| dc.description | LEONARD DOMINIC RUBUYE T/A RUBUYE AGROCHEMICAL SUPPLIES V. YARA TANZANIA LIMITED COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM
(LILA, MWANDAMBO, MASHAKA, JJ.A.) CIVIL APPEAL NO. 219 OF 2018
(From the Decision of the High Court (Commercial Division) at
Dar es Salaam (Mruma,J) dated the 26th day of June, 2018
in Commercial Case No. 29 of 2016)
Law of Evidence- burden of proof- onus of proving existence or non-existence and standard of proof in civil cases- who has the onus of proof.
Civil practice and procedure- Appeals- re-evaluation of evidence in the appeal- whether the first appellate Court has power to do so.
Law of Evidence-document tendering-documents not tendered and admitted in Court as exhibit-whether the Court can rely on such documents to form the basis of its decision.
Law of Evidence-document tendering-documents tendered in Court but no explanation is availed- whether the Court can rely on such documents.
Civil Practice and Procedure-Assessors-hearing of cases in the Commercial Division with the aid of assessors- who has power to decide on their involvement.
Civil Practice and Procedure- Hearing of cases in the High Court Commercial Division- rules governing hearing in the commercial division-under what circumstances Civil Procedure Code applies
In this is an appeal, the appellant, is challenging the judgment and decree of the High Court Commercial Division at Dar es salaam dated the 21st April, 2021 in Commercial Case No. 29 of 2016. The facts which gave rise to this appeal are as follows; The appellant and the respondent were in business relationship whereby the respondent supplied, upon request by the appellant, various kinds of fertilizers. The practice was that the appellant issued Local Purchasing Orders (LPOs) to the respondent who, upon delivery of the requested consignments, raised invoices for payments. Delivery of the goods was either in Dar es Salaam or Njombe warehouses and was signified by issuance of Delivery Notes (DNs). Trucks authorised by the appellant were used to collect the consignments. Payment for fertilizers delivered was either through Tanzania Interbank Settlement System (TISS) or direct internal transfers from NMB Bank to the respondent's account. In March, 2015, the respondent conducted an audit on the appellant's account and realised that the appellant had defaulted payment of the purchase price to the tune of TZS 847,346,800.00 which, upon sending to him a demand notice, payments were made totalling TZS 120,000,000.00, leaving TZS 727,346,8000.00 unpaid. This prompted the respondent to institute a suit against the appellant and Rubuye Agro Business Company (then 2nd Defendant) who is not a party to this appeal jointly before the High Court of Tanzania (Commercial Division) claiming for, among others, breach of contract and payment of TZS 727,346,800.46 being unpaid balance arising from fertilizers supplied and delivered to them. Rubuye Agro Business Company was found not being privy to the agreement hence no liability could arise against them. That resulted in being discharged from liability. The appellant was found to have breached the contract and was condemned to settle the debt, pay interest and costs. The decision aggrieved him, hence the present appeal.
Held
(i). It is a well settled position that the onus of proving existence or non-existence of any fact lies on the party asserting its existence or non-existence and in civil cases proof is at balance of probabilities.
(ii) The first appellate Court has the power to revisit and re-evaluate the entire evidence in an objective manner and come up with its own findings of facts.
(iii). Documents not tendered and admitted in Court as exhibits cannot be relied upon as evidence and cannot be the basis of a decision.
(iv). Documents though tendered in Court if not explanation is availed as to their purpose are of no assistance to the Court. The duty lies on the party relying on them to demonstrate their significance.
(v). The use or non-use of assessors in a trial of a suit is a matter left to the discretion of the trial judge to determine. The Rule imposes a duty on the presiding judge to peruse the pleadings before him so as to decide whether or not the issues involved and which may arise during the trial of the suit would require any inputs from assessors so as to arrive at a just decision.
(vi). Application of the provisions of the CPC in adjudicating cases in the Commercial Court is restrictive and limited to situations where there is a lacuna in the Com Rules.
Appeal partly allowed
Statutory Provisions referred to:
1. Tanzania Court of Appeal Rules GN 368 of 2009 Rule 36, 106 (1) &(7)
2. Law of Contract Act, Cap. 433 R.E 2019 section 37 and 37
3. Evidence Act Cap. 6 R.E 2019 Section 110 and 111
4. Civil Procedure Code, Cap 33 R.E 2019 Order XVIII Rule 1A
5. High Court (Commercial Division) Procedure Rules, 2012 rule 51(1) and (3)
Cases referred to:
1. Attorney General and two Others vs. Eligi Edward Massawe and Others Civil Appeal No. 86 of 2002 [Unreported]
2. Siza Patrice vs. Republic Criminal Appeal No. 19 of 2010[Unreported]
3. Kaimu Said vs. Republic Criminal Appeal No. 391 of 2019 [Unreported]
4. Pandya vs. Republic [1957] EA 336
5. Japan International Corporation Agency (JICA) v Khaki Complex Limited [2006] TLR 343,
6. Abdalla Abass Najim v Amini Ahmed AM [2006] T.L.R. 55;
7. Shemsa Khalifa and 2 Others v Suleiman and Hamed Abdalla, Civil Appeal No. 82 of 2012 [unreported].
8. Engen Petroleum (T) Limited vs. Tanganyika Investment Oil and Transport Limited Civil Appeal No. 103 of 2003 [Unreported]
9. Mexon’s Investment Limited vs. DRTC Trading Co. Limited Civil Appeal No/ 91 of 2018 [Unreported]
Mr. Dickson Mtogesewa Learned Advocate for the appellant
Mr. Ayoub Mtafya Learned Advocate for the Respondent | en_US |
