UKOD International Company Limited vs Hass Petroleum (T) Limited (Civil Appeal No. 218 of 2024) [2025] TZCA 1237 (8 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MKUYE, 3.A. GALEBA. 3.A. And AGATHO. J.A.l CIVIL APPEAL NO. 218 OF 2024 UKOD INTERNATIONAL COMPANY LIMITED ................................ APPELLANT VERSUS HASS PETROLEUM (T) LIMITED ................................................ RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania Commercial Division at Dar es Salaam) (Maaflfil&JJ dated the 22n d day of September, 2023 in Commercial Case No. 68 of 2022 J UPQMENT OF TH5 COURT 4th & 8th December, 2025 G A LEB A . J.A.: UKOD International Company Limited, the appellant and Hass Petroleum (T) Limited, the respondent, were both Oil Marketing Companies operating in Tanzania. The products subject of the trade, were predominantly petrol and diesel, (the goods). The appellant had oil outlets for resale and distribution at various locations in Tanzania, and the respondent was owning a depot, at Vijibweni in Dar es Salaam, for bulky oil storage and supply. The parties enjoyed a seamless and mutually beneficial trade until around 2021, when it became evidently clear that, the relationship had slowly transformed into an open business hostility. The underlying dispute between them and giving rise to this appeal, traces origin from the said trade in oil, where the appellant was the purchaser and the respondent, the seller. The parties were trading without any formal agreement previous to the year 2018. However, from December that year, their business was mainly regulated by the Petroleum and Petroleum Products Supply Agreement (Exhibit PI) dated 3rd December, 2018. The adopted transaction model for the business, was sale on credit. The procedure was that a Delivery Note (the DN) would normally be signed by the driver who would take delivery of the goods from the respondent's depot. Then a Tax Invoice (the TI) corresponding to the volume of the goods in the DN would be delivered to the appellant, upon which the latter would pay for the goods and receive an Electronic Fiscal Receipt (the EFR), generated from the respondent's Electronic Fiscal Device (the EFD). These relevant documents, that is, the DNs, the TIs and the EFRs evidencing the alleged sales, were received in evidence as exhibit P2. The documents are found from page 201 to page 625 in the record of appeal. According to the respondent, by 14th July, 2021, the amount unpaid by the appellant, for the goods supplied, amounted to TZS. 689,044,603.84 as per the demand letter (exhibit P3) from the respondent's lawyers. As 2 the appellant did not honour that demand letter, on 28th June, 2022, the respondent instituted Commercial Case No. 68 of 2022, in the High Court of Tanzania, Commercial Division at Dar es Salaam (the trial court), claiming the above stated sum, interests and costs of the suit. The appellant filed a written statement of defence with a preliminary objection questioning the jurisdiction of the court, but not strictly denying the debt, and not admitting it expressly. After overruling the objection raised, the court heard the case on merit, and was satisfied that it was proved on the balance of probabilities and awarded the respondent, the said TZS. 689,044,603.84 together with interests and costs of the suit. That decision aggrieved the appellant, such that she filed this appeal raising four grounds to contest it, namely: "1. That the learned trial Judge erred in law and fact for failure to properly evaluate the evidence of the appellant on the required standard o f proof. 2. That the learned trial Judge erred in applying the law while evaluating the evidence on record and gave maximum weight to the weak evidence o f the respondent without any corroborative evidence. 3. That the learned trial Judge erred in law and fact when [he] gave judgment in favor o f the 3 respondent based on weak evidence adduced by the respondent without any corroborative strong evidence. 4. That the learned trial Judge erred in law and fact by overruling the objection raised by the appellant during trial, despite the same being relevant to the circumstances and on pure point o f law." When the appeal was called on for hearing on 4th December, 2025, it transpired that Mr. Jimmy Mrosso, learned advocate for the appellant did not enter appearance, although Mr. Adronicus Byamungu, also learned advocate appeared for the respondent, and was prepared to proceed. In retrospect however, the record revealed that on 26th November, 2025, Mr. Mrosso had written a letter to the Registrar of this Court. Below is its relevant substance: " We, the undersigned, acted as advocates for the appellant Ukod International in the above- mentioned appeal against Hass Petroleum. We hereby confirm that we duly processed the appeal in accordance with our client's instructions and we acknowledge receipt o f the summons calling the matter for hearing at Mwanza. However, despite having received the said summons, we regret to inform your esteemed office that for over one year, we have lost all communication with our client. We have made several attempts to reach her, without success and at presentwe do not know her whereaboutsnor do we know whether she has instructed any other advocate to take over conduct o f this aooeal. Consequentlywith the client being unavailable to facilitate or refund the necessary travel and hearing expenses, we are unable to attend the scheduled hearing in Mwanza. This communication is therefore made to formally update the Court on the situation and to avoid any appearance o f neglect or noncompliance on our part. We kindly request that the Court be so updated. Yours sincerely. sgd Jimmy Mrosso, Advocate." We required Mr. Byamungu to comment on the letter, and suggest a proper way forward. Having studied it, the learned advocate was of the view that Mr. Mrosso was still acting for the appellant. He contended that, issues of instructions and expenses to attend cases, are matters between an advocate and his client. In any event, he stated, in his attempt to withdraw from acting for the appellant, Mr. Mrosso did not comply with rule 30 (6) of the Tanzania Court of Appeal Rules 2009 (the Rules). In terms of the way forward, Mr. Byamungu submitted that, as there had been filed written submissions to support the appeal, then the Court proceed to hear him responding to them, and thereafter render judgment. After considering Mr. Byamungu's arguments, we agreed with him because rule 30 (6) of the Rules provides that an advocate who intends to withdraw from representing his client, must within 14 days before the hearing date, lodge a notice of withdrawal and furnish the Registrar with the address of service of his client. Our scrutiny of the record of this appeal, revealed no such notice which ought to have been received 14 days before the date of hearing. In addition regulation 67 (1) of the Advocates (Professional Conduct and Etiquette) Regulations, 2018 (the Advocates' Regulations) provides that an advocate who intends to withdraw from a case, must continue to be considered the advocate of the party until a notice of the change or withdrawal is filed with the court and served on every other party. That is to say, an advocate of a party remains acting as such, until a proper notice to withdraw has been filed in court and made available to other parties to the matter. This, Mr. Mrosso did not do, because the letter quoted above is not the notice contemplated under Rule 30 (6) of the Rules or regulation 67 (1) of the Advocates Regulations. Further, as submitted 6 by Mr. Byamungu, whether the client has paid fees or disbursements for purposes of attending to the case, is a matter privy to the advocate and his client. It has nothing to do with the Court or any other side to the case. Accordingly, as the appellant had filed written submission to support the appeal, we considered the appeal as having been argued in terms of rule 106 (12) (b) of the Rules, and permitted the learned advocate to present his oral arguments reacting to the appellant's submissions. As for those submissions, Ms. Gema Mrina, learned advocate who prepared them, consolidated grounds 1, 2 and 3 and argued them as one. In so doing, the learned advocate made the following two points in her submissions: one, that during cross examination PW1 failed to state why the amounts in the invoices differed from those in the EFR's, and; two, that during cross examination, PW1 failed to prove that the invoices were actually served to the appellant. In reply, Mr. Byamungu opposed the above submissions. His point was that, had the appellant's counsel been truthful, she could have, in her submissions, pointed to the invoice which did not tally with the EFR. So, he dismissed the first point. As for the second point that there was no proof that invoices were sent to the appellant, the learned advocate submitted that the appellant's witness (DW1) admitted the debt in which case, the comDlaint of the aooellant's counsel in her submissions became superfluous. In view of that, the learned advocate moved the Court to dismiss the three grounds of appeal for having no merit. In resolving these grounds, we think the appropriate point for our focus, should be to investigate and find out whether the trial Judge evaluated the evidence of both parties and accorded it appropriate weight. In the case before the trial court, four issues were framed as may be found at page 640 of the record of appeal which were, one, whether there was a binding contract between the parties; two, if the first issue is in the affirmative, whether there was a breach thereof; three, what is the actual amount that the defendant is indebted to the plaintiff, and; four to what reliefs are parties entitled. Of course, the first issue was resolved in the affirmative, and there is no qualms with that holding in this appeal, the complaint is on the evaluation of evidence in respect of breach of contract to pay the purchase price and the amount payable, which matters were the subject of the 3 grounds of appeal under consideration. We will now move to consider whether the trial Judge evaluated the relevant evidence and assigned it necessary weight. In respect of whether the appellant breached the contract and was therefore liable to pay the debt, the learned trial Judge from page 685 of 8 the record of appeal onwards, evaluated the evidence of both sides particularly the e mail communications (exhibit P3). That communication was between the appellant's Managing Director one Ronald Jumbalekitti and the respondent's Managing Director, one Abdirahman Ahmed, where the former admitted the claimed amount and promised to resume depositing funds with a view to clear the whole debt. The amount, that Mr. Jumbalekitti was promising to pay in his e mail of 19th May, 2021, was TZS. 689,044,604.00, which was the claimed amount. The above admission was clarified at the trial by Mr. Jumbalekitti's successor in office, one Mr. Kahumuza Byabusha, DW1, who stated at page 653 to 654 as follows: "Before me there was Mr. Jumbalekitti. Yes. He is the one appearing in the email tendered in court. It [is] dated I9 h May, 2021. The email is about settlement o f claims for TZS 689,044,604.00.... It is [an] email o f[Abdirahman] to UKOD and shows the monies were for HASS. As per the email, Mr. Jumbalekitti [said] they wanted to pay, but failed due to vain circumstances. He promised to do payment in a short period o f time from the date o f the email, that is I9 h May, 2021... That amount has never been paid." Based on the above evidence from both sides, the trial Judge accorded the respondent's case more weight than the appellant's defence. 9 However, the appellant's advocate is wondering why did the trial Judge had to hold so, and not in favour of the appellant. Frankly, considering the appellant's own admission in the above evidence, we do not know how the trial Judge could have escaped from awarding the claimed amount to the respondent. Even if he could not have done so, we have ourselves evaluated the evidence of the appellant and have found that the same supported the respondent's case at the trial. We therefore do not agree with Ms. Mrina that there was any credible evidence of the appellant which would have tilted the balance in her client's favour. In view of that, we are of the firm decision that, the trial Judge properly analysed the evidence of both parties and was right in holding that the case was sufficiently proved against the appellant. Thus, the 1st, 2n d and 3r d grounds of appeal have no merit, we therefore dismiss them. Next is the 4th and last ground of appeal. In this ground, the appellant is challenging the ruling of the trial court in respect of the preliminary objection. The ruling is found at page 157 of the record of appeal. For purposes of clarity, we will quote the one-paragraph submission of the appellant which is this: "HONOURABLE JUSTICES OF APPEAL, that the trial Judge overruled the preliminary objection without considering that the same [was] based on pure ipointsJ ot iaw. The trial Judge failed even to consider the issue o f reconciliation meeting agreed in section 8 o f the Petroleum and Petroleum Products Supply Agreement signed on 11th December, 2018 (see exhibit PI)." In reply to the above "submissions" of the appellant, Mr. Byamungu stated that, the matter that the trial Judge dealt with was specific performance, which aspect of the agreement was an exception to matters that were to go to arbitration, which means such a matter could go to normal courts like it happened in this case. In this appeal, we think it is fair to observe that the appellant's written submissions quoted above, fell short of what rule 106 (3) of the Rules provides to be proper written submissions, because, the submissions neither support the complaint made in the ground of appeal, nor does it clearly highlight any errors of the trial Judge, if any, in the impugned ruling. Nonetheless, we have carefully studied clause 8 (the submission clause) of exhibit PI along with the impugned ruling, and the point we can make is that, the matter that the trial Judge handled was specific performance which was excluded by the said submission clause, as one of the matters which would not go to arbitration. So, we are unable to fault the trial learned trial Judge for having overruled the preliminary objection. That said, we dismiss the 4th ground of appeal, for want of merit. l i In the final analysis, this appeal lacks merit, we therefore dismiss it in its entirety, with costs. DATED at MWANZA, the 8th day of December, 2025. R. K. MKUYE JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL Judgment delivered virtually this 8th day of December, 2025 in the presence of Mr. Andronicus Kambuga Byamungu, learned counsel, in absence of the appellant and Mr. Fahmi Karemwa, Court Clerk; is hereby certified as a true copy of the original. • v /c u c rm i i\tuuirvHi^ ' COURT OF APPEAL 12