Alois Kashaija vs Loid Wavenza (DC Civil Appeal No. 15 of 1997) [1998] TZHC 2431 (10 December 1998)

)ltc. ---.μ.//1-, IN THE HIGH COURT OF. TANZANIA ATMBEYA DC CIVIL APPEAL NO, 15 OF 1997 Original District Court of Sumbawanga at Sumba.wanga Civil Case No. 5 of 1996 Before: T.A.R. Nassary - Resident Magistrate ALOI$ KASRAIJA Ct o o .~ o c. c, o e n o o o o '• ft • APPEL!ANT · VERSUS LOID WAVENZA •••••••••••••• •.•'•. •' RESPONDENT JUOOMENT ! I • .;, The focal point· of the controversy b_etween: the parties was a joint weldinp.- venture undertaken by. them under the · business name of JUA KALI WORKSHCP. ?-tuch . ~ . ' •.. ' was not in dispute. The appellant was.advocated for her~ and before the trial !1 court by Mr. Materu, learned advocate~. while the respondent was unrepresented by learned l. The appellant was a welding technician working independently while the respondet wa·s a welder at Mselern' auto garag~. It was all. within the Munici- pality of Mbeya. In January 1994 the partie~ orally agreed to undertake a . :1 joint welding venture at s,komatola area in town. The venture was to be called JUA KA.Lt WORKSHOP, Ei.nd the respondent rented th workshop room from Claudio Makungu ('!J;l2), The'"business, as I shall later demonstrate, was registered on 21.9.94 under a ··Certificate of Registration No. 103609. The appellant undertook wiring of the worRhop at a cost of shs.15,000/::. He pa.id shs.50,000/:: for the meter. He had an'if'cSn table worth shs.25,00b/=, and a vice worth shs.50,000/=• Th parties bought a welding mashine worth shs.50,000/=, each contributing ' . shs.25,000/=.-: At first the appellant worked in the workshop on the businet;s alone. But~ July 1994 the respondent joined ·him in the workshop.and they worked together on their busi."less thencef crward. Business progressed well ur.i.til il1 March 1995 when problems set in~· According to the parties the main problem c,entred on the sharing of th~ money •••••• 0. ~ ./ 2 .

• 2 - to vacate the premises-. The parties summoned some elders to r,eoon.c.il& them. ~ ..tl:w- .s ~ .wSl•e G,Qrvas. ~ (W2), Juma. Ali .!?/0), and Ignas Mandona (IX\13). It was resolved that the appell;mt. ~ vacate the premises aa the pa.ri.ie .oould no ionger work together.· The appellant. was given. three months to vacate, that is upto Jun9 1995. The appellant were ta take his -~~ equipnent with him, and the parties were to settle tho accounts . of their ~ .and 'divide. 8<fllaily b&tween them~ Befre any of the for&g0ing was done the respondent registered a complaint at the police aUtti.on that the appellant had stolen his cash shs.340,000/ from the workshop table drawer. It was in April 1995~ The appellant, according to the respondent, had already- shifted. to anothe~ place, but continued to use the table whose keys be still d. It was in April 1995. An customer . . . allegedly gave shs.40,000/= to the respondent, and one Ma~, who did not ·testify, allegedly Md given the respondent shs.300,000/=. The respondent then locked the money.in the drawer of the table. The respond9nt then found the mon91 missing. His brother (l?W3) who was in the office told him the appellant had.entered the office and opened the drawer. An unnamed worker, who absconded, also told the espondent that the appellant had entered the office. The appellant was charged with theft, and tried But he was acquitted on a.ce-ount , of the UM8Jned rker who has absconded and failure of Mahava to testify !t was Sumbawanga district court Criminal Case No. 22 of 1995, The appellant claimed that the theft was ·a sham and that th~ report of theft t6. the police by the respondent was maliciously made and was aimed at depriving him of his she.re in the business. He paid shs.80,000/: to r1r •. Materu to defend himi:in. the Criminal Case •. He was acquitted on 1.12.95. The appellant claimed that the 1;1orkshop used to yield an icome of about · ·she.300,:l()O/-= per month, which was an average of shs.10,000/= per day. From "":' Appil 1994 to February 1995 the income·would have added up to about shs.3,300,000/=-. . k .... to which be was-entitled to half, that is, -shs.1,650,000/=. He annexed to the •. •;t •••••• ·./ 3

• 3 - t a.n income l50hedl.ll.e .for Dember 1993 to Al)l'il '1995 1,1nich he·ttta:rkM Heu .. On 4.3.96 Mr. Materu preferred the suit which was for:·

1. Handing over to ·the appellant the iron table and the werkshop vice tr their money equivalent of- shs.75,000/=.
2. Payment to the appellant his ahs.20 1 000/= share in ·the welding mashine;. shs.15,000/= cest of wiring the workshop; shso20,000/= meter charge - total shs.55,_ooO/=. 3J Payment to the appellant of shs.80,000/= advocate fees in the Criminal Case.
3. Payment to the appellant of shs~ 1,650,000/= being his share of the income generated from the workshop fr"'m April 1994 to Fbruary 1995
4. Payment· to the appellant of· shs'. 300,000/:: damages for malicious prosecutio~ •.
5. Costs. 7._ Interest at court rate from date of.judgment to payment in full.
6. Any other relief the trial court deemed fit and just to grant. At the time the appellant vacated the business premises he lett the Certificate of Registration of their businss with the respondent. On 8 .• 4.96 the appellant wrote (AI) to the Registrar of Business Names asking for· its copy. He had not received the copy when te hearing of the suit commenced on 19.9.96. He still had not received the copy when they closed their side of the case -on 11.11.96. ·But a copy of the Certificate of Registration (A2) and a copy fan Extract from Register (A3) were received shortly ther_eafter. Indeed -the business was registered on 2109.94 in the business name of JUA KALI WORKSHOP with the appellant and respondent as Partners. Mr. Materu -filed Miscellaneous ivil Application No. 28/96 supported by an affidavit of the apellant seking ' ' :'r-r the. amendment of the plaint so as to introduce i it the copies of the Certificate of Registration (A2) and the ract fro Register (A3). ·--

• 4 - They were annexed to the affidavit as A2 and A3 respectivelyo On 3.12.96 the hearing .date £-or the ap-pli-cation was set down for 8.1.97. On that day both ti.as .appeared hut the application "Wa.s N:iject-ed without the parti being heard and without any reasons being given. This was what transpired: ,icoram: T.A.R. Nassary - RM Applicant: Present. Respondent: Present. COURT: The application is hereby_rejected. Sgd. TA.R. Nassar;y RESIDENT MAGISTRA.TE· 8.1.97.n Tb.a reGp()lldent was yet to. present his· sid.e of th case. He did so on 415.3.97 and concluded it that same day. Judgm_ent i,,as. deliv~ on 30.4.97 and the suit was dismissed with costs. The trial court gave three reasons for its decision: .fj£_f;}tJ:;[ that there was no. cle.:μ- evidence that the parties ran their business as partners; ~~<?.~.<!!I, that the respondent had good cause to suspect the appellant of theft", so he did not prosecute the a.ppeilant maliciously; and ~-El., that the allegations that the welding mashine was acquired jointly and that the iron table and the vice were used in the business were not substantiated by evidence. Mr. Materu preferred four e,Tounds·of appealG The first three grounds eentred on the dismissal of the application, and the fourth ground was: :That the learned Resident .Magistrate misdirected himself in holding that the respondent did not maliciously·prosecute the appellant and that the properties ' in the workshop were not jointly acquired by the parties as partnership property.:, . . I am satis.fied that Mr. Materu•s complaint on the manner the trial eourt handled the application to amend the plaint was justified. fE, the parties were in court but were not given a hearing. This was a travesty of natural justice. The right to be heard is fundamental· It is provided for under Article 13(6) (a) of the Constitution of the United Republic ,r Tanzania of ., · 1977, which reads: • o e ••••!I••./ 5

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• 5 - n13(6) To ensure equality before the law, .the state authority shall make proceduri'ls which are appropriate or which take into account the followil1.g principles, namely: (a) when the rights and duties of any person are being determined by the court or any other agency, .t~~~~~~~ i :i:, ed ___ t_o a t~~.}!-.::.E1..S and to the right of appeal or o·ther legal remedy against the decision of the court or of the other agency concerned. 11 ( underlining mine) .. The two rul which are t essential characteristica of what is often -called nat\ll'al justice is the rule against b.ias (impa:rtiality) and the right to be heard.(fairness). In the application, a decision adverse to the appellant was ma-de unheard~ and unjustifiably Sf), and this s in or-ea.oh 0£ the moet QJ..em1;a1":r rule (')f fair play which is basically what justice is all abouto ,9_e,.:;2!1d, no reasons were given for the decision to dismiss the application. This was not a proper exercise 6£ judicial discretion. In any judicial proceeding, failure tc give reaons for any step taken r order made or decision made is not a proper exercise of discretion .. Justice is never meted ,.. .. •ut on whims or arbitrarily. Justice is evaluated not by looking only at the 1 , end results of the case, but also by the manner in which that result is arrived at. It is a question of transparency. Transparency and justice are insep9.r8.bl. One of the essential components of transparency in the administration of justice is to give reasons for all steps taken or all oders and decisions made. Any I decision or crder made without assigning reasons must be quashed on appeal or in revision$ And th,J!..<!, i am satisfied that the decision to dismiss the application was erroneously and un.justifiably made. The application waa abundant in merit .. It was made under the provisions of Order VI rule ·1? of the Civil Procedure Code 1966, which states: llThe court may at any stage of the proceedings allow either party to alter or amend his pleadings in such eo••"·o~••••/ 6

• 6 - manner and on such 'terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in the. controversy between_ the parties. H As a general rule, leave to amend should be granted so as to enable the real question in issue between the parties to be raised on the pleadings unless such an iamendment would cause injustice to the other party or unless the par:ty applying is acting mala fide. There is no injustice if the·other side can be compensated by costs. In the application the appellant was not acting mala fides 1.'he cCertificate of Registration was vital in the case £or the appellant, and even in the case for the respondente It was necessary for the purpos~ llf determining the real question in controversy between the parties, which was, whether there was partnership business between the parties. The amendment would not have occasioned an injustice to the respondent. I would, as prayed by Mr. Materu, set aside the order dismissing the application, readmit and allow it, ,and hereby introduce the Certificte of Registration in the pleadings. On its basis, it became clear that there was a duly registered welding business under- taken by the parties jointly and in partnership under the business name of JUA KALI WORKSHOP. Even without the Certificate of Registration, there was ample evidence that the parties conducted their business as partners. This was clearly established in the evidence of the parties and their witnesses. The respondent said he joined the appellant in the conduct·of that business in July 1994. He did not in his evidence deny that there was such a joint venture. The witnesses ealled by the parties said t_hey saw the parties conducting the business together. In law, partnership is·the relation which subsists between pera9ns carrying on business in common with a· view of profit: Section 190(1) of the law of Contact Ordinance, Cap. 433. To create a partnership there must be three elements: (1) agreem~nt, (2) agreement to share profits of business, (3) business carried on by all or any of them a·cting for ·all: Section 191(2) •.•o••o•••o•/ 7

• 7 of Cap. 4330 These elements obtained between the parti~.. Qui.te obviously, therefore, the learned tr:i.a{ magistrate was not properly seized of- the law and the evidence before hn in his holding that there was no clear evidence that the parties ran their business as partners. .. The respondent in his evidence did not deny that the welding mas.hine was bought jointly and that it was being used in their business as well as the iron table and the vice. He did not deny that the iron table and the vice were a contribution of the appellant. Indeed both ,parties and their witnesses testified that th items were being used by the parties in their business. It was a joint welding venture, and the use of the items was, therefore, necessary. On the eyidence, therefore, the trial court erred in its holding that -:::..: ~, the allegation that' the ·welding mashine was acquired jointly and that the iron table and the vice were used in the business-were not substantiated 'by evidence. The trial court had clearly misconstrued.·the evidenco ~fore ito Next in line for consideration is the trial eourt•s finding that the .f· respondent had good cause_ for prosecuting the appellant and that he had pot acted maliciously. It does, however 9 occur to me that the purported theft stery strongly smelt ef a sham in the circumstances. The court iI\ the criminal case found the respondent 1 s allegation of theft not established on account of the failure of the persons who had allegedly given him the money to testify. In other words, the court did not·buy the story that there was money in the table drawer. The reasons for that were sound. The parties were on such bad ternts that it became necessary for them to part ways. It was unlikely therefore .,,, that the resp0ndent would have let the appellant retain a key to the drawer after he had vacated the workshop. Even more unlikely would have been the ,:9roposition that the respondent would hav'? locked any cash in the drawer knowing that his adversary, the appellant, had a key .to it. And the most unlikely of all would have been the proposition that the appellant t-uld have stolen the money from the drawer in the presence· and glare·.of the respondent's brother (PW3). Conversely, the respondent had all reaso to see the.appellant in trouble. . 10 ••••••• 0 ••. '•)

-·8 - He was yet to give the appellant his due share of the business. This coupled with the hostility between them ·would have been a good reason for him to have concocted ari untrue story against the appellantQ And which better story .. than an allega_tion -•f theft. In ··tbe··-circum 9 tnces as explained,· there could not It' ---·--... - have been a nable and probable cause for the rspoh"d:ent'.s .p:t'(?!3ution ··- ... of the appellant. · Malice is motive other than a desire to bringing to justice a person whom the accuser honestly believes to be guilty. In the circumstances of this case and those of the criminai case; it;appears that the respondent ws not actuated by a g()nuine desire to bring to justice the appellant he alleged to be guilty of a crime, but by spite or ill-will against the appellant or by indirect or improper motiveso I agree with Mro Materu that the prosecution of the appellant by the respondent was, therefore, malicious. For all the foregoing reasons, therefore, I am satisfied that the a-ppellantr s suit stood established on the balance of probabilities, and that it was wrongly dismissed. ,!· The result is that there must be judgment in this caee for the appellant with costs and interest, but subject to what I shall presently indicate hereunder. , - f.~st]_l, prayers .<?E!, .. tl"..£ and _!hree in the plaint are granted· as prayed. '"i §.~~cf!X, the appellant is claiming the sum of shs.1,650,00Q/::: being his. share of the income generated from the business. This is, in law, a claim for special damages which must be strictly provedo The appellant gave a detailed account in his evidence as to how this sum of money came about. The respondent did μot· in his evidence say anything on ito So I take that claim to have been uncontroverted. In the circumstances,.! grant this claim, which is prayer four, as prayed • . !i.!'dJ.X, the appellant ·claimed shs.300,000/= damages for ·malicii:,us / prosecutiqn. This was; ·in law, a claim for. generc;ll damages which are - . P.resumed by law to be natural and probable or dir.ect consequence of the at or omission complained of 4 The appellant explained the ·inj.ury _to his reputation, and the adverse:effect on. his business goodwill, as well as the inconvenience · · . ·1 o •••• , •• 0 •• ,

,. . , ,'':: . and -em~;.,..assm,ent, caused- b:;r . i For' Appellant: ' ,f For;· Respondent: .. , -1( • "t ~ ....: 'l ,ir. " ·1 i . -~ :" ,: ' ;~ fl .-1 ,, .•.i . . ' '! :'. ti (.j.·' '·! ~1 i I •· ,.-t·,. 'fi' • ' •' ·. . ') ·.,. '. 1'1- L --1' . I ,;,, , ... 1. "i- }. -.:t', ->- J :ii! ... _., ·[ ,, Present in person_. Preant in person. - r ·B.Po MOSHI .. ., I .• i

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