CIVIL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY AT DAR ES SALAAM CIVIL APPEAL NO.26202 OF 2023 (C/F Civil Case No. 113 of 2022 in the Court of the Resident Magistrate of Dares Salaam at Kisutu ) LEO LOGISTICS COMPANY LIMITED............................................. 1st APPELLANT AMIT BHIKA..................................................................................... 2nd APPELLANT VERSUS INARA INVESTMENT COMPANY LIMITED....................................... RESPONDENT JUDGMENT Date of last order:15-8-2024 Date ofJudgment:13-11-2024 B.K. PHILLIP, J. Aggrieved by the judgment of the Court of the Resident Magistrate of Dar es Salaam at Kisutu, the appellant herein lodged this appeal on the grounds of appeal reproduced verbatim hereunder; i i) That the trial Magistrate erred in law and fact by breaching the cardinal principle of parties being bound by the pleadings in determining the suit before her. ii) That the trial Magistrate erred in law and fact by admitting documents that did not comply with the mandatory requirements provided under section 18 of the Electronic Transaction Act Cap 442 RE 2022; iii) That the trial Magistrate erred in law and fact by admitting a document tendered by a person who is not an eligible person to tender the said document. iv) The trial Magistrate erred in law and fact by admitting the affidavit of authenticity, which was previously rejected during the admission of another exhibit. v) That the trial Magistrate erred in law and fact by awarding storage costs to the Respondent without any proof. vi) That the trial Magistrate erred in law and fact by dismissing the Appellant's claims in the Counterclaim without any justifiable reasons. vii)That the trial Magistrate erred in law and in fact by holding that the Appellants breached the contract with the Respondent without any sufficient evidence and reasons. 2 viii)That the trial Magistrate erred in law and in fact by holding that the Judgment of the Temeke Primary Court in Civil Case No. 220 of 2019 settled the Appellant's claims under the Counterclaim. ix) That the trial Magistrate erred in law and, in fact by deciding that the Respondent have (sic) proved their (sic) claim on the balance of probabilities without any proof; x)That the trial Magistrate erred in law and, in fact, by failing to analyze the evidence adduced by the appellants. A brief background to this appeal is that the respondent instituted a case against the respondents claiming for payment of USD 10,253/= being refund of demurrage charges paid to the shipping line for delay of return of the container to the respondent or the shipping line, USD 3894 being forced price of purchase of the container, Payment of USD 15,590/=being loss of use of the said container, interests, general and punitive damages, and costs of the case. In their defence, the appellants denied the respondent's claims. They raised a counterclaim against the respondent, claiming for payment of USD 3,600/= being, the remaining balance of transportation costs, payment of Tshs. 29,100,000/= storage charges for the years 2020, 2021, and 2022, and payment of interest at a rate of 8% accumulated from the year 2020 up to date in USD 864. Payment of general damage to the tune of USD 5000/= or 3 as assessed by the Court, payment of interest at court rate from the date of decree and judgment to the date of full payment, and payment of costs of the counterclaim. Upon receiving evidence from both sides, the trial Court entered judgment and decree as follows; i) The plaintiff has proved her claim on the balance of probabilities and I find that the defendants are in breach of contract. ii) Payment of the sum of the USD 29,737,000 or equivalent to Tanzania Shillings being principal sum. iii) There is evidence that the container was meant for commercial purposes hence with holding the same caused loss to the plaintiff as she incurred costs to pay demurrage and was forced to purchase the container which is still in the hands of the defendants. Payment of further loss of business from the date of filing the suit at the rate of USD 21 per day to the date of delivery of container which is unjustifiably withheld by the defendants. iv)As to damages, same are awarded at the discretion of the court. Having considered all of the above, I award the plaintiff both general damages and punitive to the tune of Tshs 30,000,000/= v) Costs of the suit vi) Interest on the decretal sum at court rate from the date of Judgment until payment in full. vii) On the other side the defendants have managed to prove the claims in the counter - claim to extent of USD 3600 of the containers which was faithfully returned to the plaintiff. This I proceed to award. 4 viii) The remainder of claims in the counterclaim are dismissed. In this appeal, the learned Advocate Jerry Pasian Msamanga appeared for the appellants, whereas the learned advocate Thomas Rwebangira appeared for the respondent. The appeal was disposed of through written submissions. Mr. Msamanga argued the 1st and 9th grounds of appeal conjointly. His arguments were as follows: It is trite law that parties are bound by their pleadings as well as the courts of law. To cement his argument, he cited the case of Makori Wassaga Vs Mwanakombo and Another [1987] TLR 88 and Masaka Mussa Vs Rogers Andrew Lumenyela and 2 others, Civil Appeal No. 497 of 2021, (unreported), in which the Court of Appeal held as follows; "In the case of Makori Wassaga versus Mwanakombo and Another [1987] T.L.R 88, the Court stated that: "A party is bound by his pleadings and can only succeed according to what he has averred in his plaint and proved in evidence; hence he is not allowed to set up a new case." If we may add to what was observed by the Court in the above cited decision, it is also our observation that it is not only the parties who are bound by their pleadings but the courts are also bound by the said pleadings ofthe parties. As it is for parties in suits, who are not allowed to depart from their pleadings and set up new cases, courts are also bound by the parties' pleadings and they are not allowed to depart from such pleadings and create their own case". 5 Expounding his arguments, Mr. Msamanga pointed out that in paragraph eleven of the plaint, the respondent stated that containers were not returned within the agreed time; as a result, the respondent was penalized with demurrage charges, which were supposed to be paid to the owner of the container, Wilhelmsen Ships Service Limited, to a tune of USD 13,670/= and upon bargaining were reduced to USD 10,253/=. The invoice for demurrage (admitted as Exhibit P-4) was from Wilhelmsen Ships Service Limited and was addressed to N. R Investments Limited, not the Respondent. No paragraph in the plaint indicated that the Respondent was an N. R Investments Limited agent. Mr. Msamanga contended that it was erroneous for the trial Magistrate to rely on Exhibit P4 as proof that the respondent was penalized with demurrage charges. Also, Mr. Msamanga argued that the respondent tendered in court cheques, which were admitted as Exhibit P-6 despite preliminary objections. The cheques show that Wilhelmsen Ships Services Limited was paid by a company known as Transroad (T) Limited. No paragraph in the plaint shows the connection between the Respondent and Tansroad (T) Limited. During the examination in chief, PW-1 and PW-3 testified that Transroad (T) Ltd and Wilhelmsen Ships Services Limited are sister companies, but the respondent did not plead that. Moreover, Mr.Msamanga argued that it is a matter of principle that oral evidence cannot supersede documentary evidence. The cheques show that the demurrage charges were paid by another company known as Transroad (T) Limited. He contended that the evidence adduced by the respondent contradicts what was pleaded. Thus, the respondent's evidence regarding the payment of demurrage charges deserved to be ignored. To support his 6 argument, he cited the case of Barclays Bank (T) Limited versus Jacob Maro, Civil Appeal No. 357 of 2019, (unreported), In which the Court held that 'We feel compelled, at this point, to restate the time-honoured principle of law that parties are bound by their own pleadings and that any evidence produced by any of the parties which does not support the pleaded facts or is at variance with the pleaded facts must be ignored" Other cases cited by Mr. Msamanga with similar findings are James Funke Ngwagilo v. Attorney General [2004] TLR 161, Lawrence Surumbu Tara Vs. The Hon. Attorney General and 2 Others, Civil Appeal No. 56 of 2012; and Charles Richard Kombe t/a Building v. Evarani Mtungi and 3 Others, Civil Appeal No. 38 of 2012 (both unreported).Mr. Msamanga was emphatic that since the evidence adduced did not align with the pleadings, the trial Magistrate should have ignored it. Thus, the trial Magistrate erred in law in holding that the Respondent proved its claim on the balance of probabilities. Regarding the 2nd ground of appeal, Mr. Msamanga argued that the appellant relied on Section 18(2) of the Electronic Transaction Act, which provides mandatory factors to be considered when admitting electronic evidence. He contended that the trial Court accepted the electronic evidence tendered by PW1 and overruled the objection raised by the appellant, which had merit because the electronic evidence, that is, the email correspondences tendered by PW1, were forwarded to his email address ( capazimjafferfhjgmail.com ), 7 from another email address (simlogisticstz@amail.com ). Also, the affidavit of authenticity did not disclose how the electronic evidence was produced. The trial magistrate did not admit the affidavit of authenticity but admitted the electronic evidence in contravention of the law. To support his arguments, he cited the case of Serengeti Breweries Limited versus Break Point Outdoor Caterers Limited, Commercial Case No. 132 of 2014 (unreported). Concerning the 3rd ground of appeal, Mr. Msamanga faulted the trial Magistrate for admitting the email correspondences tendered by PW1 because they were not in his possession. Thus, he was not the right person to tender the same. Moreover, Mr. Msamanga argued that PW 1 submitted cheques and bank statements which are considered as bankers' books. The same were admitted as exhibits in contravention of Section 78 of the Evidence Act since there was no confirmation that the cheques and bank statements were made in the usual and ordinary course of business. He insisted that a copy of an entry in a banker's book, such as cheques and bank statements, cannot be admitted as evidence unless a partner or an officer of the bank orally or through an affidavit confirms that the book was made in the usual and ordinary course of business and was in the bank's custody or control. Concerning the 4th ground of appeal, Mr. Msamanga argued that the Trial Magistrate erred in admitting the affidavit of authenticity, which, following the Point of Preliminary Objection raised against its admission as an exhibit in the case on 13th June 2023, he rejected it and made ruled out that it was 8 defective. Thus, the court was functus officio. Expounding this point, Mr. Msamanga argued that during the tendering of the email correspondences, the trial Magistrate ruled out that the affidavit of authenticity was defective; however, on 27/06/2023, during the admission of the cheques, the trial Magistrate admitted that affidavit as Exhibit P8. Regarding the 5th ground of appeal, Mr. Msamanga submitted that the trial Magistrate erroneously ordered the appellants to pay storage charges/ demurrage charges amounting to USD 29737/ whereas the respondent did not tender any evidence in court to prove that it paid the claimed amount. He argued that the evidence presented in court indicated that the demurrage charges were paid by various companies not mentioned in the pleadings. For instance, the demurrage invoice dated 23/08/2019, which was admitted as Exhibit P-4, was an invoice from Wilhelmsen Ships Service Limited to N.R Investments Limited and not the Respondent. Additionally, the cheques and bank statements, which were admitted as Exhibit P-6 and P- 7, reveal that Wilhelmsen Ships Service Limited was paid by cheques by Transroads (T) Limited. The pleadings do not show the relationship between the respondent and, N.R. Investment and Transroads (T) Limited. Concerning the 6th ground of appeal, Mr. Msamanga argued that the trial Magistrate erroneously awarded USD 3600 only to the appellants and dismissed the prayer of storage charges on the ground that the same was not pleaded. In contrast, the same was pleaded in paragraphs 5 and 8 of the counterclaims. In those paragraphs, the appellant stated that they are still keeping the container and paying storage charges since the respondent 9 (the defendant in the counterclaim) maliciously did not make a follow-up of the container after it was returned. This implies that the issue of storage charges was pleaded and, therefore, it was erroneous for the trial Magistrate to hold that it was not pleaded; On the 7th ground of appeal, Mr.Msamanga refuted the respondent's allegations that the appellants did not return the container in Dar es Salaam with all relevant documents as agreed. He contended that the container was returned to Dar es Salaam, and all relevant documents were submitted to the respondent as agreed. He argued that the respondent was supposed to issue an inward equipment interchange to the appellants, which shows where the container should be taken after reaching Dar es Salaam. To date, the respondent has not issued that inward equipment interchange. No evidence was adduced to show that the Respondent issued the inward equipment interchange. On this point, Mr. Msamanga submitted that during the examination in chief, it was shown that the documents handed over to the Appellants were Exhibits P-1 and P-2. Looking at Exhibit P-2, particularly the Equipment Interchange receipt. The bottom right-hand side of the equipment interchange receipt shows the color of copies to be handed to different people. The top copy, which is green, is left with the port's agency (TICTS), the yellow one is handed over to the shipping line, the white copy to the vehicle's driver, and the blue copy to the security officer. The orange copy is handed over to the customs department. During the examination in chief, PW-1 tendered a white copy of the equipment interchange which was handed over to the vehicle's driver. Mr. Msamanga went on to submit that the question that arises here is: Where did the respondent get the white 10 equipment interchange, which the driver usually keeps if the relevant documents were not delivered to them as stated by the appellants? Mr. Msamanga believed that the response to that question was that all documents were returned to the respondent. Still, the Respondent could not issue an Inward Interchange on reasons best known to her and her shipping line, thus breaching the agreement. Had the plaintiff issued the Inward Interchange, the container would have been delivered to the designated place. To cement his arguments, he referred this court to the testimonies of DW-1 and DW-2. Mr. Msamanga maintained that it was evident that the respondent's duty was to issue an Inward Interchange receipt so that the appellants could deliver the container to the designated place. Concerning the 8th ground of Appeal, Mr. Msamanga submitted that, looking at Exhibit P-10, the parties to the suit filed at the Primary Court were the 2nd Appellant and the Respondent only. The 2nd Appellant filed the suit in his capacity as the person who transported the fourth container subject to the suit that was before the Primary Court. No evidence was adduced to show that the 2nd appellant filed the suit on behalf of the 1st appellant. Not only that but also, the container subject to the suit at the primary court had some transportation barriers, such as the said container being overloaded, which led to the 2nd appellant being delayed at the port. This increased the charges such as waiting charges, offloading charges, driver's allowance, and storage charges. Other containers did not face any transportation barriers. This evidences that the suit at the primary court was concerned with the 2nd li Appellant's claims and not the whole claim for the four containers. Also, the decretal sum was paid to the 2nd Appellant, not the 1st Appellant. He maintained that it was erroneous for the trial Magistrate to hold that Civil Case No. 220 of 2019 settled the Appellant's claims under the Counterclaim. Concerning the 10th ground of appeal, Mr. Msamanga argued that the evidence adduced during the trial showed that the trial Magistrate erred in holding that there was a breach of the agreement between the parties, yet the evidence adduced by the appellants was not considered. In rebuttal, Mr. Rwebangira conceded to the position of the law that parties are bound by their pleadings. However, he pointed out that the pleadings should be taken as a whole and not in pieces. He submitted that the trial magistrate cannot be faulted for admitting the evidence of an invoice issued against the third party. The invoice for demurrage for failure to return of the empty container was issued to N. R. Investment Ltd, the owner of the goods. However, the liability to return the empty container falls on the clearing and forwarding agent, who, under customs rules and regulations, guarantees the return of the cleared container upon delivery of the cargo. That is why if the empty container is not returned to the shipping line, customs may suspend or revoke the license of the clearing and forwarding agent. Mr. Rwebangira argued that the issue was not the invoice or payment of demurrage charges but the issue is who was responsible for the non-return of the empty container to the shipping line. As such, the invoice came After default; it was not in dispute that the empty container had not been 12 returned. Transroad (T) Limited was involved only in paying demurrage for and on behalf of the respondent. The number of containers in the exhibits tendered in court by the respondents are similar. Payment may be made for and on behalf of another party. There is no harm for a third party to pay for and on behalf of the person with liability. He was emphatic that Exhibits P6, P7, and P8 evidence the payment for demurrage. Demurrage was negotiated through email (exhibit P-5) and was reduced from USD 13,670/= to USD 10,252/= duly paid. The issue was whether the demurrage was paid or not. Since demurrage was paid and an un-returned empty container was purchased, It does not matter who paid. Further, Mr. Rwebangira argued that even if the trial Magistrate could not have considered exhibits P4 and P6 as contended by Mr.Msamanga, the appellants could not be exonerated from liability of non-returning the empty container, which they admitted in their joint written statement of defense. He maintained that the trial court's affirmative answer to the 1st issue cannot be faulted since the appellants admitted in their written statement of defense that the empty container was not returned. On the 2nd ground of appeal Mr. Rwebangira argued that the law, as it stands now, there is no requirement of the affidavit authenticating document produced electronically. The witness being under oath and having made the foundation of the document he/she wishes to tender, that has been taken to be enough. The oral evidence suffices to prove the authenticity of the email produced electronically. Exhibit P5 was produced by PW-1, who was 13 on the email route, and evidence was given by PW-3 (Azim Niza Jaffer), owner of the email address ( capazimjaffer@gmail.com); hence, exhibit P.5 was authentic. The affidavit for the authenticity of the email correspondence was not mandatory. To support his arguments, he cited the case of Mohamed Enterprises ( Tanzania) Ltd Vs. Tanzania Railways Corporation, Civil Case No. 7 of 203 ( unreported). Mr. Rwebangira maintained that the witnesses, PW-1 and PW-3, laid down the foundation for the authenticity of the email produced in court, and the Court was satisfied it was in order. To cement his arguments, Mr. Rwebangira referred this court to the case of Euro Games Technology Ltd Vs Evergreen Investment Develop.Co.Ltd (Starcity Casino) Commercial Case No. 74 of 2023, ( unreported) in which the court held as follows; "The new provision is found under Section 29(2) of the Legal Sector Laws (Misc. Amendments), Act No. 8A of2023 that amended Section. 18(2) of the ETA by deleting the word "admissibility" it means that from the time the amendmet came into force the data message sought to be tendered in evidence may be tendered without subjecting them to the reliability requirement prior to its admission in evidence. They will be subjected to reliability test during weighing or evaluation of evidence and not at admission stage. That is the task of the court not the witness. In lieu of the amendment cited it is thus not mandatory to do reliability tests at admission stage. It may be good to do so but it is not mandatory" 14 (emphasis is added) Mr. Rwebangira maintained that procedural laws act retrospectively. Thus, the old position requiring laying down a foundation as to how the date message was stored and reproduced is no longer valid, given the amendment of the Electronic Transactions Act. Concerning the 3rd ground of appeal, Mr. Rwebangira contended that Mr. Msamanga's submission is not specific. Documents admitted in evidence are known as exhibits and are numbered. In his submission, Mr. Msamanga did not mention which exhibit he was referring to. However, he pointed out that, generally, the documents tendered by PW-1 as cheques and bank statements were in the possession of the witnesses and belonged to the company they were employed. To cement his arguments, he cited the case of DPP V. Mirzai Pirbakhshi Hadji and others , Criminal Appeal No. 493 of 2016, ( unreported) in which the Court of Appeal held as follows:, "/I person who at one point in time possesses anything, a subject matter of trial, as we said in KRISTINA case, is not only competent witness to testify, but he could also tender the same. It is our view that it is not the law that it must always be tendered by a custodian, as Initially contended by Mr. Johnson- The test for tendering the exhibit, therefore, is whether the witness has the knowledge and possessed the thing in question at some point in time, albeit shortly. So, a possession or a custodian or an actual owner or like are legally capable of tendering the intended exhibit in question provided he has the knowledge of the thing in question." 15 Mr. Rwebangira was of the view that since PW-1 was in possession and custodian of the said document was a competent witness to tender it. On the 5th ground of appeal, Mr. Rwebangira submitted that demurrage invoice, (exhibit P.4 ) was issued in the name of the owner, one N. R. Investments Ltd of Lusaka, Zambia- This was a consignee for container- DRYU Rise 9892801 of 40'. The details in the invoice tally with the details in the Bill of Lading ( Exhibit Pl). The particulars of container No. DRYU 9893801 is recorded on the documents.In this case the respondent was the clearing and forwarding agent of the said N. R. Investment Ltd. It was the duty of the clearing and forwarding agent to make sure that the cleared container is transported and returned to the shipping line. Upon failure to return the empty container, the liability falls upon the agent, and if not cleared, the license of the clearing and forwarding agent shall be subjected to suspension. He argued that it is not harmful to a third party to pay for the liability of another person or entity. What matters is the purpose of payment. Expounding on this point, Mr. Rwebangira pointed out that the appellant does not dispute that the demurrage was charged and paid due to the delay of the return of the container DRYU 9893801. What is disputed is who paid. This is not a good defence because the delay attracts demurrage. The appellants have not given the reasons as to why, up to today, the container was not returned. 16 Regarding the dismissal of some of the appellants' claims in the counterclaim, Mr. Rwebangira was of the view that the same was proper. He argued that the appellants were entitled to be paid USD 1,200/= for one container because, according to the respondent's evidence, the balance of the three containers was USD 3,600/=, which was paid upon the return of the container to the shipping line. Since the trial Magistrate made a finding that the defendants were the ones who breached the contractual terms, then they were not entitled to anything at all. This is because a party should not benefit from his wrong. The condition precedent of payment of the balance on the transportation agreement was upon the return of the empty container. Since the appellants failed to return the empty container, they were not entitled to payment. As such, the counterclaim was dismissed correctly, contended, Mr. Rwebangira. Concerning the 7th ground of appeal, referring this court to pages 15-16 of the impugned judgment, he argued that the concern raised by Mr. Msamanga in this ground of appeal has no merit and has been well elaborated in the impugned judgment. He pointed out that there is no dispute that there was an oral agreement for the transportation of the container. Further, there is no dispute about the terms of payment. As it is evident, the payment terms were that the respondent would pay an advance amount, and the balance was supposed to be paid after the return of empty containers. From the evidence, advance payment was duly made, and the goods were delivered. Three of the four containers were returned, but one was never returned; according to the appellant's evidence, they never 17 returned the container since they were not paid the balance; this was stated in their pleadings. However, during the hearing, they testified that they did not return the container due to the respondent's failure to give them relevant documents, such as inward interchange. Mr. Rwebangira contended that parties are bound by their pleadings. In their written statement of defense, the appellant stated they did not return the container because the respondent did not pay the remaining balance of USD 1,200, the off-loading charges, and the demurrage charges for the shipping line. Nowhere in the pleadings, the appellant alleged that the container was not returned because the respondent did not issue an inward equipment interchange to the appellants. Moreover, Mr. Rwebangira submitted that PW1 testified that the Equipment Interchange OUT or IN is issued by the Shipping Line and verified by the Customs Officer. Equipment Interchange OUT Receipt (Exhibit P-2) is issued when the container is taken from the Port or Custom Bonded Warehouse. Upon return of the empty container, the Shipping Line issues the Equipment Interchange IN Receipt to the driver as proof of return of the container. This is a very document that could have been presented to the respondent for purposes of payment of the balance of USD 1,200/= on transportation charges. The respondent does not issue an Equipment Interchange IN Receipt, which is why there is no Equipment Interchange IN Receipt in the court's record because the container was not returned. Mr. Rwebangira contended that the appellant missed the knowledge and practical experience of customs services. The correct procedure is that an Equipment Interchange IN Receipt cannot be issued before the container is 18 container has been returned to the Shipping Line. The Receipt proves that the empty container has been returned and supports the claim for the balance. No one can obtain an Inward Receipt before the container is returned. With regard to the effect of the Judgment of Temeke Primary Court in Civil Case No. 220 of 2019, Mr. Rwebangira argued that it did not settle the appellant's claim under the counterclaim but covered the appellant's claims, though it was obtained fraudulently. It was an ex-parte judgment obtained by taking advantage of the respondent's negligence to defend the case and appeal thereof. Further, Mr. Rwebangira argued that since it was admitted that the transportation contract was for four (4) containers, then the institution of the suit at Temeke Primary Court and its conclusive determination bars another suit to be filed under Section 9 Explanation IV of the Civil Procedure Code. The appellant was claiming under the same title, and in the counterclaim claim, the 2nd appellant was also a party, whereas he was also a party in the previous suit arising from the same contract of transportation. He pointed out that suing by instalments is not allowed under the doctrine of res judicata. To support his argument he cited the case of Ester Ignas Luambano Vs. Adriano Gedam Kipalile, Civil Appeal No. 91 of 2014, (unreported] in which the court held as follows; Re judicata is a fundamentaflegal doctrine that there must be an end to litigation. The objective is to bar multiplicity of suit and guarantees finality of litigation. 19 Mr. Rwebangira cited another case with a similar holding: Peniel Lotta vs Gabriel Tanaki and others (20031 TLR 312). He was of the view that in the case at hand case, the appellants filed a joint counterclaim without separating their reliefs since they have a common interest in the subject matter. The Courts have been reluctant to adjudicate upon a second case, trying in another way to bring the same issue arising in the same transaction already determined by another court. He cited the case of Kamunye and others Vs. The Pioneer General Assurance Society Ltd (1071) EA 263 to cement his argument. In concluding his submission, Mr. Rwebangira argued that the grounds of appeal have mainly attacked the admissibility of some documents without Addressing the issues framed and decided upon by the trial Magistrate. The trial Magistrate could have been faulted for the determination of the framed issues, but all in all, even if the attached documents are excluded, which is disputed, still the appellants shall be held liable for breach of the transportation contract for failure to return the empty container to the Shipping Line as it was agreed, failure of which the respondent was penalized to pay demurrage and forced to purchase the container. Furthermore, Mr. Rwebangira pointed out that the appellants had not appealed against the whole decree. The grounds of appeal are reliefs (1), (2), and (8) only. Since there is no appeal with respect to reliefs (3), (4), (5), and (6), he urged this court to leave them intact as decreed by the trial court. He contended that the appellants are barred from challenging those reliefs through the rejoinder submission and prayed the appeal to be dismissed with costs. 20 In rejoinder, Mr. Msamanga reiterated his submission in chief. He implored this court to ignore the contention made by Mr. Rwebangira that the liability to return empty containers falls on the clearing and forwarding agent because that is a statement from the bar. It is not pleaded. He contended that Mr. Rwebangira is barred from providing such explanations in his written submissions. He argued that under the circumstances of this case, the respondent was supposed to plead her relationship with the company that paid the demurrage charges, the failure to do so, influenced the entire decision made by the trial court. The invoices and cheques do not demonstrate a direct connection or clear link between the respondent and the claimed storage costs. Consequently, the award for storage costs was speculative and deserved to be rejected. On the trial Court's findings in respect of the first issue, Mr. Msamanga contended that in determining the first issue, the trial Magistrate made her findings by considering documentary evidence that was neither pleaded in the plaint nor brought before the court properly. Such an oversight resulted in a significant injustice to the Appellants, as the reliance on un-pleaded evidence unduly influenced the outcome of the case to their detriment. On the requirement of affidavit of authencity when tendering in Court electronic evidence, Mr.Msamanga argued there are two schools of thought. Some decisions agree that an affidavit of authentication is mandatory whereas others are of the view that it is not mandatory. To cement his argument he cited the case of Serengeti Breweries Limited versus Break point Outdoor Caterers Limited, Commercial Case No. 132 of 21 2014, ( unreported). Also, he contended that PW 1 did not lay a foundation that meets the conditions set in the case of Serengeti Breweries Limited (supra). Regarding the third ground of appeal, Mr.Msamanga contended that his arguments were specific. They were in respect of the email correspondences tendered by PW 1, which were not in her possession, as they were forwarded emails originating from a different email account.Mr. Msamanga submitted that the case of Mirzai Pirbakhshi ( supra) is irrelevant in the present circumstances because the facts in the cited case differ from the present case. Mr. Msamanga refuted Mr. Rwebangira's contention that the allegation of payment of demurrage was not disputed. He submitted that under paragraph 9 of the Written Statement of Defence, the Appellants disputed the contents of paragraph 11 of the plaint on allegations of payment of demurrage. Concerning the Civil Case instituted by the appellant at Temeke Primary Court, Mr. Msamanga argued that the case was filed by the 2nd appellant alone, who had his claims against the respondent. It is evident that the 1st respondent's claims were not covered; hence, file the counterclaim. Madam Judge, With regard to Mr. Rwebangira's arguments in respect of the doctrine of re-judicata, Mr. Msamanga submitted that the issue was raised by Mr. Rwebangira as a point of preliminary objection and was dismissed on, among other grounds, that the parties in the former suit are different from those in 22 the present suit. Thus, the Counterclaim was found not to be resjudicata. Having analyzed the rival arguments made by the learned Advocates appearing herein, let me determine the merit of this appeal. I shall start by dealing with the 2nd,3rd, and 4th grounds of appeal together since all are concerned with the admission of exhibits. Then, I will deal with the 1st, 5th, 7th, 9th, and 10th grounds of appeal together. Finally, I will deal with the 6th and 8th grounds of appeal conjointly. First, I agree with Mr. Rwebangira that the current position of the law is that the tendering of a certificate of authenticity concerning electronic evidence is not required. What is essential is for the witness tendering the document to lay the foundation on how that document was retrieved from the computer or machine while he is under oath. [See the case of Euro Games Technology Ltd (Supra )]. Regarding Mr. Msamanga's concern that the email correspondences ( Exhibit P5), were wrongly admitted for the reason that the same was forwarded to PW1 from another email address, I find it lacks merit because Exhibit P5 consists of a series of email correspondences in which more than one person was involved in the discussion, and PWlthe one who tendered Exhibit P5 was among them. In some of the emails, he was being copied, and in others, he was responding/ communicating himself directly. Under the circumstances, PW1 was a competent witness to tender exhibit P5. Concerning the admission of the Cheques (Exhibit P6), PW1, who once had the cheques, was competent to tender the same. I agree with the trial 23 court's order overruling the objection raised against the admission of the cheques since the banker's book envisaged in section 78 of the Tanzania Evidence Act does not include cheques. After all, cheques are issued to customers and always are under the customer's custody. They are submitted to the banks for encashment. Mr. Msamanga raised two concerns regarding the statement of account (Exhibit P7). One is that the Affidavit of Authentication of Exhibit P7, which was admitted as Exhibit P8, was wrongly admitted since the court had already ruled out in the previous session in its ruling that the same was defective. Thus, it was functus officio's reverse its ruling and admit it as Exhibit P8. The Court's records reveal that Exhibit P8) was sworn in respect of the email correspondences, the cheques (exhibit P6), and Bank statements (Exhibit P7); on 1st June 2023, the trial court ruled out the affidavit was defective, and on 27th June 2023 it admitted it as exhibit P8. I agree with Mr. Msamanga that the court was functus officio as it had ruled out that the same was defective. However, being the first appellate court, this court has the power to examine all the orders/rulings and exhibits admitted by the trial court. I have read the affidavit, which is the subject of this appeal. I am of the opinion that the trial court's order that the same was defective was wrong since the affidavit states the relevant information required for the authentication of electronic evidence. In its order, the trial court did not state the defect in the affidavit. Therefore, it is the finding of this court that the affidavit (exhibit 8) is proper. Regarding Exhibit P7 (the bank statement), I am not inclined to agree with Mr. Msamanga that PW1 was not competent to tender evidence for Exhibit P7 because he was in possession of the same and had personal knowledge of 24 its contents. Concerning the 7th ground of appeal, on whether there was a breach of contract, I think it is apposite to mention here that the contract between the parties was oral. That is why each party comes with his/her version of the terms of the contract. The appellant alleged that they agreed the costs for transportation of the goods would be paid in advance and that the remaining amount would be paid upon delivery of the goods in Zambia. Further, the appellant alleged that the container was not handed over to the respondent because of the failure to pay the remaining transportation costs. The empty containers have been left under the custody of the appellant, which attracts storage costs. In contrast, the respondent alleged that the appellant breached the contract by failing to return the empty container to the shipping line or the respondent. The transportation costs were supposed to be paid upon delivery of the goods in Zambia and return of the empty container to the respondent. The evidence from both sides reveals that three containers were returned to the respondent, and one container was not returned to either the respondent or the shipping line. It is still under the custody of the appellant. In their written statement of defense, the respondents averred that the container was not returned because the last payment of the agreed transportation costs was not paid and is still outstanding. From the foregoing, I think it is opportune to point out here that the proof of civil cases is on a balance of probability. In the case of Ernest Sebastian Mbele Vs. Sebastian Sebastian Mbele and two others, Civil Appeal 25 No 66 of 2019, (unreported), the Court of Appeal discussed what it means to prove a case on the balance of probabilities and had this to say; "The law places a burden ofproof upon a person "who desires a court to give judgment" and such a person who asserts the existence of facts to prove that those facts exist (section 110 (1) and (2) of the Evidence Act, Cap. 6). Such fact is said to be proven when, in civil matters, its existence is established by a preponderance ofprobability (see section 3 of the Evidence Act, Cap. 6.) It is in that respect, in Godfrey Sayi V Anna Siame as Lega Representative of the late Mary Mndoiwa, Civil Appeal No. 114 of 2012 (unreported) we said "it is similarly common knowledge that in civil proceedings, the party with legal burden also bears the evidential burden, and the standard in each case is on a balance ofprobabilities" Proof on a preponderance of probabilities was well explained by the Supreme Court of India, and we seek inspiration, in the case of Narayan Ganesh Dastane V Sucheta Nayaran Dastane (1975) AIR(SC) 1534 that: - "The normal rule which governs civil proceedings is that a fact can be said to be established if it is proven by a preponderance of probabilities. This is for the reason that... a fact is said to be proven when the court either believes it to exist or considers its existence so probable that a prudent man ought to act upon that supposition that it exists. A prudent man faced with conflicting probabilities concerning a fact supposition that the fact 26 exists if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the Court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range, of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance ofprobabilities lies." ( Emphasis is added) As alluded to earlier, there are two conflicting positions on what did the parties agree on the payment of the remaining balance of transportation costs. One, the appellant was supposed to hand over the container to either the appellant or the shipping line and then receive the balance for the transportation costs. Two, the respondent was supposed to pay the remaining balance and take the empty container. Applying the principle laid down in the case of Ernest Sebastian Mbele I find the appellant's allegation that the appellant was required to pay the remaining balance upon delivery of the cargo in Zambia is probable since the contract was basically for the transportation of the Cargo to Zambia. The appellant was being paid to deliver the cargo in Zambia. By delivering the cargo in Zambia the appellants discharged their task. The evidence on record shows that the respondent paid the advance payments for all four containers but did not pay the remaining balance of USD 1200/= per 27 container. However, the unpaid balance for the 4th container was paid in execution of the judgment of Temeke Primary Court. The respondent has not adduced any evidence to prove the payment of the remaining balance for the three containers, (USD 3,600/=). Thus, since the respondent did not pay the remaining balance for the transportation costs for the remaining three containers and by keeping the container in question, the appellant did not breach any term of the contract, bearing in mind that the record shows that the appellant transported all four containers and the invoices were all issued in the respondent's name. The respondent did not discharge its responsibility for paying the remaining transportation costs; that is where the problem started. Concerning the 1st- 5th,9th- and 10th grounds appeal, I have noted that all of them are concerned with analyzing and evaluating the evidence adduced. Mr. Msamanga argued that there was no proof of breach of contract and payment of demurrage charges since evidence adduced (Exhibits P6,P7,P4) shows that the invoice for payment of Demurrage was addressed to a different company and the payment of the same was made by a different Company, not the respondent. Mr. Rwebangira did not dispute that the respondent did not pay the amount claimed in the main case. However, he argued that there is nothing wrong under the law for the respondent's bill to be settled by a third party. What is essential is that the demurrage charges regarding the unreturned container were paid. He insisted that if a container is not returned, the agent is responsible, and her license can be suspended in case of default to clear the problem. The pertinent question that arises is; the fact that the invoice for demurrage 28 charges was not addressed to the respondent, payment for the same was made by a third party [Tansroad (T) Ltd], and the relationship between the third party who paid the demurrage charges and the respondent was not pleaded fatal? It is a common ground that parties are bound by their pleadings. Not only that, even the court has to decide a case based on the pleadings as proved by the evidence adduced by the parties before the court. One of the justifications for this legal principle is that during the hearing, the other party should not be taken by surprise. In the case of Masaka Mussa (supra) cited by Mr. Msamanga, the court held as follows; "In the case of Makori Wassaga versus Mwanakombo and Another [1987] T.L.R 88, the Court stated that: "A party is bound by his pleadings and can only succeed according to what he has averred in his plaint and proved in evidence; hence he is not allowed to set up a new case." If we may add to what was observed by the Court in the above cited decision, it is also our observation that it is not only the parties who are bound by their pleadings but the courts are also bound by the said pleadings ofthe parties. As it is for parties in suits, who are not allowed to depart from their pleadings and set up new cases, courts are also bound by the parties' pleadings and they are not allowed to depart from such pleadings and create their own case". In this case, the evidence adduced shows that the invoice (exhibit P4) for the amount claimed by the respondent is addressed to M/S N.R. Investments 29 Ltd of Zambia, and exhibits P.6 and P7 (the Cheques and Bank Statement, respectively) show that Transroad (T) Ltd made the payments of the claimed amount. The email correspondence (exhibit P5) between PW1 and other people who were involved in the issue of an unreturned container and claimed demurrage indicates that PWl's email as transroadtz@gmail.com, which shows that PW1 was communicating on the issue of demurrage as an officer from Tansroad, Company which paid the demurrage charges ( exhibit P6 and P7). The evidence adduced does not support what is pleaded as far as the payment of demurrage is concerned. With due respect to Mr. Rwebangira, I am not inclined to agree with him that it does not matter who paid the demurrage. So long as the respondent alleged in the plaint that an invoice was issued to her and settled it, she needed to prove her allegation aforesaid instead of coming up with a different narration that a third party was issued with an invoice for demurrage and another third party paid the same on her behalf. I agree with Mr. Msamanga that it was important for the plaintiff to plead adequately what transpired and the justification for the respondent's case to give the appellants room to respond fully to the respondent's claims. Explanations on the relationship between Transroads (T) Limited and N.R. Investment, and the responsibility of the respondents in making sure that the empty container is returned and the negative consequences made by Mr. Rwebangira in his submissions are not evidence [see the case of Sabry Hafudhi Khalfan Vs Zanzibar Telecom, Civil Appeal No. 47 of 2009 and Godbless Jonathan Lema Vs Mussa Hamis Mkanga, Civil Appeal No. 4 of 2012 ( both unreported)], but also they are not part of the pleadings, thus cannot be of any help to the respondent 30 under the circumstances. It is worth noting that exhibits P4, P5, and P6 show that the respondent did not pay demurrage charges, and therefore, it follows that the respondent is not justified to claim a refund of the money she did not pay. Let me make clear that, a third party can pay on behalf of a debtor, but there should be facts pleaded in the plaint to that effect and evidence to support the same. In the case Gloria Irira Vs. Sudi Mrisho Ngwambi and two others, Civil Appeal No.27 of 2021, (unreported), the Court of Appeal said the following; "... In civil cases, parties are bound by their own pleadings, and not allowed to travel beyond their pleadings. in Civil cases, parties to the litigation are the ones who set up the agenda ...It is for the purpose of certainty and finality that each party is bound by its own pleadings. For this reason, a party cannot be allowed to raise a different case from that which it has pleaded without due amendment being made." On the fate of the evidence adduced at variance with the pleadings court had this to say; ''Since the pleadings are the basis upon which the claim is founded, it is settled law that parties are bound by their own pleadings and that, any evidence adduced by any of the parties which is not based on or is at variance with what is stated in the pleadings must be ignored' (emphasis added) From the foregoing, this court finds that the trial court erred in law in 31 considering Exhibits P7, P6, and P5 on the payment of demurrages concerned with the third parties not pleaded. It was supposed to ignore them. In conclusion, I agree with Mr. Msamanga that the claim for a refund of demurrage charges was not proven. No evidence was adduced to prove that the respondent paid the demurrage charges as alleged in the plaint. Concerning the 6th and 8th grounds of appeal, it is not in dispute that the 2nd appellant instituted a case at the Primary Court of Temeke at Temeke against the respondent herein claiming for payment of unpaid costs for transportation of the respondent's cargo to Zambia, costs for delay of the movement of the container caused by the respondent and storage charges of the container. In its judgment (Exhibit PIO), the primary court of Temeke granted all of the 2nd appellant's claim and ordered the respondent to pay the 2nd appellant herein a sum of Tshs.l6,351,000/=, and the court decree was executed. Thus, the 2nd appellant was paid his money. Before going further, I think it is opportune to point out here that, at the trial court, the respondent raised a point of preliminary objection that the counterclaim was resjudicata. The trial court held that the counterclaim was not res judicata and proceeded to determine the matter. In his response to the 6th and 8th grounds of Appeal, Mr. Rwebangira raised the arguments on res judicata again. I agree with the ruling made by the trial court that the counterclaim was not res judicata because the parties' claims before the primary court were different. There is nowhere in the Primary Court judgment indicating that the 2nd appellant filed the case on behalf of the 1st 32 respondent. The claims at the Primary Court were in respect of one container transported to Zambia by the 2nd respondent himself, not the 1st appellant. In the counterclaim, the 1st respondent claims unpaid costs for transporting three containers. The 1st respondent's case is that the first oral contract involved three containers, and the last one was between the 1st appellant and respondent, involving one container, which was the subject of the case that was filed at the Primary Court by the 2nd appellant. It is noteworthy that the trial court granted to the appellant an order for payment of the USD 3600/= by the respondent being the remaining balance of transportation costs and dismissed the appellant's claims for payment of storage charges for the container, interests, damages, and costs for the counterclaim. Notably, there is no cross-appeal against the aforesaid order for payment of USD 3600/=. Thus, Mr. Rwebangira's argument that the counterclaim was res judicata was raised out of context and unwarranted. I have pointed out earlier in this judgment that I agree with the appellant's stance that the remaining purchase price was supposed to be paid upon delivery of the cargo in Zambia and that the appellants were justified to remain with the container because the respondent did not pay the balance of the transportation costs as agreed. It follows, therefore, that the appellant deserves to be paid storage charges as the container is still in their custody, thus incurring costs in keeping it and payment of general damages. Additionally, Mr. Rwebangira's contention that the appellants did not appeal against the entire degree entered by the trial court and that the grounds of appeal are in respect of reliefs number (1) (2) and (8) only is misconceived because the reliefs prayed by the respondent are interconnected and all 33 depend on relief No. (1) which is a declaration that the appellants breached the transportation contract. In other words, the answer to the issue of whether or not the appellants breached the transportation contract is the determinant factor of the remaining reliefs because if it is found that the appellants did not breach the transportation contract, then the remaining reliefs automatically collapse. In this appeal, the appellants challenged the trial court's finding that they breached the transportation contract, which means they were challenging the entire decree of the lower court. In fine, I hereby order that the respondent shall pay the appellants USD 29,100,000/=, being storage charges for the container for the years 2020, 2021, and 2022, general damages to the tune of USD 2000/=, interest on the decretal sum at the rate of 8% from the date of filing the counterclaim to the date of judgment, and interest on the decretal sum at the court rate of 7% from the date of Judgment to the date of payment in full. The following orders made by the trial court are hereby set aside; i) The appellants are in breach of contract. ii) Payment of USD 29,737,000 or equivalent to Tanzania shillings to the respondent by the appellants. iii) Payment of USD 21 per day to the date of delivery of the container to the respondent by the appellants. iv) Award of general damages and punitive to the tune of Tshs. 30,000,000/=. v) Costs of the suit 34 vi) Payment of interest on the decretal sum at the court rate from the date of judgment until payment is made in full. The respondent shall bear the Costs of this appeal. Dated at Dar es Salaam this 13th day of November 2024 35