20170317 TZCA Dar es Salaam

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IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM (CORAM: LUANDA, J.A•• MUSSA; J.A. And MUGASHA, J.A. . CIVIL APPEAL NO. 38 OF 2012 CHARLES RICHARD KOMBE t/a BUILDING ................................ APPELLANT ·.·

VERSUS 1. EVARANI MTUNGI 2. MOHAMED LWIZA · RESPONDENTS 3. GENERAL SERVICES & CONSTRUCTIONS CO. LTD. (Appeal from the judgment and decree of the High Court of Tanzania (Commercial Division) at Dar es Salaam) (Bukuku. J.) dated the 5 th day of September, 2011 in Commercial Case No. 65 of 2009

JUDGMENT OF THE COURT 13th February, & 24 th March, 2017 LUANDA, J.A.: The above named appellant unsuccessfully sued the respondents jointly and severally in the High Court of Tanzania (Commercial Division) for a_ recovery of a sum of Tshs. 46,000,000/= being an amount due from and owing to the respondents on account of dishonoured cheques. Bukuku, J. dismissed the suit on the ground that the appellant failed to 1 ,. ·prove his case on a bala·nce of probabilities and at sdme stag~ she said the appellant was unable to· prove to· have suffered-- loss- "beyond reas.onabl~ , • doubt''. Be that as it may,. the appellant is aggrieved by that decision, he_- - has come to this Court on appeal. From the evid~nce av~ilable on record, it is. not in dispute that the appellant, who was trading as Kombe Building Material and the respondents knew each other very well. T.he parties had on two previous occasions entered into _a contract whereby the appellant supplied cement blocks to the respondents on payment.· It is the case for the appellant that the respondents partly· paid the- blo-cks supplied by the appellanf l~aviflg ·a balance of Tshs. 10,000,000/= which is yet to b~ settled and which is also the subject of the claim in the suit. As for the claim of Tshs. 36,000,000/= it is the appellant case that he had entered into a written .contract for the · supply of 60,000 cement blocks where

the 3rd respondent through her st directors the .1 and 2nd respondents undertook to pay Tshs. 36,000,000/= by 30/8/2004 vide (Exht Pl). . It is further the appellant case that in all transactions the mode of payment was that the respondents issued a post- dated cheque as a guarantee of payment. In case. payment was not effected as agreed, -the appellant (the drawee) of ·the· cheque was entitled 2 ' ·. to present the. cheque .to the respondents~ bankers so. thpt,.payment ' . could ~ be effected. from·· their,: account. - It is the app~llant . case that . the_ · • • \ • • :· I • • • .• ,, . • . . • • • ' ; • • " I ~ .~ , • ' • respondents.did not pay despite f()llow. UP,... ~e. thus pres~nted the _chequ(=s. · ... '•.· .... for payment only to be. r.etur:ned with an enqorsement. "Account Dor1:1ant" . .. ·~ : -· ·-· (Exh P2) in respect of the claim of Tshs. 36,000,000/= and "Refer .to . . .. . . ' . . . drawer" (Exh P3) forTshs: 10,000,000/=, hence the ·suit. .··:._·.·. . _-,· __.;:-:· ..: .· .:··. On the other hanq, :~l1e. Jd Jesponden~ tl:,rough her .director the 1st respondent . admitted . to have . issued postdated cheques . tendered (Exh . P2 & ' ~ ~ P3) but denied liability. He gave reasons. First,. he absolved the ,2nd. rd respondent from any liability as he was . not one of the directors of . the 3 .. : ~ ~ . , respondent.. He mentioned the directors of the 3rd respo11dent

as .himself, • t,; Thabiti Salum Kaiwani and Herman Mutungi. Second,. he said he and the rd 3 respondents were mere guarantors of the 2nd respond_ent and his company christened Trust Building Service Ltd had actually ~ontract~9 with the appellant. But in his defence, the 2n.d respondent denied• to have ever been guaranted by any one either in his personal cap.acity or through his com~any. He also denied to have been involved _in issuing dishonoured . cheques tendered. 3 ,-- ' In th]s appeal, the appellant was represented ~by Mr~ _ Julius ~:_~olo Bundala, learned counsel; Mr. Thomas Brash. advocated- for the 1st ,~n~ 3 rd · respondents. The 2nd responde_nt did not enter ·appe_9rance though~dujy · · served through Star Chambers Advocates. In terms of Rule ~ 12 (2) ~fthe. · Court .of Appeal Rules, 2009 (the Rules), we decided to proceed witn the · ·: hearing of the appeal.· Mr. Kalolo Bundala raised Jive grounds of appe~I which can be condensed ioto_two main grounds, namely:- .!. The trial learned Judge _erred in law in invoking standard of proof . . applicable in both civil and criminal cases :c... ·beyond reasonable dot1bt. ' and on balance·of probabilities -- in doing_ so she failed to eva/.uate the eviden1,:;c1;as~a result-she handed down a contradictory Judgment.

2. The tlia/ learned Judge erred in Jaw when she ignqred botfii,. the pleadings and eviden_ce of appellant which supported his case. Arguing the first ground, Mr. Bundala said that the trial learned judge misdirected herself when she applied, .in this case, standard of proof applicable in both civil and criminal cases. In so doing she failed to evaluate the evidence and arrived at a wrong decision. He went on to say 4 .... .• •• ~ ._ f • ... • • • • • ~' • .. . •.·, . . . . . .., ~ ·• • • - . . . . ~.... • • ... .. • • ... _..,.. •• ~ • • •.•• : '"J' • • •• • • .... • J,. • • •t .• • .. - • • ·' ~ Re.spcmding·, Mr. Brash in the first pface ·sa.id that it' is tr·ue the't:Jtirden •• • _. -. : • o """" • • • • • " •.• ; • •• ,._' • l • ... : + • •• \ " y • ,' • .·,;,,. . • •.. • -..., •" • • ~ .,. • .... ... ... • of proof is on the balance of probabilities ... tn this case, he ·said ·the learned . . .. ' . . ... . . . . . ·...•· - \ . . - - . . . judge applied the standard as shown on page·s 316-7 of the· record~ 'He -pi_d .: :· ~- :·>: . . . ... not say anything in connection to th~ complai_nt raised by Mr. Kalold~that the learned judge to _ have_ :also appli~d t_he ._standard of proof norm.ally . :..... '. ' ··..:-: ;·- applicable in criminal cases. Pages 316-7 of the record of appealwhich Mr. ~rash referred us read as foilows:- - 1 • 1 have/ I hope/ arnp!y demonstrated above

that the Plaintiff herein has failed to, prove and satisfy the Court on a balance of probabilities_ t!Jat, h_e in_deed - ~ supplied 6~ 000 bricks .to the Defendants. ... . . . He failed -. . ... to produce documents to show the deliveries if any. Now, back to the relief(s). In awarding . ... . · relief{s), to a party, the general position is tha( ... . where injury has been pleaded ana provec;l the law . must be able to provide a remedy to· the inju;ed · 5 party. In this patticular ·case/·ihe plaintiff has not bee11 able toiJrove· beyoi1d.reasoilable doubt that he suffered loss due lroin and owing to the . . · defendani:s, od accolJiJt of the'dishonored cheques amounting to' ·Tshs. ·-46.o···Mil/ion.-. ·Indeed, the·. ·plaintiff hasfai/ed"i:oj:/rove his case on a balance of probabilities'~ [Emphasis supplied] . . __£r.om . the above extract it is clear that the learned judge applied the standard··of. proof-.applicable ..in civil as1well as. criminal matters. We need···-----·· · · not cite any provision of law because this being a civil matter, it is . . . elementary that-the~· standard~--. of· proof is, always on:-·the balance of probabilities and not beyond reasonable doubt. Fu1ther, the two could neither co-existed nor applied interchangeably as was ·done=i:n this case. The application of the aforestated standard of proof of both criminal and civil in this case is to say the

least is novel and indeed puzzled us. We do not think the decision arrived at, in the circumstances, is sound in law. We entirely agree with the observation mad~ by Mr. Kalolo. The first ground has merit. 6 ·We nov-( turn -to .the: second gro~_119 ,9s to ~:h~th_er t~~ finding of the · - · trial court in. dismissing the· appell~Qt'~ suit_ fQf:· in~uffiGi.~_ncy ·of evidence .is <,'- -~-. :. ... . . , . + "' ,. • . proper~ ., _._ ..... · ., .. ... . .. - . . •·.,. .. . ·.-· - . ·- ... . ··. . ~ did not eval.Liate the evidenc~ of the appellant's c~·se,·at--·a11~- Had she done· -· ... so; she ~ould hav~ found the 3r~ respond~rif fhrbugh' n~~ :directors (1 st and: : : .,- -: 2nd respondents) to have entered· i~t~ a. ~o'~~;.;~\~ith the. ~-ppellant for the·:--~-:::.,.· ;: · supply of cement blocks on_ payment for ~onstru9=io[l ~fa wall at Abtjallah Twalipo JKT _Mgulani Camp and that she faile~. to pay in respect,..of the claim ofTshs. 3fi,000,000l=. . On . p~esentiog - the cneque . for _payment which· . ,. was issued as a guarantee, it was returned with an_ endo~sement "Ac.count Dormanr', despite denial made by th_e 2nd respondent that he was -~ot _one of the directors of the 3rd respondent and so h~ was not_ the one_ who signed the cheque. Mr. Kalolo. w.ent further to say. that th~re is. ~vidence on record by Godfrey Felician (PW2) anc;l ~arim Kandota (PW~). th_e driver and turn boy

of the lorry re~pectively who sent the .blocks to .the sjte which nd indicates. that the 2 respondent . . was .the _one who took . delivery of the blocks at the site. He went on to say, the ~rial learned judge \'l(as:,.wr0r)g to ·rely on bare statement of denial of the 2nd respondent and demanded more 7 evidence from the appellant ·while there· is ample evidence -on rec::ord.~ In ·· any case, he· said, the( respo'ritient~ ·depiirted'frOm. their•·pleadings witnout · -making an application for leave t6 ·amend ·as is ·provided·:,under O VI, RJle 7 · of the Ovil Procedure Code/Cap 33 :R~E-; 2:002 (the CPC) as the 1st anql_ 3rd · . respondents did not dlsp:ute·:to. ha\,e. fss_t:1ed · cheques but they said ~~y were ri1ere guarantors;· vvhereas"the 2nd ' r'esp6ndent disputed lhe clairjQ ln · toto. The issue of shorfde!lve'iy: dfthe olocks;·Jor insta-n·ce, is neither here nor there;, it is not an issue, he charged. Respondin:g··Mr.:· Brastr-submitted-ir, a~ nutshell· that the finding of the trial learned judge was correct. To· underscore this assertion he s,aid~the - . . ·- appellant;~ frir ·instarn:e;=-.fa-iled::-ln- toto to prove~:whether the: blocks· were really supplied. As indicated earlier on, the case of the appellant against -- ,.,,..,.- ·• ~he respondents jointly and severally, as pleaded, is based on two dishonoured cheques (Exh. P2 -and P3). The 1st and 3rd respondents did

not dispute at all to issue those cheques but maintained in the written statement of defence thus:- · 8 - Z- That the- contents.ofparagraphs 4 ,and 5. of th~ p{aintare disputed as_ . ·, ,* . ... ' . '~ ,• • .. •• --~ 15! -and :r!. Defendants_.· wer?'. ~yr,e. guarantor_$, of t/Je. Z1d qefen,dant . ... . . . . _. . ' .,. : ·- . . . . ,: . • • .. - .. • . . - • .-1 • . ' •.. ·, · •. • ·: . -and his. co0pany. {Traced ... (sic) Bui/ding .$erv!~~s.,,~td/ ~hp;- h_ad . .. . . '• . . . . . . .. '\. . . . .... ·, "" 3. The_ 1~ and :r1 Defendants further states that. as guarantors of th~ Z1d Defendant and his company {Traced Building .. Services Ltd)_ there . • . ·. ~ .. : •. \ ';.: .· - . . . . . . i : .. .. . . . ... .. was an understanding -between. all the parties that Jhe manoer in . ·:. - . , . ... : . . . .. . -:- ' which the plaintiff was to be guarante.e_d was. through _ppsf-dated cheques issued by the .'I' Defendant. On the other hanq, the 2n~ re~pondent as per paragraph 2, 4 an9 5. of his_ - ' . . . ... ' - written statement of defence denied to have been one ~:)f the di_rectocs of rd the 3 respondents and to have also issued the cheques. = But in their oral testimonies, the respondents gave a different ~ase . - altogether. For instance th_~y denied to have received the ~ement b[ocks . . ,, and stopped payment. Unfortunately, the trial learoed judge . accepted . .. and .

. considered that evidence. I~ is a cardinal principle. of p_leadings th~t ~he parties ~o the suit should always adhere to what is contained in. their pleadings unless an amendment is permitted by the Court. The rationale 9 . behind . this proposition is to bring. the parties·to . - - ·an issue and not_ to take. ~ the other party by surprise. Since nff ame~d_n:J~t:t _ <?f-- pleadings was sought and granted that defence _ought pot to. have,been accor~;JE:!d any weight. -. _: ·_. '. · Whatever the p~sit1on; the appeUarit: replied 'to·· the ·written statement of defence by annexing an agreement of'saJe·of cement blocks wnich later . was tendered iii court a:s .'Exht. .Pf wfthout. any objection.· Exh Pl is a - headed paper inscribed O''Geneiral ·Servfr:es . and. ·Coristruction Co. Ltd" the .·. name of the 3rd respondent and signed by the 1st and 2nd respondents as directors·of the·J:? resporrdent. Indeed :a business of a .company is run by no other·tha1_rher·direcrt:ors:· So, the··1!,t.and-2 nd ·respondent (E~ht_Pl) 9id that .on behalf of tbe 3rd respondent. Once_it is st,own as_ in tt)iS case .that. the-contract--.-was,; reduced into ... writing then- in terms of S. 101 of the Evidence Act, Cap 6 R.E. 2002 (the TEA), a party to such contract is not permitted to adduce oral evidence for the purpose -of contradicting, varying, adding or subtracting from its terms. The section

reads:- , 101. When the tern1s of any such contra~ grant or other disposition of prop~~ or any matter required by law to be reduced . to the form . . of a document/ . 10 ..,. -.~. · have been ;_prqved. according ·, ' . ' . . ~ 00/ no. -. to· section. ,,; ,,.. . ..: ..~ evidence.pf . ,, . ... ": . . " . . aox_,ora/ . .,,, ?greement ' ... . . . "' , or statement . .. . shall . , . . be admitted; .. as_ J:;etween ·.the. parties. to _any such • ... • • •-f' • ~ • • ,I, • , ' - ~ f instrument· or:·:their" represf;ntative in interest for ' . . the purpose.pf contradicting/ varying/_ adding ta/ or -· subtracting fro_m- its terms._ . In view of the forego.lng, therefor~; .the 2nd' ·re,spondent is 'barred ·from·•,· ·adducing oral evidence for the purpose of subtracting that written contract . ... _. ,·; nd TI1e 2 respondent at the time cement blocks were taken he was. one of the director o{ the 3rd respondent . ... - .. It is the evidence . on record that the 1st and 2nd respondents,.. knew .... very well the appellant as they had on previ_o~s o~c;asio_ns entered a;;_ __;_:............; contract of similar nature. We see no reason on t~e part of the appellant~·--_ to cook a story against them. _In actual fact if any supportive evidence is=-~-;._--~~ required in respect of the cement blocks sent to Abdallah Twalipo JKT . . Camp is the evidence of PW2 and PW3 who categorically stated

to have ... .J • • •· , ... nd sent the blocks there and the 2 respondent ·was· the o~e who received them. The learned judge did not conside~- that evid-ence at aU. 11 \ \ . \ '·,. In ~ew of the clear evidence on record, the: appellant has establish)ed :' his:,case on th~'standard required. We allow the app£;al ·in.that judgm'E~ntJs_ . · , ··_ :entered as prayed with --costs. It is so ordered . .. D~TED at DAR ES SALAAM this lih day of March, _2017. :• .. ·. ·. -- . . B;M. LUANDA

JUSTICE OF APPEAL I<, M..MUSS;\ · JliSTICE- OF APPEAL S. E: A. MUGASH/.\ JJ)STIGE OF A~p_EAl ( I certify that this is a true copy of the original. A.H.MS MI

DEPUTY REGISTRAR

COURT OF APPEAL 12