20181126 TZHC Dar es Salaam2

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL APPEAL NO 216 OF 2017 {Original Civil Case No. 157 of 2017 of Resident Magistrate Court of Dar es salaam at Kisutu before Hon. P. C. Mkeha, SRM} NAMPAK TANZANIA LIMITED ................................... APPELLANT VERSUS PROMASID.OR (PTY) TANZANIA LIMITED .............. RESPONDENT JUDGMENT 18/09/2018 & 21/11/2018 I.C. MUGETA, J. At the trial Court, the appellant sued the respondent and prayed for a declaration that the contract between the parties has been breached, payment of Tsh. 62,359,748.61, interest and the costs for the suit. The court dismissed the suit on the ground that she failed to establish her case to warrant the grant of the sought reliefs. The appellant is aggrieved by the judgment and decree of the lower court and has appealed to this court. The brief facts of the case are that the appellant and the respondent had a business relationship for. supply of packaging materials. By March, 2014, the respondent had ordered for supply of goods from the appellants vide order No. 36 and 37 1 .•. which were tendered and admitted as exhibit Pl. When the order _was pending or having been partly executed, in April, 2014 the respondent closed her business on. manufacturing operations . .The letter by the respondent to the appellant informing the closure of business was tendered and admitted as exhibit P4. Out of this business relationship, the appellant alleges, the respondent has not paid for goods supplied before closure of business and refused to accept for delivery of orders for supply of goods made before closure of business hence this dispute. The appeal is premised on the following grounds of appeal: 1. That, the trial Magistrate erred in law and in fact by failing to analyze the evidence on the record hence occasioning injustice to the appellant. 2. That, by wrongly quoting the date of purchase order No. 37 (exhibit P.1(3)) as 31 st May, 2014 instead of ldh February, 2014 and failure to construe the appropriate meaning of (exhibit P.4) the Hon. trial· Magistrate erred in law and in fact thereby confusing the facts of the case and reached to wrong decision. 3. That, the trial Magistrate erred in law and in fact by basing his judgment on the respondent's testimony which is not substantiated by any document and completely ignoring that of the appellant. 4. That, the trial Magistrate.erred in law and in fact by failing to address the issues framed in the suit and the arguments of the parties. 2 5. That the trial magistrate grossly erred in law and in fact in holding that there was no breach of contract in the circumstances of the case. 6. That the trial Magistrate erred in law by failing to appreciate the position of the law in the circumstances and facts of the case. 7. That the trial Magistrate erred in law and fact by confusing the facts of the case hence reaching to unfair decision prejudicing the appellant. · On the hearing date, Robert Ruben, learned advocate for the appellant and Jackline Kulwa, advocate for respondent, agreed to address the court by way of filing written submissions . . Submitting on the 1st, 2nd , and 7th , grounds, the counsel for the appellant stated that the trial court completely failed to capture the plain meaning of the letter (exhibit P4) which stopped subsequent orders after 17th April, 2014 and not supply of goods arising from previous orders. Therefore, the letter had nothing to do with Order No. 37 which is dated 10th , February, 2014 and not 31st May, 2014. The confusion, the learned counsel submitted, led the trial magistrate to reach a wrong conclusion. He further submitted that the respondent's business was not closed on 17th April, 2014, that is why some of the payments were made even ' after closure of the business. 3 On the 3rd ground,. the learned counsel submitted that the respondent's evidence through DW1 was oral ·testimony which was not backed up by any. document while the appellant's testimony through PW1 was backed up by several documents which were admitted as exhibits Pl, P2, P3, P4, and PS. Yet, the learned counsel complained,· the learned trial magistrate relied on the evidence of DW1 to reach his decision neglecting the evidence of PW1. On the 4th ground, he submitted that the trial court failed to address. the framed issues and arguments of the parties consequently, he answered all issues in the negative without dealing with each issue specifically which is contrary to Order XX Rule 4 and 5 of the Civil Procedure Act, [Cap 33, R.E. 2002]. The learned counsel further submitted that the trial court's decision is arbitrary for failure to consider the parties' arguments in the final submissions and failure to give reasons for rejecting them. Regarding the 5th and 6th grounds, the learned counsel submitted that in the trial court, the appellant well established that the respondent pressed the order for packing materials as per exhibit Pl. According to him the orders were never cancelled before being acted upon by the appellant. Exhibit P4, he submitted, only 4 .. stopped the orders from 17th April, 2014 hence it cannot be used to invaljdate the prior orders. The learned counsel further submitted that, the respondent's refusal to accept goods ordered and non- payment for the same amounts to breach of contract in• terms of section 39 and 51 of the Sales of Goods Act, Cap 216 R.E. 2002. In reply, the respondent's counsel submitting on 1st, 2nd , and 7th grounds stated that there is no any confusion on the dates of the invoices. In his view the counsel. for the appellant failed to grasp the trial magistrate's finding and reasoning that order No. 37 (exhibit Pl collectively) is not dated 10/2/2014 but 21/1/2014. The purchase order No. 37 is the one dated 31 st May, 2014. This date is reflected in the corresponding invoice for the purchase order No. 37. According to him, all claimed invoices were for the orders after closure of the business because all outstanding invoices as of the date of closure of business were effectively paid as proved by the respondent's witness. The learned counsel submitted further that the witness dealt with every invoice which was valid as at the closure of business the rest of the claims emanated from orders after closure of business. 5 I shall address the grounds of appeal and the arguments in the written submissions is the manner adopted by counsel for the appellant. On the 1st, 2nd , and 7th grounds, I agree with counsel for the appellant that exhibit P4 did not cancel orders which had been pressed trough exhibit Pl. However, I do not agree with the argument that through exhibit P4 the respondent did not close office and that is why she made further payments even after the declaration of closure of business. Hereunder are the reasons for my decision. The dispute in this case centres on two documents which were tendered in court as exhibit Pl. They are known as order No. 36 and 37. These were orders by the respondent for supply of goods from the appellant namely packaging materials. DWl testified that the same were made in January, 2014 and sent by email to the appellant before they were physically dispatched and received by the appellant on 12/3/2014. The stamp on the orders to acknowledge receipt supports this testimony. His attempt to tender a copy of the email as exhibit was successfully objected by counsel the appellant. In my view, dates of the orders are immaterial provided they were made, 6 received. and acted upon. So, even if we assume the date of the order is when they were received by the appellant, still the same were made before the respondent closed business. The rival arguments by the learned counsels are, therefore, insignificant. Counsel for the appellant's argument on the confusion of dates by the learned trial magistrate is also immaterial because finally the issue for determination is whether the appellant delivered any goods after the respondent declared close of business. Having made these orders, the respondent on 17/4/2014 issued notice to the appellant which partly read as follows:- "This communique serves as a notice to inform you that we will be closing the manufacturing operations of promasidor (Tanzania) (Pty) Ltd on lih April 2014. In the light of this we will not be placing any additional orders with Nampak Tanzania after 17th April 2014. Please note, promasidor (Tanzania) (pty) Ltd will continue to import and distribute promasidor products in Tanzania. yve are reviewing our accounting records to pay any outstanding invoices issued on us within the agreed terms. We will be in contact with you to confirm our 7 ~urrent balance owed and to resolve outstanding issues, if any". This letter was admitted as exhibit it. P4 and it was received by . •· the appellant on 23/4/2014. · Exhibit P4 is silent on orders No. 36 and 37 which had been pressed. This is the reason I agree with the contention by counsel for the appellant that further supply of items that had not been delivered per the request in order No. 36 and 37 was not cancelled. The submission by counsel for the respondent that there were orders made after closure of business of respondent manufacturing operations is not supported by evidence. What was done after close of business was the appellant issue of invoices for payment for goods the respondent disputes to have received. Exhibit P4 is clear that the respondent closed business in relation to manufacturing operations only. Therefore, making payment subsequent to issuance of exhibit P4 is not evidence that the respondent further engaged with manufacturing operation after she declared closure of business. The foregoing is sufficient to dispose of grounds of appeal No. 1, 2 and 7. However, let me delve more into the issue of supply of goods prior and after closure of business and for payments of goods already supplied. This shall help to resolve grounds of appeal. No. 3 and 4 of appeaL 8 It would seem by the time exhibit P4 was issued, the appellant had not supplied all the ordered items and the respondent had not settled all invoices for the partly supplied goods. Consequently, in May, 2014 and in December, 2014, the appellant alleges to have unsuccessfully attempted to deliver the undelivered goods per orders in exhibit Pl. The parties are at logger heads on whether the subsequent supply after exhibit P4 was fresh order. The learned trial magistrate held that all the invoices which the appellants used to establish their claim, relate to orders purportedly made after notification of closure of business. I, respectfully, do not agree with this holding. The respondent made no further orders after order No. 36 and 37 (exhibit Pl). DWl was very clear on this issue and his evidence is undisputed. He stated:- "The last order were NAM TAN 36 and 37". It follows and as rightly submitted by counsel for the appellant, all invoices and supplies made prior and after exhibit P4 are based on order No. 36 and 37. According to the evidence, invoices made after closure of business are dated 31/5/2014 and 12/12/2014. They are based 9 on undelivered goods even if goods for invoice dated 31/5/2014 purports to have been delivered on 3/6/2014. DWl testified that the attached delivery note is questionable .as no goods were· received after notification of closure of business. The trial magistrate ruled that the said delivery note is doubtful. I agree with the trial magistrate. This is because the invoice referred to No. 22253 and 23212 are pleaded in paragraph 8 of the plaint. In - paragraph 9 of the plaint it is further pleaded that the same were issued despite the fact that the respondent refused to accept delivery of the corresponding goods. PWl testified that they claim for payments of goods supplied to the respondent. The pleadings and evidence, therefore, contradict each other. Since parties are bound by their pleadings, the appellant was estopped to tend~r evidence showing delivery of goods in relation to invoice No. 22253 on 3/6/2014. This notwithstanding, I shall attempt to see if there is evidence that appellant delivered or made efforts to deliver good on the said dates . ., The principle is that he who alleges must prove. The trial magistrate considered the issue whether the goods were delivered and held that to prove delivery of. goods the appellant ought -to ha_ve at least named the respondent's officers who received the supplies which was not done. I agree with the 10 suggestion by the learned trial ·magistrate. Further, assuming the trial magistrate erred, let me consider the other side of the. argument that goods were supplied but delivery was denied by the respondent as pleaded in paragraph 8 of the plaint. In my considered view, for the appellant to have proved the allegation, she ought to have caused officers who tried to deliver the goods testify. This was also not done which makes the fact that the respondent rejected the goods a mere allegation not supported by evidence in the light of lack of valid delivery notes. In the premises, I hold, like the trial court, that no goods were received and acknowledged by the respondent after notice of closure of business. Consequently, the claim in invoices 23212 and 22253 which fo~ms part of exhibit P2 are not proved. Their total value is Tshs. 43,590,371/=. However, based on order number 36 and 37, I would have held the respondent liable if the appellant had proved that the respondent rejected the supply made pursuant to production made out of the said orders. What about claims submitted for good ·supplied before closure of business? These are invoices No. 22005 dated 15/4/2014 and No. 21994 dated 11/4/2014 both forming part of exhibit P3. 11 .. According to exhibit P4, the respondent ·promised to pay any .outstanding invoices upon closure of business. When DW1 testified he said they ·paid all the outstanding balances. His attempt to tender evidence to that effect was objected to because the document was secondary and according to his evidence the original had been lost. Due to this eventuality, he resorted to using documents tendered· by the appellant to prove that they actually settled all the pending invoices. DW1 relied heavily on exhibit P2 which is the appellant's statement of account -of payments by the respondent in relation to business done with the respondent. According to this exhibit, there are payments which were made by the respondent on 27/6/2014 and 30/9/2014. The payment made on these dates exceed the value of the invoice made before closure of business. Since the payment were made after closure of business, I hold that the same were made to honour the promise in exhibit P4 namely, to settle any outstanding invoices. The foregoing forms the basis of the complaint in the third ground of appeal that the learned trial magistrate gave too much 12 weight to the evidence of DWl which is not substantiated with· . exhibits and accorded little weight to the evidence of PWl which is supported by five exhibits. Indeed, the respondent did not tender any exhibit because they were objected to. Yet, documents tended by the appellant were relevant to the defence of the respondent and her witness used them to substantiate her evidence. The principle is that once a document has been introduced in evidence, it can be used by any party to the case, therefore, it is lawful to use the adverse party's document to establish one's case. This complaint has no merits. The complaint in the fourth ground is that the trial magistrate in his judgment did not address one issue after another. This is true. However, even if the learned magistrate had done so, based on the evidence on record, he would still have reached the same conclusion. Another argument in ground fourth is that the trial magistrate failed to address and consider arguments of parties in their final written submissions. I agree there is no reference to those arguments in the judgment of the trial court. Counsel for the appellant has invited me to consider those arguments. I have read them and it is my view that even with their consideration, the evidence on record do not support the appellant's case. The evidence of PWl did not substantiate the claim on the balance of 13 . probabilities. The same is unclear and shaky to support a finding in favour of the appellant. This complaint is therefore also lacking in merits. Regarding grounds No. 5 and 6, it is my view that on the strength · of the evidence tendered, there is no breach of contract between the parties because there is no evidence that the respondent either failed to pay for the supplied goods or rejected delivery of any goods supplied per the request in order No. 36 and 37 which were not canceled by exhibit P4. In summary therefore, I have held that all orders were made before· the closure of business and exhibit P4 which declared closure of business did not cancel the request for supply of goods made vide order 36 and 37. However, there is no evidence that the appellant supplied or tried to deliver any goods who manufacture was based on order number 36 and 37 after 17/4/2014 when the respondent declared closure of business to warrant payment on invoices issued in May and December, 2014. I have also held that the respondent paid all the invoices for all goods supplied before the closure of business. Therefore, the whole of the trial court's judgement cannot be validly faulted. 14 Judgment and decree of the trial court are upheld. The appeal is accordingly dismissed with costs. l\s~ I. C. Mugeta JUDGE 26/11/2018 . Court: Judgment delivered in the presence of Jackline Kulwa, advocate for respondent and holding brief of Robert Ruben, for appellant. Sgd: I. C. Mugeta JUDGE 26/11/2018 15