Joseph Budodi vs Sido (DC Civil Appeal No. 14 of 1999) [2000] TZHC 456 (20 July 2000)

• r rN · 'i'HE ·'.HIGH C9URT OF T1\N2i!iI,rH i.T MBEYl1 (DC) CIVIL h.PPE';L NOo 14 OF 1999 , :;l: .. (Original Ci:".il Case No.~ 32 O'lr 1996.,of S'w.::mga District Court) O">lll000QOOOOG0000000000no> J\PPELL\NT Vcffsus SIOO •.• O • o O 4 0 O O.G • • • • 0 O Q O O o O O O l'.'t O .. 0 0 0 C. 0 0 0 . . . . JUD3MENT W,1MBUR,'\ 1 .P.RM ;I (E.J •): . This .judge,m:mt follows an 11ppc2.l fil.ed by one JOSEPH BUDI against t;b,e.; decisitm of Sumbawangc1' District Court which 3.W::>.rdcd the respondents, . SIOO a cl::lm of Tshs o 1,087,037 /= which ::xroi3e fr~~ a i~::i.p ,c;ntract of Tshso 801}, b00/=. · The· niain ground of the o.ppcal· ap.<rrt f;m wbci.t is. stat':' ' } ~ :. .. '.- . :. . . in the rriemQ'fandum of ·,,:ppe-:-.1 uid a.s '.l.l'gucd hy Mr. Nan.li advoc?.te for the appellan;t;; :,tts th::tt since, tba ppell.,,_nt's premises of work wr 'i~\r:1~ ··.· . '., ' . . . respontjents premises, and the snid machines -here therin installed and. since the respondent closed down l1is prcimi;cs ·icluding th,:it o,f the appellant without eve:h considering that the o.ppllant wets paying by inst::tl.ment th8 so.id debt, and that the mQc 1 !.inery which were therein enclosed within the respondents premis,Js were tools of work expected to be. used to repay the debt and that up to now the s,dd premises is still closed, then it wds wron_g for tho trinl co'd:I't to gra!lt th:'ct amount to the re1;,pondents more bcc:rnse up to the time when the premieses were clos0d the debt was atTshsD345,280/= only. Mr. Nn.ali further argued th::1t the tricl mJ.gistrate used a narrow interpretation 1n dismis:5i'ng the appell'J11ts Counter-Claim who up to now was feeing 9. los'.s of· profit ds ·t·h pferniss are 2till closed. Worse ... because the res;ondent h:::td no authority to do so cmd just took the law in bis hm1ds therefore he· hsi.d to be;rr' the consequences. He thus :p,rye:d, th":lt the appecl be 'illowed i;1itb costso In his. reply .ri"Ir. r,~:;leru appe;:;1ring; for the respondents pre,yed th.3.t tl)e appeal be dismissed with costs &,8 tl!e loan h::td nothing to do with Si\E a company .. :formed by the ·appelLmt 6.nd cine F::::iistine Kaozya s.:zying thnt the premises was closed dovm by th2 res".loncilents .as St1E were not paying their monthly rents to them nor repnying their debt to K:?.rc,dh::h He further pointed out that the loan taken by the appell.::mt ho.d nn outstnnding amount of Tshs.1 1 087,037/= and tho.t th0 nppell.::mt hetd not paid anything by the time the suit w<:J.S filed in court. · • • • • o·o o ./2

;,. 2· Replying to this Mr. Naa.li aTgu,3d th:,.t the. appe 'l'.:l.nt -d Si1E cannot be separci.ted but agreed thr-,t the closure of Kecr-'J.dha. ha.d nothing to do with this cose for there is no evidence tha.t the r,ppellant fniled tci repay the r<mt 0 He said the closure of the premises with the said mc1chinery being in ·sicle ouht '/ .- to be considered 8.s they me the worl.l':ing tools which could help the appelln.nt to rep::i.y the debt .• Mr. Naali further stated that the f3.ct th.t some arrears had been paid was not contradicted at the he-?J'.'ing o! the mo.tter so i:t. c2-11not be c:aid th:::i.t the appellar1t h:::ts not bcg.:::u1 to repay the so.mo. Now having gone through the proceedings :md all -.tbg_: 8J"guments for :md again.st the ,:xppeal, I believe that it is not in disputo th'.:!.t tho ap-pell:mt locl!lcd an a.ir comprssor from the respondents worth Tshs.8o0,000/==. The only issue in dispute here is whether pnymcnts have been- done p.::rti·,9lJ.y __ or- . . : ··- ...... ~ .. ·. not at all. The icsue as to whether the closure of the premises wo.s ' justified or not_ will not be discussed as we h::nre noted thc).t the question of rent is not- 211 isst,e in this CD.Se• Mreover; I h2.ve noted tho.t the 3.ppelb.nt never r1-.:,isecf th~ voice on this whri the said closure wn.s done. R::.ck to the issue of the loan .of the m2.chinery the respond8nts e?rlier the pln.intiffs su,::d the· o.-ppell-:,.nts/defend::D:1ts .for th0 rcco;ery of Tshs.1,087,037/::: being t.he initi.7.l debt and iritcrest as the appellants had not paid a single cent o ·· Howl::ver, the ::i. 1 :ipcll3.nt hnd 2x-gued th::,t.,-be h.::1.d repf1id:- Tshs 600, 000/,,ai."ld "i11as only in debt of .Tsbso 345 ,280/== when the premises was closedo Ap::irt from the fact · th2-t he did not produce any, receipts to prove the .s.:1."Tle DW. 3 one Hezekie, Mussa Mt11ang ~ omhola. one of his own witnesses testified th2t· by the time the StJ.i t we..E! filed in court, the appellant had not repaid a single cent o It is obvious the.t if the ,::i.ppellant could not produ.ce receipts to prove tbo.t he h:td began p,3.ying the said debt from there w.6.s no dispute to the contract entered, at tho ond of the day the trial m'='.gistro.te hc,d no altern,:.tive but to gr8Ilt · the remedy prayed: for. Since in the case of MBf,.Rd{;\ .vITLL.M Vso ,\DAM KIBSt1TE; liND .LiN0THErl [598-Jl TLR~ 358, the appellent co'\Z'Jts have been warned not ~o interfere vii th the decision of the lower courts unless it :finds th.::,.t the trihl magistrate acted on wrong principles. I QJl1 nfr,:;\id that I .have no reason to interfere with the same as I h.o.ve noted no irregurality or wrongs done by the trial mng;°istrate 2nd the same ·has not been r.J.ised in the grounds of c.ppc'.)::tl filed nor argued in courto /s for the· co{mtE.fr-cL-?.im which the trial magistrate cl.id not rule upon, I would also not consider it nnd o.vico the appellant to file a different suit s.gainst the respondents on thosc cleims whereby the actw:tl reason fr· the closure of the premises would be fully discussed arid ruled upon thus the grMt or refuse of thQ counter - cl.:i.im. I nm of the opinion -- . ....:._.

·-,. 3 th:.1.t nothing has been properly adduced in evidence eo far to assit the court reach a decision on this issue. In the circumstances then, I a.ccordingly dismiss the appeo.1 with coss It is ordered. (Sgd.) 20/7/200 For the Appellant: Mr. Naali - i;dvoc,'1te. For the Respondent: Mr. Mo.teru - .i-idvocato. C/C. Sor ah. -/ ,,.'\· "\ ......... • .-.; . .: s •. .N/.Wambura PR.'Vl (E.iJ.) 20/7/200 Court: Judgment read in open chambers this 20th d,::cy of ,July, 2000 at the presence of both parties. Right of lippe,,.l explninedo ''- PR"1 (E.J.) 20/7/2000.