21st Century Food & Packaging Ltd vs G.T.S Logistics (Civil Appeal No. 1531 of 2024) [2025] TZCA 1244 (10 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MOROGORO ( CORAM: WAMBALI. J.A.. MAIGE. J.A. And FELESHI. J J U CIVIL APPEAL NO. 1531 OF 2024 21 st CENTURY FOOD & PACKAGING LTD ................................... APPELLANT VERSUS G.T. S LOGISTICS.................................................................. RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Commercial Division at Dar es Salaam) (Philip, J.) dated the 7th day of February, 2020 in Commercial Case No. 93 of 2017 JUDGMENT OF THE COURT 3rd& 10th December, 2025 FELESHI, J.A.: In this appeal, 21 st CENTURY FOOD & PACKAGING LTD, the appellant, challenges the decision of the High Court of Tanzania, Commercial Division (the trial court) which dismissed its suit in Commercial Case No. 93 of 2017 for want of merit. The appellant's suit related to a shortage of 259.58 metric tons of wheat it alleged to have stored in the silos belonging to G.T.S LOGISTICS, the respondent. Aggrieved by the trial court's decision, the appellant has approached this Court seeking to overturn it. i The brief facts giving rise of this appeal lies on a storage facility hire agreement executed by the appellant and respondent in 2016 where the appellant hired two of the respondent's silos for storage of wheat. It was the appellant's case that between 22n d and 26th July, 2016, it delivered a total of 10,061.16 metric tons of wheat into the said silos for safe custody. The appellant further claimed that the respondent, together with Collateral Management International (Pty) Limited (CMI), bore responsibility over custody, intake, and outtake control of the wheat. According to the appellant, between 19th August, 2016 and 22n d September, 2016, it withdrew the consignment but discovered that only 9,801.58 metric tons were available leaving a shortage of 259.58 metric tons, valued at USD 60,611.93. The appellant further claimed to have incurred expenses related to the missing quantity, including duties and taxes of USD 7,334.04, handling charges of USD 7,040.25 and storage charges amounting to USD 1,826.34. It thus sought specific damages for the alleged shortage, reimbursement of the stated expenses, general damages, costs, and any other relief. In its defence, the respondent admitted the existence of a hire arrangement but denied any responsibility over intake and outtake 2 control, contending that such functions were exclusively undertaken by CMI, whom the appellant had independently engaged. The respondent thus disclaimed liability for the alleged shortage. After evaluating the evidence, the trial court found that, although both parties had roles in overseeing the storage operations, the appellant had failed to prove the alleged shortage and related claims to the required standard. Specifically, it found the evidence relied by the appellant in exhibits P3 and P4 not worthy relying on due its questionable authenticity. Consequently, as aforesaid, it dismissed the appellant's suit. Dissatisfied, the appellant lodged four grounds of appeal, which can be summarised as follows: 1. The High Court erred in holding that Exhibits P3 and P4 were untrustworthy despite Exhibit P2 allegedly proving their authenticity. 2. The High Court erred in holding that the appellant failed to prove the case on the balance of probabilities. 3. The High Court erred in failing to find the respondent liable for the alleged shortage and related expenses. 4. The High Court erred in failing to order the respondent to pay commercial interest and damages. At the hearing of the appeal, the appellant was represented by M r. Elisa Abel Msuya, assisted by Ms. Neema Mahunga, both learned advocates, wheras M r. Twarah Yusuph, learned advocate, appeared for the respondent. The appellant abandoned the fourth ground and argued together grounds 1, 2 and 3. Adopting the written submissions, M r. Msuya argued that exhibits P3 and P4 tabulated wheat intake and outtake statements were authentic documents prepared by the respondent's officer, Rahul Aggarwal (DW3). He contended that exhibit P2, a series of email communications between the appellant's representative, Ameninderjit Singh (PW2) and DW3, demonstrated the origin of the documents. Counsel submitted that the trial court erred in rejecting exhibits P3 and P4 merely because they lacked signatures or official stamps. He argued that the documents were pleaded, were never objected to in the respondent's Written Statement of Defence and were explained during examination in-chief. Thus, their authenticity was not in dispute. He relied on section 110 of the Evidence Act, Chapter 6 stating that the appellant had discharged its initial burden of proof. He cited Paulina Samson Ndawavya v. Theresia Thomas Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453 (11 December 2019, TANZLII), particularly the Court's discussion on the shifting of evidential burden once the party bearing the legal burden adduces prima facie evidence. Counsel also quoted the celebrated dictum of Lord Denning in Miller v. Minister of Pensions [1937] 2 All ER 372 on the meaning of proof on the balance of probabilities. M r. Msuya further referred us to the relevant part of the record of appeal containing email exchanges where DW3 allegedly transmitted intake/output attachments. He maintained that the attachments corresponded to exhibits P3 and P4 and that, the trial court misapprehended the evidence. According to the counsel, the trial court itself acknowledged, as per the record of appeal that there was a shortage of the appellant's wheat, a finding which the trial court should have resolved in favour of the appellant. He insisted that the appellant proved the loss of 259.58 metric tons, together with the claimed expenses. In reply, M r. Yusuph strongly opposed the appeal. He argued that exhibits P3 and P4 were wholly unauthenticated documents lacking basic features such as signatures, names, seal, origin, date of preparation, or location. According to him, nothing on their face connects them to the respondent or to the specific silos in question. 5 He insisted that the appellant produced no primary intake/outtake documents which were normally signed by drivers, CMI's staff and the appellant's representatives. None of those were tendered. He submitted that exhibit P2, the email trail, does not mention the wheat quantities in exhibits P3 and P4, nor does it state that the attachments were prepared by DW3. Rather, the attachments mentioned "METL Wheat Intake" and "METL Wheat Transfer", which relate to a different entity (METL) and not the appellant or respondent. Counsel argued that because the appellant failed to discharge the initial burden of proof, the burden never shifted to the respondent. He emphasized that there was no evidence of tampering with the silos as both PW1 and PW2 confirmed that CMI locked and sealed the silos after each operation and observed no irregularities. He further argued that if any loss occurred, it could have happened after the wheat had left the respondent's silos, a period outside the respondent's control. For these reasons, Mr Yusuph urged the Court to dismiss the appeal. In rejoinder, M r. Msuya insisted that exhibit P2 clearly linked exhibits P3 and P4 to the respondent's officer. He maintained that the 6 METL reference did not discredit the documents and that the email chain sufficiently identified DW3 as the author. Having carefully perused the record of appeal and the submissions of counsel for the parties, we are of the considered view that the three surviving grounds revolve around a single decisive issue, whether the appellant proved its case on the balance of probabilities. Under rule 36 (1)( a) of the Tanzania Court of Appeal Rules, 2009 (the Rules), the Court is empowered to re-evaluate evidence where the lower court misapprehended the weight of evidence. It is settled law under sections 117 (1), (2) and 118 of the Evidence Act, Chapter 6 that the burden of proof lies on he who alleges and proof in civil cases is on the balance of probabilities, meaning the more credible account must prevail. For further guidance, see Agatha Mshote v. Edson Emmanuel & Others (Civil Appeal No. 121 of 2019) [2021] TZCA 323 (20 July 2021, TANZLII). It is undisputed in this case that the parties entered into a storage arrangement and that, both had roles in overseeing wheat intake and outtake, with CMI managing daily operations and the respondent exercising general oversight. The core dispute concerns whether the 7 respondent is liable for the alleged shortage of 259.58 metric tons of wheat. The appellant's case rests substantially on exhibits P3 and P4, which, M r. Msuya had consistently argued, were introduced in evidence by exhibit P2. We have scrutinized exhibit P2 contained in the record of appeal, the email correspondence allegedly linking them to DW3. We find no email explicitly identifying exhibits P3 or P4 as attachments. Although the emails refer generally to "report" or "attachments," there is no evidential connection between those attachments and the disputed documents. Further, exhibits P3 and P4 bear headings such as "METL WHEAT INTAKE" and "METL WHEAT TRANSFER - GTS TO SHIKELANG (sic) & NMC." These titles do not essentially make reference to the appellant, respondent or CMI. There is no explanation of these documents in the testimony of PW1 or PW2 connecting the respondent with them. In Leonard Dominic Rubuye t/a Rubuye Agrochemical Supplies v. Yara Tanzania Limited (Civil Appeal No. 219 of 2018) [2022] TZCA 419 (13 July 2022, TANZLII), the Court held that, a document admitted but not explained carries no probative value. In the present appeal, PW1 8 gave no clear explanation of how the figures in exhibits P3 and P4 translated into the alleged shortage. We have also paid regard to the appellant's counsel's argument that, although the trial court found that there was proof of the shortage, it failed to resolve the same against the respondent. To appreciate what transpired before the trial court, we reproduce the pertinent part of the decision as reflected by the record of appeal thus: 1 1 Upon looking at the testimonies of the witnesses from both side and exhibit P2 collectively, (the email correspondences) I am of the settled view that there was a serious suspicious of shortage of the plaintiff's wheat stored in the defendant's silos . As I have demonstrated herein above, the witnesses from both sides talk of unusual removal of the wheat, even Mr. Chundo in his dosing submission does not dispute the fact that there was a such a serious suspicious on loss o f the plaintiff's wheat, what he disputed is the quantity o f the alleged loss and the allegation that the defendant is responsible for the loss" [Emphasis supplied]. With due respect, we find nothing in the foregoing holdingwhich the learned trial Judge noted either proof of the alleged shortageor that 9 the respondent was responsible. Furthermore, exhibit P3 contains technical data on intake and outtake, yet Govin Pathod (PW1) did not explain the methodology by which the figures translated into the alleged shortage. Similarly, both sides testified that CMI sealed the silos after each operation. Yet, there was no evidence of tampering. PW2 expressly testified that no tampering occurred. The appellant also admitted that drivers signed release documents at the time of outtake, yet none were produced. The attempt to link exhibits P3 and P4 to the emails through their titles "METL Wheat Intake" and "METL Wheat Transfer" is, in our view, unpersuasive. Those documents bear no apparent connection to the appellant, respondent or CMI. In the absence of explanation, they remain mere papers. In view of the foregoing reappraisal of evidence, with all due respect to the appellant's counsel, we are of the settled view that, the appellant failed to prove that there was shortage and, or that it was the respondent who was proved responsible. From the foregoing deliberations, we are satisfied that the learned trial Judge properly evaluated the evidence and correctly held that the appellant failed to prove its case on the balance of probabilities. We 10 • accordingly find the grounds of appeal lacking in merit and therefore dismiss them in their entirety. In the final analysis, we dismiss the appeal with costs. DATED at MOROGORO this 8th day of December 2025. F . L. K. WAMBALI JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered this 10th day of December, 2025 in the presence of Mr. Elisa Msuya, learned counsel for the appellant; Mr. Mwarah Yusuph, learned counsel for the respondent and Ms. Jasmin Kazi, Court Clerk, linked via video conference; is hereby certified as a true copy of the original. A. L. KALEGEYA DEPUTY REGISTRAR COURT OF APPEAL