CIVIL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: LEVIRA J.A.. GALEBA. J.A.. And ISMAIL, J.A.^ 1 CIVIL APPEAL NO. 54 OF 2022 TANZANIA INTERNATIONAL CONTAINER TERMINAL SERVICES LIMITED................................................. APPELLANT VERSUS PETROLUBE (T) LIMITED..................................................... RESPONDENT [Appeal from the Decision of the High Court of Tanzania (Commercial Division) at Dar es Salaam] (Ngnqela, J.) dated the 23rd day of November, 2020 in Commercial Case No. 24 of 2020 JUDGMENT OF THE COURT 10th & 27th February, 2025 GALEBA, J.A.: In this appeal, Petrolube (T) Limited, the respondent, is a Tanzanian company dealing in sales and distribution of oils and lubricants. In August 2015 she procured 350,636 litres of some lubricating material called Base Oil Kixx LUBO 150N, weighing 299.05 metric tons (the consignment), from a South Korean company called GS Caltex Corporation. The packaging of the consignment was a secure flexi tank carefully placed in the metal container which was loaded on the carrier ship christened Hanjin Jebel Ali (the ship). The ports of loading and discharge, were respectively, Busan in South Korea and Dar es Salaam in Tanzania. The consignment was accordingly conveyed safely from South Korea to Dar es Salaam aboard the ship, but during or around the time that the consignment was being offloaded from the ship, the container housing it was badly damaged such that the imported lubricant leaked to complete emptiness of the flexi tank. A party who caused the damage and, in whose premises, the destruction occurred, was Tanzania International Container Terminal Services Limited, the appellant in this appeal. Subsequent thereto, there were various communications between the appellant and the respondent, but on 25th January, 2020, the respondent sued the appellant in the Commercial Division of the High Court based on breach of contract, namely that, the appellant failed to offload the consignment and to deliver it safely to her. The High Court determined the matter in favour of the respondent and awarded her US$ 45,033.00 being special damages and TZS. 5,000,000.00 as general damages, among the reliefs granted. That decision aggrieved the appellant, hence this appeal which is based on three grounds, that; one, the trial Judge heard and determined a time barred claim; two, that it was erroneous for the trial Judge to hold that there existed any contract between the parties, and; three, that following the trial Judge's failure to properly evaluate evidence, he granted specific damages which were not proved. At the hearing, the appellant and the respondent were represented by Messrs. Zacharia Daudi and Simon Barlow Lyimo learned advocates, respectively. They each indicated to us that they did not intend to elaborate their submissions, save for any points that we would seek any clarifications from them. In resolving the above grounds of appeal, we will not only consider counsel's written submissions, but also their oral elaborations upon our invitation. The basis of the appellant's complaint in the first ground of appeal is that the respondent's case was based on tort and not on contract because in his witness statement, Mr. Yassin Bharadia (PW1) at pages 157 and 534 of the record of appeal, stated that the respondent did not have "a direct agreement"with the appellant. Because of that, Mr. Daudi contended that the case was based on a tort of negligence, therefore it ought to have been filed in court within three years counting from 14th September, 2015 when the consignment was destroyed. He relied on item 6 of Part 1 to the Law of Limitation Act Cap 89. According to the learned counsel, the case having been lodged on 25th January, 2020, it was time barred and ought to have been dismissed for having been filed beyond the 3 years' time limit. The learned advocate relied on the case of Mbezi Mgaza Mkomwa v. Permanent Secretary, Prime Minister's Office & Another [2020] TZCA 372. In reply, Mr. Jovinson Kagirwa learned advocate who prepared the written submissions in contesting the appeal, argued that the suit was based on contract and there was nothing to suggest that it was based on tort. He referred us to an English case of Jarvis v. Moy, Davis, Smith, Vendervell & Co (1936) 1 KB 399 in substantiating his contention. We have considered the submissions of learned advocates and wish to state at the outset that, it is an established rule of practice that a cause of action in a given case can be discerned from the pleadings, see thisCourt's decisions in Agatha Mshote v. Edson Emmanuel & Others [2021] TZCA323 and NBC Limited And Another v.Bruno Vitus Swalo [2021] TZCA 122. Relevant to the issue were paragraphs 3, 7, 20 and 22 of the plaint, where the respondent stated: "3. That the Plaintiff's claims against the defendant is for payment o f the total sum o f United States Dollars Forty Five Thousand and Thirty Three (US$ 45,033.00) being loss o f the imported cargo the plaintiff suffered as a result of the defendant's biatant breach of agreement to offload the plaintiff's imported cargo... 7. ... The plaintiff by agreement appointed the defendant to dear the cargo from the shipping line. It was the implied terms o f the agreement that all the stripped containers were to be kept at the defendant's warehouse. 20. As a result o f the defendant's wilful acts and omissions constituting breach of agreement, ... the defendant has occasioned loss to the plaintiff to the tune o f ...US$ 45,033.00. 22. The agreement was entered in Par es Salaam... " In reply to the above allegations, the appellant in her written statement of defence denied to have breached any agreement, as per clause 6, 8, 20 and 21 at pages 20 and 30 of the record of appeal. The appellant's contention in the first ground of appeal that the suit was based on tort, has no basis. In this case, as the cause of action in contract arose on 14th September, 2015 and the case was filed on 25th January, 2020, which was less than six years which is the time limit to institute legal actions based on contract, the action was filed in time. Thus, we dismiss the first ground of appeal. The complaint in the second ground of appeal was that the appellant and the respondent, did not have any contract in respect of the consignment. In supporting the contention, Mr. Daudi advanced two arguments; first, that the appellant's terms of business document, exhibit P5, does not qualify to be a contract in law, for it lacks the necessary ingredients of a valid contract including an offer, acceptance, free consent of the parties and consideration. The second argument was that the appellant being not a party to exhibit P5, he could not sue on, or benefit from it. So, he implored us to fault the trial Judge who was of the position that there existed a contract between the parties to this appeal. In reply, Mr. Kagirwa for the respondent objected to the appellant's counsel's submission and supported the finding of the trial court that there was a valid contract between the parties. In our view the issue for resolution of the second ground, is whether the appellant and the respondent were under any contractual relationship when the consignment was destroyed. Before delving deep into the resolution of this ground of appeal, we think it is key to highlight two points; first, this Court being a first appellate court in this matter, we are entitled to re-evaluate and reconsider the evidence tendered in the trial court and if necessary, reach a decision of our own, independent of that of the High Court. That is in tandem with the provisions of rule 36 (1) (a) of the Tanzania Court of Appeal Rules 2009. Second, under the laws of Tanzania, for a contract to be valid and enforceable, it does not have to be written and or physically executed by parties. A contract may be implied from the conduct of the parties. With this understanding, we will then proceed to discuss the real issue in the second ground of appeal. According to the available records, on 28th November, 2019 the lawyers of the respondent wrote a letter, exhibit P7, to the appellant detailing how the respondent had breached the contract of safe delivery of the consignment to the respondent and claimed US$ 45,033.00 in order to remedy the breach. Upon receipt of that letter, the respondent replied to the lawyers' letter vide her letter, exhibit P8 dated 2nd December, 2019 containing the following substance: 'We Tanzania International Container Terminal Services Limited, acknowledge your letter dated 2&h November, 2019 with reference No. HA/PTL/01/19 regarding the subject above. Since the matter [has] been handled by our insurer, we have therefore forwarded the letter to them for consideration. In the meantime, we request to be given the requisite extension o f time o f 30 days while we are waiting for a substantive reply from our Insurers. It is our hope that you will accept our request and grant us the extension timely." The contents of the above letter are supported by exhibit P9, a letter dated 16th September, 2015 from Alliance Insurance Corporation Limited (the insurer) to Transeuropa Tanzania Limited (the insurance surveyors and loss adjusters) to carry out the inspection and assessment of the loss. The survey of the premises and assessment was carried out by the insurance surveyors and loss adjusters on 16th and 18th September, 2015 and generated a report, exhibit P10. According to that report, at page 292 of the record of appeal, the following was part of the findings: "Based on our inspection, the container was observed to be in very bad shape. The subject container was severely damaged, bent; dented and was ripped from the bottom. Leakage o f oil was also noted ongoing as well the spillage scars determined the leakage on the ground..., [the] flexi tank was found completely empty and no salvage [could be] retrieved from the consignment Hence it was a total loss situation." According to the report, the adjusted loss was US$ 14,324.02. In this case, although the container was loaded with the consignment of the respondent, it was insured by the appellant. When it got damaged on 14th September, 2015, the appellant notified the insurer of the destruction of the consignment. The latter instructed the insurance surveyors and loss adjusters to inspect the destroyed consignment and assess the loss occasioned. Here, we should not lose sight of the fact that the destroyed consignment was the respondent's but the party who appears to be more concerned from insuring the consignment, notifying the insurer upon destruction is not the respondent; it is the appellant. It was the appellant who was requesting for extension of 30 days for her to contact the insurance company for any update on the destroyed consignment before the lawyers could take legal action. The question that kept 9 lingering in our mind is this; if the appellant had no legal relationship with the respondent or any duty to fulfil in favour of the respondent as regards the consignment, why would she be concerned with its loss to that extent? In our view, because at the hearing, Mr. Daudi confirmed to us that, for offloading, management and safe delivery of the consignment to the respondent, the latter paid fees to the appellant through the Government. Thus, without doubt, there existed an implied contact between the parties in which the respondent would offload the consignment, store and deliver the same to the respondent. Such an agreement, though unwritten, is as good as an agreement and the same is enforceable under the laws of Tanzania, see this position in the cases of Prisimo Universal Italiana S.R.I. v. Temcotank (T) Limited [2008] T.L.R. 403, and Sangijo Rice Millers Co. Ltd v. S. M. Holdings Ltd [2006] T.L.R. 89, just to mention but a few. In this case, this implied contract stated above was utterly breached, by the appellant. Therefore, it would be heartless and quite unjust and illegal to hold, as Mr. Daudi was beseeching us to hold, that because there was no written agreement between the appellant and the respondent, then the respondent had no legal redress under the law. If we were to hold as such, we would not be effective and even responsible administrators of justice. To us, on all occasions, justice must rule supreme and must be given way even in the face of the law itself. Before we conclude, we wish to say a word or two on exhibit P5. According that exhibit, a consignee is defined at page 251 of the record of appeal, as a company or a person who is entitled to receive a container or break-bulk cargo from the appellant. By rendering that service, the appellant charges fees which, in this case, the respondent paid as was confirmed to us by Mr. Daudi at the hearing. The undertaking to deliver safely the containers to consignees can be gathered from the provisions of clause D (5) of exhibit P5, which says: "(5) The company will endeavour to ensure the correct tallying o f break-bulk cargo and the correct delivery to consignees and to containerships o f break-bulk cargo and containers. The company will not be responsible or liable for any errors in the tallying or delivery o f any break-bulk cargo or container which is insufficientlyincorrectly or otherwise not properly marked." li In our view, this clause creates a duty to the appellant to deliver containers which are sufficiently, correctly and properly marked to their owners who are also called consignees in maritime transport and logistics. In this case, the appellant did not only fail to deliver the consignment to the respondent, but also she destroyed it. On this aspect of the destruction, the appellant's witness, one Leonard Chivanga, (DW1) at page 550, during cross examination, confirmed the following: "The cargo was damaged. It [was] TICTS (appellant) who caused the damage. It was caused by TICTS machines. Petrolube was not compensated." That summarizes the appellant's admission of the breach of her undertaking to safely deliver the consignment to the respondent. Based on this finding, we dismiss the second ground of appeal. The third ground of appeal is a complaint that the trial court awarded the respondent special damages of US$ 45,033.00 without specific proof of that amount. Briefly, the appellant's submission was to the effect that, the only document which was tendered to prove specific damages was exhibit P10 which proved only US$ 14,324.02. According to the appellant there was no proof beyond that amount. In supporting the appellant's position that specific damages must be pleaded and 12 specifically proved, learned counsel for the appellant relied on several decisions of this Court including North Mara Gold Mine Limited v. Joseph Weroma Dominic [2022] T7CA 2. In reply, counsel for the respondent submitted that there is no wrong without remedy. He was in agreement with his counterpart on the principle governing proof of special damages. Having laid the foundation, the learned counsel for the respondent contended that the loss was proved by tendering the commercial invoice, exhibit PI and exhibit P10. According to him, the amounts that were proved in terms of those exhibits, are US$ 14,600 being the purchase price of the lost consignment and US$ 16,105.93 being an opportunity cost of the lost consignment. In this appeal, we do not need to restate the obvious, that it is now a deeply rooted principle in our jurisprudence, that in a suit for recovery of specific damages, a party who wishes to recover such damages must not only plead its quantum in the plaint, but also has a burden of strictly proving it at the trial of the case. This has, for many years been our law and it continues to be so. We will thus evaluate the record of appeal in order to ascertain whether indeed the respondent's award of US$ 45,033.00 as special damages, was both pleaded and strictly proved. Going by the plaint, the above amount was duly pleaded at paragraphs 3, 11, 16, 20, 21 and 22. So the first part of the principle was met by the respondent. As discussed above, however, that is not all, next is whether the facts constituting the above amount (US$ 45,033.00) in plaint were actually proved at the trial. The respondent's case was proved by two witnesses; one was Yassin Baradia (PW1) and another was Amirali Kara (PW2) who both lodged witness statements. The witness who particularly proved specific damages was PW1. In his witness statement, particularly in clause 11 at page 156 of the record of appeal, he stated: "11. That after the visit at the defendant's site, it was revealed that the leakage as averred under paragraphs 8 and 9 above, caused the plaintiff to suffer loss amounting to United States Dollars Forty-Five Thousand Thirty-Three (US$ 45,033.00) such that; "(a) There was documentation cost o f the container to the tune o f US$ 6.66 (b) Cost o f the oil US$ 14,600.00 (c) Demurrage from ICD for the container US$ 4,800.00 (d) Agency fees US$ 200.00 (e) Storage Charge by inland container US$ 4,480.00 (f) Port handling charges US$ 303.07 (g) Customs warehouse rent US$ 2,692.81 (h) Chemical permits US$ 66.67 (i) TPA charges US$ 282.86 (j) Duty PMTper one container US$ 1,811.83 (k) Opportunity cost/admin cost US$ 16,105.93." During cross examination on the above points, PW1 was subjected to strictly proving them one by one and his responses are captured at pages 536 to 537 of the record of appeal, where he stated: "[The] cost o f the bill was US$ 14,600...It was tendered in exhibit PI or P2. There is proof for (b). I have proof for (c) but I did not tender it. Paragraph 11 is agency fee which is [200.00] US$ paid to SAMI Agencies by the plaintiff. I have a document but I did not tender it I am claiming for storage charge which is US$ 4,208. This was paid to ICD by the plaintiff. I have the document with me but I did not tender it Yes, no document to prove the claim. Item (f) I claim US$ 303 as port lending charges. These were paid by the plaintiff, I do remember. The document is there but not tendered in court. It is with me. I do not remember to have attached or appended it in any document Item (g) is customs warehouse rent The claim is US$ 2,692.8. Yes, I have the document to prove, but [it is] not part o f the exhibits. Item (h) is about chemical permit. It is US$ 66.67, I am claiming. It [was] paid by us, but I do have a document [] which was not tendered[Item (i), is] the claim for TPA charges. I claim US$ 284.46. We paid to TPA. I have a document but I did not tender it in this court. Item (j) is a container duty penalty which is US$ 1,811.83. We paid to TPA. Petrolube paid. [The] document is there, but not tendered. Item (k) is about opportunity costs/admission costs. We claim 16,105 US$. We made assessment ourselves. Yes, I have [a] document to show how the amount was raised but not tendered in court." [Emphasis added] Against the above quoted part of the evidence, did the respondent prove strictly the expenses contained in the documents that PW1 mentioned in his witness statements also quoted above? Quickly coming to our mind are the provisions of sections 61, 63 and 64 (1) of the Evidence Act Cap 6, which provide that: "61. AH facts, except the contents o f documents, may be proved by oral evidence. 63. The contents o f documents may be proved either by primary or by secondary evidence. 64. -(1) Primary evidence means the document itself produced for the inspection o f the Court" For purposes of our discussion in this appeal, these sections point to two general propositions of law which are mutually complementary. The first is that, all facts that a party alleges to be contained in a document must be proved by tendering the very document containing the facts. The second complementary proposition to the first is this; generally, all facts in a document cannot be proved by oral evidence. In this case, all expenses that were listed as having been incurred by the respondent, had documents in place to prove them, but PW1 did not tender the documents although in all cases he confirmed that he had the relevant documents. The witness sought to prove the contents of the documents orally, instead. That, in our view, was offensive of the above sections of the Evidence Act. Thus, except for item (b), which was the cost of the destroyed consignment, we do not agree with the learned trial Judge that the respondent proved any other items' specific amount. We also note that it is not clear why the respondent orally stated that the cost of the destroyed consignment was US$ 14,600.00. That figure is not on any document. According to the commercial invoice which is exhibit PI at page 239 of the record of appeal, the total ocean freight for the destroyed consignment was US$ 17,109.10. This, we think was the appropriate expense that the respondent suffered to have the damaged consignment shipped to Tanzania. It is also erroneous and unrealistic to award US$ 14,324.02 as per the insurance surveyor and loss adjusters' report because, that amount is a technical figure from the insurance surveyors and loss adjusters, it is not the amount that the respondent paid to procure the destroyed consignment. The money that the respondent paid for the consignment was US$ 17,109.10, if one is to compensate the respondent for the loss she suffered, at the hand of the appellant. Thus, the third ground of appeal succeeds to the above extent. In view of the above discussion, the decision of the High Court is partly reversed such that the figure US$ 45,033.00 awarded in favour of the respondent as specific damages, is set aside and substituted with the figure US$ 17,109.10. Thus, save for that alteration of the figure for specific damages, all other reliefs that were granted in favour of the respondent by the High Court remain valid and enforceable against the appellant. Lastly, this appeal is partly allowed as indicated above and considering the nature and circumstances of the matter, we make no order as to costs. DATED at DODOMA, this 27th day of February, 2025. M. C. LEVIRA JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 27th day of February, 2025 in the presence of Mr. Zacharia Daudi, learned counsel for the Appellant and Mr. Simon Lyimo, learned counsel for the Respondent, is hereby certified as a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL