supposed to be paid within twelve months of the execution of the contract and with interest. The appellant also questions the dismissal of the appeal by the High Court without determining grounds 6, 7, 8, 9 and 11 of the appeal. Moreover, the decision of the High Court is challenged for allegedly wrongly upholding the findings by the trial court that, the repossession of the disputed motor vehicle by the respondent was justified. Finally, the High Court Judge is faulted for holding that the appellant had failed to prove the claim for specific damages. At the hearing of the appeal, whereas the appellant was present in court and enjoyed the services of Mr. Wilson Ogunde learned Advocate, the respondent was absent despite being duly served with a notice of

hearing through its Advocate one Ngassa Ganja on 9th July 2025. However, taking into account the fact that ahead of the hearing date, counsel for the parties had filed written submissions which they relied upon, the respondent was deemed as having appeared and resisted the appeal. We shall thus pay the closest attention to, and take the respondent's arguments into account in our judgment. Upon going through the evidence on the record, the arguments canvassed by the parties and the concurrent decisions of the lower courts, we take the view that, the four grounds of appeal that have been filed by the appellant, can be conveniently divided into, and determined on the basis of two categories; namely, one that goes to the propriety or otherwise of the respondent's rescession of the contract and repossession of the disputed motor vehicle, and the other that goes to each party's entitlements. Whereas the third and fourth grounds belong to the first category, the first and second grounds essentially belong to the second category. As will be apparent however, the determination of this appeal essentially turns on the third ground of appeal to which the remaining grounds are either integrally linked, or from which they derive their validity. Going by Mr. Ogunde's submissions in support of the appeal, the contention that the hire purchase contract was open-ended is the mainstay 8

of the appellant's appeal before us. Then, it follows by implication that, the appellant is saying that, contrary to what was decided by the lower courts, he was not in breach of the said contract as, by the time the respondent retook possession of the disputed vehicle, the contract was still in effect legally binding upon both parties. On the other hand, the respondent's position as can be gleaned from its submissions is that, by the time it retook possession of the disputed vehicle, the time for execution of the hire purchase contract had come to an end and, the appellant was yet to fully fulfill his obligations as he had fallen into arrears on his payments. On our part, upon a proper appraisal of the evidence led by the parties and after considering the applicable law and business practice, we cannot but agree with the respondent. There is no gainsaying that, hire purchase is not an unknown system of doing business, as it happens all over the world. Ordinarily, hire purchase contracts are designed with a defined term and the contract normally ends when all the agreed instalments are paid within the specified period whereupon ownership of the sold goods transfers to the buyer. Applying the above position in business practice to the circumstances of the present case, it is certainly clear that the arguments by the appellant that the hire purchase contract 9

was for an unspecified period, stands on quicksand. It is legally and practically untenable and, we reject it. The final question that arises is as to who, between the parties, was in breach of the hire purchase contract which, as it turned out, did not ripen into a complete sale. We have already pointed out and this is essentially common ground that, up to the time of the respondent's retaking possession of the vehicle, the appellant had not fulfilled the terms of the contract as he was in arrears of more than TZS. 3,000,000.00. In other words, the appellant who was the hirer/purchaser under the contract, was in breach for failing to make timely payments of the instalments within the period as agreed upon in the contract. It follows, therefore that, upon the appellant's default on payments, the respondent had the right and indeed it was justified to repossess the vehicle. In the light of the foregoing discussion, the judgment and decree of the lower courts can only be varied to the detriment of the appellant, that is only to the extent of quashing and setting aside an order requiring the respondent to refund him TZS 8,135,000.00. We are in no doubt whatsoever that, as the trial court accepted the fact that the appellant was in breach of the contract, the order requiring the respondent to refund TZS. 8,135,000.00 was perverse and founded on a misapprehension of the facts 10

and law. To say the least, it was practically a non sequitor and, with respect, by not detecting and putting right this error, the learned Judge of the first appellate court misdirected himself. In view of what we have discussed herein above regarding the appellant's blameworthiness in this dispute, it was totally inconsistent and indeed unjustified for the trial court to issue the tangent order. Needless to say, the trial court's order for refund alluded to above, is quashed and set aside. For these reasons, with profound respect to Mr. Ogunde, we have to disagree with him and so we would dismiss the appeal, as we hereby do, with costs. DATED at DAR ES SALAAM this 11th day of August, 2025. G. A. M. NDIKA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL Judgment delivered this 12th day of August, 2025 in the presence of the Appellant in person, unrepresented and Mr. Daniel Wei wel holding brief for Mr. Ngassa Ganja Mboje learned counsel for the respondent, is hereby certified as a true copy of the origlrfcfT