Riddoch Motors Ltd. v. Coast Region Co-operative Union Ltd. E. A. C. A. Civ. App. 38-D-70; 30/3/71; Duffus P, Law. J. A. and Onyiuke J.

Riddoch Motors Ltd. v. Coast Region Co-operative Union Ltd.  E. A. C. A. Civ. App. 38-D-70; 30/3/71; Duffus P, Law. J. A. and Onyiuke J.

            The appellant company sued the respondent union for work done and materials supplied in repairing some 15 tractors belonging to the respondent. The trial judge found that the appellant company had done the repairs but that the respondent union had not given the order for the repairs to be carried out. In the alternative the appellant claimed compensation under section 70 of the Law of contract Ordinance (Cap. 433). This alternative claim was disallowed because the judge found that it had not been proved that the respondent: (a) had the benefit of the repairs or; (b) had had the opportunity of accepting or rejecting such benefit. The issues on appeal were whether: (a) a Mr. Morani an Assistant Manager of the respondent union who ordered the repairs had express or ostensible authority to do so; (b) section 70 of the Law of Control Ordinance was applicable.

Held: (1) (Duffus P.) “An appeal to this court from a trial in a High court is by way of a re-trial and “this Court must reconsider the evidence, evaluate it itself and draw its won conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.” [Citing de Lestang V. P. in SELLE v. ASSOC. MOTOR CO. [1968] E. A. 123 at 126. (2) “The judge has found that Morani had in fact no express authority to issue such an order and there was clear evidence to justify his finding, so that the only issue left was whether or not Mr. Morani had ostensible authority. Unfortunately this issue was overlooked and not made an issue at the trial. The result is that he matter was not fully investigated or considered at the trial. Thus the duties and powers of Morani as Assistant Manager were not clearly ascertained.” (3) “The judge was justified in finding on the evidence that the respondent union, cannot now on the established facts of this case find that Morani had the ostensible or apparent authority to bind the union. I am of the view therefore that the appellant company cannot succeed on this issue.” (4) “There are three essentials to the recovery of compensation under section 70. First the appellant company must prove that it has done the repairs and supplied the materials to the respondent union and that it did not intended to do gratuitously. The learned judge has accepted these facts as established. Then the appellant must prove that the respondent union has enjoyed the benefits of the repairs and supplies. The judge has found that this has not been proved to his satisfaction …………… with great respect to the trial judge he does not appear to have

fully considered all the established facts on this issue. The simple facts as proved here are that these repairs were done on the order of the respondent union’s servant, the Assistant Manager Morani, the person admittedly in charge of the tractors and of the running of the union’s business in Rufiji District, and that the tractors repaired belonged to the union and were repaired and the new spare parts fitted on the union’s premises in the presence of and helped by the mechanics employed by the union or working on its behalf and that after each repair the union or working on its behalf and that after each repair the union’s mechanic signed acknowledging the repairs and spare parts in respect of each tractor and further that this mechanic then removed the old spares and kept these in a store. There is also evidence that these repairs took some 5 weeks to complete and there is no dispute but that the tractors were always in and remained in the care and custody of the union’s servants. I am of the vie that this was sufficient to discharge the onus of the appellant to show that the respondent union enjoyed the benefits of these repairs and of materials supplied.” (5) The respondent union had the opportunity of accepting or rejecting the benefit of the work because “the respondent union at no time returned or attempted to return the various spare parts that were used on the tractors and even up to the time of the trial it does appear that the respondent union were still enjoying the benefit and use of the repairs and of the considerable amount of new parts supplied according to the various vouchers in evidence. In the circumstances I am of the view that the provisions of Section 70 applied to this case and that the appellant company is entitled to be compensated for the repairs and materials supplied.” Appeal dismissed. Law J. A. and Onyiuke J. concurring.