east cost oil and fats ltd vs tanzania bereau of standards another 2022 tzhccomd 176 20 june 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF THE TANZANIA (COMMERCIAL DIVISION) AT DAR-ES-SALAAM COMMERCIAL CASE NO.151 OF 2017 EAST COAST OIL AND FATS LTD......................... PLAINTIFF VERUS TANZANIA BUREAU OF STANDARDS.......... ^DEFENDANT THE HON. ATTORNEY GENERAL.......... w....... 2ndDEFENDANT Date of Last Order: 28/04/2022 - f" Date of Judgment: 20/06/2022 ' JUDGMENT NANGELA, J:., \ / This is one of the cases that unusually took long time to resolve having been filedl_qn the 14th day of September 2017. Its delay, however, comes from a combination of factors, some beyond control of this Court. ' The Facts of-this case may, however, be summarised s, V \ / as follows. Oir5th of February 2017, the Plaintiff imported a consignment of crude palm olein aboard a vessel known as MT PYXIS DELTA. A total of 6 copied of commercial invoices dated 13th January 2017 and 6 copies of Tanker Bill of Lading which were tendered in Court and collectively admitted as Exh.Pl. Moreover, this Court received from the Plaintiff 'analysis and quality certificates' which were issued by Page 1 of 60 P.SGS-Indonesia which had certified the consignment as being of palm olein fractions, a generic description of crude palm olein. These were admitted as Exh.P3. As a matter of fact, the vessel having been anchored at the outer anchorage of the Dar-es-Salaam Port, the 1st Defendant drew samples for testing, that being a normal practice. Subsequently, a test was conducted and a report was issued with results which indicated that, \ the sampled X X.' ' \ x product was for crude palm olein. This reported was tendered in Court as Exh.P.2. - \ X , z Since the said report was required by the Tanzania Revenue Authority (TRAy for purposes of customs' x. ?x x assessment to determine the amountzof import duties and VAT payable to the government, the 1st Defendant routed it to the TRA for such ^assessment. Ordinarily, the duties payable zto the government for crude palm olein are assessed at a rate of lO%. X x 'X , However, before the Plaintiff finalised the payments of customs'duties and taxes assessed on the basis of the first report, and while the consignment was yet to be released from the customs handling, the 1st Defendant decided to conduct a re-testing of the consignment and vide its letter, Ref. TBS/ TCD/ CORP/ VOL.XII/07 dated 28th February 2017 invited the Plaintiff to attend the re-testing of the earlier samples taken. The said letter was tendered in Court as Exh.P.5. Page 2 of 60 Upon receipt of the latter, the Plaintiff declined the invitation vide a letter Ref. ECOFL/VS/F10-2017A, dated 02nd March 2017, which was received as Exh.P6. According to Pw-1, the Plaintiff declined because she was satisfied with the earlier test report (Exh.P2) and had not requested for any re-testing of the sample. The Plaintiff's refusal to take part in the second testing, however, did not bar the 1st Defendant from conducting the 2nd test. ■- \ Having carried out the re-testing; of the sample in the absence of the Plaintiff, the 1^ Defendant, issued and dispatched a new Test-Report No. FL/630/2017, dated 03­ 03-2017 to the TRA CustomsDepartmentwith different results contrary to the^earlierxtest-report (Exh.Pl). This second Test Report Np/FL/630/ 2017 was admitted in Court as Exh.P7. Essentially- Exh.P7 had established that, consignment was notjDf \CrudetPa/m Olein' but of "finished refined C 'W \ bleached deodorised (RBD) Palm Olein." The second testing results;were based on ' Colour Parameter1, which was a third parameter, not earlier relied on as per Exh.P2. Subsequently, therefore, the 1st Defendant availed Exh.P.7 to the TRA. Since Exh.P7 had indicated that the consignment was not Crude Palm Olein by RBD Palm Olein, the latter attracted an import duty at a rate of 25% and not 10%. Page 3 of 60 The Plaintiff protested vide a letter dated 4th of April 2017; the demanding a rectification of the 2nd Test Report (Exh.P7) but in vain. The Letter plus a Demand Notice dated 10th April 2017 were collectively admitted as Exh.P.8. Subsequently, the Plaintiff decided to file this suit contesting the validity of the second Report. In particular, the Plaintiff is suing the Defendants, praying for judgment and decree as follows: X Nk 1. A declaration that the^.second \\ ct- ./ report issued by the '-'1 x Defendant in respect of ■'the imports made-'by .the .PJaintifP aboard iMT PYXS -. DELTA" is erronebusXnd null andX/oid to p A V' „ * the \extent <that. it categorise the z"4mport\as. othei^than crude palm ,/ ; olein? ' v 2.? A-declaration that the Plaintiff is j entitled to an assessment of \ \\ pdstoms import duty on the \\ M \\ J import at the rate of 10% amounting to TZS 4,488,430,600 and, therefore, it is entitled to a refund of the 15% duty it paid over and above the applicable tax amounting to TZS 6,732,645,901, should have been due from it at the rate of 10%. Page 4 of 60 3. The 1st Defendant pays the Plaintiff the sum of TZS 377,507,225 being loss the Plaintiff incurred as a result of the 1st Defendant's erroneous second report as per Para. 16 of the Plaint. 4. The 1st Defendant Pay the Plaintiff interest on the amount due to the Plaintiff as per prayer ; No.(2) herein above at ttjeTate of 25% per annum as per < mercantile custom -fron?the date, the money was paid to the TRA till the^ date of judgement/ 5. The[\ 1st Defendant pay the z Plaintiff interest on the decretal . amount at-the' Court's rate from * .\ : .the datezof judgment till when tfie 'decree is fully satisfied; it\ \\6.Xfhfe 1st Defendant pay to the \\ V- \\ concern authority any charges '?:-;z incurred in any form like customs warehouse rent over the Plaintiff's consignment as per Para. 17 of the Plaint; 7. The 1st Defendant to pay the Plaintiff costs of and incidental to the suit. Page 5 of 60 8. Any other relief (s) that the honourable Court may deem fit. On 10th day of October 2017 the Defendants filed their Written Statement of Defence together with a Notice of Preliminary Objection. After h the objection had been heard and disposed of determined the rest of pre-trial processes ensued and, on the 27th May 2019 this Court recorded the following agreed issues for determination: 1. Whether the 1st Defendant? V conducted tests on the imported < oil and issued a report of?/the > \ \ '¥ first day of February 2017. 2. If the answer to the 1st issue is '"X . X in the^affirmative^ what were the results of the test? z 'A 3. ’xWhether the Tanzania Revenue v'.\, \/ Authority (TRA) charged import ■- / duty at10% upon being satisfied /- W that the import of crude palm fi \ X'” \\ olein. \ x Whether the 1st Defendant did re-testing of the consignment after drawing samples from the storage tanks in the absence of the Plaintiff and to what results. 5. Whether the report of the 2nd testing is erroneous. 6. To what relief are the parties entitled. Page 6 of 60 At the opening of the Plaintiff's case, the Plaintiff called two witnesses, Mr Abbas Rafiq Ali, who testified as Pw-1, and Mr. Sunil Kumar, who testified as Pw-2. The Plaintiff tendered as well a total of 16 exhibits to prove her case. On the other hand, the Defendant called five witnesses (Dw-1, Dw-2, Dw-3, Dw-4, Dw-5 and Dw-5) and tendered two (02) Exhibits, Exh.D-1 and Exh.D-2. In his testimony, Pw-lstated, interalia, that, without passing an industrial process of refining, bleaching, and deodorizing it, the imported consignment' which is the subject matter of this suit, -was unsuitable for human consumption and, that, Exh.P7 was ah\erroneous report. He testified that, being erroneous, the 1st Defendant has caused the Department otCu.stoms to charge the Plaintiff custom duties at?a higher rate as if it were a finished product while in facbjt, was a crude product. According to Pw-1, the l^/Defendant acted arbitrarily and without any reasonable cause. when she conducted the second testing of the import. '' Pw-T told this Court that, in so doing, the 1st Defendant caused serious injury to the Plaintiff in terms of the storage charges of the consignment, customs warehouse rent, and factory's operating costs, and loss of business, including but not limited to the fact that it has to be processed before being fit for human consumption. Page 7 of 60 Consequently, he pressed for judgement in favour of the Plaintiff as per the prayers contained in the Plaint. During cross-examination, Pw-1 told this Court that, Exh.P2 ('Test Reports for QBA W918 and W191- Crude Palm Olein & Crude PALM Olein") was for the samples drawn from the outer anchorage at Dar-es-Salaam on 30th January 2017. He told the Court that, Exh.P3 was from PT-SGS Indonesia, an independent inspection company operating globally and Exh.P3 speaks of both quality and quantity. w,' Pw-1 admitted, however, f that;. F>T-SGS1 is not Vx W Sss responsible to provide escort to Vessels but was present at the time of her cargo loading at the Portland, that, the PT- SGS documents are from their laboratories. However, Pw-1 f * demurred that suchl'documents were limited to Indonesia only. He stated'that/being a commercial transaction SGS had to place a disclaimer on their document but that, the sa me is genera fand>applies to all. ' He''also admitted that, the 1st Defendant is the authorized body that can give standard specifications of goods and/ that, the Plaintiff did receive an invitation letter from the 1st Defendant to attend the re-testing of the sample earlier drawn from the consignment. Even so, Pw-1 reiterated that, the Plaintiff declined the invitation because there was no good cause, as the Plaintiff was satisfied with Exh.PZ and, that, the Plaintiff had not asked for a retesting which came 28 days after the 1st testing. Page 8 of 60 Pw-1 denied utterly that, the product in question changes after some time. He told the Court that he has been in the field since 1998 though he is not an expert and, thus, the 2nd report was erroneous. He admitted, however, that, the 1st Defendant could do a re-testing but only if there was good cause to do so, but he told this Court that, nothing of that sort was shown in the 1st Defendant's invitation letter. In essence, therefore, Pw-1 maintained that, Exh.P7 erroneously purported to cancel the^earlier \report>and % -- \ indicated that the consignment was of^refined, bleached, and deodorise Palm Olein onzthe basis of colod/parameter which was not performed earlier. . - V During re-examination, Pw-1 told this Court that, the Malaysian standards used in-analysing oil, were used globally and, that, those specification^ relates to sample of Crude Palm Oleirf. He? stated; that, the SGS certificates are about Palm Olein Fractions which is Crude Palm Olein and, that; the tSGS Indonesia findings are the ones reflected on the \\ z certificates. He further told this Court when shown Exh.P5, X Ji that, the Plaintiff was not told which samples she was going to witness but was only invited to witness a retesting and no reasons were given to the Plaintiff. The second witness for the Plaintiff, (Mr. Sunil Kumar), who testified as Pw-2, is an employee of the Plaintiff. He testified and told this Court that, the purpose of the test was to verify if the oil was crude as verified by the Page 9 of 60 TBS. He stated that, the 1st test conducted revealed that the consignment was of crude palm olein whose rate of custom duty to be paid was 10%. Like Pw-1, it was Pw-2's testimony that, the Plaintiff objected to the 2nd test conducted by the 1st Defendant, and whose findings showed that the consignment was of refined palm olein. According to Pw-2, the customs duty payable for refined oil was in a rate of 25% while on the^basis of the 1st test the Plaintiff had paid custom duty^at a rate of 10%. He tendered in Court documents evidencing Customs' assessments of crude palm zolein and payments of TZS 2,992,725,054 made by^the Plaintiff) which assessment was for the 25% rate- The documents were collectively ( z admitted as Exh.P9.‘ > \\ \x; Pw-2, told this Court further that, the 1st assessment documenttontained^^OOO metric tonnes (MT) of Palm Olein assessed TZSr2.§>biliion. He stated that, Exh.P5 has ft x \ reference to;10%pduty payment assessment for Palm Olein. He stated further that, the 1st Bill of Lading was for 6,000 MT assessed at a rate of 10% giving rise to TZS 928,113, 168.00 as custom duty and the total amount demand was TZS 2,992,725,054 comprising of custom processing fees, importation fees, and railway development levy and ware. According to Pw-2, that assessment was printed on the 17th February 2017 in relation to the 1st inspection or test report (Exh.P2). Page 10 of 60 Pw-2 testified further that, the 1st Bill of Lading was for of 6,000MT of Palm Olein Fraction and that, the Bill of Lading Number NVC BRS 02 in Exh.P4 is the same as the one in Exh.P9. He stated that, in Exh.P9, the assessment was charged at 25% totalling to TZS- 4,635,485,184.00. According to Pw-2, in the bank pay in slip TZS 2,992, 725,054 had already been paid on the 22nd April 2017 and, the originals are part of the six (6) paying slips in Exh.P9. Pw-2 testified further that, the 2nd Biirof Lading is number DUM/BRS 07 and involves 5,000 MT’of Palm Olein Fraction whose assessment was done on\the*14th day of -S\,. February 2017 and the trfal of TZS 2,493,547,054 was made payable on 1 ^February 2017. He further told this Court that, the Bill bf^Lading^Number LBG/DRS 03 was for 6000 MT assessed at TZS 2,992, 256,466.00 according to Exh.P4. He testified that, in contrast to Exh.P9 - the assessments was. TZS 4,634,759,537.00 because the earlier?assessment was for 10% and its amount was paid earlier on the 1st of February 2017, while the second assessment was made payable on the 21st April 2017 which was for additional payment. The second payment was for TZS 1,642,760,307.00 made on the 21st April 2017. Pw-2 told this Court as well that, the Bill of Lading No.LBG/BRS-04 for MT 2,999.97 was assessed at TZS Page 11 of 60 2,317,885,721.00 as per Exh.P4, dated 13th February 2017 and was assessed at a rate of 25%. He stated, however, that, the earlier assessment was at 10% rate and TZS 1,496,454,877.00 were made payable on 14th February 2017. He also stated that, the second payment was made on 10th February 2017; for TZS 821,430,844.00- by a pay slip which is found in Exh.P-9. As regards the Bill of Lading No.DUM/DRS/06 for 6000MT, Pw-2 stated that, the same was assessed at 10% rate>and TZS 2,993,725,054.00 were paid on 28th April 2bl7. He stated, however, that, as per..,ExhX9 at an assessment done at 25% rate, -the amount \ paid was TZS 4,635,485,361.00, and TZS 1,642,760,301.00 were paid u I * '' Z on 28th April 2017. \\ Xi- Pw-2 furth'ettold this Court that, the last Bill of Lading was DUM/DRS-05 was for 3000 MT whose initial 10% assessment fate according to Exh.P4 attracted a payment of TZS 1,505,352,725.00 made payable on the 9th \\ \\ R February 2017. However according to Exh.P9, the assessment done at 25% attracted a payment of TZS 2,331,667,759.00 made payable on the 12th April 2017, having been printed on the 11th April 2017 while the first assessment was printed on 9th February 2017. In his testimony in chief, Pw-2 told this Court that, he prepared a summary found in Exh.P9, the 1st chart being based on the 25% rate while the 2nd chart is based on the Page 12 of 60 10% rate. He stated that, in total TZS 4,488,430,600, equals the 10% rate while TZS 11,221,076,501.00 is for 25% rate. He stated, therefore, that, the Plaintiff had over paid a total of TZS 6,732,645,901.00 in taxes owing to the 2nd test report (Exh.P7). In Court also, Pw-2 tendered documents supporting the losses claimed to have been suffered by the Plaintiff and Al the same was admitted as Exh.PIO. Such\^\ Josses include X NHIF payment proofs under receipt No.067894 of 26th March 2017 whereby the Plaintiff cl^ifhed to have paid TZS 7,243,743/= in respect of Plaintiff staff/employees for the month of March, 2O17. He also tendered as Exh.PIO documents in respect of payment of PPF (social security funds) for the month, of February, 2017 amounting to TZS // \\ 'J 9,224,847/= as . well as J PAYE, amounting to TZS 34,924,184/-.,,', \ X ’ " ..Furthermore,x\Pw-2 pointed to a document in respect of payment pf Development Levy and PAYE, paid by cheque and payment to NSSF via receipt No. 1563711 dated 22nd March 2017/ amounting to TZS 45,789,178/- and to WCF equal to TZS 2,121,458/-(vide payment receipt No. 14693176 dated 18th March 2017). Pw-2 stated further that, next in Exh.PIO is a payroll of the employees for the month of February 2017 amounting to TZS 210,678,899/= as well NHIF payment receipt No.039664 dated 30th April 2017 for TZS 7t 136, 743.00 for March 2017, together with Page 13 of 60 a detail of list of names in respect of it all forming part of Exh.PIO. According to Pw-2, the next document forming part of Exh.PIO was PPF payment receipt No.360493 dated 25th April 2017, for TZS 8,466,823/= and a bank payment slip for "SDL" and "PAYE", order form No. 1604641 Ifor TZS 28,551,625/= paid on 4th of April 2017. Next as part of Exh.PIO also was a NSSF payment contribution for the month of March 2017, a document dated 24^^^11^2017, receipt number ST 17-1524847 for TZS 40,206,019/= as well as a receipt for WCF payments ^relation¥o Plaintiff's employees, receipt No.l566'2715^dated l2^h April 2017, and Plaintiff's employees list of payroll for;the month of March amounting to TZS^ 183,182,921.044/ for salary and Z'\ \\ v wages. -<\ \?x J Pw-2-ftold this\Court that, he had prepared food expense surtimary and the same was tendered and received in Court as Exh.Pll. As part of Exh.Pll, Pw-2 tendered the food expense bill No. 03/2017 of 15th April 2017 with an invoice for TZS 23,080,200.00/- with an e-receipt number 12583100101 dated 23rd March 2017. Furthermore, Pw-2 tendered in Court an insurance tax invoices number 9198 dated 20th February 2017 whose premium was based on USD. He stated that, the total premium including VAT was USD 24,980.00 equivalent of TZS 54,481,866.05. Page 14 of 60 According to Pw-2, the Policy was valid from 1st February 2017 to 1st February 2018 and the 2nd document was Tax Invoice/Debit Note, issued by Tanzindia Assurance Co. Ltd dated 1st February 2017 insuring the Plaintiff against fixed assets. The policy number was P00/101/2017/02/100015 with a total charge of USD 137,391.25 equivalent to TZS 303,085,090.44. He also referred to this Court a TaxTnypice for assets insurance dated 28th February 2017, number 029047 (renewal of policy No.010/150/l/000022/2013.) (with an e- receipt number 49336804) for TZS ^7,790,494/=, and a tax invoice for asset insurance elated'27th March 2017, issued by Jubilee Insurance, .Polfcy Nc^ P/DAR/553/45/17/38. He H z' X Z stated that, the,account was a debt for USD 74,940.88 equivalent of TZS 166,443,2^8.06 covering 1st February 2017 to /1st February;.2018. All these were received as Exh.PlZ. '' \ Y Next, Pw-2 tendered in Court invoice issued by security services provider {Shazaf Security Ltd) for a claim of TZS 11,466,666.67 for the month of February 2017and another for the month of February amounting to TZS 11,505,000/= March 2017. He also tendered a bank statement issued by Stanbic in respect of the Plaintiff's account. All these were admitted as Exh.P13. According to Pw-2, the statement shows term interest rate and, that, between 28th March 2017 and 31st March Page 15 of 60 2017, the Company owed Stanbic in interest, US$ 14,798.29. Furthermore, Pw-2 referred this Court to a bank statement from Standard Chartered Bank for US$ A/c N.8704020511000 which belongs to the Plaintiff. He testified that, the total interest owed to the Bank by the Plaintiff was US$ 3,497.75 and in London was US$ 182,435.60.For one month it was US$ 60,811.87 which is TZS 86,136,218,581. \ Pw-2 tendered in Court as well, documents jn relation to the Overdraft Facility and the- same, was. admitted as Exh.P14. He testified that,Exh. P14 Is. a ZCRDB Bank Statement for Plaintiff's XX ' \ Customer Account No.OIJO194778900 fop the period, between 1st February and fl 's 2nd March 2017. He testified that, by 01st day of February 2017 the Plaintiff owed the CRDB TZS 10,000,000,000 ' x-:1' and the mterest ,the Company was owing the bank was TZS 44,665,973^23. Ke.also referred to another Statement for the'.'month\of March- from 1st March to 2nd April 2017 showing^ the interest due amounting to TZS 24,405,26129, hence making the total interest owed to CRDB to amount to TZS 69,071,234,553/=. Pw-2 tendered in Court a document relating to a Collateral Management Act (CMA) and told this Court that, the account is maintained at Rand-Merchant Bank- A/c NO.SMT-LT17900009, the Plaintiff being the Client. He testified that, the Plaintiff owe interest between 1st Feb.2017 Page 16 of 60 to 28th Feb.2017 US$ 15,494.22 for the first week and US$ 515,497.91 for the 2nd Week. As for the 3rd week it was US$ 15,506.21 and for the 4th week was US$ 15,488.27. As such, by the end of February the interest balance was US$ 19,442,988.40. Pw-2 testified further that between, 1st March to 31st March 2017, the 1st week interest was US$ 12,719.42; the 2nd week- US$ 12,717.49; the 3rd week- US$ 12,134.12 and 4th week- US$ 12,556.39 all invrespectx)f STM-LT 17900009. He stated that, the 2n/d' Accdunt - the\lst week interest was US$ 1,081.71; 2nd week- US$ 1/081.92, 3rd week- US$ 1,082.55 and the 4h week>-US$ 1,081.29 - the cumulative amountbeingUS$ 4,327.47. According to the testimony of Pvy-2 thez3 - Account had the following interest: the lst week, US$ 1,155.28, the 2nd week, US$ 1,155.28/the 3rd week, US$ 854.35 and there was no interest of the 4th/week as the loan was exhausted. He stated, therefore, that, the total was US$ 3159.03. Pw-2 stated further as regard a 4th account that, interest was as follows: the 1st week was US$ 1155.28, 2nd week US$ 1,156.56, the 3rd week was US$ 1,156.19 and the 4th week it was US$ 690.20. According to him, the total was US$ 4,157.20. He stated that, in March, the interest due- the 1st week was US$ 12, 719. 42, 2nd week - US$ 12,717.46, 3rd week:-were US$ 12,734.12 and 4th week was US$ 12,556.39 while the 4th week was US$ Page 17 of 60 12,556.39 and the 5th week was it was US$ 12,804.26. He said the total was US$ 63,531.65. As for March Account, Pw2 stated the 1st week was for US$ 1,081.78, 2nd week 1,081.64. The 3rd week US$ 399.70, the 4th week- US$ 5.46, the 5th week was US$ 5.53 and the total was US$ 2,574.11. Pw-2 stated further that, in February the interest was US$ 3,159.03 and in total the interest owedjn March was \ - USD 66,829.07 equivalent of TZS 149,362,971.45, which, in February was USD 73,630.48 equivalent of TZS 164,564, 122.80. He statecLthat, in^otak it was the (US$ 66,829.07 plus US$ 73,630?48)' equiv^ient of TZS 313,927,094.25. He^ndered^suppqrting document which was admitted to forrh\Exh.P15. V As well, Pw-2 tenderedVAT Returns for months of December\2016) January 2017, February and March 2017 and these were admitted as Exh.P16. He testified that, the total\salesxvvasvTZS 311,053,435, 707/- for the whole s \ , sZ company^He stated that, the total oil sales for the whole of December '2016 were TZS 26,754,752,024.00. As for January 2017, he testified that, the sales were TZS 25,267, 626,081.22 and the VAT chargeable was TZS 4,548,172.694.62. He stated further as for February 2017, that, sales were TZS 18,984,572,485.00 and the VAT chargeable was TZS 3,417,203,047.30. For the month of March Page 18 of 60 2017, he stated that, the total sales were TZS 15,092,426,261.11 and VAT chargeable was TZS 2,716,636,727.00. According to Pw-2, compared to sales in the month of December to January, the February and March sale recorded a loss which was 42% (in February- about TZS 250,510,224) and 27% (in March- about TZS. 175,059,685/-). He told this Court that, for fixed costs the Plaintiff lost TZS 648,369,205 in Felsrhary 2017, and ¥ TZS 596,452,915/= and in total TZS 1,928,070,035/=. "Ss* '*'* \ X. ,/Z He stated that, the fixed expenses Xwefe^ for) salaries, insurance, security, Term loan interests etc.\ During cross-examination, Pw-2 admitted that the 1st Defendant (TBS) and the Government Chemists are two fl K\ government entities; able, to conduct standard tests in Tanzania and that, all consignments are tested by those two authorities’at the port. He admitted that, the Plaintiff was required .to pay 25% tax/duties and, contended that; it was the 1st Defendant who made the Plaintiff to pay the requisite \ '■ x \ *,/ customsduties at the rate of 25% on the basis of Exh.P7. Pw-2“admitted that, the payments they made to the TRA were in respect of consignment of oil as per the control number issued, =# TZDL 17DG10423230 from payment order and, admitted that, the Plaintiff was aware that the second test will be conducted but maintained, however, that what the Plaintiff imported was crude palm olein and that is why Page 19 of 60 he agreed to the 1st test on that belief and the Bill of lading indicated the consignment was crude palm olein. Pw-2 further admitted that, collectively Exh.P9 does not say that the consignment was crude Palm Olein and, that all imported consignments are tested by TBS. He told the Court that, however, that had the Plaintiff paid the 10% import duty rate, the consignment would have been promptly released but when they were asked to pay 25% ' - % their employees remained idle as the Plaintiff had to sort out the problem and so, the consignment was released end of April 2017. He admitted as well that the. Plaintiff paid the required taxes on different dates, depending on when the tax 'i assessment came in,\and that, the 10% was paid beyond X ■’* <1 February based on the two lasdassessments and once paid a consignment is released but they had to await for the 2nd test. - __ , * * He also, admitted that the 1st assessment was done on 1st of February 2017 but the payment was made on 23rd April 2017. He also stated that the Plaintiff's Bank slip is dated 22nd April 2017 while tax assessment was of 1st February 2017 as the Plaintiff was generating money to pay for the tax invoice raised. He admitted that money was the cause of the delay to settle the tax assessments. He admitted further that the 2nd report came on 3rd March 2017 and by then the 10% assessment had already been done Page 20 of 60 and the Plaintiff had paid in part while looking for money to settle the rest of tax invoices (Exh.P9). Upon being re-examined, Pw2 told this Court that, the 1st Defendant is to blame for the second report and escalation of the tax assessment. He stated that, the Chief Government Chemists Lab did not conduct the 2nd test and no reason why the 1st Defendant re-tested the consignment because the Plaintiff was satisfied by the first test. He told this Court that, the Plaintiff has never imported refined oil and, insisted that, the consignment imported was crude palm olein. z~. ' x \ " Pw-2 stated further that, ip Exh.P7, the fatty acid parameter indicated^PSss" and, that/fatty acids is what determines status of\a crude plarrT olein consignment. He stated that, thex2\ test passed the consignment as crude but refined. He, was concerned that the Plaintiff was paying fixe^assetsxcosts while production had stalled. That marked the closure1 of the plaintiff's case. On the 29th October 2019 the Defence case opened. The Defendants called a total of five (5) witnesses who testified as Dw-1 to Dw-5. One thing that needs to be noted is that, all the five witnesses were employees of the 1st Defendant and all testified for the 1st Defendant in their different capacities as professionals' employees of the 1st Defendant. Due to the absence of the first witness, Dw-1, Page 21 of 60 the Court deferred his testimony and proceeded with Dw-2 (Jeremiah Abednego /Mhamba, 30yrs old). In his testimony, Dw-2 told this Court that, he is employed by the 1st Defendant as Quality Assurance Officer II and, that, the 1st Defendant is the overseer of observance of standards in Tanzania and tasked with standards' inspection duties in respect of manufactured and imported *9 goods. He told this Court that, on the 30th January 2017, he assigned one Yassin Yusuf Zahoro, arix Inspection \\\ • ''~-f ' Technician II working with thezlst Defendant, a/task of collecting samples of imported Palm Olein consignment at Dar-es-Salaam outer anchorage of MT? PYXIS DELTA. As such, ten (10) litres were collected as samples from the said I ' z \\ z * vessel and were submitted' to the 1st Defendant's food A V\ .. laboratory. ?\\ ?< According;to Dv\r-2, the analysis used two parameters . )/ \ x* z only. These' were 'Free Fatty Acids (FFA) and Apparent Density (AD). Dvy-2/told this Court that, after such analysis, a sample; test report dated 30th January 2017 (which is Exh.PZ) was issued indicating that, the sample passed as "Crude Palm Olein" based on the FFA parameter, and the report (Exh.P2) was routed to the TRA as client. However, Dw-2 told this Court that, a re-testing of the samples was done later and, in the course of so doing, Dw-2 told this Court that, in line with ISO/1EC 1725, the 1st Defendant did invite the Plaintiff to witness such re-testing Page 22 of 60 of the sample via a letter Ref. No. BS/ TCD/ CORP/ VOL.XII/07 dated 28/02/2017. Nevertheless, the Plaintiff refused to attend the witnessing of the re-testing of the sample, claiming to be satisfied with the earlier testing. According to Dw-2, since the Plaintiff did not turn out, the 1st Defendant proceeded with the exercise by requesting its Food and Laboratory to re-test the sample based on three yi parameters of FFA, Apparent Density and^Colour,^colour being a critical parameter. He told this^Cpurt that the three v-/ parameters' test (as par Exh.P7) was |based Ion TZS 559:2010, and, showed a result that the product tested was refined, bleached .and deodorised,, and thus, the conclusion was that, zthe-cpnsi^^^t^was "Not Crude Palm Olein" He stated^ that,Z?theX2nd Test Report was communicated to the TRA as well for necessary actions. During cross-Xamination, Dw-2 told this Court that, the sample drawn from2 the Plaintiff's consignment was not f X X handed overto him and he was unaware about how it was \\ X z handlefl .and stored in the laboratory, as he never works in the lab. Dw-2 admitted as well that, the 1st Report (Exh.P2) had passed the sample as of'Crude Palm Olein'. However, he told this Court, that the 1st Defendant received oral complaints from other companies, being BIDCO, Murzah Wilma E.A Co. Ltd and Mikoani Detergent, and that, the colour parameter would come in when there are complaints. Page 23 of 60 He admitted that, colour could change as between the 1st test and the second test but the colour will increase and not diminish. Dw-2 told this Court that, ISO: 559:2010 as a standard for the cooking oil make Palm Olein, and that, the very same sample tested in the 1st time was the very same sample tested during the second test as in the course of collection of samples; one set is left as retention purposes in case a retesting will be needed. \ According to Dw-2, the absenceofthe importer could not have stopped the 1st Defendant from discharging their functions. He conceded, however, th^t, there was no reason assigned regarding why th|xsecond teshwas being carried out but the Plaintiff^wasUnfbrmed that there would be a I a - , ' second testing of the^sample? /k \[\ Vi During re-examination, !Dw-2 told this Court that, complaints were recei^ed orally from Murzha Wilma E.A Ltd, Mi koan [Detergents, Bidco as well as from the Ministry of Industry and. Trade. He told this Court that, the 1 st Defendant follows ISO Standards under ISO/IEC 17020 aridfTZS 559: 2010 is a standard which is used in analysing Palm Olein used for cooking oil. Dw-1 (Mr. Habakuki Kalebo 33yrs) testified in Court. In his testimony in chief he told this Court that, he is employed by the 1st Defendant as Quality Assurance Officer -I and is assigned with the duties of carrying out sample analysis. He stated that on 03rd of March 2017, he was assigned to retest Page 24 of 60 retained sample with TBS Code No.QBA -W-919 on three parameters: FFA, Apparent Density and Colour, the purpose being to establish the status as per the requirements of TZS 559:2010 Palm Olein-Specification. He told this Court that, TBS 1 referred to in his witness statement was Tanzania Standards TZS: 725 of 2004 adopted from ISO- 1725 of 1999 which is general requirement for competence testing and calibration V\ K laboratories. He tendered the document.as ExhiD.l.) Dw-1 did also tender TBS-2, which is4TZS\-559r2010 Palm Olein Specification which^vyasjadmitted c?sZ Exh.D-2. According to Dw-1, durii^s^the^esting^.the sample was observed to have a bright, clear ancl light yellow colour at temperature of 40°G,\ this being aJstrong confirmation that the sample was refined/neutralized, bleached and deodorized?p3n)\olemxas per clause 5.1.1 of Exh.D-2. According to Dw-1, a further subjecting of the sample to 133.35 mm ('5^i,n) Lovibond cell, obtained a result of 4.5 \ \ 'A y R colour. Upon analysing the sample for FFA and AD (Apparent Density) as per TZS 561:2001, Dw-1 told this Court that, the results obtained were 3.01% and 0.8977 respectively. Dw-1 told this Court further that, he prepared a draft report and submitted it to the Ag. Head of Food Laboratory indicating 3.01%- FFA, Apparent Density (AD) of 0.8977 and 4.5 R Colour- 133.35 mm (S^in) Lovibond Page 25 of 60 cell, with remarks that, although the FFA indicated the product to be crude, the obtained value for colour indicated that the product is refined, bleached and deodorized (W&b}, hence, concluding that, the product is not crude palm olein based on colour content. According to Dw-1, technically FFA increases with time as a result of hydrolysis of fatty acids which may be caused by storage conditions such as property of the storage container, moisture content/water exposure, exposure’to air and light and high temperature exposure. He also told his Court that, the refined, bleached and deodorised olein may have a high level of . FFA if jt is-mishandled either intentionally or unint^ntidnally^thus,\ased on the afore said M /T * * factors FFA cannot bethe most important decisive factor to establish the status of palm olein. According^, to \Dw-l, therefore, based on TZS 559:2(>lp Palm Olein-Specification, the value obtained for rcolour and the physical property at 40 C was an \ y indication that the product is refined/neutralized, bleached and deodorised, hence, the product was not crude palm olein, based on colour parameter as per the International Standards namely ISO/IEC 17025:1999 (E) (General Requirements for Competence Testing and Calibration Laboratories) (Exh.Dl). He told this Court that, the 1st Defendant establishes certainty of measurement of 0.8R for this result; therefore, Page 26 of 60 the product falls under Refined/bleached and deodorized olein category. In his testimony in chief, Dw-1, told this Court as well that, a normal product cannot have two status, and, thus, 4.5 R means that the said product had undergone bleaching process which is a refining stage because, in normal circumstance, a crude palm olein cannot have a colour of 4.5R without undergoing bleaching process. He testified that, the purpose of the 2nd test was to establish whether the status of the palm oleih\is crude or . \'W' refined and that, the 1 test report7was issued,on the bases of FFA while the 2nd test Report "was based on colour parameters. s According to [^w-l^th^colourWcrude or neutralized palm olein is bright clear and deep red at the temperature of 40°C while the colour of neutralized, bleached palm olein is bright clear and reddish yellow at same specific temperature value-pf-40°C. He was emphatic, therefore, that, there is no way\palm\lein can be light yellow without undergoing a \\ v y refineryprocess and the light yellow is the final colour for refined palm olein. Dw-1 told this Court further that, according to Exh.P7, the sample passed with remarks that: "Although free fatty acid indicated the product to be crude, the obtained value for colour indicated that the product is refined, bleached and I I deodorized, therefore the product is not crude paim olein based on colour content" This meant that, 1st the sample Page 27 of 60 passed as crude palm olein based on FFA while the 2nd test sample passed as refined based on Colour parameter. As regards the results from other laboratories, Dw-1 told this Court that, the 1st Defendant cannot stand for other laboratories for being unsure if the sample brought to the 1st Defendant's lab was the same or not and two, the integrity of their results. Moreover, their objective of testing may not have been the same. Even so, Dw-1 testified that, if one combines the test results from TBS, GCLA, TFDA and SGS) the result will end up that the product was refined palm olein per clause 5.1.1 of the TZS 559:2010. 4 During cross-examination, Dw-1 insisted that, Exh.Dl- provides guidance as regards testing and calibration laboratories and that?he was the one who did the re-testing though he was^ not, present when the samples were drawn but the sample he tested was the portion of the original sample^ He told the Court that, based on FFA of 3.01; the product wilPnof be*fit for human consumption and, will be considered crude palm olein. Upon being re-examined, he told this Court that, the purpose of the testing was not to establish whether the product was fit for consumption but rather whether it was crude or not. According to Dw-1, he tested the sample using three parameters and as per TZS 559:2010. The third witness for Defence case was Dw-3 (Mr Lawrance Chenge. In his testimony, Dw-3, who is employee Page 28 of 60 of the 1st Defendant as Standards Officer I, told this Court that, his duties, among others, is to draft national standards as Technical Secretary in the National Committee on fats and oils. He also participates in developing Regional and International Standards. Dw-3 told this Court that, he was responsible in interpreting TZS 559:2010 Palm Olein- Specifications, when this matter was brought to their office in 2017. Z. 1 According to Dw-3, TZS 559:2010 is the current , Zx-Z" edition of the Standard after review of the TZS 559.2004 in 2010 and is used together.with TZS 4 (Pounding up numerical value). He told5this’x‘Cdurt that, this standard covers requirements for crude paTn olein, neutralized /refined and bleached palm qlein, neutralized/refined, bleached and deodorized palm olein of which must have been obtainedv from\ one stage of fractionation process, including neutralized/refined, bleached and deodorized palm /• \\ X,/ olein obtained frorcr one stage of fractionation and finally in ■, m y the process) refractionated and filtered (double refractionated). Dw-3 stated that, TZS 559:2010 covers the identity properties of palm olein, essential quality requirements and acceptable contaminant levels. Identity characteristics, according to Dw-3, include: apparent density (AD), Refractive Index, Saponification Value, Fatty Acids (FFA) composition, Iodine value and Slip melting point while Page 29 of 60 Essential quality requirements, which are affected by stages of refining are FFA, Peroxide value, Moisture and volatile matter, Colour and Inso/ube impurities. He told this Court, therefore, that, for palm olein and its fraction to conform to the standard, it must comply with all of the requirements stipulated in TZS 559:2010. According to Dw-3, in Exh.P7, the three parameters namely FFA, AD and Colour were analysed to establish the status of the sample of Palm Olein. He4old this;Court .that, FFA can be used to establish the Palm OleinStatuss\nc.e it is affected during neutralization- .(stagO\of refining) but also Colour was selected to establish the status of the Palm Olein sample since it is affe^tedMJuring, bleaching of oil (also stage of refining), and that^AD was analysed for assurance of the product (identity'parameter). J According to DW-3, FFA can be affected by various environmental factors during handling and can rise if the product is hot refined (crude) but this does not re-categorise the product as? crude and, thus, refined oil can have a higher FFA if not properly handled after refining. Dw-3 also told this Court that, Colour Parameter is not affected significantly by environmental factors or handling practices (hence a stable parameter) and changes during bleaching (a stage of refining). If the product is bleached (i.e., act of reducing colour pigment), he stated, it means that it had undergone a refining process. Page 30 of 60 I He told this Court further that, because the result indicated 4.5R as Colour, the same was in the bleaching stage of refining since; in normal circumstances a crude palm olein cannot have a colour of 4.5 R without undergoing bleaching process. He also told this Court that, as per TZS: 559:2010, the maximum limit of colour for refined palm olein in 4.5 R and the reported value was 4.5 R according to TZS: 4 Clause 3.2' which is a cross­ reference of TZS 559:2010 in rounding off nuhierical value, the same shall be 4, which qualifies the product to be described as refined palm olein.^ \ During cross-examination, D^y-3 told this Court that, he holds a BSc degree in food science and technology and a Masters Degree in Ujpod .quality and assurance and has attended various certified courses on oil seeds technology. He told tpefjCduijt that^he is an expert in the field and would like to -be considered that way. ’ When he was^shown Exh.P2 he told the Court that, it v\ y had 2 parameters, FFA and AD which were "passed" but the FFA parameter is only an indicative parameter and not conclusive. He told the Court that, refined oil having been purified can be used for consumption having been certified. He admitted that, oil which is fit for consumption is refined bleached and deodorized (RBD). As regards Exh.P2, Dw-3 stated that, the same has two products: (i) Palm 0/7 and (ii) Palm Olein, and, hence, Page 31 of 60 that, that is the rationale for there being TBS Code No.QBA 918^ TBS Code No QBAW 919. He stated that Exh.P7 is for TBS Code No.QBA 919. He stated, however, that, the product could not be fit for consumption due to high FFA resulting from poor handling. Its colour parameter, however, was 4.5R. He told this Court that, processing of oil is staged process and FFA is reduced by way of neutralization. Dw-3 reiterated during cross-examination and in re­ examination that, the FFA parameter is an unstable ' Vx?' \ \ / parameter as it depends on the environmental conditions unlike colour parameter whichJs^a stable ^parameter and, was the decisive one usedintheExh.P7as it changes only according to the processing stages of'Palm Olein. i -? ''''' z When asked by\this Court about the various stages of refinery and characteristic of each, Dw-3 told this Court that, the stages^ arey neutralization where acids are removed fromtheproduct/bleaching process to remove the original coldur pigment from "reddish" to "golden-yellow" colour; V-. A T deodorization process, to remove the chocking smell and its flavour/and finally, re-fractionization process to retain its liquid form throughout. He also told this Court that, their analytical results as per Exh.D2-clause 5.1.1, gave them a conclusion that, the sample was refined because of the stable parameter of colour as one cannot have a crude palm olein in that golden (bright) yellow colour. Page 32 of 60 The 4th witness for the Defence was Ms Anna Mhalu, working with the 1st Defendant as a Senior Quality Assurance Officer-I. She testified as Dw-4. She told this Court that, on March 2017 she was the Ag.Head of Food Laboratory and her duties included to receive tests results, distribute samples to analysis, review and sign test reports from analysts and submitting test reports to Testing and Calibration Manager for approval. - \ In her testimony received in Court, DWH told the Court that, on 03 March 2017, she received test requests from the Directorate of Quality.Management with TBS Code No.QBA W- 919, for analyses of FFA; AD, and Ctf/cwr with a % \ *'X view to establish the status ofsampleras per TZS 559:2010 '''xx Palm Olein-Specifitation She told this Court that, she assigned the ©s^to an analyst who did the necessary analysis arid submitted a draft report for her review and signipg^Shextold the Court that, the draft Report's results indicated 3.01%?FFA, Apparent Density of 0.8977 and 4.5R\ Colour 133.35 (51/4 in) Lovibond cell (a measurement used in describing the appearance of colours). She also told the Court that the maximum limit for refined Palm Olein as per TZS 559:2010 is 4-R and the reported value was 4.5R rounded up to 4, as per clause 3.2 of TZS:4 which is cross-referenced to TZS 559:2010. According to her, the interpretation of the results of 4.5R of colour specification is in accordance with clause 5.4 of the Page 33 of 60 ISO/IEC 17025:1999 (E) (General Requirements for Competence Testing and Calibration Laboratories) (Exh.Dl). This standard calls upon laboratory to establish uncertainty of measurement for tests, which for the 1st Defendant is 0.8R and for the results in Exh.P7 it was categorised as falling under the RBD olein category. Like Dw-3, she concluded that, in no way a crude palm olein can have a colour of 4.5R without undergoing bleaching process. v \-.s During her cross-examination, Dw-4 'told the Court \ S' '’"x'y that, professionally, she is a food scientist-cum-Technologist and she testify on things/she has knowledge about and which are technical inmlture^She admitted to be aware of the two tests done by the/l'\ Defendant and their results. She, however, denied b^in^ynxplved in the making of the 1st Report butthat she was involved in the 2nd Report. She^ admitted'that, there were complaints received by the Equality\maria.gement department which necessitated a fresh testing./She told the Court that, if the product is properly handled, FFA can tell whether the same is crude or refined. She stated that, since the 2nd Report (Exh.P7) had looked at more parameters it was more reliable and conclusive than the 1st Report, colour being a stable parameter. The 5th Witness for the Defences case was Ms Stella Mrosso, working for the 1st Defendant as a Senior Quality Page 34 of 60 Assurance Officer-I. She testified as Dw-5. According to her testimony received in Court, Dw-5 testified that on 03rd March 2017 she served as Ag.Testing and Calibration Manager with duties of approving test reports. On that material date, she received a test report with TBS Code No. QBA W919 (Exh.P7) from the Ag.Head of Food Laboratory (Dw-4) for review and approval. She told this Court that having review Exh.P7 she approved it as it indicated 3.01% FFA,vO.8977 AD, and 4.5R Colour 133.25 mm (5 Lovibond Dw-5Z testified further that, the approval she made was based on the requirements of TZS 559:2010 read together with TZS 4 X X Rounding off numerical value, which is referred in paragraph fl z x 4 of the foreword and Cause 2 of TZS 559:2010. According A \\ X to DW-5 the product felI within the parameter of RBD and hence, notecrude palnvolein. Upon being cross-examined, Dw-5 told this Court that, her ^testimony waS/about things she was aware of and as a V\ \'< i' scientist^ She admitted that, the consignment was tested 'x A twice, the’first confirming that the sample was of crude palm olein and she signed it. She admitted to have signed the 2nd Report as well and stated that, the first Defendant works independently. She told the Court that, she received the complaints about the 1st Report and carried out the 2nd testing, hence the 2nd Report. Page 35 of 60 According to Dw-5, as per the existing procedures it is the importer who declares what s/he has imported into this country. She admitted that, as per the documents accompanying the consignment, and the first report, the consignment was described as "crude palm oleiri'. However, she stated that, in that 1st Report, she did not use colour parameter although nobody had restrained her from using that parameter. < \\. \\ She told this Court, however, that, once^so declared, the 1st Defendant tends to believe ^prinTa facie) or trust the importer but, if one tests the.FF^and AD s^e maY tell whether it is crude or not^She stated that because the 1 Defendant has to work^together with> the TRA, then the 1st Defendant had to confirm the declarations to prove if really it was import oT crude Cpalm olein or refined product. Dw-5 told this Court furtheYjn the reports what was looked at was not quality but status^fthe sample. \ During're-examination, Dw-5 told this Court that, the 1st Defendant! took the two parameters (FFA and AD) to lessen congestion at the port but Exh.P7 had a sole purpose of showing the status of the product if it was indeed crude palm olein or refined palm olein so as to assist in the case of tax assessments. When asked by the Court, Dw-5 stated that, what brings the difference in Exh.P2 and Exh.P7 is that parameter of colour and the taking of such a parameter was Page 36 of 60 prompted by complaints which the 1st Defendant had received, hence a need to add the colour parameter which is stable parameter. She stated that, even if one had tempered with the product, the colour parameter would have remained the same. She concluded, thus, that, since the 2nd Report showed a parameter of colour at 4, the product was "not crude" by "RBD". Had it been crude, she stated, thez number would have been 30 and not 4. Her testimony marked the end of the Defence case. The learned codnsel fpr the parties filed their closing submission and Lwjll also consider them in my deliberations. ' Before I addressee. p^rtinentNssues agreed upon by (I x the parties herein and, drawn £y thiszCourt for determination, it is pertinent to be reminded Jbf the basic principle that, in any case,-the burden of showing that no genuine factual dispute exists rests’ upon the moving party. In other words, he who alleges must prove. Such a principle is firmly established under our law of evidence. See sections 110, 111 and 112 of the Evidence Act, Cap.6 R.E 2019 and the cases of The Registered Trustees of Joy in the Harvest vs. Hamza K. Kasungura, Civil Appeal No. 149 of 2017 and the case of Manager, NBC Tarime vs. Enock M. Chacha [1993] TLR 228 attest to it as well. Page 37 of 60 In this case, therefore, the Plaintiff has the duty to prove her case to the requisite standard, and, this being a civil case, as it was stated in the case of Silayo vs. CRDB (1996) Ltd [2002] 1 EA 288 (CAT) and Catherine Merema vs. Wathigo Chacha, Civ. Appeal No.319 of 2017 (unreported), that proof should be within the preponderance of probability. Having stated those guiding principles let me now address the issues raised in this case.' . The first issue is: \\ Whether theijf Defendant- 1 // S' conducted tests on thesimpdr|ed V oil and issued a' report-of, the" first dayof February 2017. XL 'V This is a straight forward issued It is an uncontested p 'Hz fact that the, Defendant^'collected sample from the Plaintiff's consignment and that the same was subjected to laboratofyxtest.'JPw-l, i|w-2 and Dw-1 to Dw-5 do support that fact: The same is backed up by the 1st test report \\ \'v received ds\Exh/ .PZ For that reason the first issue is respondedtoin the affirmative. The second issue is pegged on the first issue. It is to the effect that: If the answer to the 1st issue is in the affirmative, what were the results of the test? The response to this second issue is also straight forward. The answer to it lies in the results contained in Page 38 of 60 Exh.P2w\}\z[\ are not contested as results pertaining to the 1st test. According to Exh.P2t the sample was drawn from a consignment carried by MT. PYXIS DELTA at the outer anchorage of the Dar-es-Salaam Port on the 30th January 2017. Furthermore, as per Exh.P2, using the TZS 271:2014 (Edible Palm Oil- Specification) and TZS 559:2010 (Palm Olein- Specification) theresuits of the first test which, as per Exh.P2 were fpr "samp/e tested for fatty acids as per specified standard method^ ^showed that the sample was passed in the-parameters'pf Fatty Acid, % Max. of 3.01 and Apparent Density g/mi at 4CPC being . Xxx \ 0.8977. x V n * The remarks ^were,/therefore, that: "the sample passed as crude palm olein". Such were the results and the secondfeue is, consequently, responded to as such and X .X J W. that response;gives?room for consideration of the third issue. if 'x x \\ b< <:!:* The third > Z is: X » issue Whether the Tanzania Revenue Authority (TRA) charged import duty at 10% upon being satisfied that the import of crude palm olein. A response to this issue is somehow intricate. I hold it to be so because, first the TRA did not charge import duties on the basis on one report only. Second, it is worth noting Page 39 of 60 that, the TRA was not the agency charged with the testing to establish whether the consignment was of crude nature or otherwise refined. However, for the purpose of a quick response to this third issue, and since the 1st test report had indicated that the consignment was of crude palm olein, the response is that, the TRA did charge 10% import duty (taxes) on the basis of the of that fact as disclosed in Exh.P2. That closes the third issue without much ado. The fourth issue is: \ > v":> x '•- z Whether the 1st Defendant did / re-testing of the consignment, V after drawing s'amples'Trom the storage tankship thekabsence of \\ the plaintiff apd to what-results. This fourth|issue is alsb|a straight forward and, one thing which<all. witnesses for the Plaintiff and Defendants agree incommon is that, the re-testing was carried out. HoweVer^befbre I proceed, in as far as this fourth issue is concerned; tkierelira need to give it a proper context based "w,. on the correct understanding of the facts underlying the case. In essence, the facts as stated and obtained from the witnesses are that, the 1st Defendant drew from the Plaintiff's consignment of Palm Olein ten (10) litres as sample for Laboratory Testing to establish the true status of the product as per the disclosures earlier made in Exh.Pl. Page 40 of 60 The samples were not drawn from the Vessel in the absence of the Plaintiff and no such fact was established in this Court or any evidence tendered that the Plaintiff was absent when the sample was drawn by the 1st Defendant's officers. At least this Court can affirm that there was no dispute in that. What was done, however, was a re-testing of the samples already taken, and which, as per the testimony of Dw-2 were the very same samples tested in the first round of testing. The fourth issue must, therefore, be understood and responded toT from, hat contextual understanding of its factual ngtrJx. \ f/ As regards the applicable proceduW in a re-testing, although such were not fully disclosed or bitterly contested ({ A by the parties, it was made clear by Dw-1 during his /\ \\ * testimony, however, that, as a matter of practice and procedure Applied by; the 1st Defendant in the course of collection of samples^one set of the sample must be left for retention purposes^ in case any need to do a re-testing arises." •) In my view, that practice, seems to be conforming to practices legally endorsed even in other jurisdictions as well. In the case of M/S J. K. Traders vs. Union of India on 5 September, 2019, for instance, Mr. Justice Rajeev Ranjan Prasad, J., of the Indian High Court, had the following to say: Page 41 of 60 "In order to have uniformity in approach ... with regard to re­ testing of samples ... Re-test should be made only on the remnants of the samples originally tested or on duplicate representative sealed samples ...In a case it may so happen that fresh samples have to ^be drawn, then such sampling^ should be done in the presence of the importer or his x representative/customs V _, broker. The<regues^vfor're-t^st of samples='6n th^\ground^that the original sample ' was not ^representative should be : entertained dnly^if the consignment )is still inGustoms control. At the \J:ime ^ ’drawing the samples, the \\ importer or his representative shall be present and certify that the samples drawn are representative. The competent authority shall consider the results of the re­ test without prejudice to the results of the first test. In case there is a variation in the results of the first test and the re-test, the competent authority shall take the Page 42 of 60 decision relying upon either of the tests specifying the grounds in writing for the decision so taken. In case the competent authority is unable to decide whether to rely upon the first or the re-test results, then it may order a second re-test provided the consignment is still within the customs control. However, this option should not be"\\ V resorted to in every ca^e; .,of \yy variation between the first teskandXX y ■\ y re-test result^'S-^. (Em phasis A 'Fx-F-X F added). F\ X x vx V That is how it.is done in.other jurisdictions such as India. In our instant-case at' hand. Dw-l and Dw-2 stated that the practice s nd "procedure'applied by the 1st Defendant in case of^e-testingxbt a sample is that, the same sample earlier^used^is td-be. used. That fact tallies with what the above citedVase/from India seems to emphasise and, consequently,^ seems to be a practice which is acceptable even in other jurisdictions. The other point drawn from the above cited Indian decision is that, the decision does emphasize that, at the time of drawing up samples the importer or his representative must be present. As I stated, earlier here above, no fact was established in this Court or any evidence tendered by the Plaintiff to show that she was absent when Page 43 of 60 the sample was drawn from the vessel by the 1st Defendant's officers. Moreover, much as this Court was not told if the Plaintiff was present when the sample was taken, this point has not been a contested issue and, Pw-1 and Pw-2 do admit that, a sample was taken or not by the 1st Defendant, this being a matter of practice. Essentially, it is trite law, as once stated by the High Court of Uganda in the case of Stanbic Bank (U) Ltd vs. Wx Xk..Z Tuka Investments Ltd & 4 Fours (Civil Suit 468 of 2013) [2017] UGCommC 119 (02 October 2017) that: "once facts\are agreeduhd or admittg^xth^;are ^oXIpnger in dispute andzare piiUout of the /i v\ A<\ 'v ^scopexjf the parties litigation". It follows, J:h^refore\that, because the issue of whether the Plaintiff Wasxpresent when the sample was taken or not was not .a' con^estedxone^such was consequently, admitted and no need to look at it any further. Th(Nast point which I pick from the Indian decision I earlier cited is that, when there is a requests for re-test of samples, the same is to be entertained while the consignment is still in Customs control and, at the time of drawing the samples (if are to be drawn afresh), the importer or his representative shall be present and certify that the samples drawn are truly representative samples. Page 44 of 60 In this present case, however, there is no doubt, as I said earlier, that, there was no re-drawing of samples from the consignment but, that, a re-testing was done while the consignment was still in the hands of the customs officials. The testimony of Pw-2 does confirm that fact since; he told this Court that, the consignment was released sometime in the end of April 2017 having paid the requisite duties. It means, therefore, that, the 2nd testing was,done while the A\ consignment was still under the customs officials if that be an acceptable practice even elsewhere asalready observed. In essence, Pw-2 did admit, as well, vyhileAnder cross examination, that, the Plaintiff paid the .required taxes on different dates depending on when the tax assessment came A, x in, and that, the l!Q°/o was; paid beyond February 2017. /\ \ Perhaps one thingxwhich needs to be considered here in relation tofthe^fourth;issue, and, taking into account the practiced haveAibted^ere above in other jurisdictions, India being the reference point at hand, is the absence of the Plaintiff-during the re-testing of the sample. Was that fatal? A.. A. 'A. ■/ In his testimony, Dw-2 testified that, in the course of carrying out the re-testing, the 1st Defendant took steps and invited the Plaintiff to take part in witnessing the re-testing. That fact is well corroborated by the testimony of Pw-1, Pw- 2 and Exh.P5 and Exh.P6. However, as per the testimony of Dw-2 and Exh.P6, the Plaintiff declined or turned down the invitation as evidenced by Exh.P6 and, consequently, Page 45 of 60 the re-testing went ahead in the absence of the Plaintiff. The absence of the Plaintiff from witnessing the 2nd testing, therefore, was an act done out of her own choice. According to the testimony of Pw-1 which was corroborated by Pw-2 and Exh.P6, the Plaintiff marshalled three reasons why she declined the invitation. First, Pw-1 stated, the Plaintiff was satisfied with the earlier test report and, second, the Plaintiff had not requested for any re­ testing of the sample and finally, that, the invitation letter {Exh. PS) did not state why was The re-testing„ being done. Even so, looking at those three reasons, I hold a view that, the Plaintiff was ill-advised^nd sin^e a fulL liberty was given to the Plaintiff to attend that 2nd testing, then she cannot blame anybody. 4\\ z x ' / I hold so because) in thejfirst place, it is a fact even in other jurisdictions, as l indicated herein earlier, that, a possibility to cdrfy out a re-test of a sample does exist. As such, re-testiog\f/sample is not an alien exercise. Indeed, even'Pwrl 'S. \ admitted, JJ that, the 1st Defendant could do a re- testing. In one Indian case of State of Kerala vs. Deepak 2001 (3) RCR (Cri) 216, for instance, the court held that, even in the absence of a specific provision, a request for sending a second sample for analysis can be allowed, if the interest of justice so requires. That fact was also acknowledged by Pw-1 in his testimony, when he stated that, a re-testing may be Page 46 of 60 necessary but held that, that could only be the case where there are good causes to do so. Well, indeed so in my view, but, was it wise for the Plaintiff to have boycotted the invitation to witness a re-testing of the sample? As I stated herein above, I do not think so. Secondly, since it was something which was done against the interest of the Plaintiff, the issuance of the notice and invitation was warranted and indeed commendable as it \\ V \ v\ was intended to do away with any ^judicesxthat) could have been harboured in the hearts of many. lt was, therefore, meant to enhancez transparency and uphold the principle of participatory justice. M=or that, matter, it would have been wise had the-R|.aintiff heeded to the invitation to /i' „ x \ y attend the re-testing\ which .-was to" be carried out by the Defendant. ' x ' v / As regards that?s£r/r.P5 did not tell the reasons why ^x\ 'V'’’ the re-testing was^being done; I do not find that to be an issue which may<have vitiated the entire exercise since, had the Plaintiff attended the call by the 1st Defendant, definitely he could have gotten the rationale for the testing. According to Dw.2 and Dw-5, the 1st Defendant had received complaints from other stakeholders, specifically from BIDCO, Murzah Wilma E.A Co. Ltd, Mikoani Detergent, and from the Ministry of Industries and Trade, hence necessitating the re-testing to clear out the doubts. In my view, the issue of not being given reasons could have been Page 47 of 60 cleared out had the Plaintiff responded positively to the invitation. From the above analysis, therefore, much as the fourth issue is responded to in the affirmative, the affirmation of it is only to the extent that the re-testing was carried out but there was no re-drawing of the sample from the Plaintiff's consignment in the absence of the Plaintiff or her representative and neither was it established in evidence that, the first sample was drawn in the absence of> the Plaintiff or his agent. \ X x“ Having stated that way-let meXmov^on' to the fifth issue which is: Whetherthe hepM-fa the 2?d testing is/was erroneous. As correctly si|bmitted^by the learned Principal State Attorney, the 2nd\Report (ExhP7) is the source of all this controversy and the case heavily relies on its validity and, henc^-its^iht^rfDfetation, which, in all fours, are matters of scientific expertise^ derived from the applicability of the \\ \\ y requisite procedures and approved standards. In this case, although the witnesses did not strictly testify as experts, even if they were asked by the Plaintiff's counsel whether they testify as experts or not, their testimonies, nevertheless, are loaded with matters that require knowledge and expertise in the field of scientific laboratory testing and calibration. Page 48 of 60 Such a fact reminds me of what Keith J.B.Rix stated in his article titled: "Expert Evidence and the Courts: The History of Expert Evidencd' (1999) Advances in Psychiatric Treatment, Vol.5, pp, 71-77. In that article by Keith, a reference was made to an old case decided in the 18th Century by Lord Mansfield, the case of Folkes vs. Chadd (1782) 3 Doug KB, 157.. The facts of that case were /l fairly simple. "A harbour had decayed? ^and the p> question was whether itjhad anything to 1 do with the demolition ©f a sea-barik X X erected to pr^entT^e^ea-oyerfldwing into some m^adows.Xhe defendants objected7 to'"* an eminent7 engineer, H A ? Thqmas'Smeaton,-being called and Lord \\ X Mansfield gealt with the objection thus: A "" "It is Objected that Mr Smeaton is going '<\td'speak, hot to facts, but as to opinion. 7 That opinion, however, is deduced from \\fact'sz which are not disputed; the \\ \j x^K^J-situation of banks, the course of tides and of winds, and the shifting of sands. His opinion, deduced from all these facts is that, mathematically speaking, the bank may contribute to the mischief, but not sensibly. Mr Smeaton understands the construction of harbours, the causes of their destruction and how remedied ... I have myself received the opinion of Page 49 of 60 Mr Smeaton respecting mills, as a matter of science. The cause of the decay of the harbour is also a matter of science, and still more so, whether the removal of the bank can be beneficial. Of this, such men as Mr Smeaton alone can judge. Therefore, we are of the opinion that his judgment, formed on facts, was proper evidence". •" - X . From such words by Lord Mansfield, there came an y.. y important statement, which, as Keith ppts it, still remains "unchallenged judgement" which is to the effect that: /-CT" -• -- x * -->> "The opinion z©f scientific men hdpon proven facts may-be giv@n by men of X\\ X/ science, within their own science." \ / z( '-'V As it may? beAdrawhVfronTthe earlier discussions zx\ p regarding the. fourth issue,^there was no doubt that a laboratory je-tesdng^f the sample taken from the Plaintiff's consignment was carried out and a second report (Exh.P7) was’Jssuectafter the issuance of the first report (Exh.P2). In \\ Vs their testimonies, however, Pw-1 and Pw-2 held a view that the second report was erroneous. They based their reasoning on the fact that, a first report (Exh.P2) had been issued and passed the sample (and hence the consignment) as " Crude Palm Oleiri'. Moreover, Pw-1 further relied on the fact that the consignment was inspected and certified by P.SGS Indonesia Page 50 of 60 who afterwards issued the Plaintiff with " analysis certificated, "quality and quantity certificated (which were collectively as Exh.P3) and that, all certified that, the consignment was that of "palm olein, fractiond, a generic description for Crude Palm Olein. Besides, Pw-1 relied on his own experience that he has been in the industry since 1998. As such, although he confessed not be an expert, he strongly maihtained that the nri K 2 report was erroneous. For his part^Pw-2 banked on the x \X,XZ fact, though not substantiated, that, the. Plaintiff has never imported refined oil and ^stated,\thefefore’;' that the consignment imported was"-crude palm olein. According to him, as per Exh.PZp^e. fatty acid ^parameter indicated ( a \\ ' "Pass", and, thus, hes held 4^yiew that, " fatty acids"(FFA) is ,/( \ \ what determines'crude palmolein consignment. With^much respect, however, since Pw-1 and Pw-2 are ■^x’x not saidlo be experts who could say without an unfeigned X^\ X'-"/ hesitation that the second test report was erroneous, I do not think what they offered in their testimony can be taken as sufficientproof that the 2nd test report was erroneous. I hold so because, first, as correctly put by Dw-1 during his cross-examination, the 1st Defendant cannot solely depend on results offered by other laboratories, including the SGS-Indonesia, the reason being that, their testing objective may not be the same and, secondly, the integrity of their results cannot be 100% guaranteed. Page 51 of 60 On the other hand, the testimony of Dw-1, Dw-2, Dw- 3, Dw-4 and Dw-5 did testify to this Court, based on course on their knowledge, professional expertise and laboratory backed results, that, the Exh.PZ was the most reliable because of the fact that, whereas the first report was based on two parameters (i.e., test regarding the % of fatty acids (FFA) and Apparent Density (AD)) to establish the status of the consignment, the 2nd Report was more reliable and its results more valid because it was based-on three parameters (i.e., % of FFA, the AD and Colour)? \ \ - *A \A In their testimonies, Dw-l and Dw-3 testified that, in determining whether the cqn^ignmentwds crude palm olein or refined, the coloui>pafameterds more stable compared to FFA which is subject to variations due to environmental factors. Indeed, Dw-3 stated that, the parameter of FFA, can be used, but the fact is that, it is unstable compared to the use of-col6ur ^parameter. As it may be observed in the 4 \ x \'- testimony of Dw-t, during the testing, the sample was observed to have a bright, dear and light yellow colour at temperature of 40°C. Dw-1 told this Court that, such a colour was a strong confirmation that the sample was refined/neutralized, bleached and deodorized palm olein as per clause 5.1.1 of Exh.D-2. He even told this Court that, upon a further subjection of the sample to 133.35 mm (S^in) Lovibond cell, the result of 4.5 R colour was obtained, and that, Page 52 of 60 upon analysis of the sample for FFA and AD (Apparent Density) as per TZS 561:2001, the results obtained were 3.01% fFFA) and 0.8977 fAD), hence the conclusion that, the product was not crude palm olein because, the obtained value for colour indicated that the product is refined, bleached and deodorized (RBD). In my view, such results cannot merely be brushed aside as invalid or unreliable since, as stated,by Dw-1, Dw-2, \> k Dw-3, Dw-4 and Dw-5, such results arevbased> on scientifically proven standards and procedure such as Exh.D.l {Tanzania Standar^s^TZS:\725' of 2004 adopted from ISO- 17^5^of^^99-:^\dc\ is general requirement forcpm^etzencex testing and calibration M « \' laboratories), and, TZS 559: 2010 -Palm Olein-Specification (a standard whic^is used injinalysing Palm Olein used for cooking oil)\ zS^and?da“rgd^ such testimonies based on scientific proof canribtebe Ignored in the absence of strong compelling reasons. Indeed, looking at them, I am again reminded of an old case of Henry Arnot and Robert Chisholme vs. John Brown and William Common [1852] UKHL 65 at p.69 where Lord Chancellor St. Leonards had the following words to say when addressing an issue related to whether a candle manufactory intended to be established in a I neighbourhood would be a nuisance or not. Page 53 of 60 In addressing the matter, his Lordship had this to say, and I quote in extenscr. "I must state to your Lordships, without any opposition ultimately as regards either party, — this matter was sent for another experiment to be made before a most scientific person, and full liberty was given to the appellants to attend that experiment with two scientific persons. It has been treatecL at your Lordships' bar asv" if^that experiment was to be%^ question qi> evidence on bottrsides. It was nonsuch thing. It was a simple question of science and of the senses M x 'x combined, —/the operation of the senses and of science upon the \\ ". person who was to test and examine, and try the experiment. g The experiment, of course, was V'/ . . performed by persons who 'understood the nature of the trade... A scientific person,... to see that the experiment was fairly conducted, scientific persons on the part of the appellants were allowed to be introduced, and the result arrived at was the most conclusive which it is possible to conceive. .. it is impossible that any Page 54 of 60 report from a scientific person could be more satisfactory than the report of Dr. Thomson. .. Then it is stated, "The report was most unexpected to the appellants, but as it was a judicial report, affording a prima facie case in favour of the respondents ...." (Emphasis added). As I considering the above quotedspeech of Lord V\ Chancellor in the context of this present suit, I do find that, although the laboratory tests conducted in; respect of the samples drawn from the Plaintiff's consignment were done by the same persons, still/Ilsee^spme^analdgy to what was stated in the above Dassage^especlayy,when one considers that, such tests were 'a simp/e 'question of science and of the senses combined, — the Operation of the senses and of science upon the person who was to test, and examine'and draw ypj2ohclusibhs.x f As it\'mayv^e observed in the Defence case, the laboratory tests were performed by persons who understood the nature of the trade and, to see that the experiment was fairly conducted, the Plaintiff or her representatives were allowed to be present and since Exh.P7 which portrays that the results arrived at were based on three parameters, it is, in my view the most conclusive unlike the Exh.P2 which was based on two parameters. The colour parameter in Page 55 of 60 Exh.P7 is the only factor that brings all the marked differences between the two tests. That being said, and taking into account the testimonies of Dw-1, Dw-2, Dw-3, Dw-4 and Dw-5 and Exh.DI and D2, I find no reasons why I should hesitate in saying that Exh.P7 was reliable and valid and in no way erroneous. The fact that it was most unexpected to the Plaintiff, does not make it erroneous but having been tabled \\ \\ in Court for judicial consideration as evidence, what it portrays is a prima facie case in favour oftheDefendants. Basically, however, once~the party bearing* the onus of proof has made out a primafaciecase,--her/his opponent is saddled with an onp&oL rebuttalXshould s/he fail to discharge that onustf rebuttal, the prima facie evidence would be regarded as/sufficient evidence for purposes of discharging the main bnusof proof. See, for that matter, the South: African caseof SenekaI vs. Trust Bank of Africa Ltd’1978 (3)' SA'375, at 382-383A. 'I=rom the foregoing discussion, it follows, therefore, that, since the Plaintiff did not counter the results of Exh.P7 by any other evidence to the contrary, it means the results of Exh.P7 were the most conclusive and were the ones to be relied upon, taking into account the testimonies of Dw-1 to Dw-5. And, as it was once stated, in Daubertvs. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993): Page 56 of 60 "in a case involving scientific evidence, 'the reliability of any scientific testimony can be evaluated by reference to its scientific validity." Perhaps one may be tempted to ask how should reliability of Exh.P7 should be evaluated or measured. The answer to that can be found in the case of United States vs. Williams, 583 F. 2d 1194, 1198 (CA2, 1978). In that case, it was stated that, the Court as a "gatekeeper" has the Vx \x role of evaluating whether the knowledge and experience /( \ }/ relied on was sufficiently trustworthy and^whdttrer such was reliably applied given the facts of the^case. ^particular, the Court stated that: \K "In testing for admissibility of a K /I particular type6of scientific evidence ... the'vcourtS'x cannot in any event ./ surrender to scientists the responsibility ' - for ’determining the reliability of that si " X evidence." "It is worth ^noting, however, that, although reliability may be.. considered as being concerned with the consistency of a measure, when such term is considered from the judicial context as here in, it refers to the evidentiary reliability— that is, trustworthiness. In the case of United States vs. Williams (supra) the Court was of the view that, one indicator of evidential reliability is the Page 57 of 60 "potential rate of errof while the other reliability indicia is the "existence and maintenance ofstandard^'. Taking into account the above persuasive judicial guidance and, considering the facts pertaining to this case, it is my views that, the testimonies of the Defendants' witnesses and the results in Exh.P7exe by far validated by the fact that, they are based on proven methodology and procedural guidelines (standards) that ensure certainty of laboratory tests' results. These include tne; Tanzania Standards TZS: 725 of2004 adbptedCfrQhKZSP- 17025 of 1999 which is generairequirementforcompetence testing and calibration la&oratdriedy^Exh.Dl}, and, TZS 559: 2010 -used irr : respect of establishing Palm Oiein- n /( Specification {Exh.DZ). y X) The whole ojk Clause 5 of Exh.Dl, for instance, gives details accbunt of technical requirements which needs to be taken into account; in order to maintain for competence testing and Calibration laboratories. Clause 5.1.1 of Exh.Dl provides therein a number of factors which determine the correctness a nd reliability of the tests and/or calibrations performed by laboratory. Clause 5.4 deals with test and calibration methods and method validation, while Clause 5.6 and 5.7 deals with measurement traceability and sampling, taking into account matters of safe handling, transport and storage to maintain integrity of tests as well as correct use of standards. Page 58 of 60 Exh.D2 on the other hand is the standard for Palm Olein specification. At its Clause 5 it provides for general quality characteristics and requirements of Palm Olein. Clause 5.1.1 deals with colour. It reads: "The colour of crude or neutralized Palm Olein shall be bright clear and deep red at temperature of 40°C. The colour of neutralized, bleached Palm Olein shall be bright clear and reddish yellow at 40°C while \?;that of\^ refined/neutralized, Jieached^ ^and^ J' deodorized, induding\ dpuble^ fractionated galm oleip shalQe bright clear and light yellow at temperature of 40°c (Czk Further stilK atXpage 5 cfExh.D2\s a reference chart indicating the-essential quality requirements for palm olein. Item 4 of it refers toxColour, 133.35mm (S^in) Lovibond, zraxand at it's; 5th column it refers to the colour of Refined, Bleatehed/Debdorized, which is 4R. Given that those are the \\ \i ■ operational guidelines and specification which Dw-1, Dw-2, Dw-3, Dw-4 and Dw-5 subscribed to in the course of carrying out the 2nd test; one cannot hold that Exh. P7 was erroneous. In view of all that has been extensively discussed herein above, the fifth issue is responded to in the negative. The final issue is in respect of the kind of reliefs which the parties are entitled to. From the four issues I have Page 59 of 60 addressed here above, it is clear that the Plaintiff has not been able to discharge her burden of proving the case on the preponderances of probabilities. Consequently, she does not deserve to be granted the prayers she has asked from this Court. In the upshot, this Court settles for the following orders: 1. That, the Plaintiffs case is herby dismissed in its entirety. ... 2. The dismissal is with, costs'to the Defendants. It is so ordered DATED AT DAR-S-SALAAM, THIS 20th DAY OF JUNE 2022 ON. DEO JOHN NANGELA __ ______________ JUDGE _^|p^Right of Appeal Explained. Page 60 of 60