SMART INDUSTRY 0001

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CIVIL APPEAL NO. 2481 OF 2024 (Originating from Civil Case No. 138 of 2018 in Kinondoni District Court Dated 18th September 2023) SMART INDUSTRY LIMITED ................................................... APPELLANT VERSUS SHAHIBU SAID ................................................................... RESPONDENT JUDGMENT Date of Last Order: 04/09/2024 Date of Judgment: 31/10/2024 NGUNYALE, J. Ibis is the first appeal aiming to challenge the decree and judgment of the trial court on breach of contract. The factual back ground is simple; on 14th May 2018 the defendant SHAHIBU SAID entered into an agreement to supply groundnuts to the appellant SMART INDUSTRY LIMITED based on the terms in the agreement exhibit Pl. The respondent supplied groundnuts weighed 12055 kilograms on agreement that he will be paid 2000/= TZS per kilogram thus for the 12055 kilograms he was expected to be paid a consideration of 24,110,000/= TZS within a month from the date of supply. ne consignment was supplied to the appellant on 14th May 2018 and the agreement was concluded upon being satisfied that the product was good and of standard quality. It was kept in the appellants’ warehouse. After almost a month, the appellant was called by the officer of the appellant for payment. He went to the appellant on 9th June 2018 where he was paid 372,000/= TZS instead of 24,110,000/= TZS. Upon inquiry as to why he was paid less or part payment? he was told that he has been paid less amount because the suit groundnuts worth the outstanding sum were not suitable to the required quality. Part payment or part performance of the contract is the subject matter in dispute in this case, efforts of the respondent to claim such outstanding amount of 23,738,000/= TZS failed the act which attracted legal measures. The respondent preferred Civil Case No. 138 of 2018 against the appellant before Kinondoni District Court praying for an order of specific performance, general damages and other necessary reliefs. The trial court engaged in full trial to determine the rights of the parties; the trial was concluded on 18th September 2023 in favour of the respondent. The trial court was satisfied that the appellant was in breach of contract because he acted contrary to the terms to make part payment to the respondent on the dark rea; )n that the groundnuts were unsuitable. It was the finding of the court that on the date of supply both sides agreed that the product was suitable thus the allegations of the appellant that she later found the same to be unsuitable were unfounded and lacked transparency. Tbe appellant was condemned to pay the respondent specific damages in the tune of 23,738,000/= TZS at the court rate of 7% from the date of judgement till payment in full, general damages in the tune of 3,000,000/= TZS and litigation costs. Ure appellant was not amused with the decision of the trial court, she preferred the present first appeal to challenge judgement and decree of the trial court founding her appeal on five grounds of complaint that the trial court erred in law and fact for; - one, failure to properly analyse, evaluate and assess the evidence tendered before it two, failure to properly evaluate and assess the testimony presented during trial three, reaching into a finding that the appellant did breach the contract four, admitting and relied on the evidence exhibit Pl contrary to law and five, shifting the burden of proof to the appellant contrary to law. Hearing of the appeal attracted the form of written submission; the court is very grateful to the learned Counsels Mr. John James from Global Company & Advocates who appeared for the appellant and Mussa Kiobya from ;M Thadeson Advocates who appeared for the respondent for their timely compliance to the scheduling orders of filing the respective submissions. The appellant’s Counsel started his submission by abandoning the fourth ground of appeal, the 1;t and 2-d grounds of appeal were argued togather likewise for the 3'd and 5th grounds of appeal. In support of the first and second grounds of appeal he submitted that the trial court erred in law and facts for failure to properly deal with the evidences tendered before it consequently reached into a wrong decision. The evidence presented was to the effect that 12055 Kgs of groundnuts were received on 14th May 2018, out of the total delivered ground nuts 11869.4 was all waste save for 185.6 Kg as dean nuts. Ttre appellant only accepted the clean products as stated in the contract exhibit Pl which was willingly signed by the parties including the respondent. In support of the 3'd ground of appeal the appellant Counsel submitted that the trial court erred to find the appellant breached the contract. Ttle agreement was clear that the appellant will accept clean and safe products and any of the product with problem will be returned. Even the 11869.4 of the products which were waste the respondent also signed to evidence that; then why the breach of contract directed to the appellant? The respondent is the one who breached the terms of the agreement of the contract coming claiming fom unfounded complaints The allegations that the appellant is in breach of the agreement is unfounded. On the 5th ground of appeal, the appellant Counsel submitted that the trial court erred to shift the burden of proof to the appellant while the law is that whoever want the court to believe on the existence of a certain facts then he has a duty to prove per Section 111 of the Evidence Act. In the case at hand the trial court opined that it was a duty of the appellant to prove and show evidence that the respondent knows English in order to prove that the terms of the contract was clear. Secondly, the trial court burned to prove the where about of the waste nuts while in the contract which was signed by the parties says there was waste and clean nuts. If all the nuts were clean it was a duty of the respondent to prove to the court that all the nuts were clean and not to sign that 185.6 Kg were clean and 11869.4 Kg was a waste. In reply to the 1;t and 2-d grounds of appeal, the appellants’ Counsel submitted that it was the undisputed evidence of PWI and PW2 that the appellant received 12.055 Tons equal to 12055 Kgs worth Tshs 2,000/= per Kilogram and the whole consignment was worth 24,110,000/= However, the appellant did not pay to the respondent what was agreed rather endeavoured to deceive to swindle him. After a month the respondent was paid less amount of VS 372,000/= on allegations that the remaining nuts were wastes. This was a virtuous breach of the agreement because as right testified by PWI aII consignments of the groundnuts were clean and safe. Frey were received by the appellant on 14th May 2018 and kept to the warehouse of the appellant because they were clean and safe. They were received by storekeeper one Hassan and before they were received, they were inspected. If there were waste groundnuts were to be returned on that same day of delivery. The appellant is the one who was in breach of the contract. The law gives an obligation to parties to perform the contract as agreed. Section 37 (1) of the Law of Contract Act Cap 345 R.E 2019 provides that ''The parties to a contract must perform their respective promises unless such performance is dispensed with or excused under the provision of this Act or any other law" It was the submission of the respondent Counsel that, the appellant failed to discharge its part of the agreement thus he was in breach of the agreement as stated under Section 73 (1) of The Law of Contract Cap 345 R. E 2019 which provides; - -Where a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it." Parties are bound by the agreements they freely entered into and this is the cardinal principle of law of contract. Tbere should be sanctity of the contract as lucidly stated in Abualy Alibhai Azizi vs Bhatia Brothers Ltd [2000] TLR 288 where it was stated in part: - "The principle of sanctity of contract is consistently reluctant to admit excuses for non-performance where there is no incapacity, no fraud (actual or constructive) or misrepresentation, and no principle. " are fifth ground of appeal about the complaint of the appellant that the trial court engaged in shifting the burden of proof to the appellant the Counsel for the respondent insisted that the court did not shift the burden of proof to the appellant as alleged. In rejoinder the appellants’ Counsel reiterated his stance in the submission in chief. In his further submission he cemented that the testimony of PWI and PWI alleged to have proved the case does not override the documentary evidence from exhibit Pl. ne exhibit state about treatment of waste groundnuts. On the effectiveness of documentary evidence, he relied to Section 100 and 101 of the Evidence Act and the case of Nicholaus Mwaipyana versus The Registered Trustees of Little Sisters of Jesus Tanzania, Civil Appeal No. 276 of 2020 Court of Appeal of Tanzania at Mwanza (unreported). I have heard the counsel deeply submitting for and against the appeal. Admittedly, their submissions are very instrumental in my determination of the case. I am to determine whether the appeal has merit or not, I shall start my discussion with the 1;t and 2-d grounds of appeal about analysis and evaluation of evidence. In the first ground of appeal the appellant has submitted that the trial court failed to evaluate the evidence as a result it ended with a wrong conclusion. Ure learned Counsel submitted that evidence was very clear that the appellant received 12055 Kg of groundnuts but among them 11869.4 were a waste save for 185.6 which were dean. His submission was controverted by the submission of the respondent who stated that the undisputable evidence of PWI and PW2 proved the case that the groundnuts were 12.05 tones equivalent to 12055 Kgs. are agreed price between the parties to the agreement was 2000 per Kg thus for 12055 Kg the respondent was to be paid 24,110,000/=. Ttre appellant engaged in deceit to allege that he found about 11869.4 nuts were a waste. In order to properly determine the first and second issue, I will engage Future Century Ltd v. TANESCO, Civil Appeal No. 5 of 2009 stated that- "It is part o f our jurisprudence that a first appellate court is entitled to re-evaluate the entire evidence adduced at the trial and subject it to critical scrutiny and arrive at its independent decision. " I will therefore review the evidence of PWI SHEHIDU SAID (52), HALID SAID (46) and DWI FEDEL MOHAMED (49). According to the evidence on record there is no dispute about the quantity of groundnuts received, price which was expected to be paid. Tbe only dispute is about quality of the groundnuts. Tbe issue is whether the respondent was in breach of agreement by supplying unsuitable grounds nuts. Having weighed the evidence of PWI Shehidu Said (52), Halid Said (46) and Fedel Mohamed (49) 1 am in agreement with the findings of the trial court that the respondent supplied suitable groundnuts according to the agreement entered between them on 14th May 2018. ne complaint of the appellant that he employed woman to select the waste and the good groundnuts comes as an afterthought because on 14th May 2018 they concluded the agreement. Tbe respondent after the exercise of handling the consignment on 14th May 2018 he had discharged his duty in the agreement and he remained waiting for his payment. The payment he was expecting for the whole consignment of 12055 Kgs was 24, 1 10,000/ TZS per the agreement exhibit Nq Pl. The testimony of DWI that they agreed that the waste groundnuts will be returned to the respondent was an afterthought because it was not part of the discussion on 14th May 2018 when they concluded the agreement. It is trite law that the one who allege must prove the allegation on the balance of probability as ruled in the case of Paulina Samson Ndawaya versus Theresia Thomas Madaha, Civil Appeal No. 53 of 2017. In Abdul Karim Haji Vs. Raymond Nchimbi Alois and Joseph Sita Joseph [2006] TLR. 419, it was held- "It is an elementary principle that he who alleges is the one responsible to prove his allegations". In this case as correctly ruled by the trial Magistrate PWI and PW2 managed to prove that the respondent supplied suitable groundnuts to the appellant at the mid of May 2018 and the respondent was promised to be paid consideration of 24,110,000/= TZS per the agreement. Ure allegations that they came to detect later that, among the nuts a large consignment was waste was an afterthought without proof. Tbe respondent proved that no waste was returned to him. The document which the respondent signed when he was paid less amount of the contractual sum cannot invalidate the agreement entered on 14th May 2018 nIe court is duty bound to conduct evaluation of evidence on record for the proper and balanced decision. Ibis was the position of this court in the case of Japhet Saka versus Anthony G. Kauki, Land Appeal No. 15 of 2023 at Babati. In the case at hand the trial Magistrate considered at length the evidence on record and he ended with the fair and balanced decision that the respondent proved his case to the required standard. He proved that the agreement was signed on 14&' May 2024 and he remained waiting for the payment of the contractual sum. Exhibit Pl was clear that if the nuts were unsuitable the whole consignment was to be returned to the respondent but there was no evidence to prove that the same were unfit. Ttlerefore, the complaints about analysis and evaluation of evidence are unfounded. Ttre third ground of appeal, the appellant complain that the trial court erred in law and fact to find the appellant to have breached the agreement. He submitted that according to their agreement the appellant was to accept clean and safe groundnuts. The appellant received only clean nuts and other which were unsuitable were returned to the respondent. Tberefore, the respondent is the one who breached the agreement. nIe respondent Counsel insisted that the appellant is the one who breached the agreement by deceit because the agreement on the date of supply. Ibis ground of appeal should not detain long because it has been already considered while dealing with the 1't and 2-d grounds of appeal. Exhibit Pl is very clear that the agreement was concluded on 14th May 2024 as proved by the respondent why then there was other transactions about the agreement in absence of the respondent. The trial court correctly found that the appellant is the one who breached the agreement by making the respondent to sign a new term on 9th June 2018 about the wastes contrary to the mother agreement dated 14th May 2024. Ure evidence in record was straight forward that the appellant is the one who breached the agreement, he should bear the consequences of breach of contract. Section 37 (1) of the Law of Contract Act cited above gives a clear position that parties to a contract must perform their respective promises contrary to that Section 73 (1) of the same law is relevant. In the present case the appellant is the one who was in breach of the agreement as ruled by the trial court. She should carry the burden of breach of contract as ordered by the trial court. In the 5th ground of appeal, the appellant complain that the trial court shifted the burden of proof to the appellant while that duty was of the respondent as the plaintiff during trial. It was the submission of the the terms of the agreement were clear and straight forward. The respondent had a duty to prove that all the groundnuts were safe and clean. Ure position submitted by the appellant was strongly contested by the respondent through his submission that there was nothing about shifting the burden of proof. lbe proper position as I stated earlier is that, the one who alleges must prove the existence of a certain fact or the allegation. Ibis position has been stated in a number of cases including the case of Abdul Karim Haji (supra). ne position elaborated in the very case originate from Section 110 of The Evidence Act which provides: "-(1) Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person." In the present case, the only issue which was noted to be in serious dispute between the parties is whether the groundnuts were safe and suitable. Such burden has been discharged by the respondent through the testimony of PWI and PW2 as discussed at length hereinabove. The testimony of PWI was very clear that on 14th May 2018 when he supplied the appellant with the consignment of 12055 Kgs of groundnuts the same was inspected and weighed. ne ins%cOon was done for the purpose of both sides being satisfied that the product was good meets the standard required. Upon being satisfied that the same is suitable the agreement was signed. The contract was open that he was to be paid within 30 days. The argument of the respondent through DWI that the product contained waste was an afterthought due to the evidence of PWI. There was nothing about shifting of the burden of proof otherwise the appellant ought to establish it and how she was prejudiced. In the event and for the foregoing reasons, I have no doubt in my mind that the trial court correctly ruled in favour of the respondent. Tbe appeal is bound to fail, it is hereby dismissed with costs. Dated at Dar es Salaam this lay of 2024. on nyale JUDGE Judgement delivered this 31;t day of October, 2024 in presence of John James for the appellant. JUDGE 14