Tijara Mwasalemba vs Ezekia Mbwelembwets (Civil Case No. 4 of 1984) [1990] TZHC 613 (14 September 1990)

IN Pfl! ?IcT C CTTT 0 TAiZA1JA T. I1BY CIVIL USE 1 1, C). 4 OF 1984 nT T D Y 1 T ; T OooO0O000O Versus S EZEL. IiBWELEBWETL • DEDiiJT

• DGE1'7T MCBO1E 1 ;J . : PLITITF 'IJ L; i suing the DDLiT, EZ • . 1BWELEBW.TL for rcovery of Lerland 1i.s 2eistration !qo.0 TZ 35559. unlawfully Seized:by the defendnt prior o 31st January, 1987. In his. p1ain. the. p1áiitiff state that .on 1st February, 1987 .. he demánd.ed the said motor vehicle but the defendant has rtsed to de1ivr the same to the plaintiff. Ls a result ho plaintiff has suffei'ed loss and damage. lie iiow claims for a dec1.ar-'.tioi thtt the busi his an injunction to restrain the defenhn-t from dis.posirig of the bus, an order for the deio7by the defendnnt to. the plaiiitiff of thaidmöter vehicle or payment of 4ts. value: of shs0 1 9 5fl,000/=, dages for its detention or conversion at.5,000/ per. day, costs ind any..other relief..which the court shall deem fi and. juste . .. . .. . To prove hi case the plaiiitif 5 had: . two itnses, one of them being the plaintiff himself. He told this court that on 2O/4/86: be. was. sold an Lz engine block io A 0401-560 H 7.107C45..'or s1--s0 ..24000Q/1ythé defendant. He paid not even a single cent on tho: pot Thoir., *-greoment was that the plaintiff runs: the bus and the d.efrnidnt brings 11±5 son.torork in i t and , assist in collecting the fareb The docnd.ant was to be p1d slor1r from / . . the.'faes paid whIle the bus was nuing till full paymoto On 15/12/86 the 'defendant saw the plaintiff, for the. monp.for his exigine e , ' t Rla.intiff 'told him that the bus was still undcr r .pairs but the defcndani izisisted on taking it . They made another greLmet1t ±ioby thiedeendant was handed the bs:a,te plaintiff' a son wars - o bc the cTonducto' thereof0 'That was on 15/12/86. . . . 5 . But ox 23/12/86 the :defor4snt sacked the pl_- Liliti,ffts borvfrom . the bus and told the plaintiff that the bus.w.as his (the defdndantts),....The plaintiff .on /12/86 wrote the defendant to . return the bus •but .th dedant refused,. ThIP4,thq plaintilf decied to file. this suit4 :t S,

The p1ainiff paId partly for the engine, up to SLS0 60,944/= The plaintiff's son PatricK was the second. for tl.o plaintiff. He told this court that he paid to the defcnd,nt total of 17,000/ but was sackd from the job on 24/12/86 In his defence the d'fenciJ:Lnt told this cot,r that he obtained possession of the plaintiff's motor vehicle as per their written contract s thibit Dl, that he .d.ivs it to raise aoney for payment for the engine he had sold the plaintiff 0 The his was to be in the dofendant's custody till full payflient of the engine dobt After fixing the defendant' s engine thèplaintiff.decided to run the bus himself from Kyela to Tukuyu Y. contrary tb their agreement,: The dcndant asked for his engine back s but on 15/12/86 theyreachéd. a .ompromise: and signed another agreement.(hibit D2) wberebr the plaintiffhandod. the bus to the lefendant to run and the plaintiff's son was to work:in it as a conductor. The bus was. still defectiv and the defendant went and repaired it for she. 75,OO/ at Ikombozi Garage When the defead.ant asked the plaintiff tLat they pay first the g'arage bi1) the plaintiff took away his son and sued the defendant. The defndant fu.rtli.er says he has not been paid the 60,944/= or any part of it for his engine up to now. The defencbnt puts a couner-claim that he be paid the price for the fl 1 1' engine 240 9 0()/r, interest s costs, and any other reliefs that t 1iis court wiL deem just and fit s aid prays that the plaintiff's suit be usmissed witb costs, ' This case was b,eard to the end by my learned brother, Mr. Sustice C,G. Mtena. But before h. wrote t' e judgement he was transferrd from this Registry. And before comu g back to write the judgement he has ceased to prform judicial So this case WB assigne& to me to write the judgeinerit bSr the Hon. Judge-in-charge Mr. LiR.J. Chua under • Order XVIII 1ule l of the Civil Procedure Code. At the beginning of the hearing of this case my learned brother Mr. Ntenga framed the following i'sue: ....• iJb'ther or not the plaizitiff has paid aiiy amount to the, defendant and if so bow nuoh, for the pu'eJaae of engine No, E14O No,7lO7945 r

' 3 Whether or not the plaiaiff , conccnted to his vehicle to be seized by the Defonnt for 'bh purposes of recovering the balancc of his money 0 What are the parties entitled to0 But after going through plc ings ' <vi o cc a record I think the case will be better decided undr' thc' foYlowi1g!iss'uen- (i) What were the terms of the contract between the parties? Who is in 'àreach of the contract? '• Did Lhe plaintiff make p'irL pWnentt to Ghe tune of shs. 60,944/=. or.any other athoünt t all?..: Wha't:relief's are the parties eiititle. ? This amn'iendrnent and striking out of some of' the ssues I make., under Order XIV Rule 5 (1)(2) of the Civil ProcecIre Code, 1966. As for the 1st issue (amxnendccl) t c plaintiff states that be b6ugbA the defendant's èigine"for 24OOOO/o. That money wa to be paid.by deducting from the fare collected when the plaiitiff was running the bus. The bus was to run in MlDcya Municipality but as'tö be in thep1aintiff's custody and was t-o park at the plaintiff's house at night. 'On 15/12/86 when the defendant saw thO plaintiff'cand claimed for the money and, the p1ain. tiff had nbne they made another agreement that "the bus be run by the defendant, The defendant on the r)ter h, and. cajs their agreement was in writing s hibit D), which stateà that the bus ws to be run by' the defendant. When the plaintiff breached that agreement they' made another one,hihit D2 9 changing the places between which the bus waste 1ybu'still.insisting ' it was to be under the deféndantts caree The plaintiffts 'dase has got a lot 1f conti'adictions and lies. In his plaint the plaintiff never nentions that he took the defendant's engine and that he voluntariy handbd the bus to the defendant. He made it. look as if the defendant stole' hin bus. Thun in his b.estimony Jae . says their. agreement was that he starts paying' after be repairs the bus. Then he says t_L,oy made no agreornc-iit on hdw or i-iheri he could start paying. Then he says they agreed, that hd could' pay from the proceeds of the bus fares. Contradictions destroy, the Credibi1ty Of a witneaq,.. . On the other hand the defendant i as not been oontadictory and tendered written agreeiaents signed. by botI - himiself and the plaintiff .. . 4 1

4 — (Eihjbjt Dl & D2) 0 These documehts were written and or sied by the pla-intiff 0 They form the *terms of their agreement. The first agreement Exhibit Di states "I EKL. EW TA 6in sel1j. to TIJJIA Mwasalemija engine NoC. E 0401/586 -No 0 7107945 lnctio427 for shs. 240,000/=. Tijala Mwasalemba is to fix thc on in..Leylend BIZ' No. '12 35559 Tijala has not paid. any.mon.ey , He isto&'ing the bus to Mbeya and bring onc youth of us to supervise the antMbolo1:eta will bring oieyouth for the same purpose The dobt wiil. be . paid. afte' Tha bus has strted operat.ing, Whc the debt ha 'boonlIr. paid. Mbwel&owetats. youth will leave that bus. (Signod. by both paties)" 00 Exhibit Dl 1as executed. on 20/4/86, Then Exhibit D2 9 written by the plaintiff himself stated

• . 'I Nd.ugu Tijala hand. over my bqs '12 35559 to Ndugu Ezekia Mbwelebwetçi. xnd in the bus will be my child and 1'1bwelebuota C...- , himself will drive the bus Tie rro 1 0y accrued from the oper tios of the bus will be counted snd we slic - li soc how • • ,, much we shall g.L how muca will romaine .: 0 The plain-tiff does not dispute the :uthonticity of these agreements Exhibits Dl and D2 0 When there is documentary evidence oral evidence on 0 the seine s',ibjct'matter shall not be admittod for the purposes pf. ' ootra&icting, vyin, nddin to or subtracting from the conteit, of the 0 documentary evidence This is hccorii: ;o section 101 of the Evidence Act 19674 •.. 0 0 0 0 : •" Foi the evidence, espetially Eh13isD1 an. D2 the terms of the aeement axe of two tôs. • fun ;untal term, is that the, plaintiff buys and the defomi:.nit s1s ihe ciiginc to the p1ainiff for shs,, 240, 000/= The plaiitiff waz tá ray the purchase price. by handing over 0 the bus to be run by the d.ofondcnf -.-,, nL tLie latter was to ,do&uct frorA the money accrued from the running of the Lus slowly till his debt is fully paid. The non-fundamental torms wore that the bus was to ply between ,.Mbeya, and Tulçuyu and thc4, each part - was to give his child to help in the running of the bue and soc what caount was collected.. I cçill these non-fundamental terms because the partios could haTo changed as they had done the places betuê which the ;La was to ply nid the supervisors 0± 000/5

• 5 t.ond.uotors of the bus without affecting the fundamental term of sale and purchase of the engine. There was no time fixed bctwLen w' - ich tI c. debt was to be paid but the other tern is that when the debt was ully p id. t a defendant was to return the bus to the plaintiff4 The second issue is'.who ido a broach of the :onrt The plaintiff allegeq that the defendant sacked the plintif'f's.sonfrom being a • conductor in tho bus 'and so made a b±'cach of the 'coatraot M6 defendant alleges the plaintiff withdrew.his so:i ±roa. the bus The'ossentiai part of the contract is that the defendant gives ho plaintiff' the 'engine and 'the ..pla.intiff gives the defendant thu bus toun till ie' engine purohse price is paid from the running of the bus'. The defndnt had fulfilled hi part of the contract. W at renamed was the plaintiff's part to pay for the enginew Ti e plaintiff nade a first breach o how to pay debt by plying the bus betwen Pukuyu 'and Kyola instead of 1'.'lbeya Municipality as •: they had agreed. As to whether the plaintiffI6 son was sacked by the S •• with' defendant or. the plaintiff withdrew his son I tend to: agree L' the defendant's side because the plaintiff a case is full of coitradictions. These include his statement in the plaint that the defendant just took the p3.aintiff's bus without any agrecment. Then there are 46ontradictions. ' between the plaintiff's testimony nd that of his son as to how nuch the • son had paid the defendant s But with or withciA 1 iq son in the bus the plaintiff had not been given the engine free. He had to pay for 'its

W filing this suit and stopping the bu..'..d'perations the plaintiff rna&e: a furthe' beaoh. I therefore find that the plamntif is the giulty party for the breach of the contract. The third issue is w4,etLor any part payment has boon niade. The plaintiff alleges to have made pa±t pynonth 'of upto,60,944/. The plaintiff alleges to have paid to the c 1 ofond.ant's son 3Q3OOO/z and l5OOO/t and was issued with receipts. But -the ro ceipt s autLcntimty was disputed by the defendant who denied to have issued y siicireceipts and the court rejected the recOipts to be admitted as evidence since theF 'bore n6 'rvenue stamps. The plaintiff also told the court that is s'on Patrick paid 'the defendant 152944/. TLi has becn denied by the defendant s That Patrick contradicted his fathtr's 'evidence by saying 'hØ 'paid the 'd4e six times a total of sha. 1798 00/. These contradictions malvz mq not 'oelieve

• ' -', •Oo./ :.' -•

Are -6- the plaintiff's case. Beidcs that the defendant alloos the counts collected were very small and mostly used in buying diesel spares and paying iliowances fo the workers in the bus0 The bus operations had not been rofitablc to start p:ying for tie eino debt0 On the balance of probabilities therefore I tend -to olieve the defence case that n® pazrt—pannQnt was made by tie kintiff. Nor as t what rliofs so dust as I have, found that the plaintiff • nade a broaoh of -the eontraoi and h - d not made an part payineiit I dismtss his suit with cost - As for the counter—claim the defendant claims that jdgorndnt be entered for him 240,000/= payment for the oigine costs interest and - any other relief which the, court shcll deem fit It is fortunate for the plaintiff th -'t the dofcr4 n± did' not counter- claIm for 'thd 7 000 I he m'id. fe the rnir of the 1Du One connot be

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antec1 a relief ho did not pray fo in the pleadings. Whet the defendant is praying for is the pyrnont of the pinchase price of the engine. This is rather spccific performance, Their contract is broken and. rañfing the plaintiff more time to ply the and raise the money for the engine will cause more dolays and comp1ication. It is fortunate for the plaintiff again that the defendan-t did not courrer—claim the present msrkot value of the onginc xt if ho plaiht.ffcannot pay their agreed purchase prico for lQ o'gino immediately the contract is to be recir4ed and the deferdnrt 'o bancod buck his engine and the plaintiff his bu In conclusion threforo tius suit is dismissed with costs against the plantiff. The counter claim antod. as fo1lows The plaintiff i to pay the decotal amount o 240,000/= to the defendant imriodictely after 'uch he will be handed back ±3o bus and engine, or if ho fails to do so the contract is -to be escinc.ad and be reurna the dnthnt onginO and takos his bus back, The plaintiff to pay all the defendant's oost in this suit, Irrtees± at 1 to be p4 o'i the docretal frOM pate of, fi].in this swt to full paymelTt.

-7- Delivered this 14th day of September, 1990 in the presence of the plaintiff. The defendant who is on safari is represented by his son Amos Ezekia, • 'F' L, B0 MCHONE • JUDGE • • 14/9/1990 Court: Right of appeal explained 0 A- . L. B. MCEOE JUDGE 14/9/1990