MOUNT MERU PERTOLEUM

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT ARUSHA CIVIL APPEAL NO.28 OF 2023 MOUNT MERU PETROLEUM LIMITED AND TUMAINI NAFTAL COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS VICTOR SHIRIMA RESPONDENT / DEFENDANT JUDGMENT BADE,J, JUDGMENT 11/09/2024 & 02/12/2024 BADE,J. The brief material facts leading to this Appeal according to the record of this file is that the Respondent sued the Appellants at Arusha Resident Magistrate’s Court claiming against the Appellants jointly and severally for the payment of a total of TZS 126,800,000 being special damages as compensation for destruction, loss of business and costs incurred by the Respondent due to the Appellants action of mixing diesel with water which caused destruction of the Respondent’s two buses. That, on 21/04/2021 at evening hours the Respondent’s two buses filled diesel fuel at the 1st Appellant petrol station located at Postal area at Arusha. Immediately after the diesel fuel was filled into the buses the said two motor vehicles started to malfunction after they were driven a short distance, and upon checkup by a mechanic it was discovered that the diesel filled was contaminated as it was mixed with water which resulted to a mechanical defect. The Respondent prayed against the Appellants for the judgment and decree: 1. An order for the appellants to pay the Respondent a total of TZS. 126,800,000/=, being the special damages the Respondent suffered fi-om the Appellant negligent act of fueling contaminated diesel to the Respondent’s two buses. 2. An order for the Appellants to pay the Plaintiff an interests of7% to the awarded amount from date of filing this suit to the date of fiill payment. 3. The Appellants to be ordered to pay general damages to the Respondent amount to be assessed by the court 4. Costs of the suit 5. Any other reliefs court deems just to grant On the other side, the Appellants while admitted that they entered into agreement to pay Respondent TZS 600,000 as loss of profit for one day and to refund the fuel price of TZS 128,000, The Appellants deny the allegations that the diesel that was sold was mixed with water. .After hearing the evidence of both sides, the trial court ruled that the Respondent managed to prove special damages to the tune of TZS 35,000,000 only, being loss he encountered for the destruction and loss of business. The trial court also awarded Respondent general damaged in tune of TZS 5,000,000. The Appellant being aggrieved by the said decision, filed the instant Appeal on five grounds of appeal in their memorandum of appeal to the effect that: 1. The trial court erred in law and in fact in finding that the fuel filled in the Respondent’s vehicle was contaminated with water without proof of the same by failing to properly evaluate the evidence on records. 2. The trial court erred in law and in fact in finding that the Appellants agreed the liabilities of the Respondent by failing to properly evaluate the evidence on records. 3. The trial court erred in law and in fact in finding that the Respondent suffered damages as result of the fuel filled from the first Appellant’s station by failing to properly evaluate the evidence on records. 4. The trial court erred in law and in fact in finding that the Respondent is entitled TZS 35,000,000 as special damages and TZS 5,000,000 as general damages. 5. The trial court erred in law and in fact in failing to consider the evidence on record hence allowing the suit against the Appellant and ignoring the Appellants’ defense. This Appeal was disposes of by way of oral submission. The Appellants were represented by Mr. Issa Rajabu Mavura, learned advocate while the Respondent enjoyed the services of Mr. Fortunatus Mhalila, also a learned advocate. Counsel for the Appellants starts his argument by fifth ground. He submitted that, Respondent was awarded special damages of TZS 35 Million basing on the claims of motor vehicle repairs, relying on exhibit P3, profonna invoices, which were not addressed to the Respondent, offering that the Respondent herein is Victor Shirima while exhibit P3 was addressed to Heavy Truck; two separate legal persons and unconnected, as there was no claim from Heavy Truck. He referred this court to page 29 and 35 of the trial court’s proceedings where DWl and DW3 testified that proforma invoices are not receipts or proof of payment. To support his position, he cited the case of Ami(T)Ltd vs Prosper Mselle, Civil Appeal No. 159 of 2020, adding that the Respondent admitted at page 22 of the proceedings that he did not tender any receipts as proof of expenses incurred. Moreover, Mr. Mavura argues that exhibit PI which was employment contract was not proof that the Respondent paid salaries to the person he said he actually employed as there is no payment slip or salary slip tendered during trial. Neither was there proof of PAYE or NSSF contribution tendered for such proof of employment. It is Mr. Mavura’s contention that Joel Barnaba was said to have been the driver who fueled the motor vehicle at the 1st Appellant station and was paid TZS 30,000 per day, and one Eliza as his conductor, who was paid TZS 20,000 per day but were not brought to court to testify on these facts as key witnesses. The counsel added that failure to call a key witness should have made the court to draw adverse inferences. To support his stance, he cited the case of Ahmad Salum Hnssan vs R, Criminal Appeal No. 386 of 2021. In further argument, he contends that the Respondent claimed to be a business person and pays taxes to the Revenue Authority, but no licenses or registration documents were tendered for proof as conceded in pages 16-22 of the trial court proceedings. Also, he argues that the witnesses fronted by the Respondent during trial were untruthful, pointing that PWl testified that the motor vehicle to have been fueled at the Appellant’s at 8pm contrary to exhibit P2 which was the receipt tendered showing that the motor vehicle to have been done fueling at 16:40pm, insisting that since PWl was untruthful, a witness who lies on an important point does not deserve credence. To buttress his position, he cited the case of Misogi Ndebile @ Soji vs R,[2015] TLR 517. Regarding the first and second grounds. Counsel Mavura submitted that, according to exhibit P4 which is the agreement between the 1st Appellant and the Respondent, there is nowhere in the said agreement where the 1st Appellant admitted to have the Respondent vehicle filled with contaminated fuel. His views are that paragraph 2 of the said agreement does not make the Appellant to have admitted to have filled the Respondent motor vehicle with water contaminated fuel. His further argument is that DWl and DW3 testified to have admitted to paying TZS 600,000 per day for which the Respondent’s vehicle did not work, as well as reimbursement of fuel purchase. But that was done for purposes of maintaining the relationship with the Respondent, and they testified further that on 22/04/2021 a fuel test was conducted at the station in question in the presence of the Respondent as well as one Oswald Timira from EWURA, where the fuel was found to not have been contaminated with water. That the Appellants’ witnesses also testified that the Respondent went to their station with journalists and police officers and slept there to ensure the fuel would not be removed from the tanks until the said test was done. The counsel points out further that it was only motor vehicle with Registration no T499DRR that was fueled on 21/04/2021 for the amount of TZS 218,000 as per exhibit P2. The other motor vehicle with Registration no T318DPL was not fueled on that date, but rather on 19/04/2021. That is why the Respondent only produced one EFD receipt as exhibit in P2, and there were no complaints from other customers who fueled their vehicles with the same kind of issues despite being open for business as usual. Mr. Mavura contended that DW4 who was an automobile engineer testified on how a diesel engine works, that nozzles and injector pump can not be instantly damaged when a motor vehicle is filled with contaminated fuel, and that the engine will not move if the water is a lot. DW4 corroborated the evidence of PW4 who admitted on cross examination that the spares listed under exhibit P3 could not have been damaged instantly when the car was filled with water, neither was he an expert in measuring fiiel purity. On the third and fourth grounds, Counsel Mavura submitted on special damages which have to be strictly pleaded and proved, and specific damages must be specifically proved. He argues that the trial court relied on exhibits P3 and PI which do not prove any expenses to have been incurred, implying then that the Respondent could not have suffered damages. He added that, the trial court did not quantify the specific damages of TZS 35 million nor awarded them while backed by any reasoning. In his view, even though damages are discretionaiy to the court, they have to be awarded on the specificity of the case. And since the same was not proved, they should not have been awarded the damages of TZS 5 million. To cement his position, he cited the case of Ami T Ltd (supra). Mr. Mhalila who is the counsel for the Respondent, following the same order as the counsel for the Appellant, opposes the Appeal. Regarding the fifth ground on the allegation that the Appellants’ evidence was ignored, he replied that the Appellant has not shown the evidence which was ignored. He submits that it is not true that the award of 35 million was for repairing the motor vehicle, pointing out that under page 13 of the trial court’s judgment, it is stated that 35 million was a sum of various prayers as made by the Respondent at the trial, and that it covers the amount as claimed from paragraph 13 of the plaint, which is a cumulation of several claims as presented. Mr. Mhalila further submitted that trial court did not rely on exhibit P3 in reaching its verdict as the analysis of the evidence shows. He referred this court to page 10-14 of the judgment, offering that the case of Ami T Ltd (supra) is irrelevant and distinguishable as the said exhibit was not relied upon by the trial court, and in his views, the same applies to exhibit PI. On the allegation that the Respondent failed to call material witnesses, Mr. Mhalila submitted that it is immaterial as the Plaintiff then called the witnesses that they thouglit would support their case, distinguishing the cited case of Snlum Hassan (supra). With regard to the first and second grounds, Mr. Mhalila submitted on the issue of contamination, stating that it was well settled by exhibit P4 in which the Appellant admitted to liave caused the damage and absorbed liability as they themselves prepared exhibit P4, which was tendered unopposed. He argues further the Respondent shouldered three responsibilities including paying TZS 600,000 for loss of business, secondly payment of TZS 218,000 as reimbursement of fuel said to have been contaminated, and lastly for repair of the said destroyed motor vehicle. In his view, DWl and DW3 admitted to having prepared exhibits P4, and willingly agreed to these responsibilities as mentioned. Mr. Mhalila added that the issue of EWURA and the tests should not have arisen as the Appellants had already admitted liability. That under page 16-19 of the trial court’s proceedings, the Respondent stated that after the time passage without adhering to exhibit P4’s undertakings, they decided to repair the motor vehicles themselves, thus by 16/07/2021 the motor vehicle were back at work and they decided to file the suit for the damages suffered. On the third and fourth grounds, Mr. Mhalila submitted that the claim was specifically pleaded and proved. He argues that the Respondent made clear that the motor vehicles were used for passenger ferrying, and was getting about TZS 600,000 per day, and paying the drivers and conductors for the said motor vehicles, and that he continued to pay them for the whole time until the same resumed duties, referring this court to page 16-22 of the trial court’s typed proceedings. He insists that the testimony on record has it as per PWl, who testified that he was a driver of one of the motor vehicles and his payment was TZS 30,000 per day, and that he continued to be paid even after the motor vehicle got damaged, which was also the case with PW2 who testified that as a bus conductor in one of the motor vehicles, she was being paid TZS 20,000 per day and that she continued receiving payment even after the motor vehicle was grounded awaiting repairs. Mr. Mhalila further argues that the Respondent proved that the motor vehicles were grounded from 21/04/2021 to 16/07/2021, and that the Respondent was getting TZS 600,000 per day, a substantive amount of loss was incurred for the time when the motor vehicle was not working, plus, the fact that exhibit P4 was an admission but appellants did nothing to make good the undertaken promises, then in his view, the special damages were proved. On the allegation that the trial court relied on exhibit PI and P3 to reach its judgment, Mr. Mhalila replied that the same were not used or considered to reach the verdict. He referred this court at page 10-14 of the trial court’s judgment. With regard to the allegation that the trial court did not reasoned on how it reached the amount awarded, Mr. Mhalila argues that the trial court analyzed the substances of the claim as pleaded, despite asking more than 100 million by Respondent. He refers this court at page 13 of the trial court’s judgment. That, on general damages awarded, he concurs with the Appellants’ counsel that it was discretional on the court, and it was correct to award such as there was a loss of business. He distinguishes the case of Ami Tanzania (supra) on the reason that in the instant case, damaged were actually proved. That, DW3 stated how he bought 4 nozzles to compensate the Respondent and that was enough proof that there was damage on the part of the Respondent. In his brief rejoinder, Mr. Mavura insisted that the trial court did not analyze how the awarded amount was reached in terms of the heads of claims against what specific amount or as per pp 28-34 of the trial courts proceedings and testimony of DW3, there are neither NSSF or Revenue Authorities documents to prove that he was paying such amounts. After hearing the rival submission by parties and going through pleadings and the record of this appeal, I think the issue for determination here is whether the trial court erred in awarding Respondent TZS 35,000,000 as special damages and TZS 5,000,000 as general damages. In that regard, I shall be guided by the principle that sitting on first Appeal from the decision of the Resident Magistrate’s Court, this court is entitled to re-appraise the whole evidence, forni its own impression of it and come to its own findings and conclusion. See the case ofPaulina Samson Ndawavya vs Theresia Thomas Madaha, Civil Appeal No.45 of 2017. Now,starting with the issue of award of specific damages. The apex Court in numerous times issued a guidance on what is specific damage and how it is awarded. In the case of Njombe Community Bank and Another vs Jane Mganwa,DC Civil Appeal No. 03 of 2015, stated that it is universally accepted that special damages are: "Such as the law will not inferfrom the nature of the act. They do notfollow in the ordinary course. They are exceptional in character and, therefore, they must be claimed specifically and proved strictly ”. Armed with the above position, let us see the evidence adduced before trial court to find out if the Respondent managed to proof his claim for specific damages ofTZS 126,800,000 or at all. The Respondent’s witness PW3 claimed before the trial court that after his motor vehicles were damaged due to fueling diesel mixed with water at the 1st Appellant petrol station, he incurred some costs to repair those vehicles as a result. It was his testimony that he entered into an agreement with the Appellants that they will pay all the costs of repair and the loss of profits of the days the buses were not working. That the Appellants agreed to pay TZS 600,000 per day for each bus. He tendered the agreement which was admitted and marked as exhibit P4. The Respondent further claimed in his evidence that Appellants did not honor their promises as a result he used TZS 17,600,000 to repair his buses and the said buses were only ready for work on 16/07/2021, almost three months since the day they were grounded. So according to him he was losing TZS 600,000 per day for the days the buses were not working, on top of which he was paying his drivers TZS 30,000; and his conductors TZS 20,000 per day for those days the buses were not working. As one can see from the nan ation above, I am of the view that the allegation by PW3 that he used TZS 17, 600,000 to repair the buses was not strictly proved as required by the law. PW3 tendered proforma invoices (exhibit P3) to prove the same, however, as we all know a proforma invoice is not used as proof of sale because it is not a legally binding document. A proforma invoice is a preliminary document that is used before the sale takes place. It is a proposal that outlines the details of the goods or services to be provided, including quantities and prices. If indeed the Respondent purchased the items listed in the proforma invoice, he was supposed to produce before the trial court a tax invoice also known as a receipt to that effect. A tax invoice is a document that outlines the details of a transaction between a buyer and a seller. It typically includes information such as the name and address of the seller and buyer, a description of the goods or services purchased, the quantity and price of the items, any applicable taxes, and the total amount due. It is what supports accounting and lax reporting requirements as it testifies a sale transaction. Unfortunately, the trial court did not notice the defect. Another claim by the Respondent is tliat they entered into an agreement with tlie Appellants for them to pay TZS 600,000 per day for those days the buses were not working. PW3 tendered exhibit P4 to prove this fact. Going through exhibit P4, it is clear that the Appellants agreed to pay TZS 600,000 per each bus, for only one day. However, as claimed by PW3, the buses were not working from 21/04/2021 to 16/07/2021 as alleged by PW3. So in my view, the Exh P4 is not supportive of the claim that the Appellant agreed to pay the Respondent for all the time that the buses were not working. Another complaint by the Respondent was that he lost profit amounting to TZS 600,000 per day per bus, thus he claims to be refunded for those days that the motor vehicles were grounded. As I look at the evidence and the exhibits tendered, 1 am unable to see from the record that the Appellant proved the claim that before his buses were grounded, he was getting a profit of TZS 600,000 per day. Neither is there any proof that his buses were not working from 21/04/2021 to 16/07/2021. My saying so is based on the premises that PW4 one August Lyimo, a mechanic, testified that he inspected and repaired those buses. His testimony that the buses were brought at his work place on the same day alleged that they were grounded, and stayed there for a while. That later on the spares were bought and he repaired the motor vehicles. See page 24 of the trial court’s typed proceedings. So, if that is the case, the Respondent did not explain why it took so long for the buses to be repaired and continued operations while they were repaired on the same day they were grounded. Meanwhile, the testimony of PW4 that he repaired the buses on the same day was supported by the fact that the Respondent agreed to sign the agreement on compensation for the loss of business for only one day as stated on exhibit P4. If the Respondent agreed with the Appellants to be compensated for the loss he incurred for I day in which his buses were not working, he cannot be seen to now change the agreed tenns and claimed loss for about 85 days. 1 find this fact unsupported by the presented evidence. Another complaint placed by the Respondent before the trial court is that he was paying his driver TZS 30,000 per day and his conductors TZS 20, 000 per day. These allegations also stood unproved. As correctly argued by the counsel for the Appellant that the Respondent did not issue any pay slips to prove this fact. The employment contract he tendered proved that the drivers and conductors were his employees and that their salaries were paid on daily basis on the amount mentioned on the contract, but certainly do not prove he was paying them when the buses were grounded. In any case, as I have already explained above, there is no evidence in court that the buses were not working for 85 days. So, basing on this finding, the allegation by Mr. Mhalila that those damages were specifically pleaded and proved is misconceived. The trial court was wrong in awarding TZS 35,000,000 as specific damages which was not strictly proved. Turning to the issue of general damages, I find inspiration on its meaning as defined in the Black’s Law Dictionary, which defined the term “general damages” to mean damages that the law presumes follow from the type of wrong complained of. General damages do not need to be specifically claimed or proved to have been sustained. In the case of Tanzania-Cliina Friendship Textile Co. Ltd vs Our Lady of Usambara Sisters [2006] TLR 70 it was stated that: '' But since general damages are awarded at the discretion of the Court, it is the court which decides which amount to award. In that respect, normally claims ofgeneral damages are not quantified”. In awarding the general damages in the tune of TZS 5,000,000 to the Respondent, I am inclined to think that the trial court did not used its discretion judiciously bearing in mind, as already analyzed above, that the Respondent had not proved his specific damages, nor tlie case for any damages. At the expense of sounding inconsequential, and in general terms, I wish to state that in order to be awarded damages, the Respondent needed to prove that they have suffered the loss or damage as a result of the breach of contract or the wrong committed by the Appellant herein at the trial, meaning proving in court at the trial that what they claim happened actually did happen. From the analyses above as I have shown, this has fallen short. In the end result, the judgment of the trial court cannot stand. I shall accordingly allow this Appeal with costs, and set aside the judgment and decree of the trial court. It is so ordered. DA TED at ARUSHA this 02ND Day ofDECEMBER 2024 Dated at ARUSHA this 2nd of December 2024 . A. Z BADE GE OF THE HIGH COURT