Manfred Lazaro Makota

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB REGISTRY) AT MOROGORO CIVIL APPEAL NO. 50239 OF 2024 {Arising from smaii ciaim Number 3020/2024 before the Curt ofthe Resident Magistrate Court ofMorogoro at Morogoro) MANFRED LAZARO MAKOTA............ APPELLANT VERSUS FAHAD MOHAMED SALEHE T/A DOTCO PETROL STATTON RESPONDENT Date of Last Order: 05.02.2025 Date of Judgement: 28.02.2025 JUDGEMENT MAGOIGA. J. The appellant, MANFRED LAZARO MAKOTA dissatisfied with decision of the Resident Magistrate Court (the trial court) which entered judgment and decree against appellant in favour of the respondent by granting, among others, specific and general damages in relation to the alleged mismanagement and loss of petroleum worth Tshs. 66,560,365/=. The appellant was then station manager of the respondent responsible for the consignment and sale of the petroleum products at Nzega district. Dissatisfied, the appellant preferred this appeal armed with seven grounds, couched In the following language: - 1. That the trial Magistrate erred in iaw and facts for deciding the matter in in favor of the respondent herein basing on the contradictory evidence ofthe respondent 2. That the triai Magistrate erred in iaw and facts by introducing new facts in thejudgmeht which were not adduced during hearing^- '- 3. That the triai Magistrate erred in iaw and in factfor disregarding the evidence adduced by the Respondent. 4. That the triai Magistrate grossly erred in iaw and fact for departing from pleading and agreed issues. 5. That the triai magistrate grossly erred in iaw and fact for finding that the Claimant discharged his duty whiie he faiis to tender evidence to support his case against the Appeiiant at the required standard. ; 6. That the triai magistrate erred in iaW:and in fact by awarding the claimantspecific damages in absence ofproofthereof. 7. Thatthe trial magistrate erredin iaw andin factbyawarding general damages arbitrarily and in the absence ofevidence to support the relief. - - The facts relating to this appeal are not complicated. The appellant and respondent had an oral long-established employer and employee relationship for the respondent to manage various petroleum stations of the respondent dating back to 2004. On January 22, 2024, a dispute arose when the respondent claimed a loss of petroleum stock worth Tshs. 66,560,365/=. The respondent alleged that the appellant mismanaged the station and failed to deposit the proceeds from sales of petrpleum oil into the company's account. Despite the appellant's assertion that he properly handled the petroleum stock beforp leaving the station, the respondent claimed that no documentation or proof was submitted to account for the ioss. The trial magistrate |iaving heard the case on merits decided the suit in favour of the respondent. ^ Aggrieved with the trial court decision the appellant preferred this appeal faulting the findings of the trial cpurt. When this appeal was called on for hearing the appellant was enjoying the service of one Ms. Salama Jafari> learned advocate, and the respondent was represented by- Mr. Azfzi Mahenge, learned advocate. These are the very same advocates who represented their respective ciients before trial court. Arguing the appeal, Ms. Jafari, prayed to consolidate ground number six and seven and argue the rest of the grounds seriatim starting with the fifth ground of appeal. Starting with ground number five, Ms. Jafari contended that the respondent failed to discharge the burden of proof as required under Section 110 of the Tanzania Evidence Act [Cap 6 R.E 2019]. Despite alleging that the petroleum worth Tshs.66,560,365/- was sold and the proceeds were not deposited into his account but the respondent failed to provide documentary proof or call key witnesses such as employees or station accountants. The omission to tender essential evidence undermined the respondent's case, insisted Ms. Jafari. The learned advocate for the appellant cited the case of Crescent Impex(T) Ltd V. Mtibwa Sugar Estates Limited, Civil Appeal No. 455 of 2020, CAT at page 10 to emphasize the need for proof on a balance of probabilities. On reply to this fifth ground of appeal, Mr. Mahenge refuted the appeiiant's claim that no evidence was tendered. According to Mr. Mahenge, much as the appellant admitted in cross-examination that he "4 ■ did not hand over the petroleum to anyone officially recognized by the office when he left the station then that amounts to admission of the -liability. It was further argument by Mr. Mahenge that, much as the appellant failed to present documents under his control, such as receipts or meter readings, which could have explained the situation, then he Is to be held liable and the case was proved to that extent. Mr. Mahenge pointed out that going by the holding In the case of Crescent Impel(T) Ltd (supra)the respondent had discharged his duty and that the burden had shifted to the appellant to explain the whereabouts of the petroleum, which he failed to do so. Ms. Jafarl, on the first ground, argued that the respondent's evidence was contradictory, oscillating between claims that the petroleum was either sold or stolen. Such Inconsistencies, affected the crux of the case, and should have led the trial court to dismiss the respondent's claim. Mr. Mahenge replying on theiflrst ground argued that there was no contradiction In the evidence. The Issue In the case was not whether the petroleum was sold or stolen but whether the appellant failed to account for the petroleum worth Tshs.66,560,365/=. Since the value of the petroleum was not In dispute, the trial court was correct In Its assessment. Ms. Jafari on the third ground of appeal contended that, the appellant also submitted that the trial court failed to consider his defence, -particularly the evidence that he handed over- the petroleum before leaving the station. Additionaliy, the trial court did not consider GCTV footage that could have clarified the situation; Mr. Mahenge,on reply to this contended that, the appellant's defense, particularly, the claims about CCTV footage and handover, were unsubstantiated. The appellant did not prpvide any credible evidence to support his claim of handing over the petroleum to a third party, nor did he tender the alleged CCTV footage during trial. According to Mr. Mahenge, the trial court properly disregarded these unsubstantiated claims. Ms. Jafari on the fourth ground appeal, argued that the trial magistrate improperly introduced new fact^i during the judgment,? particularly The suggestion that the appellant was responsible for the station's operations without considering that this wasineither pleaded nor agreed upon. Mr. Mahenge, in reply to this ground argued that the trial court did not depart from the issues agreed upon. The loss of petroleum and the failure to account for it were central; to the dispute. The appellarit, being in control of the station, was the person responsible for the petroleum. The respondent cited the case of Gloria Irira v. Sudi Ngwabi and Others, Civil Appeal No. 27 of 2021,(CAT), reaffirming that the court correctly dealt with the issue based on the evidence before it. ^ . Ms. Jafari on the second ground of appeal, argued that the trail magistrate introduced new facts that were not raised during hearing, particularly, that the petroleum was under his custody when in fact, he left it-at the station. ■ "terr;: w Mr. Mahenge, responded to this ground, asserting that no new fects were introduced rather it's the appellant' admission during the cross examination averred to have been the custodian of the petroleum. Ms. Jafari, argued sixth and seven ground jointly by averring that both specific and general damages were awarded without sufficient evidence. Specific damages, in particular, require strict proof, and none was proved by the respondent. Mr. Mahenge, maintained'that the :court correctly awarded specific damages based on the value of the petroleum that the appellant failed to account for. General damages were justified given the financial impact of the loss on the respondent's business. In her rejoinder, Ms. Jafari reiterated that the respondent had failed to discharge the burden of proof regarding thd loss of petroleum. She -emphasized that no notice to produce documents was issued/ nor did the- respondent take steps to retrieve the necessary records, which could have clarified the matter. Further, the appellant reiterated that the respondent's arguments were inconsistent with the pleadings and that the court wrongly awarded damages in the absence of strict proof. After carefully scrutiny and considering the statements :of claim, the reply to the statement of claim, the judgment, and the arguments for and against presented in this appeal/1 find that ground number five is decisive in disposing of this appeal because ail other grounds revolve on whether the claims were proved when put on scale of justice in civil cases of this nature. I will explain why I am taking this^stance.^ u;: i Firstly, looking at the statement of claims, in particular, paragraph five which for easy of reference provides as follows: - 5. Briefly explain the circumstances under which the claims arose and attach documents to support your claim The above paragraph forms the basis of claim and the claimant must explain the circumstances under which the claims arose and attach the documents to support the claim. The expected documents to attach in the circumstances of this appeai were the consignment received in the entire period aileged in the statement of ciaim, the report send by the appeilant on 22/01/2024 and the accountant report of an accountant who went-to- verify the aileged loss. Unfortunate to the respondent, no supporting documents were attached by the respondent during the trial to substantiate his claims. While it is understood that evidence can be either oral or written, given the nature of the respondent's business and the prerequisites for small claims, the respondent was required to provide documentation to support his claims. Since the submission of such documents is mandatory in small claims proceedings in accordance to the form, and the respondent failed to do so, the court was iqft without a clear basis for the claims made. ^ , Secondly, Even without citing any case law but is a trite law in our jurisdiction that parties are bound by their pleadings. In this appeal, gojng by the pleadings, the appellant disputed the claims of the respondent and said that ail fuel sold was deposited into the respondent's account but no evidence was put forward by the respondent that no such sales were deposited either by production of the bank statement or by bringing sale receipts which are available at the station. This undermined the respondent's case a great deal. , Thirdly, paragraph 5 (c) from the respondent's statement of claim for easy of reference went on as follows: - That, on 22/01/2024 the.respondent Wed a report that there isfueUn: reserve tanks worthy Tanzanian shillings sixty-six miiiion, five hundred thousand and sixty, three hundred sixtyfive (66,560,365/-) while he knows it is a He as he soid the safne without depositing the proceeds as agreed and there were none ofthe fuei ieft in tanks. The respondent, in his statement of claim,?? alleged :that a report was prepared by the appellant?on;:22.01.2024. For no apparent reason, however, no such report was submitted to substantiate this assertion. It is a well-established principle that parties are bound by their pleadings, as affirmed in Makori Wassaga v. Joshua Mwaikambo & Another [1987]T.L.R No. 88. Despite this, it is evident that the trial magistrate overlooked this fundamental principle. Consequently, the respondent was obligated to produce the said repprt.to sgpport both his claims and the assertions made in his evidence and in hjs statement of claim. Failure to do so eroded the validity of his claims. .. , Fourthly, regarding the testimony of PWl, it was asserted that the appellant had informed him of the remaining oil stock valued at Tsh.66 million. However, the respondentTaiied;to specify the means by:which this information was conveyed to him. This omission left a significant gap Mil 10 in the evidence, which should have been addressed to substantiate and account for the alleged loss of the said stock. Fifthly, the respondent claimed that, for the past five to six years, the appellant deposited ail proceeds from sales into a bank account. The respondent further stated in his testimony that only the bank statements could prove this fact. However, despite this assertion, the respondent failed to provide the court with any bank statements to support his claim. It is a well-established principle that ''he who alleges must prove,"' as articulated in Lamshore Umited and Another v. Bizanje K.U.D (1999)T.L.R 330(CA). Sixthly,PWl testified that after the appellant's departure;the accountant conducted an audit and discovered a deficit of Tshs.:66 million. PWl also stated that the appellant's assistant at the time was called and confirmed that the appellant had collected debts on oil provided on credit. Given these facts presented by the respondent/PWl, it is undeniable that these individuals were key witnesses directly linked to the claim. However, the respondent failed to call thern to testify an'd cprroborat^^^^^^^t^^ asserted, and no valid reason was provided for this failure. Consequently, this court draws an adverse inference against the respondent, as guided by Aziza Abdallah v. Republic [1991] T.L.R No, 71 and Pendo Fulgence Mkwenge v. Dr. Wahida Shangal, Civil Appeal No. 368 of 2020. For the interest of justice, its really important that the parties should adhere to the prerequisites and essentials principles in order to ensure that justice is accounted for to wit: the fundamental principles outlined in sections 110 and 111 of The Evidence Act[Cap 6 R.E 2019] stipulate that, in civil cases, the burden of proof lies with the person who alleges a fact in their favour and must prove it. In civil proceedings, the standard of proof is on a balance of probabilities, meaning that the court will rely on the evidence deemed more credible on the relevant facts to be proven. It is important to note that the burden of proof remains with the party asserting a claim until that burden has been discharged. In the present appeal, it is evident that the respondent failed to meet this evidentiary obligation and, in his assertions, appears to have improperly shifted the onus onto the appellant without first discharging his own duty. This is where the trial magistrate missqd the point. Upon reviewing the pleadings; evidence, and argurhents presented; it is evident that the respondent left much;to be desired and, as a result, failed to discharge his evidential burden of proving hisicase on the balance of probabilities. Ultimately, it is my view that the court failed to properly .12 analyse the evidence on record, leading to a finding that this court respectfully departs from. It Is clear In this Instance that the respondent failed to prove his case, and It cannot be confidently concluded that the respondent discharged his evidential burden as required under section 110 of The Evidence Act[Cap 6 R.E 2019]. That said and done,the arguments by the respondent that he discharged his duty are far from convincing rne otherwise for reasons noted above. On the foregoing, I find this appeal merited and consequently hereby quash and set aside the judgment and decree of the trial court. Consequently, I find the present appeal to be meritorious and, accordingly, I allow this appeal on the basis of ground number five, with costs to the appellant. -en - rrK It Is so ordered. Dated at Morogor(^'h1s^®'^i/D^y of February, 2024. S.M. IMI/ MAGOIGA JUDGE 28.02.2025 COURT: Judgement delivered In chambers at Morogoro In the presence of Ms. Salama Jafarl, learned advocate for the appellant and Mr. AzIzI 13 Mahenge, learned adydGater,:fo^ the Respondent today on 28^" day of February 2025. llu. i' \r\ S:Ml GA JUDGE 28.02.2025 COURT: Right of^apReaLfuily e: r M IGA JUDGE w v\ \. 28.02.2025 14