| dc.description | MILLENIUM COACH LIMITED V. AFRICARRIERS LIMITED IN THE COURT OF APPEAL OF TANZANIA – DAR ES SALAAM KWARIKO. J.A. KEREFU. J.A. and KIHWELO, J.A.10th & 27th June, 2022 CIVIL APPEAL NO. 323/16 OF 2019
(An Appeal from the Judgment and Decree of the High Court of Tanzania Commercial Division at Dar es Salaam in Commercial Case No.130 of 2017 dated 10th September,2019 by Hon. Phillip, J)
Facts
This appeal originates from, the facts that, the Respondent is a dealer in buying and selling used and brand new motor vehicles, On December,2014, January,2915 and July,2015, the two parties entered into agreement whereby the Respondent sold to the appellant six Golden Dragon Buses at an agreed price of USD 125,000 each, where the appallant made down payment of USD 200,000. It was agreed that a balance of USD 527,721 plus interest would be paid at equal monthly installments effective from September, 2015.The appellant failed to honour part of her bargain and as a result, the respondent impounded three buses.
The Respondent filed suit against the appellant for payment of USD 506,721.00 being outstanding amount for purchase of six Golden Dragon buses, TZS.300,000.00 estimated general damages or as shall be accessed by the court, TZS.200,000,000.00 for breach of contract, business frustration and inconveniences caused thereof, interest 25% per annum at commercial rate from the date of filling the suit till judgement, interest at court’s rate of 12% per annum from the date of judgement till full payment and costs of the suit
At the end of the trial the court found that the respondent had failed to prove agreed mode of payment by the parties, failed to show that the installments were made before execution of the agreements hence respondent’s case dismissed. Regarding to the counterclaim the court found that the appellant could not prove that the price was paid as alleged, there was no proof of the allegations, hence the counter claim was equally dismissed. Aggrieved of the trial court decision the appellant has preferred appeal to this court and the respondent filed a notice of cross appeal.
For the Applicant: Mr. Nickson Ludovick
For the Respondent: Mr. Ngassa Mboje
Legal Issue
i. Whether title over the commodity bought on hire purchase may pass before full completion of payment of all installments?
ii. Who owes the onus of proof?
Held
i) It is trite law that ownership of a commodity bought on hire purchase basis can only pass upon payment of all the installments.
ii) It is trite law that, he who alleges the existence of a certain fact is duty bound to prove it and would fall if no evidence is given at all.
Commercial law-sale by hire purchase- whether the ownership of a commodity bought under hire purchase agreement may pass before full payment of all the installments?
Civil Practise & Procedure – Law of evidence—proof in civil cases= who owes the onus of proof?
Statutory Provisions referred:
Rule 94 (1), 106(1) and (7) The Court of Appeal Rules (as amended)
Section 110 and 111 of Evidence Act (Cap 6 RE: 2019)
Case Law:
Makubi Dogani vs. Ndogongo Maganga, Civil Appeal No.78 of 2019 (unreported)
Leopold Mutembei Vs. Principal Assistant Registrar of Titles, Ministry of Lands, Housing and Urban Development Settlement, Civil Appeal No.57 of 2017 (unreported)
Domina Kagaruki vs. Farida F. Mbarak and Five others, Civil Appeal No. 60 of 2016 (unreported)
Africarriers Limited vs. Millenium Logistics Limited, Civil Appeal No.185 of 2018 (unreported)
James Makundi vs. Permanent Secretary Ministry of Lands, Housing and Urban Development Settlement & two others, Civil Appeal No.181 of 2021 (unreported)
North Mara Gold Mine Limited vs Josephat Weroma Dominic, Civil Appeal No.299 of 2020 (unreported) | en_US |
