CIVIL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA f CO RAM: KO ROSSO, J.A.. RUMANYIKA, 3.A.. And ISSA. J.A.^ CIVIL APPEAL NO. 568 OF 2022 TSN OIL (TANZANIA) LIMITED.................................................. APPELANT VERSUS JMD TRAVEL SERVICES........................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania (Commercial Division) at Dar es Salaam) (Ndunquru, J .^ dated the 14th day of June, 2022 in Commercial Case No. 67 of 2021 JUDGMENT OF THE COURT 14th & 21st March, 2025 ISSA. 3.A.: The dispute giving rise to this appeal originated from the decision of the High Court (Commercial Division) at Dar es Salaam (Ndunguru, J.) (the trial court) in Commercial Case No. 67 of 2021. The background facts of that case are ostensibly short. The respondent claims that on 21st August, 2019 she entered into contract with the appellant for providing air ticketing travel services (the services) to the appellant's personnel including employees, partners and directors. Further, between 31st August, 2019 and 25th January, 2020, the respondent claimed to have provided ticketing services to 47 staff members and the outstanding amount due to be paid by the appellant was USD. 56,593.00 which was not paid. Allegedly, the non-payment amounted to breach of contract in which the respondent was claimed the outstanding amount and general damages. The trial court delivered its judgment in favour of the respondent whereby the appellant was ordered to pay the outstanding amount and the general damages to the tune of TZS. 10,000,000.00 Aggrieved, the appellant lodged this appeal predicated on six grounds of appeal followed by written submissions. The grounds of appeal are thus: 1. That the Honourable Judge erred in law by holding that there was a valid contract for provision o f air ticketing services executed between the Respondent and the Appellant without having material evidence to prove its existence and execution. 2. The Honourable Judge erred in law and fact by improperly holding the appellant liable for breach o f contract without considering exhibit PI and P2 tendered before the court to prove that the appellant was not a party to the said contract 3. That the Honourable Judge erred in law by holding that the respondent rendered the provision o f air ticketing services to the appellant without proof o f the air tickets being the actual goods issued to the appellant by the respondent 4. That the Honourable Judge erred in law by holding that TSN Logistics Limited and TSN Supermarket Limited are subsidiary companies o f the appellant and that it was proper for the respondent to sue the appellant for the outstanding amount including the services rendered to other two companies not parties to the Commercial Case No. 67 o f 2021 without considering that the appellant, TSN OH Tanzania Limited and TSN Supermarket Limited are separate limited legal entities. 5. The Honourable Judge has relied on extraneous facts which did not transpire during hearing o f the case that steered to wrong decision against the appellant. 6. The Trial Judge erred in law and fact by entering judgment against the appellant to the tune o f USD. 56,593.00 as outstanding balance and Tshs. 10,000,000.00 as general damages whilst there was no material evidence tendered before the court to prove the same. At the hearing of the appeal, the appellant was represented by Mr. Imam Hassan Daffa and Ms. Bora Alfredy Nicholaus, learned advocates while the respondent had the services of Mr. Bakari Juma, also learned advocate. Mr. Daffa adopted the appellant's written submissions lodged earlier on and then elaborated the 3rd and 4th grounds of appeal. With respect to the 1st and 2nd ground of appeal which were argued together in the written submissions, Mr. Daffa submitted that the appellant was not privy to the agreement entered by the respondent and TSN Group of Companies which was tendered at the trial court and admitted as exhibit PI. Reading the agreement, particularly the first paragraph, he argued that it shows the appellant was not a party to that contract, hence, the trial court erred to hold that there was an agreement between the appellant and the respondent. Further, he submitted that there was no evidence on record showing that the appellant had requested services from the respondent. He concluded that since the appellant was not a party to the agreement, she could not have breached it. While responding to these grounds of appeal, Mr. Juma also adopted his written submissions filed earlier on and elaborated all grounds of appeal. He argued that there was a valid contract between the appellant and respondent and the appellant breached it. He also referred to the first part of exhibit PI and submitted that the appellant was named as a party to the agreement. Further, he argued that the sole witness for the appellant, DW1 in his testimony appearing on page 45 of the record of appeal, admitted knowing the respondent, signing the contract and receiving the respondent's services. In addition, he submitted that the invoices which were admitted collectively in the trial court as exhibit P2 contained the name of the appellant as recipient of the services. The respondent delivered the said invoices to the appellant's office where they were stamped by the appellant's employee confirming that they were received. In his testimony DW1 admitted both receiving the invoices and not working on them confirming that they did not pay for the rendered services. He concluded that these facts displayed the existence of a valid contract between the appellant and the respondent and that the appellant breached the contract. The controversies we have been called to determine in the 1st and 2nd grounds of appeal are whether there was a valid contract of services between the appellant and the respondent and whether the appellant breached that contract. Our starting point is the contract itself which provides: "AGREEMENT FOR PROVISION OF AIR TICKETING TRAVEL SERVICES This Travel Service Agreement is made on the 21 day o f August, 2019 Between TSN Group o f Companies; 1. TSN Oil With principal place o f business at Dar es salaam, Tanzania, who is an authorized signatory for the purpose o f this agreement (Hereinafter referred as "Client") And JMD TRAVEL SERVICES (A DIVISION OF SATGURU TRAVEL SERVICES) having its principal Office at IT Plaza, ... represented by Mr. Ashish Tiiwani (Country Director) who is an authorized signatory o f the company for the purpose o f this agreement (Hereinafter referred to as !'JMD TRAVELS'." Reading the above, it is clear that the parties to the agreement were TSN Oil representing TSN Group of Companies on one side and JMD Travel on the other. It has not been explained in the agreement or anywhere in the record of appeal who are the members of TSN Group of Companies, but from what we read in the above clauses it is clear that, TSN Oil (the appellant) is one of the members of the TSN Group of Companies and she was the authorized signatory for the purpose of that agreement in which she was referred to as the "Client". In fact, she was the one who signed the agreement. Therefore, we are satisfied that the contract was between TSN Oil on behalf of TSN Group of Companies on one hand and the respondent on the other. DW1, the appellant's sole witness confirmed the existence of the contract between the appellant and respondent. On page 45 of the record, DW1 stated: "I am one o f the Directors. I know Farough Baghozah. He is also a director o f the company TSN Oii (T). I know the plaintiff (JMD), she was our Air ticketing service provider. We worked with her from 2014. She (plaintiff) was our Air ticketing service provider. We had a written contract. (shown exhibit PI). This is the agreement we signed. We were getting services and we were paying in cheque, but the limit we agreed was US dollar 10,000/=. There is a clause in the agreement. We got services and paid her. But we just come to know that we are indebted. According to this, we are not indebted anything. In the agreement the limit was 10,000/= whenever we were getting ticket before reaching the limit we were paying her... I have not produced any evidence to prove that we were paying. These documents (exhibit P2) were received at office though they have different companies' names. We had never responded on these invoices". Therefore, we agree with the trial court that, there was a valid contract of services between the appellant and the respondent. On the issue of breach of contract, the respondent tendered exhibit P2 which were invoices for the services rendered by her. The invoices were received by the appellant, but she did not pay the claimed amount. In fact, she did not respond at all to those invoices as DWl's testimony produced above confirmed. Further, there was no document tendered to prove any payment made after the invoices were presented. Therefore, we have no hesitation to hold that there was a breach of contract. The 1st and 2nd grounds of appeal are found merit less and thus we dismiss them. The 3rd ground of appeal has two limbs: one, the appellant was faulting the trial court for holding that the provision of air ticketing services was rendered to the appellant while the tickets were not tendered at the trial court. Elaborating the point, Mr. Daffa submitted that the respondent was supposed to tender during the trial the tickets related to the invoices submitted. Two, he submitted that some of the invoices tendered and admitted at the trial court had no connection with the appellant as they were related to TSN Logistics and TSN Supermarket. For instance, the invoices which appeared on pages 89, 90, 92, 93, 95, 97, 99 and 101 of the record were addressed to TSN Logistics while those at pages 104 to 109 were addressed to TSN Supermarket who were not parties to the case filed in the trial court. Furthermore, Mr. Daffa argued that paragraph 4 of the agreement talked about booking of air tickets and there was a prescribed form for booking, but the forms were not tendered in the trial court. He concluded that the respondent failed to prove her claim. Responding to this ground, Mr. Juma argued that the invoices appearing on page 61 to 132 of the record of appeal had various details such as the date of rendering services, the ticket number and the amount charged which were sufficient to prove the services rendered to the appellant. He added that even DW1 confirmed that the services were rendered and the invoices were received. The tickets, on the other hand, he argued were issued by the airlines and to tender them on evidence would not have added anything in the instant case. Regarding bookings, he submitted that they were made using e-mails and there were no forms which were submitted to them. We agree with Mr. Juma that non-tendering of the tickets did not dent the case for the respondent as the air tickets were issued by the airlines and not the respondent. In addition, the originals were with the appellants' personnel who travelled with those tickets, the airlines could have only retrieved the copies stored in their computers and the question would arise if the respondent was the proper person to tender those documents. This issue needs not detain us as we are satisfied that invoices are documents which were produced by the respondent and together with EFD receipts were tendered and admitted in the trial court. In fact, the delivery of invoices was the accepted mode of intimation of services rendered as per the agreement. Paragraph 5.1. of the agreement appeared on page 52 of the record reads: "... As per our credit policy, the soft copy o f invoices will be available on the portal, within 48 hours o f issuance o f tickets. However, the hard copies would be delivered immediately." In the instant appeal, the invoices were delivered to the appellant and received, as acknowledged by DW1 in his testimony on page 45 of the record, but they were not acted upon. The invoices show the name of the client who requested the ticket, the name of the passenger, the name of the flight used, the ticket number, the route and the cost of the ticket. Each invoice was also attached with the EFD receipt showing the amount claimed. Therefore, it had enough information to prove the respondent's claim. The first limb of this ground of appeal is found meritless and is dismissed. The second limb concerns the invoices of TSN Logistics and TSN Supermarket which for the sake of clarity and convenience will be discussed below in the 4th ground of appeal. In the 4th ground of appeal, Mr. Daffa argued that the two companies: TSN Logistics and TSN Supermarkets are not subsidiaries of the appellant company. He submitted that every company has a legal personality of its own, hence, some of the claims sent to the appellant were liabilities from those two companies and the appellant was not liable to pay for them. Mr. Juma, on the other hand, argued that the appellant was connected with those two companies. According to the agreement, he said, the entity served by the respondent was TSN Group of Companies and those two companies used the same address and the invoices were delivered and received on that address. They were never returned to the respondent. Reverting to our findings in the 1st ground of appeal, the company which entered into contract with the respondent was TSN Oil on behalf of TSN Group of Companies. It was not revealed anywhere in the record of appeal that TSN Logistics or TSN Supermarkets were part of the TSN Group of Companies. Therefore, we agree with Mr. Daffa that the appellant was not entitled to shoulder the burden of liability for those two companies. The terms of the agreement were very clear that the respondent was to issue tickets on the request of the appellant (the Client). The scope of the agreement provides: "This Agreement covers travel management requests for the employee, partners and directors o f the Client. This Agreement is intended to cover any and all services requested by Client and provided by JMD TRAVEL SERVICES." (Emphasis supplied) The terms were very clear that only the client could request for the services. The client according to the agreement is the appellant, hence, TSN Logistics and TSN Supermarket could not have legally requested for services under that contract as they were not privy to that contract. Further, there was no proof that the appellant requested for services on their behalf. That explains why the disputed invoices were in the names of those two companies. We are of the firm view that it was not proved that TSN logistics and TSN Supermarket were subsidiaries of TSN Group of Companies or TSN Oil. The appellant, therefore, was not liable to pay for their liabilities. We find this ground of appeal has merits. Finally, Mr. Daffa argued the 5th and 6th grounds of appeal together. His arguments are that, the trial court acted on extraneous facts which did not transpire during hearing. Those facts are that, the name TSN Supermarket and TSN Logistics starts with the letters TSN which are also used by the appellant and also use the same address as that of the appellant. Hence, the trial court concluded that, they were subsidiaries of the appellant and therefore the appellant was liable to pay for their liabilities. In the same vein, Mr. Daffa argued that the trial court was wrong to order the appellant to pay the respondent USD. 56,593.00 as outstanding amount and TZS. 10,000,000 as general damages without stating reasons. Mr. Juma, on the other hand, was of the view that exhibit PI establishes that there is TSN Group of Companies and hence those two companies were her subsidiaries. On the issue of damages, he submitted that the appellant was able to prove his claim that the appellant breached the contract and was entitled to claim USD. 56,593.00 as outstanding amount and TZS. 10,000,000.00 was awarded as damages as they were able to prove that as a result of breach of contract they suffered damages. We again agree with the appellant's counsel that there was no material on the record suggesting that the TSN Logistics and TSN Supermarkets were the subsidiaries of the appellant. Therefore, the trial court strayed into error by relying on the facts that all companies were using initials TSN and all have the same address. These facts alone were not sufficient to reach that conclusion. We hold that they are not the subsidiaries of the appellant, hence, the appellant was not liable to satisfy all of the respondent's claim. The liability of the appellant is limited to pay only those invoices which were addressed to her and are found on pages 61 to 88, 103, and 110 to 132. Coming to the general damages, the law is settled that general damages are awarded at the discretion of the trial court and the appellate court hardly interferes with them unless the trial court acted upon wrong principle of law, has misapprehended the facts or the amount awarded is extremely high or extremely low. In Kungo s/o Marumba and Another v. Janies John chapel Clark (1952) 19 EACA, 60 cited with approval in Silas Simba v. Editor Mfanyakazi Newspaper and Another, Civil Appeal No. 7 of 1997 (Unreported), the defunct Court of Appeal for Eastern Africa cited with approval the following dictum in Flint v. Lovell (1935) I KB 354 at page 360 wherein Greer, LJ. stated - "In order to justify reversing the trialjudge on the question o f the amount o f damages it will generally be necessary that this Court be convinced either that the Judge acted upon some wrong principle o f law, or that the amount awarded was so extremely high or so very small as to make it in the judgment o f this Court, an entirely erroneous estimate o f the damages to which the plaintiff is entitled." There are no such complaints in the instant case, hence, we will not interfere with the general damages awarded to the respondent. In fine, the appeal is allowed to the extent explained above. The appellant is ordered to pay the amount equal to those invoices bearing her name and the general damages which were awarded by the trial court. DATED at DODOMA this 20thday of March, 2025. W. B. KOROSSO JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 21st day of March, 2025 in the presence of Ms. Bora Nicholaus, learned counsel for the appellant also holding brief for Mr. Bakari Juma, learned counsel for the respondent is hereby certified as a true copy of the original.