JUDGMENT OF LVC COMPANY

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA CIVIL CASE NO. 20 OF 2022 CASE REFERENCE NO. 20221109000460272 LVC COMPANY LIMITED .............................................................. PLAINTIFF VERSUS IMANI ANDONGOLILE MWAISUNGA ................................... 1ST DEFENDANT JACKLINE STEPHEN MASANGULA as co- Director of HDA COMPANY LIMITED ......................................................2ND DEFENDANT HDA COMPANY LIMITED ......................................................3RD DEFENDANT JUDGMENT Date of hearing: 17/5/2024 Date of judgment: 6/8/2024 NONGWA, J. The plaintiff has filed this suit against the defendants for payment of Tsh. 319,361,187.34 for loss of profit, Tsh. 191,616.712.40 as lost VAT benefit on purchase and Tsh. 249,101,726.12 as lost VAT on sale, exemplary and punitive damage to be assessed by the court, costs of the suit and any other reliefs. Brief summary of the case albeit goes thus, the plaintiff is the company dully incorporated under the laws of Tanzania dealing in purchase of minerals explosives. The first defendant is the mining engineer and a holder of blasting certificate licensed to obtain, acquire or purchase explosive from the Ministry of Energy and Minerals. The second 1 defendant is the wife of the first defendant and the director of the third defendant which also deals in purchase of minerals explosives. It is alleged that sometimes in 2019 the plaintiff entered into contract of employment with the first defendant whereby by the blasting certificate of the first defendant would be used to obtain permit from the Ministry of Energy and Minerals for purchase and sale of explosives. In 2022 the plaintiff discovered that in the course of his employment, the first defendant fraudulently by using the name of the plaintiff entered into business with their client Nitro Explosive (T) Ltd in favour of the third defendant and payment was made in personal account No. 0152308443000 opened with CRDB bank Plc. This necessitated the plaintiff to hire the auditor to conduct assessment which revealed that between 2021 to June 2022 the first defendant using the name of LVC Company and blasting certificate, sought and acquired several licenses Ministry of Energy and Minerals, obtained storage magazine No. 00013535 and 00013537 to purchase or acquire explosives from Nitro Explosive (T) Limited which were not recorded in the LVC magazine register and not remitted in its bank accounts. As the result the plaintiff instituted this suit for the aforementioned reliefs. The defendants filed joint written statement of defence in which they disputed each and every allegation save that the first defendant was 2 the holder of blasting certificate. In addition, it was stated that there was no limitation on the use of the blasting certificate. Compulsory mediation failed necessitating the suit to go for full trial, during final pre-trial conference parties agreed on the following issues; 1. Whether the first defendant is an employee of the plaintiff; 2. Whether the first defendant breached fiduciary duty as employee of the plaintiff to purchase or acquire the nitro explosives without the authority of the plaintiff; 3. Whether there is breach of contract between the parties which occasioned loss to the plaintiff; 4. Whether the second Defendant was co shareholder of the third defendant; 5. Whether the defendants jointly and severally without authorization of LVC Company using blasting certificate no. 00008809 sort and acquired several licenses to purchase or acquire explosives from Nitro Explosive (T) Ltd; 6. Whether the Defendants occasioned loss to the plaintiff at a tune of Tshs. 760, 076, 625.86 inclusive of loss of profit, VAT benefit on purchases and VAT loss on sales; and 7. What are the reliefs the parties are entitled to. 3 During hearing the plaintiff had the service of Ms. Jalia Hussein, learned advocate and Mr. Ibrahim Athuman who joined the force during defence. The defendants were jointly represented by Ms. Joyce Kasebwa, also learned advocate. To prove the case the plaintiff lined three witnesses Leopard Gervas Bulondo (PW1), CPA Idris Shauya (PW2) and Anna Florence Bulondo (PW3) and had nine documentary exhibits, blasting certificate of Iman Andongolile Mwaisunga (exhibit P1), Report of HDA Company from BRELA (exhibit P2), Proforma invoices of HDA Company (exhibit P3), conversation between PW1, Elis and Nitro Explosive Finance manager (exhibit P4), email communication (exhibit P5), WhatsApp communication between PW1 and first defendant (exhibit P6), licenses/permits to purchase and acquire explosives (exhibit P7), Tax invoices from Nitro Explosive (T) Ltd to (exhibit P8) and delivery note from Nitro Explosive (T) Ltd to LVC (exhibit P9). PW1 was the first plaintiff witness who testified that he was the director of the Plaintiff, LVC Company which deals with importation of explosives and started its activity in 2019 after being registered. That the company’s activity depends on having mining engineer with blasting certificate, so in 2019 they employed the first defendant through the contract dated 30/6/2019 which was admitted in evidence as exhibit P1 4 and that as an employee he was not allowed to perform duties with any other company dealing with explosives (baruti) using his blasting certificate. PW1 went on to state that the company was doing business based on advice of the first defendant until when they noticed all was not going well mainly after receiving complaint from their customer. They called the meeting at Dar es Salaam but the first defendant refused to attend instead through email dated 19th September 2022 PW1 received resignation letter from the first defendant. That according the employment contract, the first defendant was supposed to issue three months notice or one month salary in lieu of notice. PW1 continued to narrate that, in the meeting they wanted to discuss the complaint they had received from one of their customers in south Africa that they issued HDA company limited proforma invoice instead of LVC proforma invoice. PW1 stated that when they made inquiry, they discovered it was issued by Jackline Masangula the wife of Iman Andongolile Mwaisunga and the payment were to be made to the account of Iman Andongolile Mwaisunga held at CRDB. Further evidence from PW1 was that they went to BRELA to see who are the true owners of HDA company and found that the owners of the company are Iman Andongolile Mwaisunga and Jackline Stephen Masangula a thing that 5 confirmed that their business of selling explosives was not going well because the first defendant was diverting the LVC business and sending to HDA, and all sale proceeds were being deposited in his personal account. PW1 added that they communicated with their customer Nitro Explosives (T) Limited who availed them with all the details of transaction from January 2021 to June 2022 which revealed the plaintiff was buying explosives from them a thing which was not correct. PW1 said further inquiry noticed that all sells done to LVC from January to December 2021, permit from mining office Mbeya region allowed them to sell those explosives to LVC and blasting certificate of Iman Andongolile Mwaisunga is the one used to buy all the permits from the office of Mining Ministry Mbeya Region. PW1 went on to testify that after discovering the problem, they appointed the auditor who upon the investigation discovered that purchase was being done by HDA company in the name of LVC with purpose of avoiding taxes which established that HDA avoided VAT Tshs. 191,616,712.40 which LVC company is indebted to TRA. That purchases that were not done by LVC has lost VAT Tshs. 249,101,726.12 and LVC got loss in profit if they could have sold those explosives from Nitro Explosive (T) Ltd of Tshs. 319,361,187/=. In total PW1 testified the 6 company got loss of Tshs. 760,079,625.86/= as per purchases from Nitro explosives done by Iman Andongolile Mwaisunga. Taking the case further PW2 testified that he was hired by the plaintiff to conduct special audit on procurement and documents relating to procurement process of LVC for the period from January 2021 to June 2022. PW2 narrated that upon investigation he discovered improper procurement processes which caused loss and the company got loss of Tshs. 760,790,625.86, that is loss of sales Tsh. 319,361,187.34, loss on tax evasion on purchases Tshs 161,616712.40 and VAT on sales Tshs 249, 101,726.12. PW2 stated that whatever business the plaintiff was doing was to be done through Iman Andongolile Mwaisunga as escorter of the materials to the Ware house of the company, he tendered sale invoices from Nitro explosives to LVC, exhibit P7 collectively and Tax invoices, exhibit P8 collectively. Last from the plaintiff was PW3, who testified that she is the shareholder in the plaintiff and the first defendant was their employee on permanent basis but resigned unprocedural in September 2022. That she came to know loss after she checked sale and purchase of the company which was Tshs 760,790,625.86 being loss from sales Tshs 319,361,187.84, Purchase VAT 191,616,712.40 and Sales VAT, Tshs. 249,101,726.12. PW3 said the company was forced to file this suit. PW3 7 stated that after the institution of the case the first defendant went to Dar es Salaam to apologise and seek the case to be withdrawn but they could not settle as the case was in court. This marked end of plaintiff’s case. In defence three witnesses, the first defendant testified as DW2, second defendant (DW2) and one George Godfrey Wandiba from Mining Commission Mbeya Region as (DW3). Substance of DW1 evidence was that he was the dealer in mining and explosives and the second defendant was his wife and the director of HDA company. He said that he joined HDA company in August 2022. DW1 denied to know the plaintiff and to ever been employed by her, however he accepted that his blasting certificate was sometimes used by the plaintiff. The first defendant further denied the claim and all exhibits tendered by the plaintiff. On her part, DW2 testimony was that she was the co-director of HDA company established in 2020 and DW1 joined in 2022. That DW1 was being used by Mr. Bulondo in processing the purchase permit. DW2 added that there was no report showing DW1 had diverted LVC profit to HDA company. Overall DW2 dismissed the claim by the plaintiff. DW3 testified that as mining engineer is involved to process applications and issuing mining license, exploring mining, and mining business, to collect government revenues, issuance of permit for exporting and importing minerals. He admitted to know LVC company 8 which deal with business of selling and distributing explosives (baruti) to miners. DW3 testified that procedure to issue permits, starts with submitting application form for the permit sought, they scrutinise the applicant and see if the applicant is a person who is a blaster. He added that Iman Andongolile Mwaisunga, as a Blaster of LVC used to go to their office holding documents of LVC and later on opened another company. That exhibit P7 was a permit issued to LVC company Limited for buying explosives from Nitro Explosive Mbeya and was to be escorted by Iman Andongolile Mwaisunga. After the closure of the defence case and marking end of hearing both parties, counsels prayed and were granted chance to file final submissions. However, the substance of submissions will not be reproduced here but reference to it will be made when dealing with the specific issue. Starting with the first issue whether the first defendant was the employee of the defendant. In the joint written statement of defence, it was disputed that the first defendant was not employed by the plaintiff, to prove the plaintiff through PW1 produced contract of employment, which although objected was received as exhibit P1. During defence although presence of employment was disputed it was admitted by DW1 and DW2 that the first defendant was working for the plaintiff. 9 In plaintiff’s final submission it was argued that under paragraph 2 of the WSD it was admitted that the first defendant worked for the plaintiff from 2019 to 2022 and cited the case of James Funke Gwagilo vs Attorney General [2004] TLR 161 on the principle that parties are bound by pleading. Counsel submitted that employment relationship between the plaintiff and first defendant was proved by evidence of PW1, PW2 and PW3 together with exhibit P1, further that the first defendant wrote a resignation letter. Further submission was that DW3 admitted to know the first defendant as the plaintiff’s blaster. In short it was submitted that evidence of the plaintiff was heavier than that of the defendants on the first issue. For the defendants on the first issue, counsel referred to section 4 and 15 of the Labour Relation and Employment Act together with section 110 of the Evidence Act to argue that the plaintiff did not prove existence of employment relationship. It was submitted that contract of employment, salary pay in slip, deduction from TRA, NHIF and NSSF or PSSF was not tendered. It was contended that exhibit P1 was not signed by the first defendant, although noting that it was admitted without objection but counsel was quick to point that it was not conclusive evidence. 10 I have revisited the pleadings as filed by both parties, evidence in record and considered final submissions of both parties. I agree with counsel for the plaintiff that parties are bound by their pleadings and no departure can be made without dully amendment. See Maria Amandus Kavishe vs Norah Waziri Mzeru & Another, Civil Appeal No. 365 of 2019 [2023] TZCA 31 (20 February 2023; TanzLII). In this case under paragraph 2 of the WSD it was pleaded that the first defendant was working with the plaintiff until his resignation. This in my view is clear admission that there was employment relationship between the two. What seems to be the hot spring is the contract of employment not being signed by the first defendant, which in my view is not ipso fact of establishing employer-employee relationship. Contract of employment may be oral or written or by conduct although having written employment contract is more advisable for purpose of informing the employee his duties, obligation and other rights of parties to such contract. Even assuming that the first defendant was not employed by the plaintiff his act to write resignation letter from employment, when considered in all four corners, it proves that he was on employment of the plaintiff. I agree that the contract of employment, exhibit P1 is not signed by the first defendant but from the pleading and evidence adduced by 11 PW1 and PW2 together with that of DW2 and DW3 it answers the first issue in affirmative that the first defendant was the employee of the plaintiff. Coming to the second issue whether the first defendant breached fiduciary duty of employment. In final submission by the plaintiff, reference was made to evidence of PW1 and clause 6.3 of exhibit P1 that the first defendant was not required to do similar activities of the plaintiff for purpose of conflict of interest. To mould the point counsel pointed that exhibit P7 which was unknown to the plaintiff was escorted by the first defendant. Further that per evidence of DW3 the same was processed by the first defendant using his blasting certificate and taken to third defendant. Citing the case of Miller vs Minister of Pension [19937]2 All ER 372 through words of Lord Denning on when burden of proof is said to be discharged, counsel was convinced that the plaintiff had proved. The counter part had opposite view, apart from submitting that the first defendant was not employed by the plaintiff for fiduciary duty to have existed, counsel submitted that all exhibits of purchase was in the name of the plaintiff as the buyer from Nitro explosives (T) Ltd and not the first defendant. The court was referred to section 61 of the Labour Institution Act on presumption of employee and the case Chandu Popat vs Bharat K. Ruparelia, Land Case No. 36 of 2011 [2018] TZHC 2522 (21 March 12 2018; TanzLII) in which the court stated to prove breach of fiduciary duty the plaintiff must show existence of fiduciary relationship. Counsel insisted no fiduciary duty was breached by the first defendant. From the above, the term ' fiduciary duty' has been defined in the Black's Law Dictionary, 9th Edition, Wes Publishing Co. 2009 at page 581 to mean; ‘a duty of utmost good faith, trust, confidence, and candor owed by a fiduciary (such as a lawyer or corporate shareholder); a duty to act with the highest degree of honesty and loyalty toward another person and in the best interests of the other person (such as the duty that one partner owes to another).’ In the case of Joseph Shumbusho vs Mary Grace Tigerwa & Others, Civil Appeal No. 183 of 2016 [2020] TZCA 1803 (6 October 2020; TanzLII) the court cited the decision of Supreme Court of India in the case of Central Board of Secondary Education and Anr. v. Adiya Bandopadhyay and Others (2011) 8 SCC 497 in which Ravindeeran, J. explained the term 'fiduciary’ and 'fiduciary relationship’ in the following words; ‘The term "fiduciary" refers to a person having a duty to act for the benefit of another, showing good faith and candour, where such other person reposes trust and special confidence in the person owing or discharging the duty. The term ‘fiduciary 13 relationship' is used to describe a situation or transaction where one person (beneficiary) places complete confidence in another person (fiduciary) in regard to his affairs, business or transaction(s). The term also refers to a person who holds a thing in trust for another (beneficiary). The fiduciary is expected to act in confidence and for the benefit and advantage of the beneficiary, and use good faith and fairness in dealing with the beneficiary or the things belonging to the beneficiary. If the beneficiary has entrusted anything to the fiduciary, to hold the thing in trust or to execute certain acts in regard to or with reference to the entrusted thing, the fiduciary has to act in confidence and is expected not to disclose the thing or information to any third party.’ From the above, fiduciary duty can be simply explained as a legal and moral responsibility through which one person is saddled with a duty of loyalty, good faith and honesty and to always act in the best interests of another person or group. Under fiduciary law it has been stated by various commentaries and cases that it is very had to single out feature of fiduciary duty or relationship, however, it is agreed that existence of dependency or vulnerability between the beneficiary and the fiduciary is common to all forms. See the decision of the supreme court of Canada in the case of Lac Minerals Ltd. v. International Corona Resources Ltd., 1989 CanLII 34 (SCC), [1989] 2 SCR 574 (CanLII). 14 At hand it has already been ruled that the plaintiff and the first defendant had employment relationship and therefore the first respondent had fiduciary duty to act in the best interest of the plaintiff. The dispute in this case arises on the use of the blasting certificate. While the plaintiff testified that the blasting certificate was not supposed to be used to other companies dealing with similar works, and relied in clause 6.3 of exhibit P1. The first defendant testimony was that there was no limitation to the use of the blasting certificate. Having ruled that the first defendant had fiduciary duty toward the plaintiff, it is my view that the blasting certificate could not be used to other companies dealing with similar works to that of the plaintiff as it has negative impacts on the business and put in jeopardy a duty of loyalty; duty of good faith; and to the duty of honest thus bring conflict of interest. A question that arises is whether there was breach of such duty in this case, the plaintiff’s evidence was that the blasting certificate was being used in the third defendants works in which the first defendant is a shareholder. Ordinary the employee is not required to engage, perform or establish similar business to that of the employer, as it has effect of bringing the conflict of interest, the employee would choose personal gain over duties to his employer, 15 or to an organization in which he is a stakeholder, or exploits his position for personal gain in some way. While in this case the plaintiff managed to prove that the first defendant was a shareholder of the third defendant, it was evidence of DW2 that the first defendant joined the third defendant in 2022 the fact which was not proved, that is to say there was no documentary proof that the first defendant became the shareholder of third defendant in 2022 after had resigned from employment of the plaintiff. Thus, the first defendant being on employment with the plaintiff and at the same time being a shareholder in the company which deals with business and activity similar to that of the plaintiff, the first defendant breached the fiduciary duty to the detriment of the plaintiff. I therefore answer the second issue in affirmative. Coming to third issue whether breach of contract occasioned loss to the Plaintiff. Counsel for the plaintiff submitted that while employment of first defendant with the plaintiff subsisted, through exhibit P2 it was proved that had shareholding in third defendant which deals also with minerals exploitation. This, counsel argued the first defendants conducted business which was in conflict with operation of the plaintiff leading to the loss of Tsh. 760,790,625.86/=. 16 The defendants’ final submission was that there was no bind contract on part of the first defendant and the court was referred to the case of Fabec Investment Limited vs Mes International Financial Services (PTY) Limited & another, Commercial Case No. 7 of 2022 [2023] TZHCComD 33 (23 February 2023; TanzLII) in which the court stated breach of contract arises from binding agreement which is not honored by one party either by non- performance or interference with the other party’s performance. Most part of submission was on exhibit P1 not being signed by the first defendant and thus not the employee of the plaintiff. Further that the resignation letter was informing the plaintiff that the first defendant did not wish to work as casual basis. Counsel for the defendants concluded that there was no breach of contract. From the discussion of the first and second issues in which it has been resolved that there was employment contract between the plaintiff and the first defendant and that the first defendant had fiduciary duty toward the plaintiff and the first defendant is a shareholder in third defendant, it follows that possibility of occasioning loss is highly. As to the loss suffered by the plaintiff will be discussing when dealing with issue number six. 17 The fourth issue is whether the second defendant is the co- shareholder of the third defendant. In final submission in support of this issue, Ms. Jalia relied on exhibit P2 and evidence of DW2 which he said proved that the second defendant was a co-director in HDA company. For the defendants it was submitted that plaintiff was not sure who were the directors of the third defendant apart from relying of BRELA extract. Further that the second defendant was a director since it established in 2020 and the first defendant joined in 2022. From the WSD by the defendants there was no dispute that the second defendant is the director in HDA company. The same was proved by extract from BRELA exhibit P2 which shows who are directors of the company and oral evidence of DW1 and DW2 which established unequivocally that the second defendant is the shareholder and director of the third defendant. Therefore, the fourth issue is answered in affirmative. The above takes me to issue number five, whether the defendants jointly and severally without authorization of LVC Company using blasting certificate no. 00008809 sort and acquired several licenses to purchase or acquire explosives from Nitro Explosive (T) Ltd. Through final submission, Ms Jalia submitted that the first defendant was a shareholder in third defendant conducting 18 mining activities which conflict with that of the plaintiff. That through evidence of PW2 it was established that a total loss of Tsh. 760,790,625.86/= was occasioned after the first defendant has obtained purchase permits, exhibit P7 in the name of the plaintiff and blasting certificate of the first defendant and tax invoices exhibit P8 issued by Nitro Explosive(T) Ltd containing purchases of explosives. Counsel submitted that DW3 in his evidence was clear that the transaction was being done by the first defendant. According to the plaintiff counsel, this was done by the first defendant in corroboration with the second defendant maliciously by using the name of the plaintiff to buy the explosives for the benefit of third defendant. It was submitted that there was no evidence from the third defendant in form of proforma invoices, tax invoice and purchase permits in the name of the third defendant that he transacted any business with Nitro Explosive(T) Ltd. To bolster the point counsel referred to extract on the commentary in Sarkar’s Laws of Evidence, 18th Edition M.C Sarkar, S.C and P.C Sarkar, Published by Lexis Nexis on burden of proof. For the defendants, Ms. Kasebwa submitted that there was no link on blasting certificate of the first defendant being used by the second and third defendant and the purchased from Nitro 19 Explosive(T) Ltd. Counsel argued that tax invoices, delivery notes, licence permit tendered in court were all in the name of the plaintiff, the first defendant being the escorter. She added that no witness from Nitro Explosive(T) Ltd came to prove that purchase was done by the first defendant and the store keeper that the purchased explosive did not reach the plaintiff’s magazine. According to Ms. Kasembwa, it was not proved that explosives from Nitro Explosive (T) Ltd was purchased without authorization of PW1. Upon my perusal of the pleadings and evidence, the catch word in this issue is authorization. The term authorization can be defined to mean to give official permission for something to happen, or to give someone official permission to do something. According to evidence of PW1 the plaintiff did not transact any business between January 2021 to June 2022 that are exhibit P7 and P8. However, there is no evidence that the first defendant work was to be done upon instruction or authorization of officials of the plaintiff or that the first defendant was involved an any way with the plaintiff’s clients. Even going through licences to purchase and acquire explosives, exhibits P7 there is no any evidence showing that it was signed by the first defendant. In my view the plaintiff was required to parade evidence that licence to purchase and acquire explosives from Nitro 20 Explosive (T) Ltd was to be done upon an instrument authorizing the first defendant to process the permit to purchase explosives. No concreate evidence to differentiate those permit and purchase authorised and those not from which the court can gauge that permit was obtained without the plaintiff authorising and in that it was done so for the purpose of benefiting the defendants. The six issue is whether the defendants occasioned loss to the plaintiff at a tune of Tshs. 760, 076, 625.86 inclusive of loss of profit, VAT benefit on purchases and VAT loss on sales. Ms. Jalia in her submission stated that there were no tax invoices, purchase permits or sale record that the third defendant purchased explosives from Nitro Explosive (T) Ltd. Counsel argued exhibit P7 was clear that the first defendant used the name of the plaintiff to purchase explosives from Nitro Explosive (T) Ltd without knowledge of the plaintiff which resulted to the loss of Tsh. 760,790,625.86/=. Ms. Kasebwa on her part submitted that the plaintiff had failed to prove the loss and that there was no connection between the plaintiff and the defendants. She added that there was no proof that proceeds of sale was being deposited in the personal account of the first defendant considering that all permits and purchases were in the 21 name of the plaintiff. To this it was submitted that the plaintiff had failed to prove the case to the required standard. On my part the claim of Tshs. 760, 076, 625.86 inclusive of loss of profit, VAT benefit on purchases and VAT loss on sales which falls under the head of specific damages which must be specifically pleaded and strictly proved. In Harith Said Brothers Company vs Martin Ngao [1981] TLR 327, at p. 332, the court held; ‘Unlike general damages, special damages must be strictly proved. I cannot allow the claim for special damages on the basis of the defendant's bare assertion, when he could, if his claim was well founded easily corroborate his assertion with some documentary evidence.’ Through the pleading, oral evidence and exhibits tendered, the claim by the plaintiff is Tsh. 760,790,625.86/= being the specific damages, in the first place, the plaintiff pleaded the amount claimed as required by the law. The question lies with the second slot, “must be strictly proved”, the plaintiff relied on exhibit P7 issued to the plaintiff to purchase explosives from Nitro Explosive (T) Ltd, exhibit P8 tax invoices, together with deliver note, exhibit P9. PW1 testified that purchases of the third defendant were issued in the name of LVC with purpose to avoid taxes. The same was stated by 22 PW2 who conducted the audit and established the said loss however, the audit report was not introduced in evidence but tendered tax invoices, exhibit P8. According to PW1, PW2 and PW3 avoided VAT by HDA is Tshs. 191,616,712.40, lost VAT is Tshs. 249,101,726.12 and loss of profit it has sold explosives from Nitro Company Tshs. 319,361,187/= the total being Tshs. 760,079,625.86. The defence evidence was just denial. But evidence of DW3 was that exhibit P7 permit issued to the plaintiff for purchasing explosives from Nitro Explosives (T) Ltd being escorted by the first defendant. At hand while the plaintiff was content that purchase was being made by the third defendant in its name and payment paid in personal account of the first defendant, there was no evidence showing that payment was actually made and was being deposited in the CRDB account No. 0152308443000 in the name of the first defendant. That is to say while the plaintiff through P7 succeeded to establish that the purchase was requested to the Nitro Explosive (T) Ltd as per proforma invoices and payment to be made vide tax invoices but there was no evidence that such amount was exactly paid. The plaintiff relied on tax invoices which is not evidence of payment Faced with what evidence is required to prove specific damage when loss of profit in the case of Ami Tanzania Limited vs Prosper Joseph 23 Msele, Civil Appeal No. 159 of 2020 [2021] TZCA 668 (TANZLII) faced with the akin situation the court stated; ‘We are of the similar view that, in the absence of receipts, bank transfers of money or letters of credits by the respondent to the supplier of the cargo, the invoice cannot be taken to be the proof of payment as it was a mere advice of the amount to be paid, it was a mere bill.’ While the plaintiff alleged that was indebted VAT of Tsh. 191,616.712.40 to TRA on the pocketed purchase, there was no evidence from TRA official or documentary proof that the plaintiff was indebted to TRA Tsh. 191,616,712.40/= as unpaid VAT return from exhibit P8. Regarding the diverted payment, no bank statement of CRDB account No. 0152308443000 in the name of the first defendant was tendered to show that the first defendant was the beneficially of payment from Nitro Explosive (T) Ltd as claimed by the plaintiff. These were vital evidence in my view which could help to establish the loss alleged to have been suffered by the plaintiff. The plaintiff seems to place weight on exhibit P3 proforma invoice between HDA company Limited and MMG, which shows it directed payment to be made in CRDB account of the first defendant but still there is no proof such business materialised as there is no delivery note, tax invoices and bank statement. Further there is no 24 evidence that MMG was the customer of the plaintiff. This suffices to hold issue number six in negative that loss of Tsh. 760,790,625.86/= has not been proved by the plaintiff. The last issue is to what reliefs are parties entitled to. Without going to final submission of the parties, flowing from the discussion of earlier issue, the plaintiff has failed to prove her claim hence not entitled any reliefs. In the end the suit stands dismissed, owing to how issues has been resolved each party to bear own costs. V.M. NONGWA JUDGE 6/8/2024 Dated and Delivered at Mbeya this 6th August 2024 in presence of the parties and Ms. Joyce Kasebwa for the defendants and Ms. Jalia Hussein and Mr. Ibrahim Athuman for the Plaintiff. V.M. NONGWA JUDGE 25