CIVIL APPEAL 96 2023 TICS VS BRIDGE LTD

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM CIVIL APPEAL NO. 96 OF 2023 (Originating from the Resident Magistrate Court of Dar es Salaam in Civil Case No. 67 of 2021) TANZANIA INTERNATIONAL CONTAINER TERMINAL SERVICES LIMITED..................................................APPELLANT VERSUS THE BRIDGE TECHCREATIVE LIMITED …………………………… RESPONDENT JUDGMENT 21st August & 29th November, 2024 BWEGOGE, J.: This is an appeal from the decision of the Resident Magistrate Court of Dar es Salaam, at Kisutu, in Civil Case No. 67 of 2021 wherein the appellant’s claim for compensation founded on breach of contract instituted against the respondent was dismissed in its entirety. Before delving into the merit or otherwise of this appeal, I would revisit the factual matrix of this case in the trial court, albeit briefly, as follows: 1 Wayback in 2018, the appellant herein engaged the respondent for preventive and maintenance services of the electronic power backup devices technically known as uninterruptible power supply (UPS) within contractual period of 12 months for consideration of payment of TZS 12, 400,000/ per month. The contract to that effect was executed by both parties. Under the contract, the respondent was contractually obliged to ensure that all systems and components were clean and functioned according to the manufacturer's specifications and instructions. One Idd Mohamed, the respondent’s employee, was specifically assigned the duty of servicing the power backup system mentioned above. On 09th May, 2019, the respondent’s employee mentioned above, entered the appellant’s premises to execute his duty. Allegedly, the same employed a dust blower in cleaning the respective electronic devices; hence, caused the smoke detector to react/raise the alarm and consequently triggered the fire suppression system (fire extinguishers) to explode and discharge fire powder (dry chemical). Allegedly, the respective fire suppression system caused damage to the roof sealing of the server room apart from the expenses of refiling the gas cylinders. 2 The appellant alleged the respondent’s employee for negligence in respect of the occasioned accident and demanded the respondent to shoulder the expenses of refiling the fire extinguishers/gas cylinders and necessary repair of the premises. The respondent declined the demand on the ground that she had no contractual duty with the appellant to maintain the respective fire suppression system. Hence, the appellant engaged a third party (8-Bits Telecoms and Networks Company Limited) to refill the fire extinguishers and carry out necessary repairs for payment of USD 15, 340. Following the respondent’s refusal to reimburse the appellant for costs incurred in alleviating the damage caused by the alleged accident, the appellant instituted a suit in the trial court claiming compensation for breach of contract. It was the appellant’s case in the trial court that the respondent’s employee executed his duty contrary to the accepted procedure for employing the dust blower in cleaning the power backup devices (UPS) in the server room instead of a vacuum cleaner. Conversely, it was the respondent’s defence that her employee, an expert in the respective field, executed his duty according to the professional standard. 3 The trial court, having considered the evidence adduced by the appellant and the defence made by the respondent, reached the conclusion that there was no sufficient evidence proving that the respondent’s employee executed his duty negligently, and or contrary to his professional procedure. Consequently, the suit was dismissed with costs. The appellant was not amused; hence this appeal. The appellant advanced eight (8) grounds of appeal as hereunder mentioned: 1. The learned trial magistrate erred in law and fact for failure to determine the suit based on issues raised. 2. The learned trial magistrate erred in law and fact in delivering a judgment which does not include all components of a valid judgment according to the law. 3. The learned trial Magistrate erred in law and fact for failure to consider PW3 as an expert witness and opining that there was no expert witness called to prove the allegations. 4. That the learned trial magistrate erred in law and fact in failing to consider the evidence and testimonies provided by the appellant's witnesses. 5. That the learned trial magistrate erred in law and fact in holding that the respondent did not breach the contract executed with the appellant. 6. That the learned trial magistrate erred in law and fact in holding that the defendant had no duty of care to the appellant. 7. That the learned trial magistrate erred in law and fact in holding that the defendant had no control over the server room contrary to the evidence 4 adduced in court. 8. That the learned trial magistrate erred in law and fact in awarding costs to the respondent. I now proceed to attend the grounds of appeal mentioned above commencing with the 4th and pertinent ground of appeal herein. It is alleged that the learned trial magistrate failed to consider the evidence adduced by the prosecution. In delving into this issue, I find it pertinent to revisit the evidence tabled before the trial court in extenso. The appellant’s case in the trial court was buttressed by the testimonies of three witnesses namely, Leonard Chiwango (PW1), the Claims and Risks Officer; Manase Shalwa, the expert in information and computer technology (PW2); and Rajabu Mustafa Makame (PW3) whose expertise was not disclosed. It was the testimony of PW1 that his employer (appellant) had entered an agreement with the respondent herein, vesting the respondent with the duty of cleaning and maintaining the power backup system in the server room. The relevant contract was tendered and admitted as exhibit P1. PW1 enlightened the trial court that apart from maintaining the machines in the server room, the respondent had a duty to ensure the safety of the respective electronic machines therein as per the manufacturer's 5 instructions and remit periodic reports to his employer (appellant). PW1 alleged that on 09th May, 2019 the respondent’s employee namely, Iddi Mohamed (DW1) was servicing the servers in the server room. That the respective respondent’s employee, DW1 blew dust and then the fire sensor raised an alarm which triggered the fire extinguisher to explode and spill the chemical powder into the server room. PW1 alleged that the respective personnel was supposed to know how to control the alarm/fire extinguisher devices; hence, his lack of knowledge was the cause of the damage occasioned. Suffice it to mention that PW1 blamed the respondent’s employee, for lacking expertise in the execution of his work which occasioned damage to the server room. In explaining the alleged damage, PW1 told the court that the exploded fire extinguishers needed to be refilled, apart from general cleaning of the server room and roof sealing. However, when the respondent was required to do so, declined, constraining the appellant to hire the service of 8-Bits Telecoms and Network Company Limited, a third party, to refill and clean the area for payment of USD 15, 340. The invoices and EFD payment receipt were tendered for proof of payment made to the third party which were admitted in evidence as exhibit P2. During the cross-examination, PW1 admitted that the fire extinguishers were 6 maintained and serviced by another contractor. However, he maintained that the respondent was obliged to send experts who were knowledgeable with the challenges posed by the fire extinguishers. In augmenting the testimony of PW1, PW2, the IT expert, deponed that the respondent’s employee who serviced the power backup system (UPS) in the server room on the fateful day was negligent in the execution of his work. That the respective technician used a “dust blower” to service the UPS whereas the dust blower caused fire detectors to react and trigger the discharge of gas from the fire extinguishers. He maintained that, to his knowledge, in servicing the UPS, the “vacuum cleaner” is normally used to suck the dust instead of the dust blower. That the respondent was supposed to know better the procedure applicable to service the respective electronic devices. Hence, the alleged damage, PW2 opined, was caused by a lack of expertise on the part of the respondent’s employee who employed the dust blower to clean the electronic devices instead of the vacuum cleaner. During the cross-examination, PW2 responded that an investigation on the incident was done by a professional in the respective fire system but he was not instructed to submit the said report to the trial court. 7 The last witness, PW3, is an employee of 8-Bits Telecoms and Network Company Limited, the third party hired to service the exploded fire extinguishers. As aforesaid, this witness didn’t disclose his expertise. In substance, PW3 deponed that they were hired to fill the discharged gas cylinders, replace missing spare parts and clean the dust in the server room. It is noteworthy that PW3 enlightened the trial court that the server room was very dirty, covered with dust all over; necessitating general cleaning. On the other hand, one Idd Mohamed Mkwama (DW1), the very expert alleged to have worked unprofessionally and negligently, deponed thus: He was trained in servicing electronic power backup equipment technically known as uninterruptible power supply (UPS). The same was employed by the respondent herein and assigned to render his expertise services to the appellant herein. On the fateful day of 09th May, 2019 he entered the server room to service the power backup system therein. He found builders on work at the very premise he was supposed to work; dust covering the electronic equipment he was supposed to work. Hence, he employed his blower to clean the respective electronic devices. The fire alarm went on. He reported the incident to the management immediately. However, instead of switching off the alarm, they sought assistance from 8 the expert who fixed the fire alarm. However, time was against them; consequently, the alarm triggered the fire extinguishers to explode. Likewise, DW1 enlightened the trial court that an alternative expert was found who inspected the fire extinguishers and the whole system and discovered that the same had not been serviced for a long period. And DW1 charged that the accident was not caused by him, but the appellant’s own fault, for allowing the builders to proceed with building work close to the servers, releasing cement dust all over the delicate equipment whereas no precaution was taken to cover the devices from dust. Otherwise, DW1 admitted that he had no expertise with fire alarms/extinguishers; hence could not switch off the alarm or perform any preventive act. Suffice it to point out that DW1 maintained that all the days of work, he employed the dust blower to clean the electronic devices (UPS) in the server room, not the vacuum cleaner. Lastly, one David Kagoma, the Managing Director of the respondent deponed that he had 12 years of contractual work with the appellant herein which ended in August, 2019. Then, there was extension of the contract at the request of the appellant to January, 2020. And in all periods of serving the power backup system of the appellant, no complaint 9 ever registered on the mode of execution of their work, otherwise, there could be no extension of the contract. DW2 contended that they had a contractual obligation to service the power backup devices in the server room, not the fire prevention system, or any other electronic systems therein. He opined that had they been short of satisfactory service, there would have been no extension of the contractual term. That the appellant was responsible for the incident for allowing construction work to proceed on the same premises without taking precautions. Further, DW2 charged that the abort button for the fire alarm system was not inserted; it was inserted after the alleged accident. That is all about the evidence adduced in the trial court. At the commencement of the trial, the following issues were framed for determination: 1. Whether there was contract between the parties herein to maintain the UPS. 2. Whether there was breach by either side. 3. What are reliefs parties entitled to? Acting on the evidence revisited above, the trial court answered the 1st issue pertaining to the existence of the contract between the parties in the affirmative. However, respecting the allegation of the alleged breach 10 of contract based on negligence/ unprofessional act of the DW1, the trial court opined that there was no convincing evidence brought to the attention of the court to prove that the mode of execution of the work on part of the DW1 fell short of expertise expected from him and, or the respondent herein. Based on this observation, the 2nd issue was answered in negative leading to the dismissal of the case in its entirety with costs. The pertinent question arising herein is whether the trial court erred in reaching this decision. This question, I will attempt to answer as follows: First, the only ground advanced by the appellant's witnesses, specifically PW1 (Claims and Risks Manager) and PW2 (IT expert) to buttress the alleged breach of contractual duty was the explanation that DW1 acted unprofessionally in employing the dust blower in cleaning the UPS devices. That to their knowledge, the vacuum cleaner was to be employed. Conversely, DW1, the technician assigned to service the respective UPS contended that he normally employs the dust blower in removing the dust from the inner part of the devices and no problem has ever happened. As aforesaid, DW1 shouldered the responsibility of the accident to the appellant who allowed building work to be conducted close to the servers without taking precautions. 11 Hence, the court was left in limbo, between two words of the experts and found sufficient evidence wanting to conclude that DW1 acted below the expected professional standard. Likewise, I find myself in the same situation. It is apparent that expert opinion from an independent entity/person with expertise in the field was required to establish the appellant’s case in the trial court of which, unfortunately, was wanting. I am of the settled view that DW1 being the expert vested with the duty to maintain the respective electronic devices (UPS), his evidence carried weight over the evidence adduced by PW1 and PW2. In civil proceedings, it is the plaintiff who bears the burden of proof, on the balance of probabilities, to succeed in his action. See the cases; Godfrey Sayi vs. Anna Siame (as Legal Representative of the Late Mary Mndolwa), Civil Appeal No. 114 of 2014, CA (unreported) and Barelia Karangirangi vs. Asteria Nyalwamba, Civil Appeal No.237 of 2017, CA (unreported); and Anthony Masanga vs Penina (Mama Mgesi) & Another, Civil Appeal No. 118 Of 2014, CA (unreported), among others, in this respect. The appellant failed to discharge her burden of proof to the standard set by law to entitle grant of reliefs prayed for. In this respect, I am constrained to borrow a leaf from the case of 12 Crescent Impex (T) Limited vs. Mtibwa Sugar Estates Limited (Civil Appeal No.455 of 2020) [2023] TZCA 17501 thus: “It is also elementary that the standard of proof, in civil cases, is on a balance of probabilities which means that the court will sustain such evidence which is more credible than the other on a particular fact to be proved. Likewise, it is the law that the burden of proof never shifts to the adverse party until the party on whom the onus lies discharges his/her burden to prove and the said burden is not discharged or diluted on account of the weakness of the opposite party's case.” Secondly, PW2 deponed that there was an inspection made by professionals in the server room at the request of his employer/appellant on the incident and the report to that effect was made. However, PW2 told the trial court that he was not instructed to bring the report to the attention of the court. This statement disturbed my mind. It is apparent that the purported report would have shed light on what was the actual cause of the alleged incident. The report was material evidence in this case but was deliberately withheld by the appellant. Non-disclosure of the material evidence invites this court to draw adverse inference on the part of the appellant in that the report didn’t support her case. Thirdly, DW1 in so many words told the trial court that the server room was covered by dust beyond the usual level which was caused by builders who had construction work close to the server room he was supposed to 13 work; hence, he could not clean the power backup system without employing dust blower. The same version was given by PW3 in that they found the server room covered by dust of which they could not discover the source. For this very reason, DW1 alleged the appellant for negligence in allowing construction work in the proximity of the server room without taking protective measures with respect to the delicate electronic devices therein. The appellant didn’t answer to this charge. Thus, based on the above observations, I find no cogent ground to fault the decision of the trial court. I am of the considered opinion that the trial magistrate duly directed his mind to the evidence adduced in reaching his decision. The 4th ground of appeal fails. Likewise, the discussion above disposes of the 3rd, 5th, 6th, and 7th grounds of appeal. I revert to the 1st ground of appeal. The charge herein is that the trial magistrate erred in failing to determine the suit based on the issues raised in composing judgment. This issue need not detain me as well. As aforementioned, three issues were raised during the trial. Respecting the existence of the contract between the parties herein, the trial court affirmatively found that there was a valid contract between the parties herein wherein the respondent had the contractual duty to service/maintain the power backup system (UPS) of the appellant. 14 Regarding the 2nd issue pertaining to the alleged breach of contract, the trial court concluded that the expert evidence proving that DW1 executed his work unprofessionally was lacking. Hence, the 2nd issue was answered in negative. Consequently, the case was dismissed with costs. Therefore, I find no substance in the 1st ground. The 2nd ground of appeal alleges that the learned trial Magistrate erred in failing to compose judgment according to the law. This charge constrained me to revisit the provision of Order XX, rule 4 of the CPC. The relevant provision states thus: “A judgment shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision. In amplifying this requirement of the law, the Apex Court in the case of Sabas Kuziriwa vs. Republic, Criminal Appeal No. 40 of 2019 (unreported) had this to say: “Much as we are aware that judgment writing is a matter of style, each and every magistrate or judge has his own. What is relevant is the critical analysis of both the prosecution and defence evidence.” [Emphasis mine]. 15 In the same vein, in the case of Amiri Mohamed vs. Republic [1994] T.L.R. 138: it was held thus: “Every magistrate or judge has got his or her own style of composing a judgment, and what vitally matters is that the essential ingredients shall be there, and these include critical analysis of both the prosecution and the defence.” [Emphasis added]. Reverting to the charge made herein, I find it pertinent to reiterate that in delving into the 4th ground of appeal, I revisited the evidence adduced in the trial court at lengthy, the issues raised and the decision of the court based on the evidence laid in its table and reason for the decision reached. Admittedly, the decision of the trial court was brief. However, in my opinion, the judgment of the trial court met the requirement of the law, wanting elegance stance notwithstanding. Suffice it to say, having put the decision of the trial court under scrutiny, I find no ground to arrive at the conclusion that it falls short of a valid judgment. Lastly, the 8th and last ground of appeal alleges that the learned trial magistrate strayed into an error in awarding costs to the respondent. I find this ground of appeal patently misconceived. It is the law of this land 16 that costs follow the event in terms of the provision of section 30(2) of the CPC unless reasons to the contrary are provided. And I would add that the successful litigant is entitled to costs, not only to mitigate the costs of litigation but also the psychological torture/anguish of mind for having the sword of Damocles hanging over his/her head during the whole period of pendency of the suit. This ground of appeal is likewise found devoid of substance. In summary therefore, I find the appeal herein bereft of merit. Accordingly, the appeal is hereby dismissed. The respondent shall have her litigation costs of this appeal. So ordered. DATED at DAR ES SALAAM this 29th November, 2024. O. F. BWEGOGE JUDGE 17