CIVIL APPEAL NO 242 OF 2021 COAST REGION CO OPERATIVE UNION 1984 LTD VS ATBANN GROUPE LIMITED

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CORAM: MWARIJA. J.A. FIKIRINI. J.A And RUMANYIKA. J.A CIVIL APPEAL NO. 242 OF 2021 COAST REGION CO - OPERATIVE UNION (1984) L T D ................APPELLANT VERSUS ATBANN GROUPE LIMITED.................... ...... ........................ RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Commercial Division at Dar es Salaam) (Nanqela, J.) dated the 5th day of March, 2021) in Commercial Case No. 75 of 2018 JUDGMENT OF THE COURT 10th July & 1st August, 2024 RUMANYIKA. JA.: The appeal is against judgment and decree of the High Court of Tanzania, Commercial Division at Dar es Salaam, ("the trial court") in Commercial Case No. 75 of 2018. In that case, Atbann Groupe Limited ("the respondent herein") had sued Coast Region Co-operative Union (1984) Limited, ("the appellant") for breach of an agreement for sale of 323,621 Kilograms of raw cashew nut ("the nuts"). The respondent partly succeeded the case, as the appellant was ordered to pay her TZS 82,000,000.00 being refund for the unreleased 41,000 kilograms thereof. Aggrieved by that decision, the appellant has preferred this appeal. Briefly, in October, 2018 the appellant advertised for sale of the nuts by public auction. For that purpose, it issued sales catalogue No. 01 for the season of 2017/2018 for 14,641 bags totally weighing 1,082,712 Kilograms, moisture 10, N/C 166.77 shot 49.1 of the Standard Grade and 3,224 bags weighing 260,987 Kilograms, moisture 10, N/C 10, Shot 46.64 of the Under Grade. The respondent was the highest bidder purchasing 323,621 Kilograms moisture 10, N/C 166.77, Shot 49.1, Standard Grade. In that regard, therefore, the appellant issued Sale Invoice Numbers 0027 and 0033 for TZS 758,200,000.00 and TZS 342,111,400.00, respectively, which the respondent paid. However, the consignment found at the appellant's Kibiti Warehouse was not of the agreed Standard Grade. Re-testing was done and, indeed, the nuts fall short of 43.516 under grade. They agreed that the respondent be refunded the difference. Nevertheless, the appellant did not honour her promise as she had already sold the nuts to else body. Instead, she advised to return the corresponding bond to the respondent, should the latter not be satisfied by the nuts available. 2 As a result of the alleged breach of agreement, as stated above, the respondent claimed TZS 356,031,400.00 being the difference from TZS 758,200,000.00, for the purchase of the agreed 323,621 Kilograms of nuts. She also claimed TZS. 11,000,000.00 as compensation for the money spent for hiring vehicle to ferry the consignment and the respective carriage materials, interest, general damages and costs of the suit. On the adverse side, the appellant denied the respondent's claims asserting that, they had not agreed on payment of the said difference. And that there is no breach of contract because the nuts in the warehouse were according to the agreed catalogue, which the respondent refused to collect for no apparent reasons. At the end of it all, the trial court found the respondent's claim proved to the tune of TZS. 82,000,000.00 only, as the balance on non­ refunded purchase price for 41,000 Kilograms of nuts. The appellant was also ordered to pay 15% interest thereon. Aggrieved by that decision, the appellant has preferred this appeal on two points of grievance, which we paraphrase as follows; one, that, the learned trial Judge awarded the respondent TZS. 82,000,000.00 which was neither claimed nor proved and two, that, the 3 learned trial Judge erred in holding that the appellant owed the respondent TZS. 82,000,000.00. At the hearing of the appeal, Mr. Nickson Ludovick, learned counsel appeared for Coast Region Co - operative Union (1984) Ltd, ("the appellant herein"). For the adverse side, Messrs. Patrick Malewo assisted by Gideon Opanda, learned counsel appeared to represent the respondent. Mr. Ludovick, for the reason of failure to serve the respondent with written submission, filed on 03/09/2021 in terms of rule 106(1) of the Tanzania Court of Appeal Rules, 2009 ("the Rules"), he contended, orally, that, the learned trial Judge erred in awarding the special damages of TZS 82,000,000.00 which was neither specifically pleaded nor strictly proved by the respondent. Further, the learned counsel contended that, the appellant had paid the respondent, the alleged special damages of TZS. 82,000,000/=, since the respondent acknowledged to have received it as shown at pages 8 and 53 of the record of appeal. In reply, Mr. Opanga contended that, the first ground of appeal is misconceived and the 2nd ground is an afterthought. He asserted that, the TZS. 82,000,000.00 is derived from a mere narration of facts found 4 at paragraph 14 of the plaint and exhibit P7 at pages 284 of the record of appeal, which was not sufficiently challenged by the appellant. He added that the learned trial Judge cannot be faulted. He cited our decision in Reliance Insurance Company (T) Ltd and Others v. Festo Ngomapayo, Civil Appeal No. 23 of 2019 (unreported) to cement his stance. And that the issue of the special damages not been pleaded specifically and proved strictly is neither here nor there. He also referred to exhibit P8 found at page 288 of the record of appeal, where the appellant had promised, and she refunded the respondent for uncollected nuts, except the balance of TZS. 82,000,000.00. Winding up, Mr. Opanga asserted that, the respondent had proved her case to the degree required under sections 110, 111 and 112 of the Evidence Act Cap 6 of the Laws. Additionally, Mr. Malewo contended that, although the appellant had that burden, she did not prove that the TZS. 82,000,000.00 was paid to the appellant. About the 1st point of grievance, on the learned trial Judge allegedly awarding the respondent special damages of TZS 82,000,000.00 improperly and its effect, Mr. Ludovick cited the Court's 5 decision in Reliance Insurance Company (T) Ltd and Others (supra) to reinforce his stance. On the 2nd ground of appeal, the learned trial Judge is faulted for not holding that the respondent had been fully refunded. Expounding on this point, Mr. Ludovick referred us to paragraph 16 of the plaint which appears at page 8 of the record of appeal. That, at that point, the appellant advised the respondent to demand back the respective bond, following the alleged breach of the agreement. Upon considering the learned counsel's submissions for and against the appeal, the authorities cited and the record of appeal, the issue arising for our consideration is conveniently narrow. It is whether the learned trial Judge had evaluated the evidence properly, hence arriving at the finding that, the appellant owes the respondent 41,000 Kilograms of nuts worth TZS. 82,000,000.00. It is trite law that, in determining the merits or demerits of the matter at a first appeal stage, as is the case before us, the Court deals with it in a manner which is more or less a retrial. It has to re-evaluate the evidence on record though sparingly, with a view, where the need arises to reaching at its own just decision. For instance, we take an inspiration from the decision of the defunct Court of Appeal of East 6 Africa in Seile and Another v. Associated Motor Boat Com Ltd. and Others [1968] E.A 123 at page 126 where it held that: "...An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own 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. In particular this court is not bound necessarily to foiiow the trial judge's findings of fact if it appears either that he has clearly failed on some point to take account o f particular circumstances... see also Abdul Hameed Saif v. AH Mohamed Sholan (1955) 22 EACA 210)." (Emphasis added) We have taken this stance in a number of cases including Registered Trustee of Holy Spirit Sisters Tanzania v. January Kamili & Others (Civil Appeal No. 193 of 2016) [2018] TZCA 365 (21 August 2018: TanzLII). As regards the 1st ground of appeal, about the alleged unclaimed and proved special damages of TZS 82,000,000.00, it is the appellant's contention that, by doing so, the trial court had violated the long established legal principal that special damages have to be specifically pleaded and strictly proved. On her part, therespondent contended that the said TZS 82,000,000.00 was pleaded through her first prayer which appears at page 10 of the record of appeal to be the difference on purchase price for 323,621 Kilograms of the nuts. And that the appellant had corroborated it at paragraph 12 of her written statement of defence appearing at page 59 of the record of appeal. The evidence reads thus: "...The defendant states that the promised Cashewnuts were in the pointed warehouse and that it is the plaintiff who refused to take the pointed Cashewnuts on the reason known to piaintiff himself and this is about 41 tons out of about 500 tons of Cashewnuts" From the excerpt above therefore, it is clear to us that the respondent's assertions at paragraph 12 of the plaint were not challenged on the balances of probabilities. Since, the appellant did not seriously dispute the respondent's complaint that, the nuts uncollected from the warehouse were of the low grade, contrary to the purchase agreement. And that, she had sold part of the consignment to a third party, one Triad Exports and Imports Co. Ltd. We note also the respondent's undisputedly raised concern at paragraphs 15 of the plaint, page 8 of the record of appeal, as follows: "...contrary to the undertakings and assurance made by the Defendant in the meeting heid on 15th January 2018...1t was unfortunately discovered that the Raw Cashewnuts which the Defendants has sold to the Plaintiff (which the Plaintiff had not taken delivery of) had already been sold to Triad Exports and Imports Co. Ltd and the same was taken from the warehouse since 10th January 2018". Basing on the foregoing, while disposing issue number 6, the learned trial Judge referred to exhibit P5 which concerns transaction on 41,000 Kilograms kept at Nyaminywili Warehouse. At page 339 of the record of appeal therefore, the learned Judge, rightly in our considered view observed as follows: "...Considering what I stated herein regarding the fifth issue, it is dear that, there was a faiiure on the part of the Defendant to supply 41,000 kgs at Nyaminywili Warehouse..., the amount of TZS 82.000.000 as per the sale Invoice No. A0099 (Exh. P7-(f) ought to have been refunded to the plaintiff. In the absence of proof that such was refund, there is no doubt that the Plaintiff suffered loss..." 9 In all fairness therefore, the respondent, for some reasons may have not collected the 41,000 Kilograms of the nuts worth TZS 82,000,000.00 from the warehouse, despite the applicant's demands, as alleged. However, having admitted, quietly to have breached the fundamental terms of contract, the appellant rendered the purchase agreement voidable at the instance of the respondent. Therefore, the respondent was entitled to a refund of the TZS 82,000,000.00 as special damages, as rightly ordered by the learned trial Judge. Therefore, the issue of the respondent failing to plead the amount specifically and prove it strictly should not have been raised in the first place. We wish to reiterate our stance which we have taken on a number of occasions, that, the parties to the case are bound by their own pleadings, as rightly observed by the learned trial Judge. See- Paulina Samson Ndawavya v. Theresia Thomasi Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453 (11 December 2019: TanzLII). With regard to the extent and a degree of proof of damages required, again, we agree with Mr. Ludovick's contention thus, follow a number of our previous decisions that special damages have to be specifically claimed and strictly proved. See- Anthon Ngoo and 10 Another v. Kitinda Kimaro (Civil Appeal No. 25 of 2014) [2015] TZCA 269 (25 February 2015: TanzLII). However, we note that, even if the respondent had not pleaded the said damages specifically, be it expressly or impliedly, which is not the case, yet we would find, as hereby do, that, in this appeal, the said special damages of TZS. 82,000,000.00 were accordingly proved in the circumstances. Therefore, we have no basis upon which to fault the learned trial Judge. It is so, because the common law principles and equity have merged bringing the same results. We wish to stress, in passing that, whereas the courts have to determine cases on the issues framed and recorded, some may be raised by court in due course, which is permissible, provided that the parties are fairly heard. See- Galaxy Paints Company Ltd Falcon Guards Ltd. (2000) 2 EA 385) which we followed in Agro Industries Ltd v. [1994] T.L.R. 43 and later in Jaluma General Supplies Ltd v. Stanbic Bank (T) Ltd (Civil Appeal No. 11 of 2013) [2013] TZCA 494 (30 July 2013: TanzLII). More so, some claims and issues are naturally transitional which may arise at the hearing stage or even skip the parties' minds because to error is human. li In conclusion, the appeal is hereby dismissed with costs for being unmerited. DATED at DAR ES SALAAM this 31st July, 2024. A. G. MWARD A JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL The Judgment delivered this 1st day of August, 2024 in the presence of Mr. Protas Kato Zake holding brief for Mr. Nickson Ludovick, learned counsel for the Appellant and also holding brief for Mr. Patrick Malewo, learned counsel for the Respondent; is hereby certified as a true copy of the original. 12