SABAYI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF DAR ES SALAAM AT DAR ES SALAAM CIVIL APPEAL NO. 12394 OF 2024 (Arising from Ctvii Case No. 153of2021 ofthe Resident Magistrates'Court ofDar es Salaam at Kisutu by Hon. Msumi, PRM dated 14^ March, 2024) SABAYI AGRO PROCESSING LIMITED APPELLANT VERSUS BANK OF AFRICA TANZANIA LIMITED RESPONDENT JUDGMENT ON APPEAL S.M. MAGHIMBI. J: On the 14^*^ day of March, 2024, the Resident Magistrate Court of Kisutu dismissed a suit in Civil Case No. 153 of 2021 for want of merit. In the said suit, the appellant herein was a Plaintiff and the defendant was the defendant. The applicant was not amused by the judgment of the trial court and has lodged the current appeal on the following grounds: i. That the Trial Principal Resident Magistrate erred in law and in fact by ruling that Exhibit P-8 has less evidential value, then accorded no weight to it. Page 1 of 14 ii. That the trial Principal Resident Magistrate erred in law and in fact by failing to consider Exhibit P-8 on its entirety, leaving the emails and dealing with attachments only. iii. That the trial Principal Resident Magistrate erred in law and in fact by failing to consider Exhibit P-9 in answering the question the Principal Resident Magistrate posed on himself as to whether the Defendant delivered or failed to deliver the documents. iv. That the trial Principal Resident Magistrate misconceived the entire transaction of documentary collection and role of Bill of Lading. V. That the Principal Resident Magistrate erred in law and in fact by imposing duty of failure to supply a non-delivery notice to the Plaintiff. vi. That the trial Principal Resident Magistrate erred in law and in fact by ruling that the Defendant's defense is heavier than the Plaintiff's and that the Plaintiff failed to discharge burden on reasonable probabilities. vii. That the trial Principal Resident Magistrate erred in law and in fact by failing to draw adverse inference against the Respondent for failure to call material witnesses. Page 2 of 14 viii. That the trial Principal Resident Magistrate erred in law and in fact by relying on hearsay evidence by the Respondent's witness. And the said witness had also departed from the pleadings. On those grounds, the appellant prayed that since this Honourable Court is the first instance appellate court, I should step Into the Trial Court shoes and re-evaluate the evidence in order to give a proper Judgment and Decree in favour of Appellant per the prayers in the amended plaint. As for the outcome of the case, it was the Appellant's prayer that this appeal be allowed with cost and the Judgment and Decree in Civil Case No. 153 of 2021 deset aside. When the matter came for mention on 09^^ July, 2024, parties were ordered to dispose the appeal by way of written submissions. Both parties complied with the court order hence this judgment. The appelllant's submissions were drawn and filed by Mr. Emmanuel Nasson, learned Advocate while the respondent's submissions were drawn and filed by Mr. Peter Joseph Swai, learned Advocate. Starting with the first ground of appeal that the Trial Principal Resident Magistrate erred in law and in fact by ruling that Exhibit P-8 has less Page 3 of 14 evidential value, then accorded no weight to it. It was Mr. Nasson's submission that the trial court ruled that Exhibit P-8 was not conclusive as it was not signed therefore it had less evidential value, which was an error on part of the court. His argument was that it is not correct that the document was not signed; the said exhibit contains emails together with its attachment which was an electronic communication. That reading the said email carrying the attachment, it was duly signed by the sender, one Elizabeth Muro, Respondent's Company Secretary and Head - Legal Services and that both parties were who participated in the meeting and were copied. On the argument that the document was not duly signed, Mr. Nashon submitted that it was an electronic communication therefore regulated by the Electronic Transaction Act, Cap 442 R. E. 2022 ("ETA"). That This provision provides as to when requirement of electronic signature is met. This is provided under section 3 defines electronic signature as ""Electronic signature means data, including an electronic sound, symbol or process, executed or adopted to identify a part, to indicate that part's approval or intentions in respect ofinformation contained in the electronic communication and which is attached to or logically associated with such electronic communication" Page 4 of 14 He added that the definition is read together with section 6(2)(a) Electronic Transaction Act, which provides:- 6(1) Where a law requires the signature of a person to be entered, that requirement shaii be met by a secure electronic signature made under this Act. (2) The requirement for an electronic signature made under subsection (1)shaii be met if- (a)The method used to identify the person and to indicate the intention of that person in relation with information communicated;and (b)At the time the method was used, that method was reliable and appropriate for the purposes for which the information was communicated. That from the provision of the law, by one attaching his/her name to identify the sender amounts to signature. He then argued that even if we were to say that the law requires signature in the said Exhibit P-8: looking at the email carrying attachment, it clearly identifies the sender by name and title. That the intentions were clearly reflected on the said emails also titled Meeting Minute and that the said intention was to get meeting minutes oF parties which had sat on June, 2021 at Respondents Head Office. Page 5 of 14 He went on submitting that reading email dated 03'''' June, 2021 by one Samir Yassine instructed Elizabeth Muro to share minutes after Appellant's Director had requested for the same. This shows that the method chosen by parties was reliable and appropriate for the purposes for which information was communication hence falling within the ambit of the law. He concluded that it was an error for the trial Court to hold that the said Exhibit P-8 was not conclusive for want of signature while it was duly signed as explained above. That it was also an error to hold that the document was not conclusive as reading the same it had incorporated remarks suggested by Appellant's Director after Respondent's Company Secretary and Head of Legal had requested for remarks. Having considered the two grounds, I find that the appellant's Counsel has misconceived the context within which the Hon. trial magistrate based his decision in the weight to be accorded to the said document. The trial court did not discredit the email sent by the appellant, rather, the concern was on the attached minutes which were allegedly amended to reflect the right thing that was discussed in the meeting between the parties. In his judgment the trial magistrate wrote: Page 6 of 14 The importance of Exhibit P 8 in determination of this case is very cruciai. It is from this piece ofevidence oniy where it can be said whether or not the Defendant deiivered or faiied to deliver the documents in question. NormaHy,ifthe minutes ofthe meeting are notsigned by persons in authority; the Chairman and Secretary, they can be considered to stiii be in a draft form open to changes and corrections. In my opinion. ExhibitP8is nota conciusive piece of evidence that whatit contains is what was conclusively agreed by the parties. The Plaintiff in her entire evidence did not explain why the minutes were notsigned. Signing the minutes answers the question about which copy of the minutes was approved. The signed ones suggests that they are the minutes that were approved at the meeting. The minutes should indicate both the date of the meeting as weil as the date of the meeting where the minutes were approved. It would have been otherwise if the same was admitted by the Defendant, of which was not the fact. If at all Exhibit P8 was from the Defendant's personnel(Elizabeth Muro), it would have been easy for the Defendant to cause it be signed by the presiding chairman and secretary of the said meeting. The fact that the Defendant did not tender a signed version ofthe minutes ofthe meeting with different content does notcure a serious anomaly in ExhibitP 8. It is my finding that Exhibit P 8 is not conciusive and therefore, ofless evidential value. I will therefore accord no weight on it. It is therefore clear that the magistrate had no Issues with the email that was sent, his concern was in the minutes that were alleged to have been a reflection of the conversation between the parties herein. The appellant 1 Page 7 of 14 attempts to use this piece of evidence to show that the defendant admitted negligence. I am in agreement with the trial magistrate that official minutes in attempt to reflect what transpired in a certain meeting have to be duly signed before they can be relied as a reflection of that what transpired in the meeting. I have considered the appellant's argument that reading the email (part of Exhibit P-8) sent by Respondent's Company Secretary - Head of Legal dated 07*'^ June, 2021 at 1:20 pm, it invited the Appellant's Director to put remarks which on the same day at 2:00 pm the Appellant's Director sent the remarks to be incorporated. Mr. Nasson also referred the court to the reply by the respondent's company secretary at 2.45 pm arguing that this clearly shows that parties were in agreement of the content of the minutes hence it was an error for the court to hold that the minutes were inconclusive. On my part, much as that is what is reflected in the email as quoted, the issue is on the subject of the email itself, the minutes that were intended to support the appellant's case on what was agreed. Therefore despite the acknowledgement of the receipt of the inputs, the appellant was still bound Page 8 of 14 to produce the signed version of the minutes which had incorporated the remarks from their side because we are not sure those remarks were accepted by the respondent. I further find the argument that the Trial Court also erred by not according weight to Exhibit P-8. Since the same was electronic communication, Its admissibility and weight are governed under Section 64A (1) and (2) of the Evidence Act, Cap 6, R. E. 2022. I find the argument to be devoid of merits as the trial court did not accord weight on the document from the contents of its admissibility as electronic evidence. The trial court's concern was that the Defendant through DW 1 challenged the evidential value of Exhibit P 8 as not being known to the Defendant and as such did not reflect the discussions reflected in the said meeting and was not signed by the Bank therefore it has no any evidential value. The trial court was further not impressed by the Plaintiff's remark through her final submission that the Defendant's denial of Exhibit P 8 was not supported by sending any contradicting minutes. That is when the court analysed the importance of signatures in the minutes hence the basis of determination of the value of Page 9 of 14 the EXP8 was not on it being an electronic evidence. In conclusion therefore, I find the two grounds to be devoid of merits and are hereby dismissed. On the third ground, the appellant complained that the trial Principal Resident Magistrate erred in law and in fact by failing to consider Exhibit P-9 in answering the question the Principal Resident Magistrate posed on himself as to whether the Defendant delivered or failed to deliver the documents. Mr. Nasson submitted that according to the Trial Court, as found in page 12 of the judgment, it was only from the part of Exhibit P-8 that it could establish whether the Respondent delivered or failed to deliver. He argued that this was an error on part of the court as Exhibit P-9 answers the question too. That reading Exhibit P-9, being an email from Respondent's Company Secretary 8t Head - Legal Service, shoves that the Respondent does not know the whereabouts of the document quoting the email as such: 'That Ms. Mum (herself)informed Mr. Daniel Marwa that the bank is making efforts to engage DHL on the said incident The bank has demanded that an investigation be conducted on their part to find out the whereabouts of the documents or else the bank shaii initiated iegaiproceedings." Page 10 of 14 He then submitted that from the wordings above, it clearly shows that the Respondent do not know the whereabouts of the documents. This per see proves that the Respondent failed to deliver the documents. This email was sent being more than five months since the documents were delivered to the Respondent. I have gone through the evidence adduced in totality which I will analyse to determine the 3'^ to 8^^ grounds of appeal as they are all directed to alleged misapprehension of evidence. The appellant's complaint is that the respondent failed to deliver the documents to the consignee hence the consignee failed to pay the appellant a remaining balance of the purchase price which was to the tune of USD 29,057.92. It is therefore clear that there is a person by the name of Isasa Siglo XXI S.L who still owes the appellant the abovementioned sum. The appellant attempts to throw the burden to the respondent for what he alleges to be a failure to deliver the documents. The crucial issue to be established by the evidence would have been, as correctly held by the trial magistrate, a notice from the consignee Isasa Siglo to show that he did not receive the consignment as agreed. It would also be expected to appear in evidence of the appellant that the consignee demanded his amount of purchase price paid in advance and also a notice Page 11 of 14 from them that the amount was never received. None of that was ever established by the plaintiff/appellant herein, therefore we are not even sure whether the appellant was actually paid or not. There is no evidence showing any complaint from the consignee which surprisingly, is what forms the basis of the current appeal and the suit. Now looking at the claim and the Issue framed, it was whether the defendant/respondent acted negligently and failed to deliver the documents. It is trite law that when the allegation is based on negligence, there must be some consequential effects to that negligence which must be proved to be a result of the defendant's negligence. In order to prove negligence, the complainant must show existence of four things, one; the wrongdoer owed a duty to the complainant, two; the wrongdoer must have breached the duty, three; which is a crucial element, the breach must have caused the injury and lastly; owing to the breach, the complainant suffered damages which must now be compensated by the wrongdoer. In the case of Winfred Mkumbwa vs SBC Tanzania Limited (Civil Appeal No. 150 of 2018)[2019] TZCA 685(29 October 2019j the Court held at page 9: '^Thus, for the claim of the appellant to sustain, then he was supposed to prove that the respondent had a duty ofcare; there was breach ofthat duty Page 12 of 14 ofcare and as a result ofthat breach the appellantsuffered damages. The duty casted upon the respondent was to discharge the burden that the said breach ofduty was notproved." As for the case at hand, as said earlier, I will re-analyse the evidence in totality to see whether the appellant alleged and proved that the defendant/respondent owed a duty to the appellant to deliver the document. The issue is whether the respondent failed to discharge her duty which would have resulted to an injury to the appellant. Looking at the evidence adduced during trial, the appellant had failed to show that the duty was breached, neither was she able to prove any damages caused. The respondent proved that the said letter was sent as instructed, whether or not It was received was for the appellant to prove since the courier No loss of money was proved because there was no corresponding document to show the consignee refusal to pay the outstanding bill. On that analysis of the evidence, in totality, the appellant failed to prove the damage caused of the alleged injury, the breach of duty that caused injury. She further failed to adduce evidence to show that it was caused by the appellant. In conclusion therefore, during trial, on balance of probabilities, the appellant failed to prove the case against the respondent. Hence, I see Page 13 of 14 no reason to interfere with the finding of the trial court. The appeal is devoid of merits and it is hereby dismissed with costs. Dated at Dar-es-salaam this 06^^ day of December, 2024 o > S.M. MAGHIMBI ★ JUDGE Page 14 of 14