MATERU LEISON & J FOYA v R SOSPETER 1988 TLR 102 (HC)

 MATERU LEISON & J FOYA v R SOSPETER 1988 TLR 102 (HC)

Court High Court of Tanzania - Mwanza

Judge Moshi J

12 Julay, 1988 B

Flynote

Contract - Of carriage - Passenger's failure to prove she boarded the bus she claims to

have boarded - Whether there was a contract of carriage.

Evidence - Assessment of - Whether appellate court may depart from trial court's

assessment. C

-Headnote

The appellants are appealing against a decision which had awarded the respondent

8,000/= as general damages with costs on the ground that the appellants had breached

a D contract of carriage with the respondent. The appellants argued that the trial

magistrate had erred in holding that the respondent had boarded the appellant bus. As

such, he had erred in holding that a contract of carriage existed between the two

parties.

Held: (i) There is no evidence to support the magistrate's conclusion; E

(ii) appellate courts may in rare circumstances interfere with trial court

findings of facts. It may do so in instances where trial court had omitted to consider

or had misconstrued some material evidence, or had acted on a wrong principle or

had erred in its approach to evaluating evidence; F

(iii) the trial court magistrate had erred in his approach to evaluating the

evidence by allowing speculative views to affect his decision.

Case Information

Appeal allowed. G

No case referred to.

Rugarabamu, for both appellants H

[zJDz]Judgment

Moshi, J.: This is an appeal against the decision of the Mwanza Court of Resident

Magistrate which adjudged to the respondent shs. 8,000/= general damages with costs,

consequent upon the appellants' breach of a contract of carriage with the respondent.

I

Mr. Rugarabamu, learned advocate, argued the appeal for both

1988 TLR p103

MOSHI J

appellants, Materu Leison (DW1) and John Foya (DW2), whereas the respondent, A

Mrs. Bajilo Sospeter (PW1) addressed the court in person.

It was the respondent's case that on 8/10/84 at 11.00 a.m. she boarded a Majira Bus

Service bus at Mwanza bus stand intending to travel to Ukiriguru. The bus operates B

between Mwanza/Malya route, and her husband (PW2), who escorted her to the bus

stand, paid to the first appellant, the conductor, a fare of shs. 20/=, and got a receipt.

The owner of the bus, according to her, was the second appellant.

Upon the arrival of the bus at Ukiriguru, the first appellant refused to stop it, and it C

proceeded to a spot about ten miles from Mapilinga, where it stopped, and the

respondent forced to disembark. A passenger (PW3) in the bus allegedly saw all this.

The respondent had a bag which contained her clothes and other items allegedly

worth shs. 7,000/=, and as she was walking back to her destination, she was allegedly

D attacked by unknown persons, who took away her bag. She reported the incident

at Mwanza Police Station, and subsequently filed the suit claiming general damages of

unspecified sum, special damages of shs. 7,000/= and costs. E

For their part, the appellants denied any knowledge of the respondent as a passenger

in their bus. Their buses, which are two, operate in the business name of Sinai

Enterprises Ltd., and not Majira Bus Service. Sinai Enterprises Ltd buses operate along

Mwanza/Nzega and Mwanza/Geita routes, and not Mwanza/Mallya, and they leave F

Mwanza between 7.30 a.m. and 8.30 a.m. as shown in their time table (Ext. D2) and

never at 11.00 a.m. They issue to passengers tickets (Ext. D1) bearing the letter head

"Sinai Enterprises Ltd." The claim for special damages was rejected by the trial court

and, in my view, rightly so. But the one for general damages and costs was granted,

and both appellants, on being aggrieved, have now come to this court. G

Mr. Rugarabamu's main ground of complaint at the trial and before me, is that the

learned trial resident magistrate erred in holding that the respondent boarded the

appellants' bus which, as established in evidence, is Sinai Enterprises Ltd. With

respect, H I entirely agree with him. Before the trial court, the respondent and her

two witnesses were positive that she had boarded a Majira Bus Service bus, got a

ticket, and left Mwanza at 11.00 a.m. But it would appear from the appellants'

evidence, supported as it was by their bus time-table (Ext.D2) and their type of tickets

(Ext.D1), that their I buses' operative business name is Sinai Enterprises Ltd, and not

Majira Bus Service,

1988 TLR p104

MOSHI J

and that their buses do not leave Mwanza later than 8.30 a.m. In dealing with this

point A the learned resident magistrate had the following to say at page 4 in his

judgment:

The fact that the defendants claimed that they operated their buses under the

name of Sinai B Enterprises Ltd; that only, does not mean that there was no

possibility for Majira Bus Service to have been changed to Sinai Enterprises Ltd.

With respect, this passage contains unsupported speculation and conjecture, and it C

would seem that the trial magistrate had allowed such speculative views to affect his

finding that there was a contract of carriage between the appellants and the

respondent. There was no evidence whatsoever suggestive of, let alone in support of

the magistrate's conjecture that Sinai Enterprises Ltd could have been the successor of

Majira Bus D Sevice. There was evidence that these two bus firms are not one and

same thing. They are different firms as their business names clearly shows. The ticket

allegedly issued to the respondent was not produced or shown in court during the

trial. There was no hint by the respondent that it was the same as that for Sinai

Enterprises Ltd (Ext. D1) E Produced by the appellants. Be that as it may, since there

was clear and positive evidence that the bus boarded was that of Majira bus service,

chances are glaring that the ticket was that of Majira bus service, and not Sinai

Enterprises Ltd. This is a first appeal, and this court has power to re-appraise the

evidence and draw inferences of F fact. I am keenly aware that it is only in rare

circumstances that an appellate court would interfere with the trial court's findings of

fact, and it would interfere, for instance, where the trial court had ommitted to

consider or had misconstrued some material evidence, or had acted on a wrong

principle, or had erred in its approach in evaluation of the G evidence. I am satisfied

that the trial court erred in its approach in evaluating the evidence by allowing

speculative views to affect his decision. Had the learned resident magistrate evaluated

the totality of the evidence before him with judicial objectivity, he H would most

certainly not have come to the conclusion that a contract of carriage had been

established between the appellants and the respondent.

For these reasons, I allow the appeal, and set aside the judgment of the court below

and the orders made thereunder.

In the circumstances, there shall be no order for costs. I

Appeal allowed.

1988 TLR p105

A