Hamisi H. Mohamed vs Fatuma Alexander (DC Civil Appeal No. 40 of 1997) [1999] TZHC 409 (22 July 1999)

' CTJ~-,h'4/'-' Z"9--, I HJ ';'nZ h:i:.,m C:)URi. OF TANZANIA I . . AT MBEYA DC CIVIL AFPEAL NO. 40 OF 1997 (From Lb8ya District Court ;t Mblya , I in Civil Case Noo 88 of 1996 Before: S.Mb Rumanyika - Resident Ma5istrate) HAJvIISI H. MOHAMED o O o O o o o o o o o O APPELLANT VERSUS FATilll1A ALEXANDER • ~ " ••• "..... RESPONDENT __ .... __ L,.. _______ _ I I I. JUDGMENT ' MOSHI 2 J. I I The respondent, Fatuma Alexanderl preferred a suit before the district I cotirt of Mbey a against the appellant, Ham is i H. Mohamed,' for the recovery of shs.300,000/= being balance of fr ,. make Mrcedes Benz sold to the the purthase price for a bus Reg. No. TZ 118,54 I appellant by the late husband of the respondent, i Alexander Kalyati. The respondent insituted the suit in her capacity as the administrator of the estate of her lafe husband. The district court found for th, respondent, and the appellant, feeling aggrieved, filed this appeal through the services of his learned advocate, I Mr~ Mbise, wr:o had represented him at 1 the trial. Mr. Mwangole, learned advocate, represented the respondent at the trial and in this appeal. I These material facts were not in dispute. Alexander sold the bus to the I appellant on 2.8.91. The sale was in,writing (Ext. P2) and the agreed price i 'rhe respondent was not part of the agreement. She did not I Shs.400,000/::. was feature anywhere in it~ paid on the spot leaving a balance I of shs.300,·ooo/= payable before the end of October 1991. This initial payment I and the ,' :ba=~ance as well as the deadline for payment of the balanae were recorded in the sale agreement (Ext. P2). The bus was delivered to the appellant . that I same day (2.8.91) through a delivery note (Ext. P3). The original registration r card of the bus had been misplaced, b'ut a duplicate registratton card had been I obtained. On 12.4.94 Alexander died,' and on 1.11.96 the respondent instituted the suit against the appellanto o r:. o a t> o o J' ·• /2

The case for the appellant was that he paid the balance purchase price of shs.3OO,OOO/= to Alexander at latter's office before the deadline of October ·1991 who then handed over to him e.11 the relevant documents inclusive of the duplicate registration cardo That. payment, however, was not in writingo The respondent, for her part, claimed that the __ balance purchase price was not paid. Her contention as well as that of Mre Mwangole and the trial court was that had the respondent paid the balance purc.hase price there ought to have been some writing to that effect, that is to say 1 the payment ought to have been in writing. Only the appellant and the respon.den.t t.es·tifiedo . . . . ·.,· .. Mro Mbise preferred three gr9unds of appeal, which were:

1. The learned Resident magistrate e.:rred on entering ., judgment for the respondent who. did not prove her case to the preponderance of probabilities as required by law.
2. The learned trial Resident Magistrate erred in the process of evaluation of eyidence on record. He did. not fully ·follow the evidence adduced before him and this ·led him to a very wrong conclusiono
3. The learned trial Resident Magistrate erred on ordering the appellant to pay to the respondent the alleged balance of shs.3OO,O0O/= with interest at the rate of 47'/4 from the date of fili~g the suit till payment in full when no evidence was led to show .. • from what grounds did the respondent claim such rate of interest. I would; with respect, agree with Mro Mbise that the tr.ial court 1 s process of evaluation of the evidence on record was questionable. The preponderance of probability wastin favour of the appellant. There was all indication that the appellant paid the balance purchase :price to Alexander within the agreed time limit. This ·,-muld account, firstly, for the fact that Alexander did not in any manner pursue the· question of the balance purchase price with the appellant for over th!'eeyears after the deadline before he diedo He certainly would were the balance purchase price unpaid. Secondly, it was unlikely that Alexander 0 •• 0 0 0 0. /3

would have p&. rted v,ith the duplicate registration card unlesr:i or before the balance purcLase price was paid,, In the circumstances of this case it mattered for little tl.at payment of the balance purchase price was not in writing. It was not part of the agreement that the payment were to be in writing. Alexander and appellant were friends very well known to each othero The initial payment and the balance and the deadline had to reflect on the agreement (Ext. P2) as they were part and parcel of it. The respondent herself could not have known for certain that the balance purchase price was unpaido She was, as indicated and conceded, outside the agreement. This would account for the fact that she filed the suit over two years after the death of Alexander which was over five years after the deadline. She simply came across the sale agreement (Ext. P2) and thought that the balance purchase price was unpaid. A proper evaluation of the evide,nce on record, therefore, would clearly have established that the respondent failed to prove her case on the balance of probabilities. I accordingly allow the appeal, quash the trial court's judgment, set aside the orders for costs and interest, and hereby make an order dismissing the suit. S.'he appellant is to have his costs here and in the court below. AT MBEYA. 22 July 1999. For Appellant: Mr. Mbise, advocate. For Respondent: Nro Mwangole 1 advocateo B.P. MOSHI JUDGE.

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