VIDOBA Freight Company Limited vs Mvomero District Council (Civil Appeal No. 373 of 2022) [2025] TZCA 1239 (8 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CDRAM: MKUYE, 3.A. GALEBA. J.A. And AGATHO. J.A.^ l CIVIL APPEAL NO. 373 OF 2022 VIDOBA FREIGHT COMPANY LIMITED..................................APPELLANT VERSUS MVOMERO DISTRICT COUNCIL ...................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania Commercial Division at Dar es Salaam) (Mruma. 3 .} dated the 24th day of July, 2017 in Commercial Case No. 107 of 2016 JUDGMENT OF THE COURT 3rd & 8th December, 2025 GALEBA, J.A.: In this appeal, the respondent, Mvomero District Council, appointed Vidoba Freight Company Limited to collect agricultural produce cess, excluding cess from sugar cane growers. The contract was dated on 15th September, 2014 and was for a term of ten (10) months, set to expire on 30 June 2015. One of the principal terms of the agreement required the appellant to remit to the respondent a sum of TZS 167,000,000.00 for the entire contract period. However, the evidence shows that the appellant remitted only TZS 91.250.000.00, leaving an outstanding balance of TZS 75.750.000.00. In its written statement of defence, the appellant

contended that the failure to remit the outstanding amount was substantially caused by the respondent's omission to engage with the appellant in reviewing the progress of the contract's performance. The outstanding amount remained unpaid until 12th August 2016, when the respondent instituted Commercial Case No. 107 of 2016 before the High Court of Tanzania, Commercial Division, at Dar es Salaam (the trial court). The principal reliefs sought by the respondent included payment of the said TZS 75,750,000.00, general damages, interest, and costs of the suit. The matter proceeded to a full hearing, and upon conclusion, the trial court held that the sum of TZS 75,750,000.00 was due and payable by the appellant to the respondent. The court further awarded the respondent interest at the rate of 16% per annum on the decretal amount from the date of filing the suit to the date of judgment, interest at 7% per annum from the date of judgment until final satisfaction of the decree, and costs of the suit. It is pertinent to note at this point that, during the trial, following an objection put forth by the appellant's counsel, the contract executed by the parties, setting out the terms governing their relationship, was not admitted in evidence. 2

Aggrieved by the decision of the trial court, the appellant lodged this appeal, advancing five grounds of appeal, which may be paraphrased as follows: "1. That the Honorable Judge erred in law by relying on a contract which was not tendered in court. 2. That the Honorable Judge erred in holding that there was no breach o f the contract by the respondent while they adm itted to have failed to convene a meeting in order to review the appellant's perform ance o f the contract as required by the said agreem ent 3. That the Honorable Judge erred in law in his holding that failure to review the contract did not contribute to the appellant's failure to pay the claim ed am ount 4. That the Honorable Judge erred in law by granting the claim ed amount o f TZS. 75,750,000.00 by assuming that the amount was collected by the appellant, while there was no such evidence from the respondent. 5. That the Honorable Judge erred in law in granting interest o f 16% per annum at a decretal sum and 7% interest to the date o fjudgm ent to the date o f fu ll paym ent without proof to ju stify the claim ed am ount" 3

At the hearing of the appeal, Mr. Gabriel Mnyele, learned advocate appeared for the appellant, whereas Ms. Subira Mwandambo learned Principal State Attorney, represented the respondent. Both counsel had lodged written submissions in support of their respective positions. In his written submissions, and in amplifying them orally, learned counsel Mr. Mnyele argued, in respect of the first ground of appeal, that the trial Judge committed a grave error of law by relying on a contract document that had not been admitted into evidence. He contended that it was unlawful for the trial court to award the amount claimed, as such amount ought to have been proved by presentation of the contract instrument, which, in this case, is not part of the evidence on record. He further submitted that the oral testimony adduced was insufficient to establish the respondent's claim in the absence of the written contract. He urged the Court to draw an adverse inference against the respondent: for failing to call a witness who had legal capability to tender the contract document. In this regard, he cited the authority in Hemed Said v. Mohamed Mbilu [1984] T.L.R. 113.

According to Mr. Mnyele, there was no evidence on record demonstrating that the appellant had failed to pay TZS 75,750,000.00 to the respondent. In conclusion, the learned advocate submitted that the first ground of appeal was decisive of the entire appeal, and on that basis, he prayed that the appeal be allowed in its entirety, based on that ground, with costs. In reply, Ms. Mwandambo submitted that Mr. Mnyele's arguments were misleading. She advanced two major points, to support her contention. First, she submitted that the trial court, in its judgment, did not rely on or refer to any clause of the contract instrument that had not been admitted into evidence; thus, the assertion that the trial court based its decision on an unadmitted document was, in her view, a creation of counsel for the appellant. Second, she argued that the pleadings and the evidence adduced sufficiently established the appellant's indebtedness to the respondent in the amount decreed, notwithstanding the absence of the written contract. She concluded by praying for dismissal of the 1st ground appeal. 5

The issue for determination by this Court therefore, is whether there was adequate evidence to establish that the appellant was indebted to the respondent in the sum of TZS 75,750,000.00 without the written contract executed by the parties being admitted in evidence. We proceed to consider this issue being mindful of the fact that, as the first appellate court, this Court is vested with the mandate under rule 36 (1) (a) of the Tanzania Court of Appeal Rules 2009, to re-appraise the evidence presented at the trial and may arrive at any conclusions, which may not necessarily match those reached by the trial court. In undertaking this task, we begin with an in depth examination of the pleadings. The relevant averments are contained in paragraphs 3, 5, 6, and 7 of the plaint, and paragraphs 2, 4, and 5 of the written statement of defence. The pertinent paragraphs of the plaint are reproduced below: "3. On 15th September, 2014 the p la in tiff and the defendant entered into a involuntary contract for collection o f agricultural produce cess except sugar cane produce cess... 5. The contract sum payable to the p la in tiff by the defendant was Tshs 167,000,000/= only. 6

6. The defendant had paid the p la in tiff Tshs. 91,250,000/= only.

7. The p la in tiff is claim ing against the defendant for the paym ent o f the sum o f Tshs 75,750,000/= only, being the amount o f produce cess collected and due to the p la in tiff exclusive o f the interests o f 10% accum ulated over a period o fte n months o f default from September 2014 to June 2015. Copy o f a letter dated 27th August 2015 is annexed and m arked annexure MD3." In reply to the above allegations the appellant stated in its written statement of defence as follows: "2. The contents o f paragraph 3 o f the Plaint are partly noted only to the extent o f the existence o f the contract between the defendant and the plaintiff. The rest o f the allegations are fervently disputed and the p la in tiff shall be put to strict proof thereof.

8. That the contents o f paragraph 5 o f the plaint are relatively noted only to the extent that the defendants paid a sum o f Tshs. 91,250,000/= to the plaintiff. The defendant further recount that the p la in tiff contributed much in hindering effective collection o f the produce cess through those encumbrances led to the defendant not to be able to effect the contract Thus, the p la in tiff sh all [be] put to strict proof thereof.

9. That in line o f paragraphs 6 and 7 o f the plaint are heartily disputed and the defendant further reiterates that it was the p la in tiff to be blam ed for the breach o f contract and not the defendant as alleged by the p la in tiff as it was crystal clearly agreed that the p la in tiff was to s it down in every three months with the defendant and see whether there was any difficulties that either party was going through in the course o f discharging the aforem entioned contract." The claim of the respondent at paragraph 7 for payment of TZS 75,750,000.00 is neither expressly admitted, nor expressly denied in paragraph 5 of the written statemen to defence. Such reaction to that clause of the plaint is noncommittal, evasive and unclear. Whereas the claim is for the specific amount, the response relates to breach of contract. Order VIII rule 3 of the Civil Procedure Code (the CPC), provides that it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but he must deal specifically with each allegation of fact of which he does not admit the truth. This, the appellant did not do. In addition, Order VIII rule 4 of the CPC clearly provides that where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance and be specific on it. According to law,

an allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, such allegation is deemed to be admitted. See Order VIII rule 5 of the CPC and this Court's decisions in the cases of Richard Chrispine Silayo v. Monica Serafini, Civil Appeal No. 199 of 2023 (unreported) and Scandinavia Tours Ltd v. CRDB Bank of Ltd [2007] T.L.R. 133. In this case, the indebtedness of TZS 75,750,000.00 was not at all denied specifically by the appellant, rather she denied it evasively by stating that it was the respondent who breached the contract. As indicated above, that was an admission of the claim, without even having to prove it. In law, an admitted fact need not be proved, see section 65 of the Evidence Act. That is to say, even without going to the evidence, an admission in the written statement of defense was sufficient for the trial court to pronounce judgment on admission in terms of Order XII rule 4 of the CPC. Although the above finding on the pleadings would have been enough to conclude the ground of appeal under consideration, we will, nonetheless, navigate the evidence in order to find out whether the amount was further proved at the trial. 9

According to the witness statements of Hamis Ally Mohamed (PW1) and Victor Willbard Nandonde (PW2) at pages 44 and 51 of the record of appeal respectively, at the date of filing the suit, the appellant was indebted to the respondent in the sum of TZS. 75.750.000.00. At the hearing, during cross examination those witnesses were not asked anything on that figure. In addition, Mohamed Hamza Manyeko, (PW3) an internal auditor employed by the respondent, tendered " The Management Later on the Financial Statem ents o f Mvomero D istrict Council for the Financial Year Ended 3&hJune 2015," which was admitted as exhibit P3, without objection. According to that Management Letter, which was prepared by the National Audit Office and found at page 68 of the record of appeal, the debt due from the appellant to the respondent, was TZS. 75.750.000. PW3 was not cross examined on that document or any of its contents. That was the material evidence from the respondent. On the appellant's side, at pages 69 and 70 of the record of appeal, Vincent Mwamakimbula, (DW1), neither denied the claim, nor did he admit it. He just stated that the respondent contributed to the breach of contract. However, he was made to say something on the debt during cross examination at page 91, where he (DW1) stated: 10

7 paid Tshs. 50,000,000 for the first three months... Then I paid two installm ents, one o f Tshs. 48.000.000 and the second installm ent o f Tshs. 3.000.000... A t the tim e o f the expiry o f the agreement, I had not com plied with a ll the requirem ents. I paid Tshs. 91,150,000 out o f Tshs. 167,000,000.00. That is a ll." The above evidence from the appellant's side which was not challenged during cross examination and the fact that the witness of the appellant testifying that out TZS. 167,000,000.00. they paid only TZS. 91,150,000 is clear proof that the appellant was indebted to the respondent to the tune of TZS. 75,750,000, at the time of filing the suit. That is to say, although the amount was admitted on pleadings, the same fact was also proved at the trial on the balance of probabilities. In summary; one, we agree with Ms. Mwandambo in her submission that, failure to tender the actual contract document, which was signed did not affect the credible evidence that was tendered to prove the case. Two, in view of the above, we do not agree with Mr. Mnyele, that the appellant's indebtedness, could only be proved by production of the actual contract which was not tendered. The admission in the written statement of defence, the evidence from the respondent's side and an admission of DW1 at the ii

trial was sufficient evidence to prove the debt. Three, we did not find any place in the judgment where the trial Judge stated that he was relying on the contract which was not admitted in evidence. And; four, even if the trial Judge could have erred as complained in the ground of appeal under consideration, we would still have reevaluated the evidence under rule 36 (1) (a) of the Rules, as we have done, and come to the same conclusion as the trial Judge. Thus, the first ground of appeal is hereby dismissed for raising a misconceived complaint. Next are the 2n d and 3rd grounds of appeal. Mr. Mnyele did not elaborate the appellant's submissions in respect of those grounds. He simply adopted the appellant's written submissions which had been filed earlier on by Mr. Magusu Mugoka learned advocate, which he implored us to rely on, in determining the said grounds of appeal. The complaint in those grounds is that, the trial Judge erred for not holding that failure to pay the TZS. 75,750,000 by the appellant, was contributed to, or caused by the respondent's failure to convene a meeting with the appellant in order to review the latter's performance of her obligations in the contract. In supporting those grounds of appeal which Mr. Mugoka consolidated and argued together, submitted that one of the major 12

terms of the contract which was signed by the parties, was for both parties to sit and review performance of the agreement after every 3 months. According to him, the wording of the contract in relation to sitting in order to review performance of the contract, was mandatory. If parties would have met, some of the contract terms could have been reviewed and its tenure could be extended to 12 months, he contended. In reply, Ms. Mwandambo relied on the written submissions and very briefly stated that, the appellant's submission in supporting grounds 2 and 3, is evidence that there was a contract between the parties, hence a defeat to the 1st ground of appeal. She argues in her written submissions that, the appellant did not tender any evidence to show how failure to have the meeting with the respondent made it impossible for her to pay the claimed amount. She thus urged us to dismiss the two grounds of appeal. The issues in the two grounds of appeal are whether the respondent was duty bound to convene a meeting with the appellant in order to review the contract performance, and whether failure to carry out that exercise caused the appellant to fail to pay her debt to the respondent. 13

First, the appellant's side was unable to point to the exact wording of the clause of the contract in that respect. The reason for that was that, without knowing that his client would need the document, when the respondent wanted to tender the contract, which would have the specific wording of the clause he now needs, the appellant's advocate objected to its admission, and the trial court agreed with him by not admitting the signed contract. So, the appellant by his own act, has nowhere to make reference to. Two, there is no evidence on record showing that the appellant had problems in carrying out his obligations in the contract and required a meeting with the respondent and that the latter refused to convene it. Three, there is no evidence on record from the appellant's side that, failure to convene a meeting affected the appellant's produce cess collection, or affected his duties in any way. We have thoroughly reviewed DW3's witness statement and his oral evidence, there is no reason disclosed linking the respondent with the appellant's failure to pay her debt. What one notes in DW3's testimony during cross examination is the following, at page 91 of the record of appeal: "The contract had a review option. We didn't review. They said they had no time... I didn't pay the installm ents which followed.... The agreem ent didn't show who was to initiate the review o f the contract. 14

Anybody from the office could attend the review. I used to make phone calls." This evidence does not, to the slightest, implicate the respondent. In the circumstances, we cannot fault the trial Judge by holding that there was no evidence adverse to the respondent on the issue of reviewing performance of the contract. That said we find no merit in the 2n d and 3rd grounds of appeal. Thus, we dismiss them. The 4th ground of appeal is a complaint that the trial court was wrong by ordering the appellant to pay TZS. 75,750,000 while the respondent did not tender any evidence to prove that such amount was collected by the appellant. In reply to that ground of appeal Ms. Mwandambo submitted that the amount unpaid was admitted by the appellant during the trial, so she cannot deny the indebtedness. Considering the pleadings, the witness statements and the oral evidence of parties, we gather that it was not the obligation of the respondent to ensure that the appellant collects the cess. What parties agreed was that the appellant would collect the produce cess for 10 months and out of the money she would have collected, she would pay the respondent TZS. 167,000,000 in installments. It is this obligation, which was not fully performed by the appellant. There was no evidence showing that under the parties understanding, the 15

respondent had a duty to ensure that the money she will receive must come from farm produce cess. Thus, the 4th ground of appeal has no merit, it is hereby dismissed. The appellant's submission in support of the 5th ground of appeal is that since the award of TZS. 75,750,000, was not justified, the grant of interest of 16% per annum on it from the date of filing the suit up to judgment, and 7% per annum from the date of judgment to full settlement, is unjustified. Ms. Mwandambo submitted that under section 29 and Order XXI rule 1 of the CPC, the trial court had mandate to award interest as it did, because there was a debt due. The position of the law under section 35 and Order XX rule 23 (1) both of the CPC, the court has a discretion to grant interest on a judgment debt from the date of filing the suit to the date of judgment, and interest of 7% per annum from the date of judgment to final settlement of the decretal amount. Since the appellant's complaint in this ground is not that the rates were high or unjustified or that the trial Judge did not have jurisdiction or discretion to grant them, but because, that the principal amount was unjustified, the complaint has no merit. The ground would have been a valid and a 16

sound complaint, had the 1st ground of appeal been dismissed, holding that the decretal amount was not payable to the respondent. However, as the claim of the above amount is due and payable to the respondent, the complaint of awarding interest on it has no merit. Thus, the 5th ground of appeal has no merit and we dismiss it. In the upshot, this appeal fails, and we hereby dismiss it with costs. DATED at MWANZA, the 6th 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 Ms. Subira Mwandambo, learned Principal State Attorney, in absence of the appellant and Mr. Fahmi Karemwa, Court Clerk; is hereby certified as a true copy of the original.