Leonard Dominic Rubuye T/A Rubuye Agrochemical Supplies vs Yara Tanzania Limited (Civil Appeal No. 219 of 2018) [2022] TZCA 3055 (13 July 2022)

LEONARD DOMINIC RUBUYE T/A RUBUYE AGROCHEMICAL SUPPLIES V. YARA TANZANIA LIMITED COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: LILA, MWANDAMBO, MASHAKA, JJ.A.) CIVIL APPEAL NO. 219 OF 2018 (From the Decision of the High Court (Commercial Division) at Dar es Salaam dated the 26 th 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 This appeal arises from the judgment and decree of the High Court Commercial Division at Dar es Salaam in Commercial Case No. 29 of 2016, delivered on 21 April 2021. The appellant and respondent had a business relationship in which

the respondent supplied various fertilizers upon request, with deliveries confirmed by Delivery Notes (DNs) and payments made via bank transfers. In March 2015, the respondent audited the appellant’s account and found an unpaid balance of TZS 727,346,800.46, following partial payment of TZS 120,000,000. The respondent then sued the appellant and Rubuye Agro Business Company for breach of contract and payment of the outstanding sum. The court held that Rubuye Agro Business Company was not a party to the agreement and discharged it from liability. The appellant was found to have breached the contract and was ordered to pay the debt, interest, and costs, prompting the present appeal. Held: (i) The Court reaffirmed that in civil cases, the burden of proving the existence or non-existence of a fact lies on the party asserting it, with proof required on a balance of probabilities. The first appellate court has the authority to re-evaluate all evidence objectively and reach its own findings. Documents not tendered or admitted as exhibits cannot form the basis of a decision, and even tendered documents must be properly explained to demonstrate their significance. The use of assessors in a trial is at the discretion of the trial judge, who must determine whether their input is necessary for a just decision. Finally, the application of the Civil Procedure Code (CPC) in Commercial Court proceedings is limited and only arises to fill gaps not addressed by the Commercial Court Rules. The Appeal was partly allowed. Statutory Provisions referred to: (i) Tanzania Court of Appeal Rules GN 368 of 2009 Rule 36, 106 (1) &(7) (ii) Law of Contract Act, Cap. 433 R.E 2019 section 37 and 37 (iii) Evidence Act Cap. 6 R.E 2019 Section 110 and 111 (iv) Civil Procedure Code, Cap 33 R.E 2019 Order XVIII Rule 1A (v) High Court (Commercial Division) Procedure Rules, 2012 rule 51(1) and (3) Cases referred to:

(i) Attorney General and two Others vs. Eligi Edward Massawe and Others Civil Appeal No. 86 of 2002 [Unreported] (ii) Siza Patrice vs. Republic Criminal Appeal No. 19 of 2010[Unreported] (iii) Kaimu Said vs. Republic Criminal Appeal No. 391 of 2019 [Unreported] (iv) Pandya vs. Republic [1957] EA 336 (v) Japan International Corporation Agency (JICA) v Khaki Complex Limited [2006] TLR 343, (vi) Abdalla Abass Najim v Amini Ahmed AM [2006] T.L.R. 55; (vii) Shemsa Khalifa and 2 Others v Suleiman and Hamed Abdalla, Civil Appeal No. 82 of 2012 [unreported]. (viii) Engen Petroleum (T) Limited vs. Tanganyika Investment Oil and Transport Limited Civil Appeal No. 103 of 2003 [Unreported]. (x) 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.