Nobety Mahenge vs Anyamile Nwasankemwa (PC Civil Appeal No. 3 of 1995) [1999] TZHC 486 (29 October 1999)

tLUSli,,I_,_ J'. IN TIU; HIGH COUfYr OF 'rANZANIA AT iViBEYA (PC) CIVIL A?Pt;AL NO, 3 OF 1995 (From the decision of the District Court of l''.beya at lvibeya in Civil Appeal Noo 93 of 1994 . . Before~ H.S. Lwabutiti District } 1 iagistrate) NOBbTi H.AH:ENG:S a o o ~ ,:, , .. , o o o o •1 {,> Cl o o o. o o -o ~ o Versus ANYJuVjILE · lVMASAi'1KiJ.VlWA · RESPOI-JDENT JUDGMEt'\JT '.rhe ·appellant, Nobert Mahenge, preferred the suit against the respondent, Anyimile Nwasankemwa, before the Urban prfoary court of l"ibeya claiming shso300 ,000/::: being the value of 411 pieces of timber he had supplied to the respondent o 'l'he primary court allowed the claim in its entirety unanimouslye I'he decision aggrieved the respondent who, in consequence, preferred an appeal to the district court of I''lbeya which partly _allowed the appeal holdine that the appellant was entitled to the value of 140 pieces of timber onlyo 1'he appe.llant felt agg:?.'ieved and preferred this appeal which was argued before me by his learned advocate, Mr. i.\Jaali, and resisted by the respondent in persono These material facts were established in relevant and believable evidnce o '111.e appellant and the respondent were· business friends. 'l'he appfllant supplied tirpber, and the respondent would secure a tender for the supply of timber and get the timber from the appellanto 1l 7 hat was thei:- businesso 'I'he respondent used to supply timber by tender to Ruanda prisono 'l'he Euanda prison store keeper, Inspector f''iWampagama (BM1), said so and added that the respondent had thus supplied timber to the prison several times. In august 1992 the respondent approached the·-appellant and told him he had tender to supply timber 1 to.Ruda prison:and that he wanted tirnbern Appellant promised to go to the bush for· the timbero 'I'hey agreed that the appellax1t would take the timber to the prison the following 000000000~0 /2

2 day where he would find the respondent .. The following day (98.92) the appellant arrived at the prison with the timber at 7o45 pmo He had delayed in the bush .. The prison gate keeper told him the respondent had left after waiting for him for a long time.. fie told the appellant to entrust the timber to him and return the following day when the respondent would be there.. Tney counted the timber.. 'I'hey counted 411 pieces of timber.. '.L1he gate __ keeper entered the figure in the gate keeper book or register (Ext· B) ~ 'rhe following day ( 10.8.92) the appelant eturned to prison and found the responc).ent there.. 'i'hey counted the pieces of timber and found them to be 411.. 'l'ne store keeper (6'H1) was_ present and he said he saw the 411 pieces of timber. 'l'he appellant and the respondent then executed a handing over certificate (.8xt A) of the 411 pieces of timber which indicated the sizes of the timber and their agreed prices .. Total price ! came to shs .. 320, 150/= w11ich was record.eel in .clx:t A as well as the fact ➔,_,·: that the respondent was yet to pay for then1 .. · It was agreed that the respondent would pay shso3CO,OOO/=c and the balance was his commission. On a later date the respondent went back to prison and was told by SM.1 tht they had selected only .140 pieces of timber which they would buy at a pric-e of shso 120 1 000/=. .S1 11 i1 asked the respondent,-to go for an invoice and a delivery note, whiGh he did, and a cheque for shs.120,000/= was then prepared and harided over to the respon:dent. SM1 returned to the respondent the remaining pieces •I timber (271) and supplied prisoners who loaded them in his -r,1otor vehicle. '.1 1 he respondent then drove. away with the 271 pieces of timber. ' '-! .Meanwhile the appelant was pressing on .. the- respondent to pay his money (shsdOO ,ooo/=) and the respoi1d;,J1t \iJas': giving this and that excuse for not paying. He denied to have been entrusted with the 411 pieces of tir:aber and to have taken away the· 271 •pieces.. In the end he told the appell~t he would pay shs.120 1 000/==. only for the 140 pieces 000000000CO /3

3 - of timber bought by the prisono 'l'he appellant refused and filed the suit., I would, with respect, agree with 1V1r. Naali that the appellant's claim stood established on the preponderance of probability. 'ine district court 0 s finding that there was no evidence that all the 411 pieces of timber were entrusted to the respondent was in complete disregard to the evidence of SN1 and .SXts A and B which corroborated the appellant's clairn .. In fact the district court did not make any reference to that evidence at all. 'fhat was a question of fact, and given that tl1e trial court had seen and heard the parties and SM1 and found the appellant and bM1 credible, the district court would have required good reasons to disturb that finding. But the district court, as said, WM not properly seized of the evidence on record. I think had the learned appellate magistrate fully addressed himself to the evidence, he would not ha.ve reached the decision he did. I am satisfied that the decision of the primary court was justified on the evidence and sound in law and that it was improperly assailed by the district court. I accordingly allow the appeal, quash the decision of the district court, and hereby fully restore the judgment of the primary courtu I award the costs to the appellant. AT il':BEYA. 29 October 1999. For i',ppellant; fil:'. Naali, advocate o .F6r I1espmident; Present. B.P. MOSHI r CERTIFY J'HAT 'rliIG LS A TBUl:i COPY OF THE mtIGIN.AL,

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