CRDB Bank Plc vs Asif Ali Riasat T/A Ahmed Business Center (Civil Appeal No. 729 of 2024) [2026] TZCA 422 (17 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: MWANDAMBO. J.A., MDEMU.. J.A. And MGEYEKWA. J.A.^ CIVIL APPEAL NO. 729 OF 2024 CRDB BANK PLC.......................................................................APPELLANT VERSUS ASIF ALI RIASAT T/A AHMED BUSINESS CENTER ........ ...... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Commercial Division at Dar es Salaam) (AgathOti) dated the 19thday of July, 2024 in Commercial Case No. 134 of 2023 JUDGMENT OF THE COURT 2n d December, 2025 & 17th April, 2026 MWANDAMBO, J.A.: The High Court (Commercial Division), sitting at Dar es Salaam, tried a suit in Commercial Case No. 134 of 2023 instituted by the respondent against the appellant. The cause of action arose from a dispute in a commercial transaction involving a letter of credit for importation of a consignment from Indonesia. The appellant was held liable in negligence in that suit and adjudged to pay the respondent a sum of United States Dollars (USD) 50,000 in general damages plus interest at the court's rate i and costs. The appellant was dissatisfied and has appealed to the Court seeking to overturn the impugned decision. By and large, the facts that culminated into the suit before the trial court are common ground. The dispute arose from a commercial transaction that involved the importation of 24,000 reams of copy paper from PT Sampoerna Putera Mandala Indonesia (Sampoerna Group), a supplier in Indonesia. The supplier had agreed to deliver the consignment to the respondent for a consideration of USD 48,000. It is pertinent that the respondent was a customer of the appellant at the latter's Oysterbay Branch, Dar es Salaam City. To facilitate the importation of the consignment to Tanzania, the respondent opened letters of credit ("the LC") with the appellant. The process entailed the respondent as importer filling in an application for the LC (exhibit D l) on 22 May 2023. Through exhibit D l, the beneficiary was named as PT Sampoerna Putera Mandala of Indonesia for the importation of 48,000 boxes of reams of paper worth USD 48,000 to be shipped from Surabaya Port Indonesia to Dar es Salaam Port, in Tanzania under Cost Insurance and Freight (CIF) terms. The beneficiary's bank was indicated to be Bank Mandiri of Indonesia to which the LC was to be presented within 90 days from the issuance date. To facilitate the shipment, the respondent instructed the appellant to debit the amount of the LC from his account No. 0150726236600. Subsequently, the appellant opened the irrevocable LC No. CRDB231C0537 on 23 May 2023 in accordance with the terms indicated in the application after some corrections had been exchanged through a trail of emails. In particular, the application indicated that, partial shipment and transshipment were not allowed. The LC was to be governed by the latest version of the Uniform Customs and Practice for Documentary Credit ("the UCP") which was at that time UCP 600 Rules. It was set to expire in Indonesia on 23 August 2023. It is pertinent that, by opening the LC, the appellant as the issuing bank undertook to make payment of the amount of the LC to the beneficiary through its bank within the specified time against presentation of documents sent by the beneficiary's bank in conformity with the terms of the LC. This is what is termed as payment upon delivery of all the stipulated documents constituting complying presentation. On 4 July 2023, the appellant notified the respondent of the receipt of the stipulated documents amounting to a complying presentation against which it effected payment of the LC amount to the beneficiary's bank by debiting the respondent's account. It thus asked the respondent to collect the documents, namely the commercial invoice, bill of lading, 3 packing list, certificate of origin and insurance certificate collectively admitted as exhibit P5. Receipt of the said documents enabled the respondent to contact a clearing and forwarding agent for clearance of the consignment from the port of discharge indicated in the LC. Upon contacting the clearing and forwarding agent and the shipping line mentioned in the bill of lading, both feigned ignorance of any record of the shipping documents. Despite informing the appellant on the state of affairs involving the missing consignment, the appellant allegedly neglected to exercise reasonable care to the respondent to protect his interest and realize the intended commercial objective behind the LC. His argument was that the appellant neglected to exercise reasonable care, and had it done so, it would have known that the beneficiary of the LC had acted fraudulently. That would have resulted in the appellant declining payment of the LC amount. Conversely, the respondent contended, the appellant hastily paid the beneficiary without having verified and confirmed the documents with the Advising Bank and the insurer. Worse still, it was contended that, despite being named as beneficiary under the marine cargo insurance certificate, the appellant made no efforts to claim for recovery of the sum insured. By reason of the foregoing, the respondent claimed to have suffered loss of the consignment for which he prayed for recovery in the 4 sum of USD 48,000.00 or its equivalent in Tanzania Shillings plus other charges thereon; T7S 15,000,000.00 being special damages; and TZS 20,000,000.00 in general damages. He also claimed interest both at commercial rate on the sum claimed and at the court's rate on the decretal amount together with costs. In essence, the appellant argued that it fulfilled its obligations under the LC by paying the beneficiary the specified amount upon receipt of all the stipulated documents that constituted a complying presentation. It contended further that it had no obligation beyond those set out under the LC. Based on the pleaded facts in the plaint and written statement of defence, the High Court framed four issues for determination of the suit, namely: (1) whether there was breach of the terms of the LC and UCP 600; (2) whether the defendant (the appellant in the appeal) acted negligently; (3) whether the defendant had an obligation to claim insurance; and (4) what reliefs were the parties entitled to. At the end of the trial, the court determined the first issue in the appellant's favour. It held that, the appellant breached neither the terms of the LC (exhibit P4 (b) ) nor the UCP 600 Rules. It also observed that, from the evidence, negligence could not be imputed to the appellant as it relates to the LC. 5 The trial court had mixed findings on the second issue; whether the appellant acted negligently. In the first place, it observed that the respondent had not done proper due diligence on the supplier of the undelivered consignment seemingly exonerating the appellant from negligence. Similarly, the court took the view that, erroneous quotation of the transaction reference number in exhibit P4 (b) as CRDB23ILC0537 instead of CRDB231LC0537 was immaterial to the tracking of the shipment which was done by way of the reference number in the Bill of Lading. Mindful of Lord Atkin's statement in the celebrated case in Donoghue v. Stevenson [1932] A.C. 562, the trial court took the view that, the appellant owed duty of care to the respondent which it breached by its failure to communicate directly with the supplier's bank on the status of the shipment. That was irrespective of the finding in the first issue that there was no breach of the LC and UCP 600 after the respondent had reported failure to track the shipment through the shipping line and clearing and forwarding agent shown in the Bill of Lading as part of the documents in the complying presentation. In the trial court's view, it was not enough for the appellant to have communicated with its correspondent Bank; Citibank N.A in Singapore without communicating 6 with the beneficiary's bank. It thus answered the second issue partially in the affirmative implying that, the appellant was not wholly negligent. The answer to the third issue; whether the appellant had obligation to claim indemnity from the cargo marine insurance policy was in the affirmative. In arriving at that conclusion, the trial court took into account several aspects; one, existence of insurable interest in the shipment hence the insurance contract in which the appellant was the assured; two, the fact that the obligation to claim indemnity was independent of the finding on the breach of the LC as the Marine Insurance Contract was a separate contract from the LC; three, absence of evidence that the appellant acted in good faith throughout in its dealings concerning the respondent and thus it could not seek protection from the LC and UCP 600 Rules,; and four, the insurance covered all risks. With the affirmative findings in the second and third issues, the trial court entered judgment for the respondent and granted him three reliefs; one, USD 50,000 general damages on account of the appellant's negligence and for her failure to claim indemnity under the Marine Cargo Insurance Policy. That was notwithstanding that the respondent had claimed TZS 15,000,000.00 under that head. Two, interest on the sum 7 awarded at the court's rate of 7% per annum from the date of judgment to final satisfaction. Three, costs of the suit. The appellant's resentment against the impugned decision is upon five grounds raising three issues reflected in the written submissions lodged in support of the appeal. The issues arise from the correctness of the findings of the trial court in the second and third issues and the correctness of the general damages of USD 50,000 awarded to the respondent. At the hearing of the appeal, Mses. Samah Salah and Eliaicha Ndowo, learned advocates, represented the appellant, whilst, Mr. Tumaini Sekwa Shija, also learned advocate, acted for the respondent as he did before the trial court. For the appellant, it was Ms. Salah who addressed the Court in addition to the written submissions lodged earlier on. The thrust of the arguments in the first issue which covers the 1st and 2n d grounds of appeal centered on the terms of the LC. Counsel began with the statement that the relationship of the parties was governed by the LC and the UCP 600 Rules on which the trial court found no breach. All the same, she contended that, in determining the 2n d issue, the court concluded that the appellant breached its duty of care as a reasonable banker beyond the terms of the LC which governed their relationship in that particular transaction. Counsel argued both in writing and orally that, none of the duties the appellant had under exhibit P4(b) was breached. According to her that was so considering that, such duties/obligations were limited to dealing with documents only and not goods or the underlying contract. Counsel relied on the Court's decision in Winfred Mkumbwa v. SBC Tanzania Limited [2019] TZCA 685, for the proposition that, parties are bound by the contracts they freely enter into which, in this case, was exhibit P4 (b). Similarly, counsel placed reliance on our previous decisions in Simon Kichele Chacha v. Avelina M. Kilawe [2021] TZCA 43 and Unilever Tanzania Limited v. Benedict Mkasa T/a Bema Enterprises [2009] TZCA 24. She cited the two decisions in support of the argument that it is not open to the courts to re-draft the terms of the contract the parties had entered into but to enforce them where there is a dispute. It was thus argued that, the appellant had no obligation under the LC to deal with the consignment or the contract for the supply of the consignment or communicate with the supplier's bank in that behalf. Counsel criticized the court holding as it did that the appellant breached its duty of care as a reasonable banker which was not the contract governing the transaction. Elaborating, Ms. Salah argued that the trial judge failed to appreciate the clear distinction between the appellant's obligation under the LC on the one hand and its 9 role under banker customer relationship. As a result, it made an erroneous finding that it acted negligently as a reasonable banker. This is so, she argued, the cause of action in the suit from which the appeal has emanated did not arise from banker customer relationship but under the LC which was the only contract which the trial court was bound to enforce. Flowing from the above, the learned advocate argued that inquiry on the status of delivery of the consignment was beyond the appellant's obligation under the LC as rightly found by the trial court at page 18 of its judgment (page 326 of the record of appeal) and found no negligence on the part of the appellant. Yet, despite the above, the trial court imputed negligence to the appellant for paying the LC amount to the beneficiary upon receipt of the stipulated documents allegedly in breach of duty by failure to inquire on the status of delivery of the consignment. To reinforce the argument, counsel cited to us Citibank Tanzania Limited v. Total Tanzania Limited [2025] TZCA 555 in which the Court stated: "....when a seller presents documents under a LC, the bank must meticulously review them to ensure, on their face value, they conform precisely to the terms and conditions specified in the L C a s well as the provisions o f UCP 600 and international standard banking practice. As such, banks play a crucial role in ensuring the integrity o f LC transactions by 10 adhering to the principle o f 'strict compliance. This rigorous document verification process protects aii parties involved and ensures that international trade remains secure and reliable. Of course, banks do not investigate beyond the documents themselves; they only assess whether, on the surface, the documents presented comply with LC requirements. This is clearly provided under Article 5 o f the LC that banks deal with documents only and not goods or services or performance to which the documents relate., "[at page 27 and 28] Relying on the Court's decision in Anthony Ngoo and Another v. Kitinda Maro [2015] TZCA 269, the learned advocate argued that, by holding that the appellant breached its duty as reasonable banker independent of the lack of proof of breach of the terms of the LC, the trial court based its finding on un-pleaded facts to the appellant's detriment. In addition, counsel drew our attention to the Court's holding in Exim Bank Tanzania Limited v. The M & Five B. Hotel & Tours Ltd and others [2024] TZCA 662. That decision dealt with the distinction between general banker customer relationship and a special relationship, in this case, one in which the appellant was the issuing bank for the respondent's importation of consignment from Indonesia. That by reason of its lack of i i appreciation of the distinction, the trial court made an erroneous finding on the second issue. Counsel argued in the alternative that, notwithstanding the fact that the appellant had no obligation to communicate with the supplier's bank, it communicated with the confirming bank, Citibank l\l.A. Singapore which was sufficient proof of discharge of its obligation under the LC and the UCP 600 Rules. Besides, the finding on negligence was outside the respondent's pleadings in paragraphs 16, 17 and 21 of the plaint in which the respondent alleged that the appellant did not exercise reasonable care before effecting payment to the supplier. In the premises, counsel maintained that, the trial court's finding that the appellant was negligent for failure to inquire with the supplier's bank was made outside the pleadings and evidence led in that respect. With the foregoing, the Court was invited to answer the first issue negatively and ultimately allow the 1s t and 2n d grounds. With equal force and deep conviction, Mr. Shija invited the Court to answer the first issue affirmatively resulting in the dismissal of the 1st and 2n d grounds of appeal on the basis of the written submissions in reply and oral arguments made at the hearing. To begin with, counsel drew our attention to an English decision in Caparo Industries Pic v. Dickman 12 and Others [1990] 2 AC 605 and Winfred Mkumbwa (supra) on what constitutes negligence in any particular case. Bringing the principle in context, counsel downplayed the argument that the appellant could not be found in negligence for what it omitted to do as a banker. He argued that, the parties' relationship existed within the ambit of banker customer relationship considering DWl's evidence that the services involving the LC was only available to the appellant's customers and thus the appellant owed duty to the respondent as its customer. Advancing his submission, Mr. Shija contended that, despite the respondent reporting absence of record of the consignment subject of the LC, it took the appellant four working days to communicate with its correspondent bank; Citibank N.A in Singapore which was, nonetheless, not "the Advising Bank" under the LC. The learned advocate fully supported the findings of the trial court and invited the court to dismiss the 1s t and 2n d grounds of appeal. In his oral address, learned advocate took issue with the appellant's complaint on findings based on facts which were not pleaded and argued that, such submission did not arise from the grounds of appeal so was the alleged confusion between contractual obligations and banker customer relationship. Otherwise, counsel was insistent that, the trial court found the appellant negligent for failure to contact the "Advising Bank" mentioned in the LC and instead, it contacted the intermediary bank. 13 In her rebuttal, Ms. Salah contended that the complaint against the trial court's finding on facts which were not pleaded was implicit in the 1s t ground of appeal which entails the Court looking at the pleadings in determining that ground. We shall begin our discussion with the complaint against the appellant's submissions on an issue allegedly not arising from the memorandum of appeal. Our starting point will be rule 93 (1) of the Tanzania Court of Appeal Rules, 2009 ("the Rules") which requires the appellant to raise only the grounds of objection to the decision appealed against on the point alleged to have been wrongly decided by the court from which the appeal emanates. As hinted earlier on, the complaints against the trial court's decision in the 1st and 2n d grounds are directed against the finding made in the 2n d issue before the trial court that the appellant breached a duty it owed to the respondent as a reasonable banker. Although the memorandum of appeal does not specifically raise that complaint, it is embedded the 1s t and 2n d grounds faulting the trial court finding that the appellant breached its duty to the respondent as a reasonable banker. That was irrespective of the trial court's finding exonerating the appellant from negligence under the LC. The complaint lacks merit and we dismiss it. 14 Next we shall consider the correctness of the trial courts' finding on the 2n d issue whereby the court found the appellant liable for breach of duty as a reasonable banker. The appellant's contention is that, such a finding was erroneous for two reasons. Firstly, it was against the appellant's own pleadings and, secondly, the appellant's duty under the LC was independent of its duty under banker customer relationship. With respect, there is merit in the appellant's contention that, the trial court's finding was against the respondent's own pleadings. It is pertinent that, the vide paragraphs 16, 17, and 21 of the plaint, the respondent pleaded negligence on account of the appellant's alleged failure to exercise reasonable care before effecting payment to the supplier. The respondent did not claim negligence against the appellant in exercise of its duty under banker customer relationship. That parties are bound by their own pleadings is settled by case law. In James Funke Ngwagilo v. Attorney General [2004] T.L.R 161, that trial must be confined to pleadings and issues framed. Nevertheless, as we held in Agro Industries Ltd V. Attorney General [1994] T.L.R 43, the trial courts are not precluded from making determination un-pleaded facts where it appears that the issue had been left to the court's decision provided that the parties were heard on it. 15 Upon our examination of record, it does not occur to us that the respondent pleaded facts showing that the appellant breached its duty in the ordinary course of banker customer relationship. Neither was it left to the court for its decision. Independent of the banker customer relationship, the respondent's cause of action did not arise from that relationship. It is glaring from the pleadings, in particular, paragraphs 16, 17 and 21 of the plaint, the respondent's cause of action arose from the special relationship involving the LC transaction independent of the banker customer relationship. It is, for that reason, the appellant's advocates faulted the trial court for finding the appellant in breach of its duty to the respondent as a reasonable banker irrespective of its finding on the 1s t issue exonerating the appellant from negligence breach of the terms of the LC. That also explains why the appellant's advocates cited our decision in Exim Bank (T) Ltd (supra) stressing the distinction between general banker customer and special relationship. It is evident from the pleadings, in particular, paragraphs 16, 17 and 21 of the plaint, the respondent's cause of action arose from the special relationship involving the LC transaction. We respectfully agree with the appellant's learned counsel that, having found no breach of the terms of the LC governing the special relationship, the trial court strayed into error finding the appellant in 16 breach of its duty under a general banker customer relationship. In our view, in doing so, the court went outside the principle that cases must be decided on pleaded issues and that no party should be allowed to go outside his pleadings stressed in James Funke Ngwagilo v. Attorney General (supra). As submitted by the appellant's counsel, communicating with the supplier's bank in respect of the consignment was not one of appellant's obligations under the LC and thus, such an obligation could not be imputed under the general banker customer relationship. Luckily, the court has pronounced itself in this regard in Citibank (T) Ltd v. Total Tanzania Ltd (supra) thus: .. when a seller presents documents under a LC, the bank must meticulously review them to ensure, on their face value, they conform precisely to the terms and conditions specified in the LC, as well as the provisions o f UCP 600 and international standard banking practice. As such, banks play a crucial role in ensuring the integrity o f LC transactions by adhering to the principle o f strict compliance. This rigorous document verification process protects all parties involved and ensures that international trade remains secure and reliable. Of course, banks do not investigate beyond the documents themselves; they only assess whether, on the surface, the documents 17 presented comply with LC requirements. ..."[at page 20 ] The respondent's case was not premised on any failure to verify the documents attached to the complying presentation which would have justified the appellant declining to pay the LC amount to the supplier's bank. As underscored in the above cited case, banks deal with documents only and not goods or services or performance to which the documents relate. For that reason, in so far as the documents amounted to a complying presentation, it was beyond the appellant's duty to make inquiries on delivery of the consignment subject of the LC. We appreciate the authority cited to us by Mr. Shija in Caparo Industries Pic (supra) but, in view of what we have said above, that decision is inapplicable to the facts in the instant appeal. That is so because the respondent did not plead negligence or breach of duty by the appellant as his banker rather, the confirming bank under the LC transaction. We find inspiration from the works of the learned authors of the Principles of Pleadings in India by P.C Mogha, 14th Edition remarking that: "....In a suit brought on contract, the contract must first be alleged, and then its breach, then the damages. The actual contract which was in 18 force between the parties should alone be alleged..."[ bolding for emphasis - At page 269] In so far as the respondent's case was premised on the specific contract (exh. P4 (b)), he could not be allowed to introduce a new case during the trial based on breach of duty as a banker. In the event, we find merit in the 1s t and 2n d grounds raising the issue on the correctness of the finding that the appellant was in breach of duty as a reasonable banker. That takes us to the second issue covering the 3rd and 4th grounds. Essentially, the submission by the appellant on the second issue, was that it had no obligation to claim indemnity insurance in so far as the insured consignment had not left Surabaya port in Indonesia; the port of loading and reached Dar es Salaam port indicated in both the LC and marine cargo insurance contract as the port of discharge. They submitted further that, in so far as the respondent's case was not anchored on the claim that the consignment had been lost or damaged in the voyage, there was no basis upon which the trial court could have held the appellant liable in negligence allegedly for failure to claim indemnity under the Marine Cargo Insurance contract. The Court's decision in Alliance Insurance Corporation v. Arusha Art Limited [2021] TZCA 126 as well as Nemchand Premchand Shah & Another v South 19 British Insurance Co. Ltd [1965] 1 EA were cited for the proposition that, indemnity is only claimable against actual loss from the insured risk. Similarly, they cited San lam General Insurance T. Ltd & Others v. Gulf Bulk Petroleum T. Ltd [2021] TZCA 580 to stress the principle behind strict construction of the terms of an insurance policy and undertaking by the insurer to indemnify the loss suffered by the insured due to the risk covered by the policy. Arising from the foregoing, it was argued that the appellant could not have been condemned in negligence for failure to discharge an obligation which did not arise in the first place by reason of the fact that, non-delivery of the consignment as a result of non-shipment fell beyond the Marine Cargo Insurance contract. Replying, the respondent's learned advocate contended that the appellant's obligation to claim indemnity existed in so far as the policy under clause 1 covered all risks of loss of or damage to the subject matter insured except those excluded under clauses 4, 5, 6 and 7 in exhibit P4 (b). It is his submission that, since the appellant had an insurable interest in the consignment at the time of loss and was named as the assured, it had an obligation to claim indemnity as rightly found by the trial court despite which it neglected doing so resulting in loss the respondent. Winding up his submission on this issue, counsel contended that, the appellant's argument that the consignment was not shipped cannot arise 20 since it was not put before the trial court and considered neither evidence led in that behalf. The issue whether or not the appellant had an obligation to claim indemnity insurance from the insurer need not detain us more than necessary. It is plain from the impugned decision that despite the contention by the appellant to the contrary, the trial court took the view that it was obliged to do so. That was so because the insurance policy covered all risks effectively upholding the respondent's argument it maintains in this appeal. To determine whether that was so, it requires, as matter of necessity to look at the marine cargo insurance certificate forming part of the documents attached to the appellant's letter to the respondent dated 4 July, 2023 titled: Documentary Credit- Sight Presentation appearing at pages 240 to 250 inclusive of the record of appeal. The subject matter insured under the policy was A4 copy paper 80 GSM paper line Gold 3 containers of 20 ft with 8000 reams of each container in MV. Ever basis Voy. 1039-047Afrom Surabaya port, Indonesia to Dar es Salaam port, Tanzania sailing on board on or about 7 June, 2023. The policy incorporates Institute Cargo clauses (A) in which, clauses 1 to 3 relate to risks covered. In particular, clause 1 provides that, the insurance covers all risks of loss or damage to the subject matter insured except those excluded under clause 4, 5, 6 and 7 therein. For that reason, the respondent has maintained that the appellant had an obligation to 21 claim indemnity from the insurer thereby sustaining the trial court's finding on the 3rd issue. The issue here is whether there was a loss or damage to the subject matter insured under the Marine Cargo insurance policy entitling the assured appellant to claim indemnity as found by the trial court and contended by the appellant in this appeal. Put it differently, did the policy cover all risks including losses arising from non-delivery of the insured subject matter. Fortunately, the matter does not involve rocket science, nor are we in uncharted territory. There is no dearth of material on this branch of the law given the existence of scholarly works as well as case law. For our purpose, we prefer to cite the works of the learned authors of Marine Cargo Insurance by John Dunt discussing various concepts of Marine Insurance Law. The nature and scope of marine insurance is explained at page 74 as follows: " ... marine insurance is a contract whereby the insurer undertakes to indemnify the assured, in a manner and to the extent thereby agreed, against marine losses, that is to say, the losses incident to marine adventure" There is a "marine adventure", in particular, when V any goods or other moveables are exposed to "maritime perils" being "the perils consequent on, or incidental to, the navigation o f the sea". 22 Our research led us into a decision of the UK Supreme Court Nima S.A.R.L. v. Deves Insurance Public Co Ltd (The Prestrioka) [2002] EWCA Civ 1132, [2003] 2 Lloyd's Rep 327, paras 53-54. This decision arose out of an application for leave to serve proceedings out of the jurisdiction in Thailand. The appellant Nima SARL purchased a cargo of rice that was to be shipped on the "Prestrioka" from a port in Thailand for carriage to Dakar, Senegal under a CIF contract. The vessel was chartered by the sellers of the cargo on an amended Gencon voyage charter. Shipment of the cargo was acknowledged by two Congen bills of lading. The vessel left Thailand, but never arrived in Dakar. The appellant claimed against insurers for the loss of the cargo but the respondent's insurers who were based in Thailand denied liability. The appellant thus issued proceedings and obtained leave to serve a claim form in Thailand. The respondent applied to set aside the order but were unsuccessful in the court of first instance. They appealed to the Court of Appeal on the grounds that there was no serious issue to be tried between the parties. The cargo had been insured under an all-risks Marine Cargo Policy incorporating Institute Cargo Clauses (A). Potter U with whom other members of the court agreed stated as follows: "... it is the plain import o f the judgment in the Simon Israel case that, despite the effective extension o f 23 the voyage insured from the moment o f sailing back to the moment o f leaving the warehouse for the purposes o f attachment o f risk, the overall voyage or adventure assured is still properly characterized as a voyage from A to B and, if that adventure is never in fact embarked upon, the insurer will not be liable... Where an insurer invokes s 44, the court will conduct an ex post facto exercise to determine not simply the contractual, but the actual, destination of the ship at the time o f sailing, which exercise depends upon the acts and intentions o f the owners and/or Master at the time o f its departure. I f the court determines that, at the time o f sailing, vessel and cargo were in truth bound for a terminus ad quem other than that identified in the policy as definitive o f the voyage insured, then s 44 will apply and the risk which prima facie attached when the goods left the warehouse will in the event be held not to have attached..." It is remarkable that, despite the facts in the above decision and in this appeal not being on all fours, the rule in the excerpted part of the decision is directly relevant and applicable in this appeal. First and foremost, except for the particulars unique to each of them the nature of the policy is similar. Both are governed by the Institute Cargo Clauses (A) and apply English Law. Secondly, there is a common feature in both cases that the insured cargo was not shipped from the port of loading to the 24 port of discharge. We thus find considerable persuasion from the above decision to the instant appeal. In view of the foregoing, contrary to the contention by the respondent's learned counsel, reference to all risks to loss or damage in clause 1 has to be construed within the context of a subject matter on voyage which did not extend to a cargo for which there was no evidence of its shipment on the voyage from the port of loading in Indonesia to Dar se Salaam port in Tanzania. In our view, even though the appellant was the assured under the marine cargo insurance policy it had no obligation to seek indemnity since the claim obviously fell outside the ambit of the policy. With respect, the trial court appears to have failed to appreciate this crucial aspect in answering the 3rd issue affirmatively holding that the appellant had obligation to claim indemnity insurance. In the upshot, we find merit in the third ground and allow it. Having determined the two issues in favour of the appellant, we find it superfluous belaboring on the 3rd issue in relation to the damages. Logically, since no liability attached against the appellant, there can be no basis for awarding any damages be it in the sum claimed in the plaint or at all. There was no justification in law by the trial court awarding the appellant the impugned amount. 25 That said, we allow the appeal and set aside the trial court's decree and substitute it with an order dismissing the suit. The appellant shall have its costs in this Court and the High Court. DATED at DODOMA this 15th day of April, 2026. L J. S. MWANDAMBO JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICEOF APPEAL Judgment delivered virtually this 17th day of April, 2026 in the presence of Mr. Deogratius Tesha, learned counsel for the Appellant, Mr. Tumaini Sekwa Shija, learned counsel for the Respondent and Ms. Christina Mwanandenje, Court Clerk is hereby certified as a true copy of the original.