A S SAJAN v COOPERATIVE AND RURAL DEVELOPMENT BANK 1991 TLR 44 (CA)

 

A S SAJAN v COOPERATIVE AND RURAL DEVELOPMENT BANK 1991 TLR 44 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Makame JJA, Omar JJA and Ramadhani JJA

G 21 March, 1991

Flynote

Evidence - Leave to adduce additional evidence on appeal - Whether can be allowed.

Contract - Damages - Measure of.

-Headnote

The appellant entered into a contract with the respondent to purchase a milling machine. He paid the price. Later he was informed the price of the machine had gone up and he paid the balance of the price. Some years later the I respondent refunded to the appellant the whole amount of the money paid on the ground of non- availability of machines due to the failure to obtain foreign exchange with which the buy them. By the time the A respondent pulled out of the contact the price of a milling machine had more than trebled.

The appellant accepted the refund and sued for breach of contract claiming damages. The appellant who was not represented did not produce at the High Court two letters because of unfamiliarity with court procedures. He lost the case in the High Court which held that the contract was frustrated due to impossibility of performance. The appellant sought leave to produce before the Court of Appeal the two letters he did not produce at the High Court.

He also maintained that the bank was to pay him such an amount of money as would enable him to purchase the C machine on the market.

Held: (i) Except on grounds of fraud or surprise the general rule is that an appellate court will not admit fresh evidence, unless it was not available to the part seeking to use it at the trial or that reasonable diligence would not have made it so available;

(ii) since the appellant had during trial mentioned the contents of, particularly, the letter of 24/10/1984 it cannot be said that the two letters were "fresh evidence" or "additional evidence" rather they were documentary E evidence of what had been given orally; leave granted;

(iii) there is no evidence that the contract was on the condition of availability of foreign exchange;

(iv) the cardinal principle in awarding damages is 'restitutio in integrum' that is, the law will endeavour, so far as money can do it, to place the injured person in the same situation as if the contract had been performed.

(v) 'Restitutio in integrum' dictates that the appellant be paid such sum of money as to purchase the milling machine.

Case Information

Appeal allowed.

Kalunga, for the respondent.

[zJDz]Judgment

Ramadhani, Makame and Omar, JJ.A.: The appellant, Mr. A. S. Sajan, was the plaintiff in a suit which was H heard in the absence of the respondent, then the defendant, the Co-operative and Rural Development Bank. As the suit was dismissed by MAINA, J., and being aggrieved by that, the plaintiff now appeals to us. 

The appellant on or about 4th August, 1984 entered into a contract with the respondent whereby he was to buy a milling machine from the latter. Payments were made in three installments, the last one being on the 3rd August, 1985 which brought the total to some Shs. 92,036/=. On the 6th March, 1987 the respondent refunded the whole amount of money to the appellant on the grounds of non-availability of machine due to the failure to obtain foreign exchange with which to buy them. At the time the respondent pulled out of the contract the price of the milling machines had appreciated to Shs. 367,914/25. The appellant sued for the difference between the contract price and the market price, that is Shs. 275,905/25, as damages.

As already said, the learned trial judge nonsuited the appellant because he found there was impossibility of performance and that there was no proof that the respondent was merely unwilling to perform.

Before us the appellant appeared in person while the respondent was represented by Mr. Kalunga, learned Counsel.

The appellant told us that he had failed to secure an advocate and that he was going to prosecute the appeal in person. He started by seeking our leave to produce two letters which he said were very important. Because of unfamiliarity with court procedures, he submitted, he did not produce them at the High Court. Mr. Kalunga objected to that on grounds that the appellant had ample time to do so in a hearing which was ex-parte.

We decided to permit the appellant to produce the two letters and we now give our reasons. Rule 34 of the Tanzania Court of Appeal Rules, 1979 provides:

34 - (1) On any appeal from a decision of the High Court acting in the exercise of its original jurisdiction, the Court may

(a) ...

(b) in its discretion, for efficient reason, take additional evidence....

The Court of Appeal for East Africa said in Karmali Tarmohamed v Lakhani & Coy [1958] E.A. 567 at 574. Except on grounds of fraud or surprise the general rule is that an appellate court will not admit fresh evidence, I unless it was not available to the party seeking to use it at the trial, or that reasonable diligence would not have made it so available.

These two letters which the appellant is seeking to tender were in his possession at the time of hearing the suit and A in all other aspects they do not pass the foregoing test. However, on perusing the High Court file we have noted that the letter of 24/10/1984, particularly, had been mentioned and its contents had been given in the evidence of the appellant. Could it be said, then, that these letters are "fresh evidence" or "additional evidence"? We feel we could not say so. Rather they were documentary evidence of what had been given orally. In fact the learned judge was supposed to assist the unrepresented plaintiff by asking him to produce the letters. So we did what ought to have been done.

The appellant argued in the main appeal that the respondent had to perform the contract and not to refund the purchase money advanced. Mr. Kalunga, on the other hand, submitted that the purchase money has been refunded and that the appellant could not have his cake and eat it at the same time. The learned Counsel referred us to Sec. 55 of the Sale of Goods Ordinance (Cap. 214) which provides for the recovery of money paid upon the failure of a consideration. He also cited Benjamin's Sale of Goods P. 673 paragraph 1341. Mr. Kalunga said that the learned judge was right as the respondent did not have any machines to supply to the appellant.

Counsel argued that the availability of foreign exchange with which to buy the machine was condition of the contract.

There is no evidence to show that the contract was on the condition of the availability of foreign exchange. On the contrary, the appellant was made to believe that everything as well. The letter of 20th October, 1984 written by F the Regional Manager of the respondent to the appellant said:

While we are arranging to transport the same grain mill to you we inform you that the price of the items have gone as G follows...

The appellant paid the difference which amounted to Shs. 2,036/= whereupon the Regional Manager wrote to the General Manager copied to the appellant on 28th October, 1984. He said:

Please consign his grainmill and hullet at your earliest. The language used shows that the machines were readily available. So we find that there was no evidence to I support the view that the contract was conditional. Hence we find that there was a breach of contract. The consequences of a breach is not merely the refund of the money paid but damages. Section 55 of the Sale of Goods Ordinance, cited to us by Mr. Kalunga, provides:

Nothing in this Ordinance shall affect the right of the buyer or the seller to recover interest or special damages in any case where by law interest or special damages may be recoverable, or to recover money paid when the consideration for the payment of it has failed.

That section does not make the recovery of money paid the only remedy. Again paragraph 1341 of Benjamin's sale of goods provides:

Where, after the buyer has paid the price (or part of it) to the seller, the seller fails to deliver the goods.... hemay either sue for damages, or for the restitution of the money paid to the seller. Admittedly the appellant has been given back his money. The Written Statement of Defence in paragraph 8 alleges E that the appellant had requested the refund. A letter marked "A" was attached support of the allegation. That was a letter of 24th December, 1986 written by the appellant to the respondent. The appellant said, inter alia:

Since initial payment was made over two years ago by July, 1985 full payment has been made, in the absence of supply of machines, you ought to pay the interest at the current Bank's rate, I propose to charge the rate from August, 1985, please let me know your comments.

The appellant concluded "I therefore sincerely hope you would finalize this matter either to supply the machines or otherwise".

There is nothing which supports the allegation that the appellant simply demanded a refund of his money. If anything he was demanding payment of interest for the period his money had been with the respondents. Thus the refund of the money was infact the manifestation of the breach of the contract by the respondents.

The receipt by I the appellant of the money refunded did not operate as a bar to a claim for damages because the refund would have been ordered in any case.

The cardinal principle in awarding damages is 'restitutio in integrum', that is, the law will endeavour, so far as A money can do it, to place the injured person in the same situation as if the contract had been performed (The Cooper Motor Corp. Ltd v Moshi/Arusha Occupational Health Services Civil Appeal No. 1 of 1990 (unreported) citing Halsbury's Laws of England 3rd Ed. Vol. II p. 233 Paragraph 400).

In the instant case if the contract had been performed the appellant would have had the machine. So 'restitutio in integrum' dictates that the appellant be paid such sum of money as to purchase the milling machines. The C appellant gave the price of such machine at the time of filing the suit as being Shs. 367,941/25. That was not controverted. Damages then are that amount less the refund, that is, Shs. 275,905/25.

Costs here and below are also to be paid by the respondent.

Appeal allowed.

1991 TLR p49

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