JUDGMENT ROBERTS ASSOCIATES LIMITED finall

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB – REGISTRY AT MBEYA CIVIL APPEAL NO. 1237 OF 2024 CASE REFERENCE NO. 20240123000001237 (Originating from Civil Case No. 10 of 2022 in the district court of Mbozi) ROBERT AND ASSOCIATES LIMITED .................................. APPELLANT VERSUS MBUNGULA COMPANY LIMITED ....................................... RESPONDENT JUDGMENT Date of hearing: 21/8/2024 Date of judgment: 31/10/2024 NONGWA, J. The respondent sued the appellant alleging breach of an oral contract under which she claimed payment of TZS 63,844,291.4/= the appellant ought to have paid him but did not. The appellant admitted existence of the oral contract but denied the alleged breach and the indebtedness of TZS 63,844,291.4/= Facts of the case are simple, parties entered into oral agreement for supply of building material after the appellant had won tender on construction of the bridge in Ileje - Songwe region. It was alleged that the respondent supplied material worth TZS 116,280,433.4/= out of it 1 the appellant managed to pay TZS 52,436,142.00/=. The remaining balance was not paid despite several demand by the respondent which forced her to institute the case for the claim TZS 63,844,291.4/= as unpaid balance, general damages of TZS 30,000,000/= interest as the rate of 20%, and costs of the suit. At the trial the respondent relied on evidence of PW1 Meshack Sylivester Mbwagha, PW2 Aman Mgala and PW3 Kingdom Athuman Said. Further, four documentary exhibits were tendered. On part of the appellant her case depended on sole evidence of PW1 Robert Simion Wajengo. At the conclusion hearing, the trial court found the respondent had proved breach of contract for unpaid balance of TZS 60,844,296.45/= and proceeded to award general damage TZS 25,000,000 for loss of income, interest at court rate of 12% and costs of the suit. The above decision aggrieved the appellant who has filed memorandum of appeal on three grounds one, that the honourable trial court erred in law and fact by shifting burden of proof to the appellant; two, that the honourable trial court erred in law and fact by deciding in favour of the respondent despite failure to prove specific damages claimed in the plaint; and three, that the honourable trial court erred in 2 law and fact by failure to properly evaluate the evidence on record and thus arrived into wrong and unjust decision. When the appeal came for hearing parties were represented by trained minds of Mr. David Deogratius Ndimu and Ms. Beatrice Aloyce Rukamilwa both learned advocates. The appeal was disposed through filing written submission. In the first ground that burden of proof was shifted, it was submitted the respondent did not prove the case to the required standard per section 110 of the Evidence Act [ Cap 6 R: E 2022] by putting in evidence number of items supplied, market value of each item, delivery note and the person who received. He argued that the amount of TZS 113,280,438.45/= was not proved. Counsel admitted under section 112 of the Evidence Act burden of proof may shift depending on knowledge of existence of facts. He cited the case of Yusufu Selemani Kimaro vs Administrative General & Others, Civil Appeal No. 266 of 2020 [2022] TZCA 306 (24 May 2022; TanzLII) to support the argument. In the second grounds counsel submitted that the trial court did not assign reason for awarding general damage of TZS 25,000,000/= He referred the court to the case of Evarist Peter Kimathi & Another vs 3 Protas Lawrence Mlay, Civil Appeal No. 3 of 2000, CAT - Arusha (unreported). Regarding ground three on analysis of evidence, counsel for the appellant started his submission with the difficult in proving oral contract. He referred the case of this court in Rashid Protas Ndumbalo vs Titus Zeno Ndulu, PC. Civil Appeal No. 65 of 2021, HCT at Dar es salaam. Connecting to the case, he argued that supply of building materials was not in any way linked to paying labour charge and work equipment. He submitted per evidence in record, the appellant proved that he paid the respondent TZS 52,436,142.00/= as the respondent failed to prove number of items supplied, market value of each item and delivery note. He referred the court to the case of Shaban s/o Adam Mwajulu and Another vs Republic, Criminal Appeal No. 131 of 2019 [2020] TZHC 20 (28 February 2020; TanzLII). Mr. Ndimu contended that there was no breach of contract by the appellant as the respondent was paid in full. Further that issue of interest was raised by in the bar by the respondent’s counsel. From the above prayed the appeal be allowed with costs. Replying, Ms. Beatrice submitted the trial court did not shift burden of proof to the appellant. That the respondent proved the case as per evidence of three witnesses and documentary exhibits which 4 includes, delivery note, invoices, dishonoured check and follow up letters. In principle counsel for the respondent submitted that the case of the respondent was proved on preponderance of probability and per section 110, 111 and 112 of the Evidence Act. On ground two regarding award general damage, Ms. Beatrice was in favour of the trial court decision on the basis that wherever there is breach of contract damage must be paid. She submitted that the magistrate gave reason for awarding general damage as reflected at page 8 and 9 of the judgment. In respect of ground three on analysis of evidence, it was submitted that the trial court did at page 4, 5, 6, 7 and 8. He invited the court to re-evaluate it and come to the new inference. He referred the court to the case of Shah vs Aguto [1970]1 EA 263. During rejoinder the appellant’s counsel reproduced submission in chief which I find no need to reproduce it here again. I have considered record of appeal and rival submissions; I will dispose grounds of appeal in the manner parties argued it. The first ground is shift of burden of proof, the starting point is on the law regarding burden of proof, the law under section 110(1) of the Evidence Act is that he who alleges must prove his allegation to succeed in a suit. 5 It is equally the law that, unlike in criminal trials, the burden of proof in civil cases is not static. The principle was discussed in the case of Ibrahim Twahili Kusundwa & Another vs CRDB Bank PLC & Others, Civil Appeal No. 194 of 2021 [2024] TZCA 7 (19 January 2024; TanzLII) when the court stated; ‘It is pertinent to stress here that as a matter of law the burden of proof lies on the plaintiff who claims entitlement to mesne profits. Nonetheless, the onus of proof, not being static, will shift from one party to the other depending upon applicable legal presumptions and the weight of the evidence adduced. Crucially, the onus of proving the amounts of money received lies on the defendant since that fact, in most cases, is exclusively within his actual or constructive knowledge.’ In this appeal the appellant’s counsel did not explain to the court on what aspect the trial court shifted burden of proof to the appellant. He just restated the principle of the law and no more. Made no effort to connect the principle to his case. Thus, the first ground fails. Coming to the second ground on failure to prove specific damages, submission of the appellant is on award of general damages, the same went unnoticed by the respondent’s counsel. It has to be noted that specific damages are different from general damage with different principle applied. The appellant’s counsel submitted on general damages 6 not raised as ground of appeal making the appellant to depart from what had raised in the memorandum of appeal. The law is that parties are not allowed to argue new issues in the submission not raised as ground of appeal unless leave of the court is sought. The caveat is provided under Order XXXIX rule 2 of the Civil Procedure Code [Cap 33 R: E 2019], memorandum or petition of appeal or any other document which initiate appeal is a pleading to which parties are bound with. In the case of Bahari Oilfield Services FPZ Ltd vs Peter Wilson, Civil Appeal No. 157 of 2020 [2021] TZCA 250 (11 June 2021; TanzLII) the court held that; ‘... the principle that requires parties to be bound by their pleadings extends to grounds of appeal in an appeal which means that in so far as an appeal is concerned an appellant's written and/or oral submission must be in consonance with the grounds of appeal.’ The above law is based on good conscience that if parties are allowed to raise new issue wherever they discover it, there is a danger of taking the other party by surprise thus leading to affording inadequate time to the other party to prepare and respond to the raised issue thus leading to improper administration of justice. 7 Be that it may be as parties had adequate time to submit for and against, I will resolve ground two on assumption that the ground was meant to challenge award of general damage. The position of law in regard to an award of general damages is settled that it is normally awarded at the courts discretion and need not to be specifically proved. In awarding general damages, the trial court must provide the reason to justify the award. In Anthony Ngoo & Another vs Kitinda Kimaro, Civil Appeal No. 25 of 2014 [2015] TZCA 269 (25 February 2015; TanzLII) the court stated that: ‘The law is settled that general damages are awarded by the trial court after consideration and deliberation on the evidence on record able to justify the award. The judge has discretion in awarding general damages although the judge has to assign reasons in awarding the same.’ In its judgment the trial court found that the appellant did not pay the respondent on time and paralyzed his business. It also noted that the respondent prayed general damage of TZS 30,000,000 but she did not account for. But the magistrate was convinced that it was money from business and could be used to generate income, thus proceeded to award TZS 25,000,000. On those circumstance, I find the trial court gave reason for awarding general damages that is money was for 8 business, it was not paid in timely to be used to generate income. I therefore dismiss ground two. Ground three is on failure by the trial court to analyse evidence properly. First, this calls for examination of evidence in record, hence parties are bound by the principle of burden of proof already stated when discussing ground one. Two, I agree with both counsels that this court sitting as the first appellate court, is vested with the mandate to re-appraise, re-evaluate and re-consider the evidence on record and draw own inferences of fact. This was well stated in the case of Registered Trustees of Joy in the Harvest vs Hamza K. Sungura, Civil Appeal No. 149 of 2017 [2021] TZCA 139 (28 April 2021; TanzLII) when the Court stated; 'The law is well settled that on first appeal, the Court is entitled to subject the evidence on record to an exhaustive examination in order to determine whether the findings and conclusions reached by the trial court stand...’ The main claim by the respondent was for payment of specific amount of money on supplied material which falls under specific damages. A party who wishes the court to order specific damages in his favour has a duty to plead them specifically and to prove them strictly. This was stated in Sanlam General Insurance Tanzania Ltd 9 (formerly known as NIKO Insurance Tanzania Ltd) vs Dennis Charles & 2 other, Civil Appeal No. 51 of 2021 [2024] TZCA105 (23 February 2024; TanzLII) that; ‘Special damages'...are such as the law will not infer from the nature of the act. do not follow in the ordinary course. They are exceptional in their character, and therefore, they must be claimed specifically and proved strictly’. My perusal of the plaint which was filed by the respondent apart from mentioning the amount of TZS 116,280,433.4/= being the total value of the material supplied to the appellant and claim of TZS 63,844,291.4/= as unpaid balance, particulars of the supplied materials was not specifically pleaded. The appellant gave no more than a global figure of TZS 63,844,291.4/= without itemizing how he came about this figure. The quantities of material supplied were not mentioned in the plaint for the respondent to admit or dispute each item. Further the prices were not fixed. DW1 testified that he was not issued with delivery note though asked, and indeed it was not tendered in evidence to substantiate the respondent’s claim at the trial court. PW3 tendered invoices exhibit P3, containing materials, quantity and price as proof of the amount claimed and was issued on 12/4/2022 the amount being TZS 10,000,000/=, 12/4/2022 TZS 42,488,189.76/= and 25/5/2022 TZS 10 60,746,750.00/= the grand total is TZS 113,228,939.76/=. PW1 testified that he was paid TZS 52,436,142 but pleading and evidence is silence on which invoices in exhibit P3 and on what material the appellant paid and those remain unpaid. Akin situation was discussed in the case of Sultanali Javer t/s Mwaloni Filling Station vs NSK Oil & Gas Limited, Civil Appeal No. 330 of 2021 [2024] TZCA 738 (15 August 2024; TanzLII) the court stated; ‘... it is evident that the appellant failed, both in the pleadings and evidence, to establish a prima facie case in his favour. Take two aspects for demonstration, one being the fact that the prices of the fuels were not fixed, and the other being PWl's admission that the relevant documents were not tendered, there would be no way of ascertaining the claim.’ [Emphasize supplied]. In this appeal the respondent called PW1, PW2 and PW3 but their evidence is silence on the quantity of materials supplied to the appellant. PW3 tried to mention some material supplied to the appellant but the same are not borne out of pleading and was not supported by delivery note as claimed by the appellant. Exhibits P3 is a generalized material allegedly supplied to the appellant, it is not specific on what material the appellant has not paid. That became more complicated after DW1 had testified that he paid for all material the appellant was 11 supplied and was not availed with delivery note to ascertain the material supplied and remain unpaid. Even exhibit P1 though not addressed to the appellant and P4 did not cure the shortcoming. From the above discussion, the question is how the claim of unpaid amount on supplied material would be resolved without the pleadings being specific on the quantities so as for one to be able to conclude the amount which remained unpaid. Ground three has merits. In the upshot, the appeal is merited, I allow it with costs. V.M. NONGWA JUDGE 31/10/2024 Dated and Delivered at Mbeya this 31st October, 2024 in presence of Mr. Iman Mbwiga holding brief for Mr. David Ndimu and Ms. Beatrice Rukamilwa counsels for the appellant and Respondent respectively. V.M. NONGWA 12 JUDGE 13