MAGIRINI MAHINYA v MBWIGA MKEYA 1989 TLR 185 (HC)

 

MAGIRINI MAHINYA v MBWIGA MKEYA 1989 TLR 185 (HC)

Court High Court of Tanzania- Mbeya

Judge Mchome J

10 October, 1989

Flynote

Sale of goods - Buyer discovers goods to be defective on delivery - Had no

opportunity to B inspect goods - Whether principle of caveat emptor applicable.

Sale of goods - Goods discovered to be defective - Breach of implied warranty by

seller that goods in reasonable condition. C

-Headnote

The appellant sued the respondent in Uyole Primary Court, Mbeya, for recovery of

5,000/= being purchase price for a tyre the respondent had sold to the appellant. After

being paid 5,000/= cash the respondent delivered the tyre to the appellant's house.

On the facts of the case, the appellant got no opportunity to inspect the tyre. He was

just D told by the respondent that the latter had a tyre for sale and asked him to

deliver it at his house. When the appellant found the tyre to be defective, that being

the first time to see it, he went to ask for the refund of his money. The Primary Court

gave judgment in favour of the appellant (original plaintiff). E

The respondent (original defendant) appealed to the District Court of Mbeya. The

District Court allowed the appeal applying the principle of caveat emptor. The

District Magistrate reasoned that the appellant was entitled to a reasonable inspection

of the goods he intended to purchase, and that if the buyer omitted or neglected to do

this at F the earliest opportunity he could not be allowed to take action at the later

stage.

On appeal by the appellant (original plaintiff) to the High Court of Tanzania. G

Held: (i) The appellant saw the tyre for the first time after it had already been

delivered to his house. He got no opportunity to inspect the tyre. So the question of

the appellant having inspected the goods at the earliest opportunity does not arise.

Thus, the principle of caveat emptor is inapplicable to this case; H

(ii) in selling a defective tyre to the appellant the respondent committed

breach of implied warrant on his part that the goods sold would be in reasonable

condition.

Case Information

Appeal allowed. I

1989 TLR p186

MCHOME J

[zJDz]Judgment

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

I agreement so did not inspect the tyre. When the appellant came and found the tyre

to be defective, that being his

1989 TLR p187

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.

1989 TLR p187

F