Court name
Court of Appeal of Tanzania
Case number
(PC) Civil Appeal 52 of 2003

Kichemche vs Mirandu (PC) ((PC) Civil Appeal 52 of 2003) [2005] TZCA 53 (12 September 2005);

Media neutral citation
[2005] TZCA 53

IN THE HIGH COURT OF TANZANIA


AT DODOMA


(PC) Civil Appeal no. 52 of 2003


(Originating from Kondoa District Court Civil Application No. 55 of 2002 Original Civil Case No. 48 of 2000 of Urban Primary Court Kondoa)

YAHAYA ISSA KICHEMCHEcccccccccccccccc. APPELLANT

VERSUS


HINDU NAAMU MIRANDUccccccccccccccc.. RESPONDENT

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J U D G M E N T



KAJI, J.:


        
This is a second appeal. The appellant, Yahaya Issa Kichemche, was the plaintiff, in Kondoa Primary Court Civil Case No. 48 of 2000, in which the respondent Hindu Naamu Mirandu was the defendant.


        
In that case, the appellant Yahaya had sued the respondent for payment of Shs. 500,000/= being payment for sale of a milling machine. The trial court was satisfied with the evidence available that on 4.12.1998 the appellant sold his milling machine to the respondent at an agreed price of Shs. 1,200,000/= and that, on that day, the respondent paid the appellant Shs. 700,000/=, remaining with an outstanding debt of Shs. 500,000/=. The trial court was further satisfied that, it was agreed that on 18.12.1998, the respondent would pay the appellant Shs. 200,000/=, and that the last payment of Shs. 300,000/= would be paid on 28.2.1999. The trial court was further satisfied that, before the last instalment of Shs. 300,000/= would be paid on 28.2.1999, the appellant was required to repair the machine to a satisfactory standard. The court was further satisfied that on 18.12.98, the respondent paid the appellant only 190,000/= instead of Shs. 200,000/=, promising to clear the remaining Shs. 10,000/= on the date he would pay the last instalment of Shs. 300,000/= that is, after the appellant had repaired the machine on or around 28.2.1999. The trial court was further satisfied with the evidence available that, the appellant never repaired the machine as agreed, as a result of which the respondent refused to pay the last instalment of Shs. 300,000/= plus the 10,000/= which was carried forward from the previous instalment.


In that respect, the trial court ordered the appellant to repair the machine before being paid the remaining Shs. 310,000/=.


        
The appellant was dissatisfied with that decision. He unsuccessfully appealed to the District Court. The District Court found the decision of the trial court to have been supported by the evidence on record. However, unlike the trial court which ordered the appellant to repair the machine first before being paid the remaining Shs. 310,000/=, the District Court ordered the respondent to pay the appellant the remaining Shs. 310,000/= to enable him to repair the machine.


        
The appellant was dissatisfied with the decision mainly for two reasons. One, according to him, when he sold the machine to the respondent, it was in good order, and that, there was no defect whatsoever. Two, that the appellant was not paid Shs. 190,000/= or at all. In that respect, he contended that, he deserves to be paid by the respondent the whole remaining balance of Shs. 500,000/=. He had contended the same even before the District Court which rejected for want of merit.


        
As observed above, this is a second appeal. The whole matter rests on points of fact, that is, whether when the milling machine was sold to the respondent, was defective; and whether the respondent paid the appellant Shs. 190,000/= on 18.12.98. Both the trial court and the first appellate court found as a fact that, when the appellant sold the said machine to the respondent, it was defective; and that it was agreed that the appellant would rectify the defect before being paid the last instalment of Shs. 300,000/=. This finding was supported by oral evidence of the respondent and the Ward Executive Officer, as well as the sale agreement itself. The denial of the appellant on this had no merit and was properly refused by the two courts below.


        
Equally, the payment of Shs. 190,000/= was supported by oral evidence, as well as exhibit P2 dated 18.12.1998. Again, the appellantfs denial on this had no merit and was properly refused by the two courts below.


        
Lastly, it would appear that the order given by the trial court that the appellant should rectify the machine before being paid the last instalment of Shs. 310,000/= is in line with the spirit of the sale agreement Exh P1. In that agreement it was agreed that, the last instalment would be paid after the appellant had rectified the machine. Let him rectify it if he really needs the money. He should be given time within which to rectify it. Failure of which without sufficient cause will entitle the respondent to return the machine and be paid back the amount he had already paid, that is, Shs. 700,000 +190,000/= Shs. 890,000/= plus other justified costs. In that respect, I do hereby direct the trial Primary Court to fix time limit within which the appellant must put the machine into good working order as agreed in the sale agreement. It is only after the said rectification that the respondent will have to pay him the remaining instalment of Shs. 310,000/=. If the appellant will fail to rectify the machine within that period without sufficient cause, the respondent will be at liberty to return the machine to the appellant and be paid back by the appellant the money he had already paid, that is, Shs. 700,000 + 190,000 = 890,000/= plus justified costs.


        
Appeal dismissed with costs.


S.N. Kaji

Judge

12.9.2005