SUNSHARE NEW SIGNED

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA, DAR ES SLAAM DISTRICT REGISTRY AT DAR ES SALAAM. CIVIL APPEAL NO. 2480 OF 2024 (C/f civil case no. 42 of 2023 in the Resident Magistrate’s court at Dar es Salaam at Kisutu) SUN SHARE INVESTMENTS LIMITED………………………………….APPELANT Vs. FRIDOLINUS BONIFACE MUSHOBOZI……………………………...RESPONDENT JUDGMENT Date of last order:12-12-2024 Date of Judgement:10-3-2025 B.K.PHILLIP,J The appellant and the respondent herein were the defendant and plaintiff before the court of the Resident Magistrate’s of Dar es Salaam at Kisutu, (hereinafter referred to as “the lower Court”) respectively. The respondent’s claim before the lower court against the appellant was that on 19th November 2020, the appellant sold him 94 roofing sheets described as Brick Red in colour. The described colour and the quality of the roofing sheets were an integral part of the description. The respondent paid to the appellant a total of Tshs.4,464,000/= as a 1 purchase price. The respondent was supplied with the roofing sheets and used them to roof his house as intended. However, within a short time, the said roofing sheets changed colour, thereby losing their brick red colour and became a ghastly blood-red appearance completely defeating the respondent's expectations and plan that the roofing sheet would stay in its original colour at least for a minimum of five ( 5) years. Aggrieved by what happened to the roofing sheets aforesaid, the respondent lodged his complaint to the Ombudsman of the Tanzania Bureau of Standards ( “TBS”) , who conducted investigations, whose results were to the effect that the roofing sold to the respondent by the appellant was of below standard. Thereafter, the appellant, instead of replacing the bad roofing sheets, she wanted to do ad-hoc repairs on the defective roofing sheets by spraying paints on them. The respondent objected to that idea. Consequently, the respondent decided to sue the appellant in courts of law, praying for the following reliefs i) Payment of Tshs.4,464,000/=, the full price of the roofing sheets that the plaintiff purchased from the defendant based on their longevity and quality. ii) Payment of special damages to Tshs.50,000/= for the disturbance, distress, and direct loss of economic advantage. 2 iii) Payment of damages to the tune of Tshs.100,000,000/= for unconscionable act of the defendant acting negligently and breaching its manufacturer’s duty to the plaintiff by selling roofing sheets with standards lower than advertised and envisaged for reasonable use. iv) Payment of interests on the decretal sum at court rate from the date of judgment to the date of judgment to the date of full payment. v) Costs of the suit. Upon hearing the evidence from both sides, the trial court entered judgment in favour of the respondent as follows; i) Payment of Tshs.4,464,000/= by the appellant/defendant being the full price of the roofing sheets that the plaintiff purchased from the appellant/defendant ii) Payment of Tshs. 20,000,000/= to the respondent/plaintiff being damages for the disturbance and distress during the time of pursuing his rights with the appellant/defendant, which also included making follow-ups to TBS, something which is time, costs, and mind-consuming. 3 iii) Payment of damages to the tune of Tshs.10,000,000/= by the appellant/ defendant to the respondent for unconscionable act of the defendant acting negligently and breaching its manufacturer’s duty by selling substandard products to the plaintiff. iv) Payment of interests on the decretal sum at court rate from the date of judgment to the date of full payment. v) Costs of the suit awarded to the respondent/ plaintiff. Aggrieved by the judgment of the trial Court, the appellant lodged this appeal on the grounds reproduced verbatim hereunder: i) That the trial magistrate erred in law and Fact by failing to evaluate Evidence especially report from TBS submitted by Respondent witness PW1 and admitted as exhibit Pl and hold that the Appellant roof sheet sold to the defendant were defective contrary to the said Report. ii) That the trial Magistrate erred in law and fact by failing to evaluate evidence presented by parties and hold that the sample of roof sheet taken from the Respondent store bear Appellant Mark contrary to the Report of TBS presented by respondent witness PW1 4 and admitted as Exhibit Pl. iii) That the trial Magistrate erred in law and in fact and failed to evaluate evidence and reports from TBS admitted as exhibit Pl and hold that sample collected from respondent store are the same with 94 roof sheets bought from appellant contrary to the said Report. iv) The trial magistrate erred both in law and fact by awarding Respondent Tshs Twenty Million (20,000,000/=) being special damage for distress Without any evidence produced to the court to validate the claim. v) The trial Magistrate erred in law and fact by awarding the Respondent Tshs Ten Million (10,000,000/=) as damages by holding the appellant breached its Manufacturer’s duty by selling substandard product contrary to the TBS reports submitted and admitted as P1 (sic) and DW1 ( sic) The learned advocate Wallace Boniface Mfuko appeared for the appellant whereas the learned advocate Alphonce Nachipyangu appeared for the respondent. The appeal was disposed of through written submission. Submitting the 1st, 2nd, and 3rd grounds of appeal, Mr. Mfuko argued that 5 the sample used for testing the roofing sheet at the TBS laboratories was taken from the respondent’s store in the absence of the appellant and the report from TBS (Exhibit P1) did not indicate the manufacturer. He contended that the sample could have been from other manufacturers such as ALAF, as it was not marked as manufactured by the appellant. He pointed out that on page 10, paragraph 2 of the impugned judgment, the trial magistrate stated that PW3 confirmed that the sample had Sun Share mark, but that assertion contradicts the report (exhibit P1) which indicates that the sample had no manufacturer’s mark, thus failed in marking. Mr. Mfuko contended that since the sample tested at TBS laboratories was taken three years after selling the 94 roofing sheets to the respondent, it was doubtful if that sample was from the batch of the roofing sheets sold to the respondent. Moreover, he contended that the respondent complained of the roofing sheets, which were already used for roofing his house, not unknown pieces of roofing sheets from his store. Further, Mr. Mfuko submitted that exhibit P1 collectively shows that the products sold by the appellants met the required standards. DW2, the TBS laboratory technician, elaborated in court that the sample taken to TBS for testing did not show that the appellant manufactured it. He was emphatic that the respondent had a burden of proving his allegations but 6 failed. Regarding the fourth ground of appeal, Mr.Mfuko argued that the trial magistrate erred in law and fact to award the respondent Shillings Twenty Million ( 20,000,000/=), being special damage for distress and direct loss of economic advantage, whereas the subject matter contested was only 94 roofing sheets worth Tshs. 4,464,000/=. He contended that special damages are specific and different from general ones as they must be proved. In the case, no evidence was produced in court to prove the special damages awarded to the respondent. He cited the case of Tanzania China Friendship Textile Co Ltd vs Our Lady of Usambara Sisters (2006) T.L.R 76, and the case of Njombe Community Bank & Another Vs. Jane Mganwo, DC Civil Appeal No. 3 of 2015 (unreported) in which the court held as follows; “The correct principle of law on specific damage which is universally accepted that the special damages are such as the law will not infer from the nature of the act. They do not follow in the ordinary course. They are exceptional in their character and therefore, they must be claimed specifically and proved strictly” Moreover, Mr. Mfuko faulted the trial magistrate for awarding the 7 aforesaid special damages as costs incurred by the respondent in pursuing his rights, whereas the costs incurred in the case should be claimed in the bill of costs. On the fifth ground of appeal, Mr. Mfuko argued that the trial magistrate erred in law and fact by awarding the respondent Tsh 10,000,000/= as general damage by holding the appellant liable for breach of her duty by selling a substandard product whereas that allegation was not proved by the respondent. He reiterated his arguments in the 1st, 2nd and 3rd ground of appeal that the report ( exhibit P1 ) relied upon by the respondent in proving his case did not show that the sample of roofing sheets tested by the TBS were manufactured by the appellant. Moreover, he argued that TBS, as the authority whose laboratories have been used by the appellant, never issued a report at any time since 2013, that the appellant's product had defects, nor proved that the appellant's product had defects. What was noted in exhibit P1 is that the sample undercoating and marking failed, but it never stated to which manufacturer the sample belonged to. He maintained that if the sample had no mark of the manufacturer, the trial magistrate was erred by awarding Tshs./= 10,000,000 to the respondent as damages and holding that the appellant breached its manufacturer duty by selling a 8 substandard products. In conclusion of his submission, Mr.Mfuko implored this court to allow the appeal and set aside the impugned judgment. In rebuttal, the learned Advocate Alphonce Nachipyangu argued that the allegation given by the appellant that the TBS report (Exhibit P1) did not identify the manufacturer of the sample tested by TBS has no merit.PW 1, the TBS Quality Assurance Officer who examined the sample of the roofing sheets taken from the respondent’s/ appellant’s home and prepared a report ( Exhibit P1) explained how do they collect sample from the disputed product, their professional rules which directs them how to collect and how do they make sure the sampling method represents the result of whole subject in dispute. The material part of the evidence received from the respondent’s witnesses is that TBS examined a sample of the roofing sheets and the result was, it failed to meet the set standards in some parameters and the witnesses cleared explained that a single miss of standard means the whole package lacks quality recommended to be sold to the Clients. Witnesses from TBS are third-party witnesses from an institution regulating the standard, which stands between the parties. There is no way that those third-party witnesses from the high-profile independent institution could come and give a biased confirmation. Before 9 coming to Court, the parties attempted to resolve the dispute amicably but failed. In rebuttal, the learned Advocate Alphonce Nachipyangu argued that the allegation given by the appellant that the TBS report (Exhibit P1) did not identify the manufacturer of the sample tested by TBS has no merit.PW 1, the TBS Quality Assurance Officer who examined the sample of the roofing sheets taken from the respondent’s/ appellant’s home and prepared a report ( Exhibit P1) explained how do they collect sample from the disputed product, their professional rules which directs them how to collect and how do they make sure the sampling method represents the result of whole subject in dispute. The material part of the evidence received from the respondent’s witnesses is that TBS examined a sample of the roofing sheets and the result was, it failed to meet the set standards in some parameters and the witnesses cleared explained that a single miss of standard means the whole package lacks quality recommended to be sold to the Clients. Witnesses from TBS are third-party witnesses from an institution regulating the standard, which stands between the parties. There is no way that those third-party witnesses from the high-profile independent institution could come and give a biased confirmation. Before coming to Court, the parties attempted to resolve the dispute amicably 10 but failed. Further, Mr. Nachipyangu submitted that the respondent/ plaintiff testified before the trial court that he noticed a change of colour in the roofing sheets in question less than six months from roofing his house. He informed the appellant, who sent her staff called George, who inspected the roofing sheets and found that the roofing sheets sold to the respondent were defective. The appellant offered to repaint them but the respondent refused. He wanted the same to be replaced. PW3 TBS’s employee, who took the sample of roofing sheet for testing, testified that the sample taken from the respondent's store was the same as the roofing sheet on the respondent’s house, whose colour had changed. PW 2 told the trial court that during the site inspection, the roofed sheets' upper colour (bricks-red) went off when rubbed. He also said they took a remnant iron sheet from the plaintiff's store, which had a Sun Share mark, for laboratory examination purposes. Mr. Nachipyangu beseeched this court to dismiss the 1st, 2nd, and 3rd grounds of appeal. Concerning the 4th and 5th grounds of appeal, Mr. Nachipyangu argued that Mr. Mfuko misconstrued the impugned judgment because the specific damages awarded to the respondent were Tshs. 4,464,000/=. Tshs. 20,000,000/= was awarded as damages for disturbances and distress to 11 the respondent while pursuing his rights and making follow-ups at TBS. The appellant was ordered to pay the respondent Tshs. 10,000,000/= due to acting negligently and breaching her manufacturer’s duty of selling substandard products to the respondent. He referred this court to page 11 and 13 of the impugned judgment. Further, Mr. Nachipyangu contended that it is a trite law that the award of damages is within the court’s discretion. He cited the case of The Attorney General vs Roseleen Kombe (As the Adminstratrix of the late Lieutenant General Imran Hussein Kombe, deceased ) [2005] T.L.R. 208. In conclusion of his submission, Mr. Nachipyangu implored this court to dismiss this appeal entirely. In rejoinder, Mr. Mfuko reiterated his submission in chief and added that the respondent bought 94 roofing sheets from the appellant, all of which bore the manufacturer’s mark Sun Share. The sample report (Exhibit P1) indicated that the sample taken from the respondent's store was defective. Still, the report did not indicate that the sample taken from the respondent's store was the same product from the batch of the 94 roofing sheets purchased from the respondent. He contended that the sample taken from the respondent’s store for testing 12 is not part of the 94 roofing sheet consignment sold to the respondent by the appellant. The roofing sheet taken to TBS laboratory had no manufacturer’s mark as per the test results ( Exhibit P1). He insisted that if the sample taken from the respondent’s store had a mark showing that the appellant manufactured it, then it should not have failed on a mark as indicated in exhibit P1.PW2 ‘s testimony was contradictory to the contents of exhibit P1, since the test results never reflect what PW2 stated. He maintained that the sample taken from respondent’s store two years after the respondent’s cause of action arose was not the roofing sheet produced by the appellant. Further, regarding the award of damages, Mr. Mfuko argued that The Attorney General's case (supra) could not be applied because there was no proof of negligence and breach of the manufacturer’s duty. Having analyzed the competing arguments raised by the learned advocates, let me determine the merit of the grounds of appeal. First, I wish to point out that this, being the first appellant court, has the duty to re-evaluate the evidence adduced by the parties before the trial court and come up with its findings. [ see the case of Future Century Ltd Vs Tanesco, Civil Appeal No.5 of 2009 ( unreported) ] 13 The first, second, and third grounds of appeal all concern the analysis and interpretation of the evidence adduced before the trial court. Exhibit P1, (test report) from TBS indicates that the client in respect of that report was Sun Share Investment Limited ( the appellant herein) and the sample tested was from the site of Mr. Fridolinus Mushobozi ( the respondent herein). Item 1.0 of the report indicates that the test was purposely for testing whether the sample conforms to TZS1477.2020 ( 3rd Ed) specification and the sample was given TBS Code No. CC/EZ 24 37. Item 4 in part two of the report, which indicates markings of the sample, indicates that the manufacturer’s name/trade mark was not marked, thus it failed to meet that requirement. In short, the whole of the item 4 in the report indicates that the sample failed, but of interest to this judgment is specifically the item on the manufacturer’s name, because that formed the basis of Mr. Nachipyangu’s arguments. Part 3.0 of Exhibit P1 contains the remarks in which it is stated as follows; “ 3.0. REMARKS: The sample does not conform to TZS 1477:2020 ( 3rd Ed) for bottom coating on color and markings parameters. The sample was subjected to destructive test. The sample will be retained for one month from the date of the report.” The report was signed by the analyst, checker and head of laboratory. The report was issued on 14th November 2022. Exhibit P3 , a letter from 14 TBS dated 30th December 2022 addressed to the respondent herein referred to dispute between the appellant and the respondent, and its contents are to the effect that sample that was taken from the respondent’s store was tested and the results showed that failed to meet the required standard in bottom coating color and marking, and labelling. Reading exhibits P1 and P3 between the lines, there is no doubt that the appellant/ appellant’s product manufactured the sample taken from the respondent’s store. As I have mentioned in this judgment, Exhibit P1 shows that the client was Sun Share/ the appellant. This is supported by the testimony of PW3, an inspector from TBS, who went to the respondent’s home with his colleague, namely Samson Fatale, to inspect the roofing sheets and took the sample for testing following the respondent's complaint. This witness testified that before taking the sample for testing, they compared the roofing sheets in the respondent’s store and the ones on the house, and concluded that they resemble. For clarity, let me reproduce part of PW3’s testimony found on page 22 of the proceedings; “ We went to the plaintiff’s place at Kigamboni where we met him.We had a brief dialogue with him informing him why we were there. We asked him about the 15 complaint. We wanted to know if there were any remnants of the sheets after the roofing exercise. We wanted to establish the difference between the roofed iron sheets with the remnants iron sheet. He told us there were pieces that remained. He showed us and inspected first the iron sheets kept at the store at the plaintiff’s place.The iron sheets at the store were brick red . The only mark on those iron sheets were sun share. We then climbed over the roof and inspected the iron sheets. We discovered the difference of the colour with those which we first saw at the store . They were almost orange in colour.They also have a mark of Sun Share like the ones in the store . We then poured some water on the iron sheets and rubbed on it and noticed the brick red color. My colleaque’s name is Samson Fatael. When rubbed the iron sheets with water the upper colour piled off and remained the brick red colour. We used professional judgment to do inspection. We had to select a specific part of the sample, which will be treated to represent the other remaining part. We resolved that the two sample, in the store and one on the roof resemble. We then did situation analysis and basing on the professional judgment that so as to establish what changes observed have nothing to do with environment but the manufacturer’s fault. We had to take those samples which were not used. We took the remnants at the store which were not roofed (sic).We took the sample to the office..” (Emphasis added) From the foregoing Mr. Mfuko’s arguments that the sample that was tested at TBS laboratory as per Exhibit P1 does not indicate the manufacturer and it was not among the 94 roofing sheets used to roof the respondent’s house in misconceived, because PW3 told the trial court that they compared the sample they took from the respondent’s store with roofing sheets that were on the roof. Moreover, PW3 testified that they selected a specific sample part and took it to their office for testing. This 16 explains why exhibit P1 indicates the sample was not marked with the manufacturer’s label/logo. Simple reasoning leads to a conclusion that the specific part of the sample taken for testing did not have the manufacturer’s mark, but that does not mean it was not the appellant’s product. After all, it is not in dispute that appellant sold to the respondent 94 roofing sheets, which within a short period changed their colour from brick red to an unknown color, as per the respondent’s testimony, or orange, as per the testimony of PW3, an officer from TBS. I have taken into consideration Mr. Nachipyangu’s concern that the samples were taken in the absence of the appellant in which he was impliedly trying to establish that there are doubts on the allegations that the samples were the appellant’s products since the appellant did not witness the taking of the samples from the respondent’s store. Since officers who took the samples were from TBS, I disagree with him that the testimony of PW3, an officer from TBS, is untrue. None of the appellant’s witnesses established the possibility of PW3 giving false testimony in court that the samples taken did not resemble the 94 roofing sheets on the respondent’s house. Additionally, it is not disputed that the appellant admitted that the roofing 17 sheets supplied to the respondent were defective in colour. The appellant had opted to repaint them to settle the matter amicably, but the respondent refused the offer. Thus, the first, second, and third grounds of appeal are hereby dismissed. Concerning the 4th and 5th grounds of appeal on payment of damages, I agree with Mr.Nachipyangu that courts are enjoined with discretionary powers to award damages. It is worth noting that the court can award specific damages, which need to be specifically pleaded and proved by evidence, or general and punitive damages, which do not need to be specifically proved [See the case of Zuberi Augustino Vs Anicet Mugabe ( 1992) T.L.R. 137]. Before going further with the analysis of the damages awarded to the respondent, at this juncture, it is apposite to point out that parties are bound by their pleadings and the courts are also bound by the parties’ pleadings. They cannot depart from the pleadings and create their cases. [See the case of Masaka Musa Vs Rogers Andrew Lumenyela and others, Civil Appeal No. 497 of 2021, ( unreported)]. In this case, the plaintiff prayed for payment of special damages to the tune of Tshs. 50,000,000/= for disturbance, distress, and direct loss of economic advantage. Special damage can be equated to specific damages which need to be proved. In this case the 18 respondent was obliged to prove the direct loss of economic advantage, and was required to plead how he suffered the said direct loss of economic advantage. I agree with Mr. Mfuko that the respondent did not testify to any direct loss of economic advantage. In his judgment, the trial court reduced the claimed special damages from Tshs.50,000,000/= to 20,000,000/= and treated it as general damages, though he did not state so. With due respect to the trial magistrate, he erred in law to award the respondent a sum Tshs.20,000,000/= since the respondent claimed for special damages, which needed to be proved specifically, and the same was not proved. The respondent also prayed for payment of Tshs.100,000,000/ as damages for the appellant’s negligence and breach of the manufacturer’s duty to the respondent/plaintiff by selling roofing sheets with a lower standard than advertised and envisaged for reasonable use. In its judgment, the trial magistrate reduced that amount to Tshs. 10,000,000/=. To my understanding, the damages claimed under this item are punitive, a penalty to the appellant for breach of his duty. Punitive damages have to be consonant with the fault committed. In this case, the appellant breached her duty as a manufacturer by selling defective roofing sheets worth Tshs. to the respondent. 4,464,000/=, 19 reasonably the penalty for that fault cannot be twice the price of the roofing sheets, which caused the whole saga. Therefore, the award of Tshs. 10,000,000/= is exorbitant. Thus, I hereby vary the amount of punitive damages awarded to the respondent from Tshs.10,000,000/= to Tshs.1,000,000/=. About the award of Tshs. 4,464,000/=, the full purchase price, since evidence adduced by both sides reveal that the respondent lodged his complaints to the appellants two years after roofing his house using the roofing sheets in question and up to the date of filing the case the same were on the respondent's house, I am of the settled opinion that refunding the respondent the whole of the purchase price is not justifiable. The respondent is still using the roofing sheets in question. The only problem with those roofing sheets is the colour, which changed from brick red to orange, thus causing disappointment and displeasure to the respondent. Under the circumstances, I hereby order that the appellant refund the respondent half of the purchase price, which is Tshs.2,232,000/=. Further, since the appellant frustrated the respondent’s plan of having a house with a brick-red roof, thus causing him dissatisfaction with the standard of his house, I hereby order the appellant to pay the respondent general damages to the tune of Tshs. 2,000,000/=. 20 The order for payment of interest on the decretal sum at the court rate from the date of judgment to the date of payment remains intact. In fine, this appeal succeeds to the extent explained herein above. Since the appeal partly succeeded, each party shall bear his costs. Dated at Dar es Salaam this 10th day of March 2025 B.K.PHILLIP JUDGE. 21