Shabir F.A Jessa and Another vs Raj Kumar Deogra (Civil Appeal 59 of 1996) [1997] TZCA 56 (26 February 1997)

Key Facts

Transaction Type

Deceased Name

Issues

• The court considered whether the appellants were jointly or severally liable for the unpaid goods, focusing on Makame Ussi Machano’s written guarantee (Exhibit P1) and his role in facilitating the transaction, as well as the implications of their partnership on liability distribution.
• The court examined whether Shabir F.A. Jessa and Makame Ussi Machano constituted a business partnership based on their conduct and representations to the respondent, particularly under Section 238 (1) of the Law of Contract Decree, which holds persons liable as partners if their conduct leads others to believe they are partners in a firm.
• The court addressed whether the suit against Makame Ussi Machano, who died after closing his defense but before judgment, abated due to the absence of a legally appointed representative. It analyzed procedural compliance with Order XXVI Rule 4 and Rule 6 of the Zanzibar Civil Procedure Decree regarding abatement upon death.

Holdings

• The Court of Appeal affirmed the High Court's finding that Shabir F.A. Jessa and Makame Ussi Machano were business partners, as their conduct and the second appellant's representation led the respondent to believe in a partnership. The court rejected the appellants' argument that the term 'partner' was used loosely, emphasizing the legal implications of their actions.
• The court determined that the suit against the deceased second appellant did not abate, as a legal representative (Amina Makame Ussi) was properly joined after his death under Order 26 Rule 4 and Section 129 of the Civil Procedure Decree. The judgment was pronounced after the hearing concluded but before the death of the second appellant, making abatement inapplicable under Order XXVI Rule 6.
• The court upheld the High Court's decision that the appellants were jointly liable for the goods, citing the second appellant's written guarantee (Exhibit P1) and his assurance to the respondent. The Court dismissed the claim that the guarantee was not intended for payment, noting the clarity of the undertaking and the second appellant's role as a senior police officer.
• The Court of Appeal agreed with the trial judge that Annexures 'A' and 'B' to the written statement of defence were forgeries. The receipts in Annexure 'A' were deemed irrelevant to the claim amount, and the respondent denied authorship of Annexure 'D', supporting the finding that the documents were fabricated to evade liability.

Remedies

Contract Value

Monetary Damages

Probate Status

Legal Principles

• The court applied the principle of estoppel, holding the appellants liable as partners based on their conduct that led the respondent to believe they were in a business partnership. This aligns with Section 238 of the Law of Contract Decree, which states that a person who leads another to believe they are a partner is responsible as such.
• The court emphasized the burden of proof rested with the respondent to establish the existence of a business partnership. The respondent met this burden through evidence of the appellants' shared conduct and the second appellant's explicit representation of partnership.

Key Disputed Contract Clauses

Executor Name

Cited Statute

• Law of Contract Decree
• Zanzibar Civil Procedure Decree

Executor Appointment

Judge Name

• Ramadhani J.A.
• Makame J.A.
• Lubuva J.A.

Passage Text

• Consequently, for the foregoing reasons, the appeal is dismissed with costs.
• For that reason, it is our view that the learned Chief Justice of Zanzibar came to the correct conclusion in his finding that the appellants were partners in business. Ground one therefore fails.

Damages / Relief Type

Beneficiary Classes