britam insurance tanzania limited vs octavian william temu ta octavian company advocates 2022 tzhccomd 140 16 may 2022

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL CASE NO. 22 OF 2020. BRITAM INSURANCE TANZANIA LIMITED.................. PLAINTIFF VERSUS OCTAVAN WILLIAM TEMU T/A OCTAVIAN & COMPANY ADVOCATES DEFENDANT JUDGMENT Date Last order 9/03/2022. Date of Judgment 16/05/2022. Z.A MARUMA J. This is the dispute that arose from alleged professional negligence and breach of the agreement for legal services by the defendant which resulted to the Plaintiff's written statement of defence be expunged from the Court's record by a ruling dated 13th i April 2010 in Civil Case No. 113 of 2010 for being filed out of time. This failure to fulfill the alleged contractual obligation by the defendant resulted to the exparte judgment against the Plaintiff who was ordered to the sum of USD 3,180,920 and USD 500,000 to Oceanic Bay Hotel Limited (The Plaintiff therein). Before this Court, the Plaintiff's claims against the defendant's professional negligence and breach of legal service agreement is for the following reliefs; 1. Payment of USD 3,5QO,OOOi being redress of for the loss suffered by the plaintiff as a result of the defendants professional negligence and breach. 2. General damages as may be assessed by the Court 3. Commercial interest of USD 3,500,000 at the rate of 9% from the date of payment to the date of full payment, and 4. Costs of the suit 5. Any other or further relief/s as the court may deem just to 2 grant. Supporting the plaintiff's claim, PW1 was the only witness appeared to testify on the plaintiff's claims supported by "exhibit Pl" (A letter dated 20th September 2010 from the Chief Operational Officer to the defendant on instruction to deal with). On the other hand defendant denied the plaintiff's claims through the evidence of DW1 supported by (exhibit DI). To determine the alleged claims, the Court framed the following issues to establish defendant's liability as well as plaintiff liability in terms of a counter claim: 1. Whether the Defendant was engaged by the Plaintiff to represent the Plaintiff in Civil Case No. 113 of 2010. 2. If the answer to issue No. 1 is in the affirmative, what are the agreed terms of engagement between the Plaintiff and the Defendant in Civil Case No. 113 of 2010 3 3. If the answer to issue No. 2 is in affirmative, whether the Defendant had a professional duty to file the written statement within time or take necessary actions to ensure the written statement is filed within requisite time. 4. If the answer to issue No. 3 is in the affirmative whether the Defendant breached his professional duties. 5. Whether the Plaintiff suffered loss or damage as a result of the Defendant's breach of his duty. 6. If issue No. 5 is in the affirmative, whether payment of USD 3,500,000 to Oceanic Bay Hotel Limited resulted to the right of indemnity in respect of the insurance loss under a contract of fire insurance insured by the Plaintiff. 7. Whether the Plaintiff had admitted liability in respect of the loss under the fire policy before being 4 sued. 8. To what reliefs are parties entitled to? Starting with the 1st issue on whether the Defendant was engaged by the Plaintiff to represent the Plaintiff in Civil Case No. 113 of 2010. PW1 testified that upon the Plaintiff being served with the Plaint and summons to file a defence in Civil Case No. 113 of 2010. The Plaintiff alleged to instruct the Defendant to handle the matter on its behalf. To support his testimony, he tendered (Exhibit PI) which was a letter dated 20th September 2010 instructed Mr. Octavian (the defendant) to deal with the matter. PW1 also testified that the defendant did admit to receive the instruction through exhibit Pl at paragraph 9 of his written statement of defense (WSD) quoted him that "upon receiving the Plaintiffs letter which is (Exhibit P!) with summons and Plaint on 21 September 2010 the Defendant promptly drew up a written statement of defense and dispatched it to the Plaintiff for attestation...". PW1 further testified that they paid to the Defendant a sum of USD 80.620.83 being 50% of the professional fee for handling the matter on behalf of the Plaintiff. He said this was 5 also confirmed by DW1 during his cross examination that, on 15th October 2010 he issued an invoice to the Plaintiff for payment of USD 80,620.83 being professional fee for receiving instructions to handle the defense in Civil Case No. 113 of 2010. Appearing in Court on 30th September 2010, drawing up a written statement of defense, attending to its attestation, filing it in Court and serving copies to the Plaintiff, appearing in Court on 1st November 2010 and handling the matter through mediation and trial until the suit is concluded. PW1 also testified that DW1 confirmed that he was paid and received from I s'-'T’&Tv 1 \ the Plaintiff a total sum of USE) 80.62b.83 through two cheques dated M X;v 1st November 2010 for USD 40^3<0742 and 26th November 2010 for USD 40,310. He concluded on the 1st issue that, based on the foregoing, the Defendant was engaged by the Plaintiff to represent the Plaintiff in Civil Case No. 113 of 2010 and invite the Court to find that the 1st issue be answered in the affirmative. Contesting the evidence given by PW1, the defendant DW1 testified that it is a mere speculation on that the Defendant agreed to 6 act for and on behalf of the Plaintiff in Civil Case No. 113 of 2010 at a fee agreed upon. DW1 argued that the PW1 testimony in chief stated that the defendant was paid and confirmed the payment of total fee of USD 80,620 being his professional fee following the engagement of his services evidenced by "Exhibit PI". The said exhibit does not speak for the Civil Case No. 113 of 2010 as it does not reflect on the said exhibit though it was insisted that the said "exhibit PI "was the engagement or in the other words a contract entered between the Plaintiff and the Defendant in handling Civil case No. 113 of 2010. DW1 further argued that, the Court should adopt the principle of "res epsan loquito"^s "Exhibit PI" does not form a contract neither does it refer to the engagement of the Defendant to represent the Plaintiff in Civil Case No 113 of 2010. DW1 went on to invite this Court to invoke the proviso of section 101 of The Evidence Act Cap 6 R.E 2019 and exclude oral evidence produced by PW1 as it is against the documentary evidence been "exhibit PI" which intends to contradict, varying, adding to or subtracting from its terms. 7 Determining this issue, I am of the view that it is prudent to start with the tendered "exhibit Pl" (A letter dated 20th September 2010 from the Chief Operational Officer to the defendant on instruction to deal with) by PW1 as it is the basis of the engagement of the defendant to render legal service in respect of Civil Case No 113 of 2010 resulted to the dispute in this suit. I have gone through the "exhibit Pl" above and find out that it is a letter dated 20th September 2022 from the Chief Sodson Manatsa to Mr. Octavian and Company addressed to Mr. Octavian, 'i the defendant. The contentstof this; letter are of much essence in w respect to the alleged claim of the plaintiff as the cause of action started with this documentary evidence (exhibit Pl). Reading the contents of the "exhibit Pl", it is clearly showing its purpose. I would like to produce it as hereunder; " Octavian and Company Advocates and counselors at Law 2nd Floor NIC Life House P.O. box77353 8 Dar es Salaam, Our Ref. SM 2&h September 2010 Dear Octavian, Re. Oceanic Bay: Policy Number DSM/MDBI/POL/0003474: Claim Number DSM/MDBI/CLM/0001921 Fire damage to the Hotel in Bagamovo. We refer to preyiouscorrespondence and our telephone discussion today and attach herewith summons received from the insured's attorneys. We would kindly ask you to deal with them on our behalf. We now await your urgent advices. Yours faithfully For and on behalf of the Company SIGNED 9 Sodson Manatsa Chief Operations Officer". Looking at the contents of this letter, first of all it does not reflect any instructions in respect to the Civil Case No 113 of 2010 to form and establish the alleged legal service agreement between the defendant and the plaintiff to the effect of the Defendant to represent the Plaintiff in the said Civil Case No. 113 of 2010. Moreover, even if there is a need to draw an inference from this letter to prove the engagement .t d,Snd.n^d b, the defendant,« e»d letter speaks of itself to wan^^^^application of the principle of "res epsan ioquito"\N\\\c\\ at this juncture, I totally agree with the defendant argument. In the same basis the law is very clear on the duty of and burden of proof in civil cases as it was held in the case of Paulina Samson Ndawavya Versus Theresia Thomas Madaha, Civil Appeal No. 45 of 2017. At page 16 it was held that, "......... ... The Court has examined as to whether the person upon whom the burden lies has been able to discharge his burden. io Until he arrives at such a conclusion, he cannot proceed on the basis of the weakness of the other party..." Therefore, no matter what has been adduced by the defendant as alleged by the PW1 that the defendant confirmed to be engaged by the plaintiff in his written statement or to be paid cannot be the basis to prove his engagement with the plaintiff in the Civil Case No. 113 of 2010. The plaintiff is duty bound to establish and prove the facts alleged notwithstanding the weakness of the defendant's case. Examined the evidence of theVPWlut the finding of this Court that M wV the letter referred as "exhibi^Pl- bn the face of it speaks about a different transaction perhaps entailed the referred confirmed statement. Also, the position of the law on conditions and circumstances like in the present case where there is documentary evidence alleged to breach of contractual obligation by the defendant. Section 100 (1) of the evidence Act, Cap. 6 R.E.2019 as produce hereunder provides that: li "Section 100(1) "When the terms of a contract, grant, or any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant, or other disposition ofproperty, or ofsuch matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of this Act". Therefore; since PWl's/f evidence in chief established the defendant's obligation proved^by^fexhibit Pl" as the basis of the allegation of professional negligence. The fact that the said evidence is contracting with the documentary evidence (exhibit Pl). Based on the position above, the oral evidence has no room over the later one which should be prevailed. This is also discussed in the case of Umico Limited Versus Salu Limited, Civil Appeal No. 91 OF 2015 at page 15, The Court of Appeal directed very clear that, 12 "So long as the lease agreement was in writing there is no room for oral evidence to come in." Based on the above positions of the law and the findings made, I agree with the defendant's argument that the remedy available for the PWl's evidence in respect to the 1st issue as found above is to invoke section 100 (1) of the Law of Evidence Act (Supra). I produce hereunder: "when the terms of a contract, grant or other disposition of property, or matter required byJaw to be reduced to the form of a document, have beenmoved\according to section 100, no evidence of any oral agreement or statement shall be admitted, as between the parties to that instrument or their representatives in interest, for the purpose of contradicting, varying, adding to or subtracting from its terms: It is therefore, the oral evidence of PW1 in respect to the 1st Issue be expunged from the oral evidence as it has no room to prove the existence of the alleged legal service agreement to amount the alleged claims by the plaintiff. 13 Having finding so and since the answer on 1st issue which is the basis of determination is negative, the rest of issues to prove the plaintiff's claims will be worthless to be determined by this Court. In the event the plaintiff's case is dismissed with costs for the lack of cause of action against the defendant. It is so ordered. Dated at Dar es Salaam this 16th day of May, 2022. 14