Nsanjo M.P.C.s. Limited vs Faustine Nzugumi (DC Civil Appeal No. 46 of 1991) [1999] TZHC 420 (26 November 1999)

MCHOI"IB, J 1 IN THE HIGH COUT OF TANZANIA AT TADOH.A (DC) CIVIL APPEAL NO. 46 OF 199'1 OH.IGINAL CIVIL CASE NO; 8 OF 199'/ UH.AM.BO DISTH.ICT COUH.T NSANJO M.P.C.s. LTD ••••••••• APPELLANT YEH.SUS FAUSTINE NZU9UMI • 0 • • • • • • • • • • 1-IBSPONDENT JDMENT The Respondent, Faustine Nzugumi, sued the Appellapt .Nsanjo Multipurpose Cooperative Society Limited_in the Distrc Court of Urambo for Shs.1,'/50,000/= damages. He 'partly suc- ceeded and was awarded Shs.750,000/=. This aggrieved Nsanjo who preferred his appeal. The undisputed facts of the case are that the respondent ( original plai1tiff) sent to the market six bales of tobacco. But the Primary Court of Urambo Uran issued restraint order against th~: sale of the said tobacco •.. The appellant -·- ( original defendant) had applied. for that re:"Jtraint order because they allege that tobacco belonged to one Ezekiel Maingu, , wbo-was their judgment debtor. Because the primary court orders were not properly signed the tobacco was eventually released and sold at Market No.4 instead of the original market No.3. One bale was not sold at all because the classifier condemned it as rotten. The respondent claimed Shs.1,000,000/= general damages and Shs.'/50,000/= sale prive of the tobacco. The trial court dismissed both cla;i.ms but awarded Shs.?50,000/= allegedly for suffering between the 3rd an~ 4th market period and to support his family and his.business. My Kayaga, learned counsel for the appellant challenged that decision on three fronts:-

1. That the reliefs granted by the trial court were not pleaded.

2 2. That the issues framed were not resolved. 3. · T:qat the interest shows that the decree varies_from·the judgment • . I agree with the trial court that the claim for general .damages was not proved. There is no evidence that the appel- lant acted maliciously when they applied for the attachement . . . ,. . ~ - ·-· of the aid tobacco. ·The claim for anticipated sale price was also correctly rejected as the respond:mt later sold his tobacco. There is ,.. . no evidence that prices at the 4th market were lower than those at the 3rd market • .. · ·it ·is not stated how long it took from.the thir~ to the. 4th market. Nor respondent'~ family suffered by nerely 1'8.it- ;!.ng to sell the tobacco.at the 4th instead of the 3rd market. Nor is it stated how the selling of the tobacco in the next market could have affected the respondents' shoe business. Wors~ still these reliefs ere not p1'ay1?d for. So it was improper :for.the trial court to grant them. The trial magistrate ought to have resolved each issue he framed. But this wquld no.t have rendered the judgment void by itelf. For thse.reasons I am of the view that the district ' . . court arrived at 'the wrong decision. The:refore I allow this.· .. appeal and: qash ;tht ·. of the lower c·ourt with costs. L.B. MCHOME, JUDGE 4/1/99.- Order: The parties are to be notified of thls :·:judgment immediately., i \ : I .;. L.B. MC110ME JUDGE ,.L-i-/1 /99 •. l .. ;_. i, .. ,· . '

\ 3 .. Cour.t: Delivered in the pret3ence o~., Mt •. Kayag~ for the appel-. ,·. :Ja,ri. n Mr. Mtaki _ f__or ;the rE;!spondE;!nt. ·'· ... T ,., · ..... ; .- .... ··, r .... '· '¥ ·- .;..\ ..... . . . P .M. .aKENTE, ·:. : Ag/:DIS.TRitT';REGISTRAR . - , 26/1/99 '.\ ;J ..,.,.... ,. l . :1, .\\ S .B.· Ll)-KELELWA DISTRICT REGISTRAR 26/11 /99 /. .,- I . ~- .. i ~· . . # 4 ""-,' ./·-----·

·.;, t • • • ,. , - ',. ,.• ..:. ...