mm1 tanzania pvt limited vs bevco limited 2022 tzhccomd 346 4 november 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT DAR-ES-SALAAM COMMERCIAL CASE NO.41 OF 2021 MMI TANZANIA PVT LIMITED …………….…........PLAINTIFF VERSUS BEVCO LIMITED ……..................................... DEFENDANT JUDGEMENT 19/09/2022 & 04/11/2022 NANGELA, J.: The Plaintiff, a limited liability company incorporated under the laws of Tanzania to carry out the business of importation, marketing and distribution of beverages, is suing the Defendant, a limited liability Company also registered and licensed to carry out the business of importation, marketing and distribution of beverages in Tanzania. The Plaintiff prays for judgement and decree against the Defendant as follows: 1. A declaration that, the Defendant breached the Terms and Conditions applicable in the supply agreement between her and the Plaintiff by failure to pay for the products ordered and delivered. Page 1 of 57 2. An order that, the Defendant pay the Plaintiff a total of TZS 2,904,229,605.05, being the outstanding principal amount as of 22nd April 2020. 3. General damages to be assessed by the Court. 4. An order that, the Defendant pay interest on the sum under prayer No.2 herein above at the commercial rate of 18% per annum from 22nd April 2020 to the date of judgement. 5. An order that, the Defendant pay interest on the decretal sum at the court rate of 7% per annum from 22nd April 2020 to the date of judgement to the date of full satisfaction. 6. Any other relief as the honourable Court may find just t grant. The facts constituting this case may be briefly stated as follows: on various dates and time between the 29 th June 2018 and the 22nd April 2020, the Defendant placed various orders with the Plaintiff with a view to purchase various consignments of beverage products. It is alleged that, pursuant to the orders placed, the Plaintiff supplied and delivered the same to the Defendant. Page 2 of 57 It is averred that; the sale and purchase transaction process was initiated by the Defendant’s placing of orders with the Plaintiff was by either e-mail or through Local Purchase Order (LPO). It is alleged that, one of the terms of supply agreement was, and so expressed in each invoice, that, the Defendant was to pay for each consignment of products supplied within a period of 30 days from the date of issue. The Defendant is said to have managed to pay a total of TZS 244, 502, 087.00 but, a balance of TZS 2,904,229,605.05 remained outstanding. It is alleged that, on 29th August 2019, the Plaintiff issued a Debit Note to the Defendant in respect of LPO No.SO0054276 for 8bottles of beverage product namely Moet Nectar Imperial Rose valued at TZS 913,599.00. It has been averred that, on 20th May 2020, the Defendant, through its principal Officer, one Régis Voegel made a Commitment to pay the Plaintiff US$ 20,000.00 each month beginning form June 2020 and the amount was to be reviewed before end of August 2020 and, that, in case of failure, the payments were to be made by INCODEAL, a majority shareholder of the Defendant. However, despite several endeavors and promises to pay and, although the Defendant received the stocks supplied, no payments were done and, thus, the Defendant either neglected, failed or refused to make payments of the said TZS 2,904,229,605.05 in accordance with the agreed terms of Page 3 of 57 supply between her and the Plaintiff, and, hence, the 06 th of April 2021, the Plaintiff brought this matter to the Court. On the 4th of October 2021, the Defendant filed an amended statement of Defence in Court denying the Plaintiff’s claims for payment of TZS 2,904,229,605.05 as being unfounded. However, the Defendant admitted to have received invoices referred to in paragraphs 7.4, 7.6, 7.15, 7.16, 7.17, 7.18, 7.19, 7.20, 7.21, 7.22 to 7.26 for the year 2018; and paragraphs 7.27, 7.29, 7.31 to 7.35, 7.37 to 7.44 and 7.47 for the year 2019; as well as paragraphs 7.49 to 7.52 for the year 2020. The Defendant further disputed the amount claimed under paragraph 7.48 of the Plaint stating that on the 14 th January 2020, following the Defendant’s complaint on wrong invoicing, the Plaintiff replaced the Invoice No. OP10056011 with Invoice No. OP10056038 revising it down by TZS 101,542,293.14 to TZS 283,813,836.00 as payable amount instead of TZS 385,356,129.14. The Defendant alleged that, the entire amount in the accepted invoices and the sum stated hereabove, which sums up to TZS 1,730,389,959.03 was fully paid and settled by the Defendant, and, hence, disputing all other claims. By way of counter-claim, the Defendant claimed from the Plaintiff a payment of TZS 2,442,024,956.66 being outstanding monies in respect of supply by the Defendant of Page 4 of 57 beverages to the Plaintiff, supplied and delivered from the year 2017 to March 2021. In short, the Defendant (as Plaintiff in the Counterclaim) prays for judgment and decree against the Plaintiff (Defendant in the Counterclaim) as follows: 1. An order that the Defendant in the counterclaim (Plaintiff) pay TZS 2,442,024,956.66, being monies outstanding for beverages supplied and delivered to the Defendant (Plaintiff in main case) for the period starting from October 2017 to March 2021. 2. An order for payment of interest on the decretal amount at the rate of 12% per annum computed from the date of judgement to the date of payment in full. 3. For payment of costs of this suit and any other orders or relief as the honourable Court may deem fit and just to grant. Given that the parties could not settle their dispute amicably during mediation session and even thereafter following their prayer to do so, the suit had to proceed to a Page 5 of 57 final pre-trial conference where the following issues were agreed as between the Court and parties: 1. Whether the Plaintiff supplied the Defendant beverages worth TZS 2,904,229,605.05. 2. If the response in the above issue is in the affirmative, whether the Defendant paid for all the beverages supplied and received. 3. Whether the Plaintiff in the Counterclaim (Defendant) supplied the Defendant in the Counterclaim (Plaintiff) beverages worth TZS 2,442,024,956.66. 4. To what relief are the parties entitled. When the hearing of this suit commenced, the Plaintiff in the main suit called two witnesses to support her case. The fist Plaintiff’s witness Mr. Paul Anthony Hopkins, who testified as Pw-1 and Mr. Japhet John Kiboko, who testified as Pw-2. For her part, the Defendant called 3 witnesses namely: Mr. James Mboye, who testified as Dw-1, and Ms. Nicole Vergus, who testified as Dw-2 while the third witness for the Defence Mr. Regis Voegel who testified as Dw-3. I will briefly summarize the witnesses’ testmonies before I embark on deliberations regarding proof of the issues raised in this suit. Page 6 of 57 In support of the Plaintiff’s main case and in denial of the counter claim, Pw-1 testified in chief that, he works as the Plaintiff’s country manager, whose duties include sourcing customers for the Plaintiff’s imported beverages, receiving orders from local retail and wholesale customers, executing agreements and matters relating to enforcing contracts obligations, procurements as well as record keeping of documents and information. Pw-1 testified that, as per the arrangement between the parties, the Defendant used to place orders to be supplied by the Plaintiff and the Plaintiff would make available beverages ordered and deliver the same with invoices to the Defendant on credit payable within 30 days from the date of receipt. He testified further that; the Defendant would as well make available goods in terms of beverages imported by the Defendant to the Plaintiff when the Plaintiff places orders. He testified that, Defendant’s orders would be preferred by the Defendant’s authorized officers in the name of Thierry Paul Lefeuvre, know managers or Joseph Rwegasira and the orders were directly communicated to the warehouse Manager. He told this Court that, between 29th June 2018 and 22nd April 2020, the Defendant placed multiple orders to purchase from the Plaintiff various products, which orders were dully supplied by the Plaintiff. Page 7 of 57 In particular, on the 29th June 2018, the supplier order was in respect of 1200 Hennessy VS Box 70 CL and 3,600 Hennessy VS Flask. An Invoice No. OP10041154, dated 30th June 2018 was issued for TZS 134,156,982/=. This invoice and all others to follow, were admitted collectively as Exh.P1. Pw-1 testified that, on the 12th July 2018, the Defendant placed an order to the Plaintiff to be supplied with 240Four Cousin natural Sweet White Red 1.5L, 240 Cousin natural Sweet White Red 75CL, 240 Cousin natural Sweet White Red 1.5 CL, 240 Cousin natural Sweet White Red 75 CL, 240 Barefoot Cabernet Sauvignon 75CL, 240 Barefoot Merlot 75CL, 120 Barefoot Moscato 75 CL, 120 Bantry Bay Merlot 75CL. He stated that, an Invoice No. OP10041543, dated 13th July 2018 valued at TZS 21,360,003.17 VAT inclusive was prepared and was delivered and received along with the goods by the Defendant. Pw-1 testified as well that, on 19th July 2018, the Defendant placed an order to the Plaintiff to be supplied with 1,200 Hennessy VS Box 70CL and 120Hennessy VS Box 70 CL, and the Plaintiff supplied such goods and prepared an Invoice No. OP10041826 for TZS 79,403,995.49. He further testified that, on 25th July 2018, the Defendant placed an order again with the Plaintiff and was supplied with 120Moet & Chandon Imperial Naked Box 75CL with an Invoice No. OP10041905 for TZS 10,656,000.30. Page 8 of 57 Pw-1 testified that, on 26th July 2018, the Defendant placed an order with the Plaintiff and was supplied with 1200Hennesy VS Flask Box 35 CL. He testified that, such consignment was supplied and received and an Invoice No. OP10042023 worth TZS 36,719,995. 20 was issued. It was a further testimony of the Pw-1 that, on 31st July 2018 the Defendant placed an order and, the Plaintiff supplied the Defendant with the following: 12-King Robert White Rum Box 75CL; 12-Patron Silver 37.5 CL; 12- Russian Standard Original, 30-Russian Standard Original 1 N L NRF, 6-Glenmorangie Quinta Ruban Naked 70 CL; 6-Glenmorangie Nectar Dor Box 70CL; 24-Glenmorangie Original Box 70 CL; 18- Glenmorangie Lasanta Naked 70CL; 12-Torres Vina Sol 75CL; 180- Four Cousin Natural Sweet Red 75CL; 12-Sweet Gold 75CL; 36- Sweet Red Wine 75CL; 18-Ken Forrester Petit Chenin 75CL; 12-Ken Forester Petit Semi Sweet 75CL; 36-Ken Forester Petit Sauvignon Blanc 75 CL; 12-Hill and Dale Sauvignon Blanc; 12 Hill & Dale Chardonnay and Hill & Dale Dry Rose Merlot 75 CL; 48-Fleur du Cap Chardonnay 75CL; 48-Fleur du Cap Sauvignon Blanc 75C; 48- Fleur Du Cap Cabernet Sauvignon; 48-Fleur Du Cap Cabernet Sauvignon 75CL; 12- Durbanville Hills Merlot Rose 75CL; 48- Barefoot Sauvignon Blanc 75C; 42-Barefoot Pinot Grigio 75CL; 12- Bantry Bay Rose 75CL; 36-Oyester Bay Pinot Noir Delegat’s 75CL; 36-bottles of Delegat’s bay Chardonnay 75CL; 18-Delegat’s Oyster bay Merlot 75CL; 36-Delegat’s Oyster bay Sauvignon Blanc 75CL; 18-Valdivieso Cabernet Sauvignon 75CL; 36-Fronterra Moscato 75- CL; 36-Fronterra Carbenet Sauvignon 75CL; 36-Fronterra Sauvignon Blanc 75CL; 6-Casillero Del Dablo Shiraz 75CL; 36- Page 9 of 57 Bubble Rose 75CL, 36-Angostula 20CL; 24Xo Café Liquor 12/375 Regular 37.5CL; 12-Patron Xo Café 75CL, 6-Bols Strawberry 70CL; 6-Bols Peppermint Green 70CL; 24Hakutsuru Sake 72CL; 36-Bols Brandy 37.5CL; 36-Bols Brandy 20CL; 24-King Roberts Whisky 1L and 120 bottles of Four Cousins Natural Sweet White 75CL; Pw-1 told this Court that, the above ordered goods worth TZS 27,019,201.02 were supplied and delivered to the Defendant together with an Invoice No. OP10042182 was issued along with the goods. It was as well the testimony of Pw-1 that, on 2nd August 2018, the Plaintiff delivered upon demand to the Defendant, on 4th August 2018, 300 Hennessy VS Box 70CL; Scott Campbell, 600 Hennessy VS Box 70CL all being worth TZS 69,239,979.64 and an Invoice No. OP10042283 was issued to the Defendant. On the same date, the Defendant placed an order and the Plaintiff supplied in response, 600- Hannessy VS Box 70CL and 300-Hennessy Scott Campbell GB 70-CL worth TZS 51,659,928.00 and an Invoice No. OP10042284 was issued. Further still, it was the testimony of Pw-1 that, on 10th August 2018 the Defendant ordered and was supplied by the Plaintiff the following: 2400-Hennessy Flask 20CL; 300-Meteu Rose 75CL; 120 Hennessy 70CL; and 1200-Hennessy Flask 35 CL. All these, being worth TZS 153,959,980.00 VAT inclusive, were delivered with an Invoice No. OP10042498 issued to the Defendant by the Plaintiff. Page 10 of 57 He testified that, on 13th August 2018 the Defendant ordered and was supplied by the Plaintiff the following: 36- Moet Rose Imperial Box 75CL; 120-Moet Chandon Imperial Naked; 42-Clicquot Rose Box Gift 75CL and 36 Moet & Chandon Imperial Box 75 CL and, that, all these delivered to the Defendant with an Invoice No. OP10042528 for TZS 23,265,000.00. It was Pw-1’s testimony as well that, on the 15th August 2018, together with an Invoice No. OP10042599, the Plaintiff supplied and delivered, upon order from the Defendant, the following goods worth TZS 168,924,008.00: 240-Hennessy VSOP Naked Box 35CL and 1800-Hennessy VSOP Box 70CL. He also stated that, supplied were made on the 4 th of September 2018 which included, a supply, upon order, of 12- Cliquot Rose 75CL; 12-Cliquot Yellow Label 75CL; 12 Moet Nectar Imperial Rose 75CL; 18 Moet Nectar Imperial 75CL; 30- Moet Rose Imperial 75CL; 30 Moet Rose Imperial 75CL; 240- Hennessy VS 70CL 240 Bottles; 1800 Hennessy VS 70CL; 2880 Hennessy VS 20CL; I80 Hennessy VSOP 35CL; 600 Hennessy VS 35CL, all these being worth TZS 207,371,392.62 and an Invoice No.OP10043230 was issued to the Defendant. Pw-1 testimony was also to the effect that, on 6 th September 2018 goods worth TZS 82,439,995,78 VAT inclusive were ordered and supplied by the Plaintiff to the Page 11 of 57 Defendant via Invoice No. OP10043295; and, on 13th September 2018, the Plaintiff supplied another consignment worth TZS 20,561,403.17 VAT inclusive, which goods were delivered on the 15th September 2018 with an Invoice No. OP100488. A further supply is said to have been made upon demand on the 27th September 2018 whereby goods worth TZS 101,375,991.02 were supplied by the Plaintiff to the Defendant and Invoice No. OP10043893 was issued. According to Pw-1, further supplies were made to the Defendant by the Plaintiff upon orders on the 24 th October 2018 (worth TZS 43,535,993.33) and Invoice No. OP10044481; on 8th November 2018, goods worth TZS 127,648,790.40 which were duly delivered and Invoice No. OP10044918. On 13th November 2018, goods worth TZS 6,612,000.67 (VAT inclusive) were also ordered by the Defendant and supplied by the Plaintiff with an Invoice No. OP10045001. Pw-1 testified that, on 14th November 2018, the Defendant was also supplied with goods worth TZS 12,530,401.78 and was issued with an Invoice No. OP10045099. It was also the testimony of Pw-1 that, on 22nd November 2018 a consignment of beverages was also supplied to the Defendant worth TZS 157,145,995.67 and an Invoice No. OP10045275 was issued by the Plaintiff to the Defendant. He testified further that, on the 6th December 2018 goods worth Page 12 of 57 TZS 122,851,189.79 were supplied to the Defendant and Invoice No. OP10045553 was issued while on the 10th December 2018, goods worth TZS 94,224,002.53 were supplied and an Invoice No. OP10045631 was issued to the Defendant. He told this Court that, on 14th December 2018, a further supply of beverages worth TZS 19,370,399.98 was made in response to the Defendant’s order and an Invoice No. OP10045768 was issued. He further testified that, on 20 th December 2018, a further supply of beverages worth TZS 68,999,399.994.96 was made in response to the Defendant’s order and Invoice No. OP10045874 was issued. On the same day, a further supply of beverages worth TZS 57,906,002.41 was made in response to the Defendant’s order and an Invoice No. OP10045920 was issued. Furthermore, Pw-1 testified that, on the 9th January 2019, 15th January 2019 and 17th January 2019, the Plaintiff supplied beverages to the Defendant upon order and the following invoices were respectively issued: Invoice No. OP10046501 for TZS 66,707,997.89; Invoice No. OP10046578 for TZS 814,799.96; and Invoice No. OP10046614 for TZS 84,575,992.13. Pw-1 did also testify that in the months and dates of 2 nd April 2019 and July 1st 2019; July 2nd 2019, July 4th, 2019, July 9th 2019, July 10th 2019 the Plaintiff supplied beverages to the Page 13 of 57 Defendant on demand and the following Invoices were respectively generated in the same sequence: -Invoice No. OP10048395 (for TZS 30,407,993.93); -Invoice No. OP10050511 (for TZS 9,599,998.56); -Invoice No. OP10050533 (for TZS 86,719,190.26); -Invoice No. OP10050634 (for TZS 81,395,998.80); -Invoice No. OP10050714 (for TZS 31,344,097.07); -Invoice No. OP1005762 (for TZS 16,289,996.76); - Invoice No. OP1005740 (for TZS 16, 289,996.76). Pw-1 further testified that on the 29th July 2019; 20th July 2019; 15th August 2019, 20th August 2019; 29th August 2019 and 10 October 2019 and 29th October 2019, the Plaintiff supplied beverage to the Defendant and issue the following invoices respectively: - Invoice No. OP10051112 for TZS 86,129,996.20; - Invoice No. OP10051329 for TZS 97,911,593.25; - Invoice No. OP10051853 for TZS 137,833,196.73; - Invoice No. OP10052027 for TZS 21,315,403.32; - Invoice No. OP10052319 for TZS 36,023,195.10; - Invoice No. OP10053561 for TZS 55,944,002. 02; - Invoice No. OP10054079 for TZS 52,919,999.50; This Court was also told by Pw-1 in his testimony that, in the month and date of 3rd December 2019, 12th December 2019; 18th December 2019; and 19th December 2019, the Plaintiff supplied on demand, the various type of beverages to the Defendant and the following invoices were generated and issued upon delivery to the Defendant respectively: Page 14 of 57 - Invoice No. OP10055105 for TZS 82,967,996.69; - Invoice No. OP10055255 for TZS 149,519,985.36; - Invoice No. OP10055389 for TZS 86,471,997.72; - Invoice No. OP10055389 for TZS 9, 158,999.87; It was Pw-1’s testimony as well that, in the months and dates of 9th January 2020 and 12th February 2020; 13th February 2020; 13th February 2020; 27th February 2020 and April 22nd, 2020, the Plaintiff supplied to the Defendant beverages on demand and issued the following Invoices for each respective date of supply: - Invoice No. OP10056011 for TZS 385,356,129.14; - Invoice No. OP10056655 for TZS 36,326,579.99; - Invoice No. OP10056667 for TZS 32,466,766.41; - Invoice No. OP10056953 for TZS 24,522,218.12; - Invoice No. OP100557639 for TZS 18,900,060.00; As I stated earlier hereinabove, all invoices and their delivery notes were tendered in Court and received collectively as Exh.P1. Pw-1 testified that, the invoices ha terms and conditions regarding the supplies and incase of any discrepancy, the Defendant was required to notify the Plaintiff within 7 days from the delivery date. He testified, therefore, that, between September 2017 and December 2020, the Plaintiff’s total supply to the Defendant was in the sum of TZS 6,025,099,912.97. Pw-1 told this Court that, the above noted sum was reduced by way of stock supply by the Defendant to the Plaintiff as part of debt reduction arrangement by the parties. Page 15 of 57 As such, Pw-1 stated that, the Defendant’s counterclaim against the Plaintiff is based on the stock supply which was supplied by the Defendant to reduce the liability which at the time had swelled to TZS 6,025,099,912.97. He told this Court that, that was the reason why all invoices attached to the Defendant’s defense are signed and stamped by the Defendant. Pw-1 told this Court, therefore, that, what the Plaintiff is claiming from the Defendant is the difference arising from the total transactions made between the two parties during that period. Pw-1 testified that, in May 2019, the parties had a reconciliation meeting whereby the Plaintiff’s claims got reduced from TZS 6,025,099,912.97 to TZS 2,904,229,605.05 (having taken into accounts all supplies made by the Defendant to the Plaintiff). He told his Court that, after the reconciliation, the Defendant sent an email addressing the Plaintiff that the Defendant shall make a minimum payment of TZS 30,000,000 and maximum of TZS 50,000,000 or more per week or TZS 120,000,000 (minimum) and TZS 200,000,000 (maximum) per month towards settlement of their debt. The emails were tendered in Court and admitted collectively as Exh.P2. However, it was Pw-1’s testimony that, up to 10th of October 2019, the Defendant had paid only TZS 244,502,087.00. Page 16 of 57 Pw-1 testified further that, later the Defendant requested for another reconciliation to determine actual amount payable and the receivables to the parties. He told this Court that, the 2nd reconciliation was carried out in November 2019 and it was revealed that the Plaintiff supplied on credit to the Defendant beverages worth TZS 6,025,099,912.97 and, that, the Defendant, by way of debt deduction strategy supplied the Plaintiff beverages worth TZS 3,120,370.92 and, thus, the total amount receivable to the Plaintiff was TZS 2,904,229,605.05. Pw-1 stated that, as per the Defendant accounts during the 2nd reconciliation, the total supply by the Plaintiff was TZS 5,997,028,760.00 and the Defendant, by way of debt reduction had supplied beverages to the Plaintiff worth TZS 3,140,082,175.22 making the total receivable to the Plaintiff to be TZS 2,856,946,584.78. According to Pw-1, the only difference which the parties could not agree during the 2 nd reconciliation was TZS 64,072,295.76 for which the Plaintiff was required to provide proof. Pw-1 told this Court that, on 25th November 2020 and 2nd December 2020 the Plaintiff sent emails and Demand Letter to the Defendant reminding the later to settle the outstanding amount but there was no positive response. He urged this Court to grant the prayers sought by the Plaintiff. Page 17 of 57 During cross-examination, Pw-1 admitted that, under the parties’ relationship, settlement of debts could be done either by cash or in kind, i.e., by way of supply of goods (beverages). He told this Court that at some point the Plaintiff was a supplier and at some other point it was the Defendant. Moreover, Pw-1 admitted that, during the hearing he did not produce any record of reconciliation to the Court. He admitted further that, Invoice NO. OP10056011 was later replaced by another invoice as it had been wrongly issued and the difference between the two invoices was TZS 101,542,293.14. He admitted that, the invoices dated 06th December 2019 and 11th January 2020, 14th February 2020 and 13th February 2020 are endorsed with the Plaintiff’s stamp meaning that items purchased were from the Defendant (BEVCO). When shown Exh.P2, Pw-1 told this Court that, he did not receive any confirmation from the Defendant and no document was signed by any of the parties to acknowledge reconciliation of any kind. During re-examination, Pw-1 acknowledged that, the Plaintiff purchased from the Defendant beverages but held a view that, their value was lesser than what the Defendant had purchased from the Plaintiff. According to Pw-1, the aim was that the Defendant would represent the imported brands int the off-trade and the Plaintiff would purchase Defendant’s products to represent the latter in the on-trade. He told this Court that, the parties had several discussion meetings before the e-mail Page 18 of 57 communications (Exh.P2) seeking to find out the options to settle and reconcile the amounts payable. He as well confirmed that the invoice valued at TZS 283,813, 836.00 is a correct one and applies to the matter at hand. He further told the Court that, the Plaintiff did at times stamped the invoice to indicate that goods were collected by the Defendant and got dispatched from the Plaintiff’s warehouse to the Defendant’s warehouse. He was of the view that, at times when the Defendant stamped them, it was an indication of proof of delivery and, that, the Defendant has, at multiple times verbally, through Mr. Thierry and Regis Voelgel as well as Ms. Nicole, agreed to pay the outstanding amount. When asked by the Court regarding whether the Defendant confirmed the reconciliation by email or any writing, Pw-1 responded negatively. The second witness for the Plaintiff was Mr. Japhet John Kibiko (33yrs) who testified as Pw-2. In his testimony, Pw-2 told this Court that, he is a warehouse manager of the Plaintiff who supervises all activities of the Plaintiff’s storage and distribution/delivery of goods to customers and other related duties. He testified to have received instructions from Pw-1 to make available to the Defendant a number of consignments of beverages and, that, he received orders from the Defendant’s officers named Allan Musonve and Thierry Paul Lefeuvre. Page 19 of 57 According to the testimony of Pw-2, it was the customary commercial practice of the parties that the Plaintiff, having received an order from the Defendant, and having received necessary approvals, he would prepare and make available all goods ordered and cause then to be delivered to the Defendant, either through the Plaintiff’s or the Defendant’s logistics by using own trucks. It was the testimony of Pw-2 that, where goods were to be delivered by the Plaintiff, he was required to hand over such goods along with the invoice which indicated the date when the order was made, the date when the invoice was raised or made, list of beverages ordered and the priced for each item so far ordered. He further stated that, where goods were delivered through the Defendant’s own logistics, the same process would apply save that invoices were signed by the Defendant’s appointed officer having gone through the stock taking at the Plaintiff’s warehouse to assure that items contained in the invoice are in line with the list of the products prepared for delivery and the appointed officer would sign the invoices and possession of beverages would forthwith transfer to the Defendant. On being cross-examined Pw-2 told this Court that, he indeed used to dispatch beverage consignments from the Plaintiff to the Defendant and, that, he used to be left with Page 20 of 57 evidence of such dispatch, which are the invoices. He admitted that, the invoices used to be signed by the person who, at the Defendant’s premise, received the consignments. During cross examination, Pw-2 stated that, the Defendant’s officers used to, at times, stamp and sign the invoices. When asked by the Court, Pw-1 stated that, in the invoices, some bears the Plaintiff stamp and signature on it and, that, some did bear the Defendant’s stamp and signature on the stamp. He also stated that, some do not have such features at all. He testified that, those with Defendant’s stamp and signature were invoices used to dispatch goods to the Defendant’s godowns/warehouse. The other with no Defendant’s stamp but stamped by the Plaintiff, were for goods from the Plaintiff’s warehouse to Defendant’s drivers or any other person directed by the Defendant to take her orders. The last category of invoices without stamp or signature were also for consignments from the Plaintiff’s warehouse. When shown one invoice dated on 15 th January 2019, he told this Court that he was unable to tell who signed it if it was sent to the Defendant’s warehouse as there was no supervision in the signing of the invoices. When shown an invoice dated 11th July 2019 which was not stamped and had no signature, Pw-2 stated that he was unable to say anything about it. With all that, and there being no other witness for the Plaintiff, the Page 21 of 57 Plaintiff’s case came to an end paving way for the Defense case to open. On the 25th day of July 2022, the Defendant’s case opened. As I stated earlier, the Defendant called three (3) witnesses, the first witness being Mr. James Mboya, who testified as Dw-1. In his testimony in chief, Dw-1 testified that, he works as the Defendant’s logistics manager since November 2017 and he is in-charge of the Defendant’s warehouse. He told this Court that, at all material times it was a rule that if goods are received by the Defendant, a person receiving them must be a store personnel or a driver and, in accordance with the Plaintiff’s receipt documents, must write their names, sign and state the date when goods were received. Dw-1 testified that, in the year 2017, several orders were received by the Defendant in the counterclaim (MM1) which were duly prepared in line with the invoices and delivered to the customer by Bevco (the Defendant). Dw-1 tendered in Court invoices and credit notes in respect of the year 2017 which were received collectively with no objection as Exh.D1. He submitted, as well, invoices for the year 2018 supplies and these were collectively admitted as Exh.D2. Two additional invoices- from the Defendant to the Plaintiff, dated 21 st March 2018 (Invoice No. BCLCTSTX1000190 and Page 22 of 57 BCLCSTX1000194 were also tendered and received as Exh.D3. He told the Court that in the year 2019 and 2020 several orders were placed and supplied were made. He submitted invoices for the year 2019 and 2020 supplies by the Defendant (Plaintiff in the Counterclaim) to the Plaintiff (Defendant in the Counter Claim) and these were collectively admitted as Exh.D4 and Exh.D5 respectively. He submitted in Court three dispatch books indicating that goods were dispatched to the Plaintiff (Defendant in the Counterclaim) and were received on various dates. The three dispatch books were collectively admitted as Exh.D.6. During cross-examination, Dw-1 the Plaintiff’s case is about consignments sold to the Defendant (BEVCO) and that, in this suit, there were consignments issued and received in a vice versa but was unaware as to how the off-set arrangements worked out. He told the Court that, the invoices he tendered, are a confirmation that, there were orders he received and dispatched consignments to the Plaintiff with invoices. He told this Court that, he was not involved in the reconciliation of the transactions between the two parties. The 2nd Defense witness was Ms. Nicole Moinique Verjus who testified as Dw-2. In her witness statement, received in Court as her testimony in chief, she testified that, she is currently the CEO of the Defendant company having assumed Page 23 of 57 the position in November 2020. She further testified that, having assumed her position and noted various challenges related to payments in the dealings between the Defendant and the Plaintiff, she agreed to reconcile the two parties’ accounts so as to arrive at an agreed amount that is owed or owing by each party. She admitted that, prior to the said reconciliation, she had received Demand Notices, in respect of TZS 2,792,115,079.53 as the amount due and payable to the Plaintiff by the Defendant. However, she told this Court that, the Defendant could not agree with that amount since, at the time of being served with the demand notices, the reconciliation was still under way. She testified that, the final amount due was not agreed or confirmed and this fact was communicated to the Plaintiff by way of letter on 4 th February 2021. The said letter was tendered in Court and was admitted as Exh.D.7. Dw-2 testified further that, during the same period when she took over the reins as the CEO of the Defendant, she as well sought approvals from the Tanzania Revenues Authorities (TRA) to carry out a re-audit of the Defendant’s Company accounts for the year 2018 /2019 by using external auditors, PFK Associates Tanzania who re-audited the Defendant’s financials. Page 24 of 57 She told this Court that, the Auditors issued a qualified statement with regards to the accounts of a few suppliers including the Plaintiff to the tune of TZS 2,207,597,104.00 for the year ending 31st December 2018 and TZS 3,490,993,733.00 for the year ending 31st December 2019. The Audit report was admitted in Court as Exh.D8. Dw-2 testified further that, in the course of the audit process, and having gone through the records, it came to her knowledge that, several invoices from the year 2017 to 2021 issued by the Defendant (BEVCO) to the Plaintiff (MMI) for products supplied remained unpaid and owing to the Defendant to a Tune of TZS 2,442,024,956.66. She told this Court that, this amount was supposed to be taken into consideration in the reconciliation of the accounts between the two parties. She stated, however, that, to her utter surprise and without completing the reconciliation which was still on-going, the Defendant was served with a Plaint fined in this Court on the 06th April 2021 whereby the Plaintiff herein instituted this suit claiming to be paid by the Defendant a sum of TZS 2,904,229, 605.05. She declined that the Plaintiff is entitled to that payment and insisted, instead, that, it is the Defendant’s counterclaim that should stand, wherein the Defendant claims to be paid by the Plaintiff, a sum of TZS 2,442,024,956.66. Upon being cross-examined, Dw-2 told this Court that she is fully aware of the claims by the Plaintiff herein and that, Page 25 of 57 there parties had an agreement to offset their claims by way of supplies. She maintained that, there was no final agreed amount or finalized reconciliation between the two parties and she would not be able to tell with certainty the actual amounts owed or owing in the absence of the reconciliation. She maintained that, without first completing such reconciliation she would not have sent claim to the Plaintiff. She told the Court that it was the Plaintiff who ended it while it was still on-going as two demand notices were sent to the Defendant in January and February 2022 which Dw-2 respondent with Exh.D7. When shown Exh.P2, Dw-2 stated that she was aware of it and that, the same says there would be approximately TZS 64 million which needed further clarifications from the Plaintiff’ side. She admitted, however, that, she was aware that earlier the Defendant had committed herself to pay the outstanding amount on a weekly basis and that there were some plans to pay. On re-examination, she told this Court that the independent auditor’s report gave a qualified opinion as they could not confirm the correct amount hence their reservations. She maintained that; it was until when the party’s close reconciliation that one would be able to tell who owes who and how much. When asked by the Court regarding the rationale for the reconciliation, Dw-2 told this Court that, it was meant to Page 26 of 57 verify the correctness of the documents and statements from each of the two parties and do away with the disagreement. The final witness for the Defense case was one Regis Voegel who testified as Dw-3. In his testimony, he introduced himself as the shareholder and director of the Defendant company. He testified that, on various dates in 2018, 2019 and 2020 the Defendant did receive assorted consignments of beverages from the Plaintiff as per the Defendant’s orders and invoices all totaling to TZS 1,730,389,959.03. Dw-3 told the Court that, the Defendant did receive goods indicated in Invoice No. OP10056011 and duly indicated receipt in the invoice but that, the Invoice was later revised following a rectification from TZS 385,356,129.14 to TZS 283,813,836.00 via Invoice No. OP10056038. According to Dw-3, apart from the goods received, the Defendant did not receive goods claimed by the Plaintiff in the year 2018 and 2019 amounting to TZS 1,316,799,439.88. He tendered in Court email correspondences and the wrong invoicing and rectifications done, and these were admitted collectively as Exh.D9. Dw-3 did also tender in Court various copies of cheques which were admitted as Exh.10 as well as several invoices receive as Exh.D11. Finally, Dw-3 tendered in Court email dated 09 th November 2020 and invoices for beverages supplied by the Defendant to the Plaintiff to offset the debts as par Page 27 of 57 arrangement between the parties, stating that, between 2019 and 2020 the supply total was in the value of TZS 794,176,074.77. The email was admitted as ExhD.12. During cross-examination, Dw-3 told this Court that, the exhibits he tendered in Court are for delivery of goods from BEVCO to MMI (the Plaintiff). He stated that, there was no completed reconciliation between the parties but was in progress. He acknowledged to know one Mr. Allan who works with the Defendant as well as Mr Rwegasira who used to work for the Defendant but left in the year 2020. He also stated that he does not remember one, Mr. Feroz but remembers Mr. Oscar. He told this Court that, the parties started trading in the year 2018 and their trading relations were based on credit basis on both sides. He also stated that, the Defendant’s financial director did pay some cash to the Plaintiff and Exh.D9 proves that. He admitted that, the invoices amounting to TZS 1.7 billion admitted by the Defendant as indicated in Para 6.4 of the Amended WSD are in respect and corresponds to delivery notes duly received by the Defendant. When asked about the payment plan by Mr. Rwegasira, Dw-3 did agree that there was such involvement of Mr. Rwegasira and some figures were agreed, only that he had no idea of the total debt owing, hence the reason why he asked for reconciliation and that, Ms. Nicole (Dw-2) did pursue reconciliation of the accounts. Besides, when asked by the Page 28 of 57 Court about the parties’ accounts’ reconciliation, Dw-3 emphasized that the reconciliation was necessary to agree on the figure and the balance acceptable by all parties. That, in a nutshell, marked the closure of the Defendant’s case. At the closure of the Defendant’s case the parties prayed to file closing submissions. I will also consider them in my deliberations. As I stated herein above, this Court drew up four (4) issues for determination. Before I embark on those issues, however, let me state that, as a matter of principle, the burden of proving each allegation rests on the Plaintiff and must be discharged on the balance of probability. As such, the burden lies on the Plaintiff to prove whatever allegations s/he makes against the Defendant. In law, he who alleges must prove, and, the cases of Anthony M. Massanga vs. Penina (Mama Mgesi) and Another, Civil Appeal No.118 of 2014 (unreported) and that of the Registered Trustees of Joy in the Harvest vs. Hamza K. Sungura, Civil Appeal No.149 of 2017 (unreported0 are all alive to that settled legal position. In this case, four issues were agreed and the first one was: Whether the Plaintiff supplied the Defendant beverages worth TZS 2,904,229,605.05. In efforts to establish the above, the Plaintiff has relied on the testimony of Pw-1 and Pw-2 and the documents Page 29 of 57 tendered by them in Court. In his testimony, Pw-1 maintained that, goods worth TZS 6,025,009,912.97 were supplied by the Plaintiff to the Defendant between 29 th June 2018 and 29th April 2020. On the other hand, Pw-1 testified as well, that, goods worth TZS 3,140,082,175.22 were received by the Plaintiff from the Defendant to offset the outstanding debts. Reliance was placed on Exh.P2, an email from Pw-1 to Dw-3 dated 2nd December 2020. In that email, Pw-1 acknowledged that, there was an on- going reconciliation and that, with BEVCO (Defendant) there was approximately TZS 22.5 million that were in need of further investigation/information from MMI and also TZS 64 million in need of similar treatment. The indication here was pretty clear that, the above noted amounts were yet to be agreed by the parties. In Exh.P.2, however, the Plaintiff’s position was that TZS 2,904,229,605.05 was the due debt payable to the Plaintiff while the Defendant’s position was that the debt owed was TZS 2,856,946,584.78. I have looked at Exh.P2. One of the immediate questions that arose to my mind is whether Exh.P2 is in itself a conclusive proof that the Defendants owes the Plaintiff TZS 2,904,229,605.05. The genesis of Exh.P2- (the email dated 2nd December 2020) is traceable in other emails forming part of Exh.P2. These are the emails dated 25/11/2020 between Pw-1 Dw-2 and Dw-3. Page 30 of 57 Looking at those email conversations and what the email dated 2nd December 2020 provides in its culmination; I am of a settled view that, Exh.P2 in its entirety, and more, the email dated 2nd December 2020, was not and cannot be regarded as a conclusive document upon which one could rely on to confirm the amounts payable to the Plaintiff by the Defendant. I hold it to be so because, it was asking for a confirmation of what the Plaintiff views were since the reconciliation exercise was still inconclusive. In my opinion, much as the Plaintiff has submitted that the amount stated in Exh.P2 (the email dated 2nd December 2020) was not disputed, until accounts are reconciled between the parties it would be difficult for this Court to hold that the amount stated on that email, i.e., the TZS 2,904,229,605.05 was the true determinate debt owing, given that, Exh.P-2 is not in itself conclusive of the amounts which are to be made payable by the Defendant. In Exh.D7, which is dated 04th February 2021, was the Defendant’s response to a demand notice for payment of TZS 2,792,115,079.53, the Defendant made it clear that the Plaintiff’s demand could not be honoured while the parties were carrying out a reconciliation of their respective accounts and some documents were being awaited to be availed to the Defendant by the Plaintiff. All such revelations mean, therefore, that, reliance cannot solely be made on Exh.P2 to make Page 31 of 57 conclusions. But what does Exh.P1 provides? Can it provide any assistance in resolving the matters at hand? In this suit, there is no dispute that goods were delivered and received by each of the parties and, at different times. The issue is how much was delivered, how much was paid for or off-set by re-supply of goods? Exh.P1 are invoices which the Plaintiff seeks to rely on to establish the value of beverages supplied to the Defendant. Their cumulative total, if one takes trouble to calculate it from all invoices constituting Exh.P-1 as I have labored to do, indicates that, the goods supplied to the Defendant, as per Exh.P1, were goods worth TZS 3,477,185,481.56 (VAT inclusive). It is clear, in the first place, that, the above stated cumulative amount as per the total sum of all invoices constituting Exh.P1, is in excess of what the Plaintiff has claimed in paragraph 3 of the Plaint (i.e., TZS 2,904,229,605.05) by TZS 572,955,876.51. This means that, Exh.P1 provides an amount which is at variance with the amount claimed by the Plaintiff as per paragraph 3 of the Plaint. What is the implication of such a finding? In law, when the evidence tendered seems to be at variance with the pleadings, that has fatal consequences to the claims or the issue under consideration, since, it is a well settled principle, that, parties are bound by their pleadings and, evidence which is at variance with the averments in the Page 32 of 57 pleadings goes to no issue and should be disregarded or discountenanced by the Court. See, for that matter, the decision of this Court in the case of Lilian Onael Kileo vs. Fauzia Jamal Mohamed; Commercial Case No. 135 of 2013: High Court of Tanzania (Commercial Division) at Dar es Salaam (Unreported). See also the case of American Cynamid Company vs. Vitality Pharmaceuticals Ltd (1991) 2 S.C. 47. On the other hand, the above findings in regard to the observed variance, in terms of the amount claimed vis-a-viz the total amount exhibited under Exh.P1, further cements the views I made earlier, that, until the parties’ accounts are reconciled between themselves, it would be difficult for this Court to hold that the amount claimed by the Plaintiff is the actual amount payable. In my humble view, prudence should have guided the Plaintiff at the time of making the decision regarding whether to pursue this matter in Court or await the completion of the reconciliation exercise which was under way, before rushing to this Court. In the case of SIKEM Real Estate Developers Ltd vs. Serengeti Breweries Ltd, Commercial Case No.3 of 2020, (unreported), this Court did encounter an issue regarding reconciliation which was prematurely terminated while the parties had earlier agreed to embark on that route. In its decision this Court stated as follows, and I quote: Page 33 of 57 “There is no doubt the parties herein operated their business affairs on credit basis and, in that regard, having a reconciliation of the transactions as understood by each of them was necessary …... The failure or refusal on the part of the Defendant, therefore, made it impossible to establish the true debt which the Plaintiff owes to the Defendant. In principle, it is my view that, the demand for second reconciliation was a relevant fact which, under section 9 of the Evidence Act, Cap.6 R.E 2019, would have established the state of things under which the Defendant’s or the Plaintiff’s claims occurred.” (Emphasis added). The above excerpt does apply equally to the case at hand and the Demand for completion of the reconciliation as per the testimony of Dw-3 was a relevant factor which would have assisted in the establishment of the true state of affairs between the two parties. In this current suit, it was also acknowledged also by Pw-1, Dw-2 and Dw-3 that, both parties Page 34 of 57 used to supply each other with beverages but, the supply by the Defendant to the Plaintiff, was meant to off-set the debt arising from the supplies made by the Plaintiff to the Defendant. However, had the reconciliation of the two parties accounts or documentation been brought to an end and the true debts owing to each of the parties conclusively established, no doubt that a set-off would have been automatically triggered and the matters would have been laid to rest easily. That course, however, was not taken and, thus, a clear-cut response to the first issue is not readily obtainable. But is it all that or does it mean nothing can be stated taking into account all other evidence submitted and/or the pleadings filed before this Court? The law is to the effect, as I stated hereabove, that, a party is to be bound by its pleadings. As I look at the Defendant’s amended written statement of defence and the testimony of Dw-3, I find that, the Defendant has admitted (as per paragraph 6.1, 6.2 and 6.4 of the amended WSD) a sum of TZS 1,730,389,959.03 as the amount which represents a correct value of the actual goods received leaving out a difference of TZS 1,173,839,646.02 (if one takes the total amount claimed by the Plaintiff), and, contends that, that sum of TZS 1,730,389,959.03 was fully settled. Page 35 of 57 The immediate question that follows, however, is: is there any such proof that these were fully settled? I will come to this point later, given that, it is also an important point which needs scrutiny from the availed documentary evidence by both the parties. On the other hand, in her amended WSD, the Defendant disputed invoices referred to in the Plaint’s sub-paragraphs 7.1, 7.2, 7.3, 7.4, 7.5, 7.6, 7.7, 7.8, 7.9, 7.10,7.11, 7.12, 7.13, 7.14 (all these being for the year 2018) and invoices listed in paragraphs 7.28, 7.30, 7.36,7.45 and 7.46 for the year 2019, on the grounds, as Dw-1 testified, that, such goods were never received by the Defendant. However, is the Defendant’s rejection or claim of non-delivery of goods justified? I have taken trouble to examine the disputed invoices. The 1st invoice under paragraph 7.1 of the Plaint is Invoice No. OP10041154, dated 30th June 2018 for TZS 134,156,982/=. The same bears the two Defendant’s stamp and is dated 02/7/2018 and signed by two different persons on the same date, one being Mr. Olais and the other being Mr. Allan. The 2nd invoice mentioned in paragraph 7.2 of the Plaint is Invoice No. OP10041543, dated 13th July 2018 for TZS 21,360,003.17/=. The same is stamped and signed by one Allan. The 3rd invoice mentioned in paragraph 7.3 of the Plaint is Invoice No. OP10041905, dated 25th July 2018 for TZS Page 36 of 57 10,656,000.38/=. This one does not have any stamp but it was signed by one Charles John. The 4th invoice mentioned in paragraph 7.4 of the Plaint is Invoice No. OP10041826, dated 19th July 2018 for TZS 79,403,995.49/=. This one is not stamped but indicates a signature by an unknown person. The 5th invoice mentioned in paragraph 7.5 of the Plaint Invoice No. OP10042023, dated 26th July 2018 for TZS 36,719,995.20/=. This invoice bears the Defendant’s stamp dated 27/7/2018 and is signed by one Mr. Olais. The 6th invoice mentioned in paragraph 7.6 of the Plaint is Invoice No. OP10042182, dated 31st July 2018 for TZS 27,019,201.02/=. This invoice does not bear any stamp but it was signed by one James A. Mboya on 03/08/2018. The 7th invoice mentioned in paragraph 7.7 of the Plaint is Invoice No. OP10042283, dated 04th August 2018 for TZS 69,239,978.64/=. This invoice bears the Defendant’s stamp dated 04/8/2018 and is signed by one Allan. The 8th invoice mentioned in paragraph 7.8 of the Plaint is Invoice No. OP10042528, dated 13th August 2018 for TZS 23,265,000.36/=. This invoice bears the Defendant’s stamp dated 13/8/2018 and is signed by one Allan. The 9th invoice mentioned in paragraph 7.9 of the Plaint is Invoice No. OP10042498, dated 13 th August 2018 and it is for TZS 153,959,980.80/=. This invoice bears the Page 37 of 57 Defendant’s stamp dated 13/8/2018 and it is signed by one Mr. Olais. The 10th invoice mentioned in paragraph 7.10 of the Plaint is Invoice No. OP10042599, dated 16th August 2018 for TZS 168,924,008.26/=. This invoice bears the Defendant’s stamp dated 16/8/2018 and it is signed by one Mr. Olais. The 11th invoice mentioned in paragraph 7.11 of the Plaint is Invoice No. OP10043230, dated 04th September 2018 for TZS 207,371,392.62/=. This invoice bears the Defendant’s stamp dated 05/9/2018 and is signed by one Mr. Olais. The 12th invoice mentioned in paragraph 7.12 of the Plaint is Invoice No. OP10042599, dated 07th September 2018 for TZS 82,439,995.78/=. This invoice bears the Defendant’s stamp dated 07/9/2018 and it is signed by one Mr. Olais. The 13th invoice mentioned in paragraph 7.13 of the Plaint is Invoice No. OP10043488, dated 13th September 2018 for TZS 20,561,403.17/=. This invoice bears the Defendant’s stamp dated 15/9/2018 and it is signed by one Mr. Olais. The 14th invoice mentioned in paragraph 7.14 of the Plaint is Invoice No. OP10043893, dated 28th September 2018 for TZS 101, 375,991.02/=. This invoice is unstamped but signed by one FIROZ on 28/9/2018. Page 38 of 57 The other group of Invoices disputed by the Defendant on the ground of non-delivery of goods are: the Invoice No. OP10046578, indicated in paragraph 7.28 of the Plaint and dated 15th January 2019 for TZS 814, 799.96/=. This invoice is unstamped but signed by an unknown person. The next disputed invoice is Invoice No. OP10048395, indicated in paragraph 7.30 of the Plaint and dated 03rd April 2019 for TZS 30,407, 993.95/=. This invoice is stamped by the Defendant’s stamp and signed by one James on 03/04/2019. The other disputed invoice by the Defendant is Invoice No. OP10050740, indicated in paragraph 7.36 of the Plaint and dated 03rd April 2019 for TZS 518,999.40/=. This invoice is unstamped and un signed but has a handwritten words “sign only”. Likewise, the next disputed invoice by the Defendant is Invoice No. OP10055255, indicated in paragraph 7.45 of the Plaint and dated 12th December 2019 for TZS 149,519, 985.36/=. This invoice is stamped by the Defendant’s stamp and signed by one James on 12/12/2019. The final disputed invoice by the Defendant as per the amended WSD is Invoice No. OP10055389, indicated in paragraph 7.46 of the Plaint and dated 03rd April 2019 for TZS 86,471, 997.72/=. This invoice is stamped by the Defendant’s stamp and signed thereon by one James on 19/12/2019. It also bears a stamp by the Plaintiff and a signature by unknown person. Page 39 of 57 Although the Defendant seems to state that the sum total of the disputed Invoices is TZS 1,316,799,439.88., my own summation, however, gives me a cumulative total of TZS 1,384,963,704.3. The question I raised earlier is whether the Defendant is justified to reject these invoices on the ground, as submitted, that, the goods were never delivered to the Defendant. In my humble view, save for three invoices, i.e., Invoice No. OP10041826, indicated in paragraph 7.4 of the Plaint and dated 19th July 2018 for TZS 79,403,995.49/=(which is not stamped but indicates a signature by an unknown person); the Invoice No. OP10046578, indicated in paragraph 7.28 of the Plaint and dated 15th January 2019 for TZS 814, 799.96/=which is unstamped but signed by an unknown person and Invoice No. OP10050740, indicated in paragraph 7.36 of the Plaint and dated 03rd April 2019 for TZS 518,999.40/=, which is also unstamped and unsigned, the rest of disputed invoices cannot be denied by the Defendant as invoices for which goods were supplied by the Plaintiff to the Defendant. I hold that view because, all those remaining invoices are stamped by the Defendant’s stamp and signed by her employee, one being Mr. Allan, whom Dw-3 acknowledge while being cross-examined, to be one of the Defendant’s employees. Secondly, even those which were signed by one, Mr. Olais, bear Page 40 of 57 the similar Defendant’s stamp. According to Exh.D6- Mr. Olais is shown to be a driver. Thirdly, among the disputed invoices bearing the Defendant’s stamp are also signed by one James Mboya. I have taken the liberty of comparing the signatures appearing on those invoices signed by Mr. James or Mr. James Mboya and the signature appearing in the witness statement of Dw-1 Mr. James Mboya. I find them to bear a resemblance which sufficiently tells that, the same person (Dw-1) was involved in the signing of such invoices to signify that goods were supplied and delivered to the Defendant by the Plaintiff as per the invoices he signed. Fourthly, the Invoice No. OP10043893, dated 28th September 2018 signed by Mr. Feroz, though not bearing any stamp on it, cannot be disputed or rejected since, the same person signed Invoice No. OP10044481, dated 24th October 2018 which appears on paragraph 7.16 of the Plaint and many others, but which the Defendant readily admits. As such, I cannot see the reason why an invoice signed by the same person is to be rejected. Whether it was the company policy that invoices should be stamped and signed, that is immaterial and does not matter, given that, the signature there in is the same, and, for that matter, I see no reason to reject the Invoice. Page 41 of 57 That being said, what is the implication to the Plaintiff’s case and the Defendant’s case? The implication of all that to the Plaintiff’s case after that analysis of mine is that, the invoices which the Defendant disputed but which as I demonstrated are valid proof of supply of goods to the Defendant by the Plaintiff, stand as proof of an amount which is yet to be settled by the Defendant. The cumulative total sum from these, as I stated earlier is (TZS 1,384,963,704.3) less (the amount for Invoice No. OP10046578, indicated in paragraph 7.28 of the Plaint and dated 15th January 2019 for TZS 814, 799.96/=which is unstamped but signed by an unknown person and Invoice No. OP10050740, indicated in paragraph 7.36 of the Plaint and dated 03rd April 2019 for TZS 518,999.40/=, which is also unstamped and unsigned and Invoice No. OP10041826, indicated in paragraph 7.4 of the Plaint and dated 19th July 2018 for TZS 79,403,995.49/=(which is not stamped but indicates a signature by an unknown person)). The final result on this point, thus, will give a total of TZS 1,304,225,909.51. However, in paragraph 6.2 of the amended WSD and as per the testimony of Dw-3, the Defendant does admit that invoice No. OP1005611 which was for TZS 385,356,129.14 was wrongly issued and was rectified by invoice No. OP10056038 for TZS 283,813,836.00. Reliance was placed on Exh.D8 which I have had time to confirm and it Page 42 of 57 is indeed so. But what does all that means, the difference (which is TZS 101,542,293.14) needs to be deducted from the earlier amount of the invoices admitted as Exh.P1 (which, as I stated hereabove, equals TZS 1,304,225,909.51. If one is to deduct the said (TZS 101,542,293.14), the final results would be TZS 1, 202,683,616.37 as an amount proved by virtue of Exh.P1. On the other hand, and, as I earlier indicated h ere above, the Defendant in para 6.4 of the amended WSD, and as per the testimony of Dw-3, admitted to have received goods amounting to a sum of TZS 1,730,389,959.03. According to Dw-3, that sum of TZS 1,730,389,959.03 was fully settled and the Plaintiff has nothing to claim. Dw-3 tendered and relied on Exh.D9, Exh.D10 and Exh.D.11 to support his version of the story. From such testimony, however, one immediate question which came to my mind and hence raising it suo muto, was: is there any such proof that the admitted amount equal to TZS 1,730,389,959.03 was fully settled? I will endeavor now to deal with this question which I earlier said will revert to, here below and find out what was exactly paid for as per the exhibits tendered in Court. In his testimony, Dw-3 endeavored to provide proof of payments or settlement by stating, in the first place, that there was authorization for payments through bank transfer or by Page 43 of 57 cheques totaling TZS 496,394,302.18 in respect of the following invoices: 1. Invoice No. OP10050714 for TZS 31,344,097.07 paid on 23/8/2019. 2. Invoice No. OP10044481 for TZS 43,535,993.33 paid on 10/10/2019. 3. Invoice No. OP10052319 for TZS 35,109,595.11 paid on 25/11/2019. 4. Invoice No. OP10050762 for TZS 16,289,996.76 paid on 28/11/2019. 5. Invoice No. OP10045099 for TZS 12,530,041.78 paid on 03/01/2020. 6. Invoice No. OP10054079 for TZS 52,919,999.50 paid on 18/01/2020. 7. Invoice No. OP10056655 for TZS 36,326,579.99 paid on 12/02/2020. 8. Invoice No. OP10056667 for TZS 32,466,766.40 paid on 13/02/2020. 9. Invoice No. OP10056953 for TZS 24,522,218.12 paid on 27/02/2020. 10. Invoice No. OP10057639 for TZS 18,900,060.00 paid on 24/04/2020. 11. Invoice No. OP10045768 for TZS 19,379,399.98 paid on 06/12/2020. 12. Invoice No. OP10045930 for TZS 22,979,999.92 paid on 06/12/2020. Essentially, although Dw-3 indicates in his testimony in chief that the above invoices have a total of TZS 496,394,302.18, the fact, if one adds them up as they are Page 44 of 57 shown hereabove, the results is equal to TZS 346,304,727.96. Even so, as I sum-up the payments evidenced by Exh.D-9 which the witness Dw-3 tendered, they give a total of TZS 210,586,540.99 (and not TZS 496,394,302.18). However, Dw-3 did also tender in Court Exh.D-10 and Exh.D-11 as proof of the fact that the Defendant fully settled the said TZS 1,730,389,959.03. I have endeavored to add- up the amount in Exh.D-10 as well and it gives me a total of TZS 400,305,984.28 (and not TZS 442,428,386.65 as shown in para 8.0 of the witness statement of Dw-3). Further still, I have considered Exh.D11 which contains invoices in respects of goods supplied to the Plaintiff by the Defendant as part of payment settlement (set-off). The total in respect of Exh.D11 is TZS=789,706,329.11. Now, if the amounts evidenced by Exh.D-9, Exh.D-10 and Exh.D.11 are put together, (i.e., TZS 210,586,540.99 + 400,305,984.28 + 789,706,329.11) they give a total of TZS 1,400,598,854.38/=. This amount is less than the amount which Dw-3 testified that the Defendant paid to the Plaintiff (see also paragraphs 6.4, 6.4.1, 6.4.2 and 6.4.3 of the WSD) which is TZS 1,730,389,959.03 by (TZS 329,791,104.65). It follows, therefore, that, much as there is proof that the Defendant settled the Plaintiff’s claims he admitted to be Page 45 of 57 indebted to the latter, the Defendant only paid a total of TZS 1,400,598,854.38/= and not TZS 1,730,389,959.03. Since the Defendant admitted that he ought to have paid that much, and, given that the evidence she tendered through Dw-3 to prove such admission falls short of (TZS 329,791,104.65), it means, therefore, that, the Defendant is also liable to pay that differential amount to the Plaintiff as well. From the above discussion, thus, the final result, will give one a total of (TZS 1,202,683,616.37 + TZS 329,791,104.65) which is = TZS 1,526,474,721.02 as an amount which, albeit partial in nature, ought to have been paid to the Plaintiff by the Defendant. I hold it to be “partial amount” because, even if the reconciliation of the two parties’ accounts was not brought to an end and the full amount of the true debts which the Defendant is supposed to pay the Plaintiff cannot be fully and conclusively established, there is, nevertheless a partial proof of what is claimed as I have endeavoured to establish from the disputed Invoices, the Defendant’s admissions and the rest of exhibits tendered by both parties. From the foregone discussion, the first issue, therefore, is only partially responded to and, taking the manner I have laboured to demonstrate it hereabove, the Plaintiff is only entitled to be paid TZS 1,526,474,721.02 and not TZS 2,904,229,605.05 which cannot be established by relying on Page 46 of 57 Exh.P2 or even Exh.P1 (taken in its cumulative nature). As I stated, had there been a reconciliation, that would have been an antidote or a proof regarding the exact claimed amount due to the Plaintiff. That being said, I will now move to the second issue which was: ‘if the response in the [first] issue is in the affirmative, whether the Defendant paid for all the beverages supplied and received. The second issue need not detain me much. Since the first issue was partially responded to in the affirmative, the result in respect of the second issue will also be partial in nature in the sense that, it is only what was ascertained herein above which can be said, with certainty in my view, that the Defendant is required to pay. If there is any other claim, such a claim cannot be established and what was established has, in the least, been partially established as the parties out to have concluded the reconciliation of their accounts, a fact which the Plaintiff did not consider useful, though it was and perhaps it could have been to her own advantage. The third issue seeks to address the counter claim raised by the Defendant (Plaintiff in the counterclaim). In particular, that issue was: Whether the Plaintiff in the Counterclaim (Defendant) Page 47 of 57 supplied the Defendant in the Counterclaim (Plaintiff) beverages worth TZS 2,442,024,956.66. As the pleadings indicate, the Defendant herein (as Plaintiff in the counterclaim) has sought to prove her claims by reliance mostly on the testimony of Dw-1, and Exh.D1, Exh.D-2, Exh.D3, Exh.D-4, Exh.D-5 and Exh.D-6. To some extent reliance was also paced on testimony of Dw-3 together with Exh.D8. Dw-2 only made mention of the amount counterclaimed any nothing more was stated by him. Let me now consider the plausibility of such claims for TZS 2,442,024,956.66. In his testimony in chief, Dw-1 told this Court that in 2017 several orders were received from the Defendant herein (Plaintiff in the counterclaim) and upon being worked upon a delivery was effected to the Plaintiff (Defendant in the counterclaim). Reliance was placed on Exh.D1 which consist of three (3) invoices namely: - Invoice No. BCLCTSTX100116 for TZS 8,642,045.94 - Invoice No. BCLCTSTX100236 for TZS 70,264,910.24 - Invoice No. BCLCTSTX100301 for TZS 33,783,523.95 The total amount for the three invoices above, which were admitted in Court as Exh.D-1, is TZS 112,690,480.13. Dw-1 did also tender in Court Exh.D-2 which consists of the following Invoices and Credit Notes: - Invoice No. BCLCTSTX1003287 for TZS 26, 883,117.75 Page 48 of 57 - Invoice No. BCLCTSTX1003291 for TZS 10,463,673.60 - Invoice No. BCLCTSTX1003238 for TZS 970,138.47 - Invoice No. BCLCTSTX1003131 for TZS 1, 737, 325.80 - Invoice No. BCLCTSTX1003182 for TZS 7, 400, 440.80 - Invoice No. BCLCTSTX1003082 for TZS 44, 902,119.92 - Invoice No. BCLCTSTX1002937 for TZS 11, 448,558.24 - Invoice No. BCLCTSTX1002875 for TZS 29, 695,937.82 - Invoice No. BCLCTSTX1002752 for TZS 18,764, 045.13 - Invoice No. BCLCTSTX1002601 for TZS 56,046, 094.20 - CR. NOTE No. BCLCSCUSRET000273 for TZS 355,670.88 - Invoice No. BCLCTSTX1002575 for TZS 889,177.20 - Invoice No. BCLCTSTX1002548 for TZS 410,356.80 - Invoice No. BCLCTSTX1002420 for TZS 10,553, 058.60 - Invoice No. BCLCTSTX1002361 for TZS 6,185, 675.64 - Invoice No. BCLCTSTX1002333 for TZS 53,582,418.33 - Invoice No. BCLCTSTX1002178 for TZS 52,743, 168.00 - Invoice No. BCLCTSTX1002112 for TZS 38,281, 600.12 - Invoice No. BCLCTSTX1002073 for TZS 436,227.12 - Invoice No. BCLCTSTX1002034 for TZS 43,778, 935.74 - Invoice No. BCLCTSTX1002001 for TZS 24,728,757.32 - Invoice No. BCLCTSTX1001998 for TZS 292, 871.28 - Invoice No. BCLCTSTX1001816 for TZS 30,283, 413.80 - Invoice No. BCLCTSTX1001566 for TZS 235, 452.48 - Invoice No. BCLCTSTX1001549 for TZS 3,320, 505.28 - Invoice No. BCLCTSTX1001520 for TZS 34,189,549.32 - Invoice No. BCLCTSTX1001411 for TZS 11,818, 360.80 - Invoice No. BCLCTSTX1001363 for TZS 26,025,301.20 - Invoice No. BCLCTSTX1001326 for TZS 7,873,299.84 - Invoice No. BCLCTSTX1001294 for TZS 3,891, 486.60 - Invoice No. BCLCTSTX1001259 for TZS 9,004,070.45 Page 49 of 57 - Purchase Order PO0002704-1…. for TZS 3,719,324.04 - Invoice No. BCLCTSTX1001223 for TZS 2,256, 134.04 - Invoice No. BCLCTSTX1001093 for TZS 40,975,641.60 - Invoice No. BCLCTSTX1001062 for TZS 4,735,812.00 - Invoice No. BCLCTSTX1000955 for TZS 9,765,309.48 - Invoice No. BCLCTSTX1000923 for TZS 5,217, 326.40 - Invoice No. BCLCTSTX1000890 for TZS 33,481, 252.04 - Invoice No. BCLCTSTX1000868 for TZS 3,708,079.20 - Invoice No. BCLCTSTX1000820 for TZS 5,478,666.84 - Invoice No. BCLCTSTX1000809 for TZS 585,742.56 - Invoice No. BCLCTSTX1000783 for TZS 12,843,226.20 - Invoice No. BCLCTSTX1000784 for TZS 16,833,110.64 - Invoice No. BCLCTSTX1000528 for TZS 50,704,142.16 - Invoice No. BCLCTSTX1000585 for TZS 20,159,997.44 The total amount in respect of the above invoices, one LPO and one Credit Note, all of which constitute Exh.D-2, is TZS 757,654,573.17. However, three invoices among them were found to be incomplete. These were Invoice No. BCLCTSTX1000990; Invoice No. BCLCTSTX1000708; and Invoice No. BCLCTSTX1001646. The last two were rejected. However, two complete versions of them were received as Exh.D-3. The two invoices received as Exh.D3 were Invoice No. BCLCTSTX1000990, which has a total of TZS 19,480,000.00, and Invoice No. BCLCTSTX1001954 for TZS 2,910,389.76. These two Invoices received as Exh.D-3, has a total of TZS 22,390,389.76. If these are to be Page 50 of 57 summated with the rest in Exh.D-2, the total amount in two exhibits (i.e., Exh.D2 and Exh.D-3 hereabove) is TZS 780,044,962.93. Dw-1 relied also on Exh.D-4 which are invoices sent to the Plaintiff (Defendant in the counter claim in the year 2019. These were received as Exh.D4. The respective invoices were: - Invoice No. BCLCTSTX1006415 for TZS 10,119,174.96 - Invoice No. BCLCTSTX1005908 for TZS 91,280,985.36 - Invoice No. BCLCTSTX1004606 for TZS 725,983.20 - Invoice No. BCLCTSTX1004592 for TZS 6,668,595.36 - Invoice No. BCLCTSTX1004624 for TZS 605,531.16 - Invoice No. BCLCTSTX1004762 for TZS 31,486,732.96 - Invoice No. BCLCTSTX1004864 for TZS 42,201,621.48 - Invoice No. BCLCTSTX1004974 for TZS 49,142,704.80 - Invoice No. BCLCTSTX1005070 for TZS 1,305,764.40 - Invoice No. BCLCTSTX1005102 for TZS 154,857,349.56 - Invoice No. BCLCTSTX1005261 for TZS 947,983.68 - Invoice No. BCLCTSTX1005471 for TZS 84,804,929.12 - Invoice No. BCLCTSTX1005491 for TZS 18,093,471.00 - Invoice No. BCLCTSTX1005502 for TZS 2,255,688.00 - Invoice No. BCLCTSTX1005102 for TZS 1,933,009.92 - Invoice No. BCLCTSTX1005715 for TZS 132,914,333.88 - Invoice No. BCLCTSTX1005814 for TZS 7,202,574.86 - Invoice No. BCLCTSTX1004540 for TZS 18,611,847.36 - Invoice No. BCLCTSTX1003414 for TZS 5,985,432.00 - Invoice No. BCLCTSTX1003444 for TZS 74,480,437.89 - Credit Note BCLCSCUSRET000318 for TZS 35,724.50 - Invoice No. BCLCTSTX1003476 for TZS 1,325,795.31 - Invoice No. BCLCTSTX1003475 for TZS 13,507,875.36 Page 51 of 57 - Invoice No. BCLCTSTX1003543 for TZS 923,302.80 - Invoice No. BCLCTSTX1003567 for TZS 13,881,331.31 - Invoice No. BCLCTSTX1003587 for TZS 57,137,270.16 - Invoice No. BCLCTSTX1003587 for TZS 79,794,878.04 - Invoice No. BCLCTSTX1003720 for TZS 3,504,600.00 - Invoice No. BCLCTSTX1003738 for TZS 2,303,999.94 - Invoice No. BCLCTSTX1003827 for TZS 26,222,592.48 - Invoice No. BCLCTSTX1003476 for TZS 1,325,795.31 - Invoice No. BCLCTSTX1003876 for TZS 452,249. 16 - Invoice No. BCLCTSTX1003875 for TZS 287,794.92 - Invoice No. BCLCTSTX1003915 for TZS 24,668,136.00 - Invoice No. BCLCTSTX1003993 for TZS 77,273,194.44 - Invoice No. BCLCTSTX1004074 for TZS 16,780,562.88 - Invoice No. BCLCTSTX1004233 for TZS 42,433,434.84 - Invoice No. BCLCTSTX1004371 for TZS 23,489,061.12 - Invoice No. BCLCTSTX1004532 for TZS 32,150,095.92 In the course of analysis, I have noted that, Invoice No. BCLCTSTX1004540 is incomplete and I will not count it. The total amount in Exh.D4 therefore is TZS 1,145,048,245.44. Dw-3 also relied on Exh.D5 which consists of seven invoices, issued in the year 2020. These were, namely: - Invoice No. BCLCTSTX1008128 for TZS 59,258,608.80 - Invoice No. BCLCTSTX1008306 for TZS 5,664,000.00 - Invoice No. BCLCTSTX1009057 for TZS 20,505,064.99 - Invoice No. BCLCTSTX1009098 for TZS 3,699,243.36 - Invoice No. BCLCTSTX1008720 for TZS 5,897,702.87 - Invoice No. BCLCTSTX1009961 for TZS 6,335,999.48 - Invoice No. BCLCTSTX1009788 for TZS 2,863,200.21 Page 52 of 57 The total amount for Exh.D-5 is TZS 104,223,819.71. He also relied on Exh.D-6 which are dispatch books proving that the goods dispatched to the Plaintiff (Defendant in the Counter claim) were received, as the Exh.D6 does show that, the those who received did sign the dispatch book. During cross-examination Dw-1 did also confirm that he prepared the invoice and dispatched the goods to the Plaintiff (Defendant in the counterclaim). In his submission, the learned counsel for the Defendant (Plaintiff in the counterclaim) submitted that, by virtue of the invoices and the dispatch books, goods worth TZS 2,442,024,956.66 were delivered and received. He placed reliance on the case of Joseph Deus @Sahani and Another vs. Republic, Crim. Appeal No.564 of 2019 (unreported) where the Court was of the view, at page 11, that: “…it is settled law that, the contents of an exhibit which was admitted without any objection … were effectually proven...” While the above position is a correct position in law, see also the case of Makubi Dogani vs. Ngodongo Maganga, Civil Appeal No.78 of 2019 (unreported), that does not mean that the Court should not verify such contents if it is verifiable. As a matter of principle such content or data must be verified by looking at its correctness and thus, the Court cannot just take it blindly. That being said, to verify the correctness of the Page 53 of 57 amount claimed one has to see to it that what is stated in the invoices is equal to what is being claimed. This is to say, one has to find out the total amount from (Exh.D1) + (Exh.D2 and D3) + (Exh.D-4) + (Exh.D-5) i.e., (TZS 112,690,480.13) + (TZS 780,044,962.93) + (TZS 1,145,048,245.44) + (TZS 104,223,819.71), which is TZS 2,142,007,508.21. This amount stands as the total amount proved and which should, therefore, be made payable to the Defendant (Plaintiff in the counterclaim) and not TZS 2,442,024,956.66 as claimed. In light of the fact that there was no evidence on the part of the Plaintiff (the Defendant in the counterclaim) to show that the invoices tendered in Court as Exh.D-1, Exh.D-2, Exh.D-3, Exh.D-4 and Exh.D-5 were settled (paid for), it follows that, that amount is owing and should be paid to the Defendant (Plaintiff in the counterclaim). The above discussion, therefore, brings to an end the fourth issue affirmatively, though not in terms of the actual amount claimed. The final issue to consider is: To what relief are the parties entitled. As per the discussions held herein above, it has come clear to my mind that, as regards the claims by the Plaintiff herein, that, the amount which she has been able to prove, as shown in my earlier consideration of the first issue, is only TZS 1,526,474,721.02. This, therefore, should be the amount Page 54 of 57 which the Plaintiff will be entitled to be paid by the Defendant had there been no counterclaim or should counterclaim fail. However, as the consideration of the third issue in relation to the proof of the counterclaim demonstrated, proof has been established that, indeed, the Defendant (Plaintiff in the counterclaim) has a demonstrable case against the Plaintiff, and is entitled to receive from the Plaintiff (Defendant in the counterclaim) a total of TZS 2,142,007,508.21. With that fact in mind, it follows, therefore, that, if what the Plaintiff claims from the Defendant is less than what the Defendant is counterclaiming, it is the Plaintiff who ought to pay the Defendant (Plaintiff in the counterclaim), a total of TZS 2,142,007,508.21 less TZS 1,526,474,721.02, resulting from the Plaintiff’s unpaid invoices) and, the payable amount remaining as a balance, therefore is a sum of TZS 615,532,787.19. From the foregone discussion this Court settles for the following final orders: 1. That, both parties are in breach of their supply agreement and they both share that blameworthiness. 2. That, although the Plaintiff is entitled to receive from the Defendant a total of TZS 1,526,474,721.02 as amount arising from unsettled invoices in Page 55 of 57 respect of goods supplied, the Defendant (Plaintiff in the counterclaim) is equally entitled to TZS 2,142,007,508.21 payable by the Plaintiff (Defendant in the counterclaim). 3. That, in view of what is stated in No.2 hereabove, it is the Defendant (Plaintiff in the Counterclaim) who is entitled to payment of a sum of TZS 615,532,787.19 as a balance arising from the unsettled invoices which, based on the arrangement between the parties, exceeds the claims which the Plaintiff has against the Defendant. 4. That, the above stated amount should be paid with an interest of 12% thereon from the date of this judgement. 5. That, given the circumstance of this case, each party shall bear its own costs. It is so ordered. Page 56 of 57 DATED AT DAR-ES-SALAAM ON THIS 04TH DAY OF NOVEMBER 2022 ......................................... DEO JOHN NANGELA JUDGE Page 57 of 57