EDEN PARK TANZANIA LIMITED VS TANZANIA BREWERIES PUBLIC LIMITED COMPANY 2025 TZCA 57 17 February 2025

IN THE COURT OF APPEAL OF TANZANIA AT DQPOMA (CORAM: KEREFU, J.A., FIKIRINI. J.A. AND MASOUP, 3.A.) CIVIL APPEAL NO. 225 OF 2022 EDEN PARK TANZANIA LIMITED...............................................APPELLANT VERSUS TANZANIA BREWERIES PUBLIC LIMITED COMPANY................................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Commercial Division, at Dar es Salaam) (Magoiga, J.) dated the 11th day of March, 2022 in Commercial Case No. 02 of 2021 JUDGMENT OF THE COURT 17th & 21st February, 2025 MASOUP, 3.A.: In the High Court of Tanzania, Commercial Division, at Dar es salaam, the respondent filed a suit against the appellant. Consequently, the appellant filed a written statement of defence opposing the suit and raised a counterclaim against the respondent. The suit by the respondent was in the end resolved ex-parte against the appellant, following her failure to file witness statements for her three witnesses within 14 days of the completion of final pre-trial conference. As a result, the witness statements that were purportedly filed were struck out as per the ruling of the trial court dated 18lh February, 2022. The suit involved three purchase orders that were issued by the respondents to the appellant. They were Orders No. 002266 dated 29th March, 2016 for the supply of 5000 pallets worth TZS 4,077,900.00; No. 093692 dated 30th August, 2016 for the supply of 2000 pallets worth TZS 191,160,000.00; and No. 099017 dated 19th December, 2016 for the supply of 10,000 pallets worth TZS 937,628,000.00, which were all pleaded and tendered in evidence at the trial by Mahsen Zahoro (PW1) in exhibit Pl(a) and (b), exhibit P3(a) and (b), and exhibit P6(a) and (b) respectively, without being objected to by the appellant. It was alleged that the respondent had mistakenly ordered and paid to the appellant a sum of TZS 300,000,000.00 on 7th December, 2016 in respect of two purchase orders out of the three believing the same to be an advance payment for supply of wooden pallets which had already been paid in full. In relation to the mistaken order and payment made, it was alleged that the appellant had failed to refund the sum despite being demanded to do so by the respondent. With regard to the supply of wooden pallets that were ordered by the respondent and paid for in full, it was pleaded that the appellant failed to supply the quantity of pallets ordered as per the purchase orders. There was in such respect therefore an outstanding sum of Tzs. 306,733,080.00 which the respondent ought to have been refunded on account of the appellant's failure to deliver the actual quantity of the pallets that correspond with the advance payment of TZS 654,000,000.00 made on 23rd December, 2016. As a result, the failure amounted to a breach of contract in respect of which the respondent claimed for TZS 606,733,080.00. In addition to the above exhibits which consisted of proforma invoices and purchase orders, the hearing of the suit saw PW1 tendering a number of other exhibits in a bid to substantiate the allegations on the breach of the agreed terms and failure to refund the amount unmistakenly paid to the respondent as captured in his witness statement found at page 226 through 232 of the record of appeal. The exhibits tendered included exhibit P4(a)-(c) consisting of three tax invoices and three goods received notes (exhibit P4 (a)-(c)) at page 510; and exhibit P2 (1)-(16) consisting of 16 tax invoices and 16 goods received notes at page 509 of the record of appeal evidencing pallets delivered to the respondent and accordingly invoiced by the appellants. The trial court framed three issues for determination. The first issue was whether there was a mistake of fact in the payment made in the favour of the appellant by the respondent. The second issue was whether the defendant fully discharged her obligations in the supply of wooden pallets ordered by the respondent. The third and last issue was to what 3 reliefs the parties are entitled. Resolving these issues, the trial court found in favour of the respondent as pointed out above. In the results, the appellant was ordered to pay the appellant a total sum of TZS 606,733,080.00 including interests and costs. As the appellant was unsatisfied by the trial court's decision, she lodged an appeal before this Court consisting of three grounds of appeal which essentially sought to challenge the decision that ordered the matter before the trial court to proceed ex-parte against her as well as computation of time limitation in filing witness statement. However, when the instant appeal was called on for hearing, Mr. Helmes Marcell Mutatina, learned advocate appearing for the appellant prayed, without objection from Mr. Augustine Rutakolezibwa, learned advocate for the respondent, for the leave of the Court, of which we granted, to abandon the grounds of appeal that were earlier on lodged in lieu of a new ground. The same was to the effect that the trial court erred in law and facts to hold the appellant liable for an aggregate sum of TZS 606,733,080.00 while there was no evidence adduced in the trial court to support the claimed sum. In his length submission in support of the appeal, all what Mr. Mutatina was saying is that, firstly, there was a variance between the pleadings, framed issue and the evidence that the respondent led at the trial; and secondly, the contents of exhibits relied upon by the trial judge 4 in his judgment vary significantly with those which were admitted in evidence. Accordingly, there was no evidence establishing the respondent's claim and justifying holding the appellant liable for an aggregate sum of TZS 606,733,080.00. Strengthening his argument, Mr. Mutatina referred us to page 6 of the record of appeal where the appellant is identified as Eden Park Tanzania Limited whilst the trial judge at page 536 of the record of appeal relied on exhibit P5(b) and (c) in his bid to answer the first issue against the appellant notwithstanding that the said exhibit contradictorily showed that the alleged sum of TZS 300,000,000.00 was credited to one, Eden Park, who according to him is not the appellant. Thus, exhibit P5 (b) and (c) cannot, the learned counsel argued, be used to establish that the sum was credited to the appellant's account as it bears a different name not belonging to her. Whilst capitalizing on the purchase orders, Mr. Mutatina argued in relation to the second limb of his submission that the said orders in terms of their contents discussed by the trial judge at pages 537 and 358 of the record of appeal run short of proving the quantity of wooden pallets that were allegedly supplied by the appellant contrary to the agreed terms. We understood Mr. Mutatina as simply saying that, the quantity of wooden pallets indicated in the purchase orders was quite different from the quantity that the trial judge concluded that they were supplied by the appellant against the agreed terms. It was the learned advocate's submission that, the finding that the appellant did not supply the right quantity of wooden pallets agreed upon is unsupported by the evidence on the record. We were in the end, invited to find merit in the ground of appeal raised and proceed to allow the appeal with costs. In response, Mr. Rutakolezibwa said that the concern as to the names of the appellant was not raised at the trial when the exhibits were tendered as they were all admitted without any objection from the appellant. As such, the appellant, the learned advocate argued, cannot at this stage be heard complaining about the exhibits evidencing payments made in her favour bearing the name "Eden Park' instead of "Eden Park Tanzania Limited' which he did not object at the trial in order to weaken the evidence that the respondent mistakenly paid the appellant TZS 300,000,000.00 on 7th December, 2016. Mr. Rutakolezibwa extended the above line of argument to the other limb of the submission by the appellant's advocate, arguing that the very purchase orders that the learned advocate for the appellant is complaining about were as is with the other exhibits not objected to at the trial by the appellant. With those arguments, Mr. Rutakolezibwa invited us to find that the appeal was devoid of merit and dismiss it with costs. 6 We have scrutinized the record of appeal in relation to the submissions by the learned counsel for parties. We did so in the light of the issue whether there was evidence adduced by the respondent to support her claim and hold the appellant liable for the claimed sum of TZS 606,733,080.00. Our starting point was the complaint that the exhibits evidencing that the appellant was mistakenly paid the money does not support that allegation because they bear a name that does not belong to the appellant, namely, "Eden Park' instead of "Eden Park Tanzania Limited." Having perused the record, we are unable to disagree with the arguments advanced by the respondent's advocate against the complaint. We are of the above view because it is clear that when all exhibits were being tendered in evidence, none was objected to by the respondent. To make it worse, there is no cross-examination on the names that was conducted by the appellant on the said exhibits. As if the above is not enough, in the counterclaim at page 121 through 124 of the record of appeal as well as in all proforma and tax invoices appearing on the record issued by the appellant to the respondent, the appellant named herself in short as "Eden Park' as opposed to her full and complete name of "Eden Park Tanzania Limited" The tax invoices evidencing the fact that the appellant was using "Eden Park" interchangeably with her full and complete name of "Eden Park Tanzania Limited' were with other documents collectively admitted in evidence as exhibit Pl(a) and (b), exhibit P2 (1)-(16), exhibit P3(a) and (b), exhibit P4(a)-(c), exhibit P6(a) and (b), exhibit P8 (1)-(13). For these reasons, we find the complaint by the appellant is of no avail and it must accordingly fail. On the other issue relating to the mismatch between the quantity of wooden pallets indicated in the purchase orders and the quantity of the wooden pallets supplied, our starting point was the relevant part of the judgment that was being faulted by the counsel for the appellant which is at page 537 through 538 of the record of appeal. Having thoroughly looked at it, we think there is nothing on the basis of which we can fault the finding of the learned trial judge. We say so because of the following reasons: One, it is clear to us that the finding by the learned trial judge was informed by exhibits on the record and in particular, exhibits P2, exhibit P4, exhibit P5(a-b) and exhibit P8 which consisted of tax invoices and goods received notes that evidenced the transaction conducted, the price involved, actual quantity of the wooden pallets delivered to the respondent on diver dates and the corresponding invoices issued by the appellant. Of significance, exhibit P5 (a-c) as well as exhibit P7 which were all not at all controverted by the appellant as correctly observed by the learned trial judge at page 536 of the record, evidenced payments made in favour of the appellant. Two, the argument by the counsel for the appellant only capitalized on the purchase orders without having regard to the other exhibits evidencing the pallets that were actually delivered to the respondent and invoiced. We think that had the learned counsel understood the import of a purchase order in commercial transaction and took into account the other exhibits on the record, he would not have raised the argument. We are of the above view because while the purchase orders contained in exhibit Pl(a) and (b), exhibit P3(a) and (b), exhibit P6(a) and (b) indicated the quantity of wooden pullets ordered, and the total price involved among others, the invoice and goods received notes evidenced the pallets that were delivered to the respondent and invoiced for by the appellant which invoices and goods delivery notes are collectively contained in exhibit P2 (1-16), exhibit P4 (a-c), and exhibit P8 (1-13). We have no doubt in our mind that the finding by the learned trial judge as to the shortfalls of the quantity of the pallets that were actually supplied was mindful of such exhibits. We are satisfied that the finding of the learned trial judge in the end that the respondent proved her case on a balance of probabilities, and on the basis of the evidence before him is justified in the circumstances. See for instance, Mathias Erasto Manga v. M/S Simon Group (T) Limited, (Civil Appeal No. 43 of 2013) [2014] TZCA 281(19 March 2014). In view of the foregoing deliberations and findings, we do not find merit on the ground of appeal raised by the appellant. Consequently, the appeal before us is devoid of merit and it is hereby dismissed with costs. It is so ordered. DATED at DODOMA this 21st day of February, 2025. R. J. KEREFU JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL B. S. MSOUD JUSTICE OF APPEAL The Judgment delivered this 21st day of February, 2025, in the presence of Mr. Helmes Marcell Mutatina, learned counsel for the Appellant and Mr. Augustine Rutakolezibwa, learned counsel for the Respondent both linked via video conference from Dar es salaam, is hereby certified as a true copy of the original.