Mchome, J.: The Appellant, Magirini Mahinya sued the Respondent Mbwiga Mkeya A in the Uyole Primary Court, Mbeya for recovery of 5,000/= being purchase price for a tyre the respondent sold the appellant. The respondent after being paid the 5,000/= cash delivered the tyre at the appellant's house. When he appellant came and found the B tyre he discovered it was defective. He returned it to the respondent and the latter promised he would refund the appellant his money and take back his tyre. This was way back in 1966. But the respondent never did so despite several reminders. Hence this suit. C
In his defence the respondent totally denied to have sold the tyre to the appellant. He alleges that the appellant and his witnesses may have mistaken him for someone else.
The Primary Court gave judgment in favour of the appellant (original plaintiff). Then the D respondent (original defendant) appealed to the District Court. The District Court allowed the appeal applying the principle of "Caveat emptor". This therefore is a second appeal.
Both lower courts found that the respondent is the one who sold the tyre in question to E the appellant. The respondent's allegation that the appellant and his witnesses may have mistaken him for someone else was rightly rejected as the transaction took place during broad daylight and more than once. The allegation by the respondent that the P.Ws are F all relatives of the appellant and so should not be relied upon was also rightly rejected by both lower courts since they are competent witnesses, their relationship to the appellant notwithstanding, and there was no evidence that they were lying because of their relationship with the appellant.
In allowing the first appeal the District Magistrate alleges that the appellant was entitled G to a reasonable inspection of the goods he intended to purchase, and that if the buyer omits or neglects to do this at the earliest opportunity he cannot be allowed to take action at the latest stage.
The principle of caveat emptor is inapplicable to this case after the appellant had H explained that he got no opportunity to inspect the tyre. He was just told by the respondent that the latter had a tyre for sale and asked him to deliver it at his house. When the tyre was brought the appellant was not at the house. P.W.II who had instructions to receive the tyre and pay for it said he did not know the terms of their Iagreement so did not inspect the tyre. When the appellant came and found the tyre to be defective, that being his
first time to see it, he went to ask for the refund of his money. So the question of the A buyer having not inspected the goods at the earliest opportunity does not arise.
Rather it is a question of a breach of implied Warranty on the part of that seller that the goods would be in a reasonable condition. Nobody can enter into a sale agreement to B buy a useless tyre and pay 5,000/= for it.
The respondent is a liar to say he never sold the tyre to the appellant, as he was found by both lower courts. He is not even constant in his testimonies. He says either he never sold the tyre at all or he sold it when it was in good order. Such contradictory statements C make me find it most probable that the respondent not only sold the tyre to the appellant, but also sold a defective tyre. He had admitted to have sold the tyre and contended that it was in good order or that their oral agreement was to sell him a defective tyre his evidence would have been worth considering. But denying totally to D have sold the tyre make me like did the Primary Court that he is most probably lying. I therefore allow this appeal with costs.
E Appeal allowed.
F
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