Mediterranean Shipping Company Ltd vs Emmanuel Agreyson Daudi t/a Ishey's General Enterprises & Another (Civil Appeal No. 342 of 2021) [2024] TZCA 863 (6 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: SEHEL. J.A.. KIHWELO, 3.A. And MASOUD, J.A.) CIVIL APPEAL NO. 342 OF 2021 MEDITERRANEAN SHIPPING COMPANY LTD ......................... . ..... APPELLANT VERSUS EMMANUEL AGREYSON DAUDI t/a ISHEY'S GENERAL ENTERPRISES................................. ........ 1st RESPONDENT SDV TRANSAMI (TANZANIA) LIMITED ................................... 2n d RESPONDENT (Appeal from the judgment and decree of the High Court of Tanzania, Dar es Salaam District Registry at Dar es Salaam) (Maqoiqa. J.) dated the 22n d day of February, 2019 in Civil Appeal No. 183 of 2017 JUDGMENT OF THE COURT August ■ & 0 h September, 2024 SEHEL. J.A.: This is a second appeal. It emanates from the decision of the Court of the Resident Magistrate of Kisutu at Kisutu (the trial court) in which judgment was entered in favour of the 1st respondent. As they were not satisfied with such decision, the appellant and the second respondent unsuccessfully appealed and cross-appealed respectively to the High Court of Tanzania at Dar es Salaam Registry (the first appellate court), hence the present appeal. i

The background to the present appeal is that; the 1st respondent, a haulier company dealing with the transportation of cargo containers used to transfer cargo to/from a container terminal. Normally, when a container is delivered or collected (loaded or empty) from the container terminal, a shipping line or a carrier issue a document called an Equipment Interchange Receipt (EIR). The EIR lists the container number, the code of the vessel/voyage, the stacking position, and the stowage position. At each point where the container passes through, it is inspected to check its condition and shipment details and an Inspection Report (IR) is issued. The information in the EIR is updated at every interchange point. Sometimes, it also includes information on any damages to the container that helps to identify the responsible parties. The EIR is, thus, a crucial document that serves as a receipt and a confirmation that a container was transferred between the two locations and delivered to its final destination. At each point the container passes through, a copy of EIR is kept. Therefore, EIR is usually kept by all parties to ensure that all parties involved have a record of the transfer and can refer to it if any issues arise. If any claim arises on the condition or missing of the container, EIR would be used to verify its condition and/or its delivery. For the haulier to be paid, it must attach its invoice,

delivery note, the EIR and IR and present them to the shipping line for payment. It was the case of the 1st respondent that the 2n d respondent, the logistic company, instructed it to transport two empty containers with numbers INBU 5355980 and MSCU 4335272 to the appellant's offices. It further claimed that, the two empty containers were delivered but the appellant and the 2n d respondent denied to pay. To prove its case, the 1st respondent called a total of two witnesses, namely; Emmanuel Aggreyson Daudi (PW1) and the driver, one, Amri Musa Mgomi (PW2). It also tendered in evidence three documentary exhibits, namely; a copy of the statement of payment (exhibit PI), a copy of a letter from 2n d respondent addressed to the 1st respondent dated 20th October, 2011 (exhibit P2) and a statement showing outstanding claim dated 8th November, 2011 (exhibit P3). The 1st respondent's evidence was to the effect that, on 11th April, 2011, PW1 together with his driver collected a container number INBU 5355980 from AMI to Pugu Shoprite and delivered it to the offices of the appellant. Again, on 20th April, 2011, they collected another container number MSCU 4335272 from AMI to Shoprite and delivered it to the appellant's offices. 3

PW2 testified further that, after offloading the Cargo, he went to AMI offices to collect Bill of Landing (BOL) and submitted to the appellant copies of EIRs which, after inspection, she was satisfied that the copies tally with the number of the containers before being allowed to offload the empty containers. That, the EIRs also passed through inspection unit where they were cross-checked in the computer system before proceeding to the inspector who inspected the containers and was issued with the IRs. After offloading, the EIRs and IRs were returned to him to enable the 1st respondent to process payment. It was his evidence that he completed all these processes and handed over the EIRs and IRs to PW1. PW1 testified that, after he had submitted to the 2n d respondent the EIRs and IRs which were attached with the invoices, he was paid. However, five months later the 2n d respondent withheld payments for other transactions contending that the containers were not returned and the documents presented were forged. The 1st respondent made several follow ups but the appellant and the 2n d respondent denied to pay. Hence, it filed a suit against them claiming, among other reliefs, for a declaratory order that the two empty containers with numbers INBU 5355980 and MSCU 4335272 were delivered to the appellant on 11th April, 2011 and 20th April, 2011 respectively; specific damages at the tune

of USD 11,818.00 and TZS. 50,000,000.00; general damages and interests. The appellants' defence was such that, the 1st respondent did not deliver the alleged empty containers. Her witness, one, Lucas Nkungu (DW2) testified that, according to their records, that is, the EIRs of 11th April, 2011 and 20th April, 2011, seven empty containers were received but containers numbers INBU 5355980 and MSCU 4335272 were not in the list of the seven containers received on 11th April, 2011 and 20th April, 2011. Copies of the EIRs dated 11th April, 2011 and 20th April, 2011 were tendered and admitted in evidence as exhibit D1 collectively. It was further the evidence of DW2 that, usually, three copies of the EIRs are issued. One copy is for the haulier who returns the empty container, another copy is for the owner, that is, the shipping line and the third copy is for the logistic company. On the part of the 2n d respondent, it also denied the 1st respondent's claim. Simon Lucas Mbaga (DW1) testified that they assigned the 1st respondent to deliver empty containers to the offices of the appellant but they were later informed by the appellant that the containers were not delivered, and that, the EIRs purported to be issued by the appellant were forged. They notified the 1st respondent about the missing containers but nothing was done. They stopped the payment and

had to pay the appellant which they did for the loss of containers and delayed charges (demurrage costs). From the pleadings, the trial court framed the following six issues:

1. Whether the p la in tiff delivered containers No. IMBU 5355980 and MSCU 4335272 to the 2nd defendant on 11th April, 2011 and 2 ffh April\ 2011 .
2. Whether the Inward Equipment Interchange and Inspection Report dated 11th April, 2011 and 2Cfh April, 2011 issued by the 2nd defendant were faked documents.
3. Whether the 1st defendant's refusal to pay the p la in tiff the outstanding invoices for other transaction is proper and justified.
4. Whether the allegation o f m issing containers numbers IMBU 5355980 and MSCU 4335272 were tim ely brought to the attention o f the plaintiff.
5. Whether the p la in tiff suffered general damages.
6. What reliefs are the parties entitled. Relying on the evidence of PW1 and exhibit PI, the trial court answered the first issue in the affirmative. It held that, on the instruction given by the 2n d respondent, the 1st respondent transported the Cargo to the designated destination, and thereafter, returned the empty containers

to the appellant on 11th April, 2011 and 20th April, 2011. It further held that, upon return of the containers, the appellant issued to the 1st respondent Inward Equipment Interchange and Inspection Report to acknowledge receipt of the containers. On the second issue, the trial court found that there was no forgery. It reasoned that, as the documents were issued by the appellant, and that, after the 1st respondent having presented them together with the invoices to the 2n d respondent, the 2n d respondent accepted and made payment. It further held that, the burden of proving forgery was on the part of the appellant and the 2n d respondent which they failed to prove. The trial court was convinced that the refusal by the 2n d respondent to pay the outstanding invoices for other transactions was improper and unjustified. It thus, answered the third issue in the negative. Regarding the fourth issue, the trial court was satisfied that the information of the two missing containers was not only belatedly relayed to the 1st respondent but it was also given to a wrong person as the appellant was supposed to report the matter to the police for them to initiate investigation. On the fifth issue, it found that the acts done by the appellant and the 2n d respondent against the 1st respondent caused damages to the 1st respondent's transportation business. In the end, the trial court entered judgment in favour of the 1st respondent. It ordered

the appellant to pay the 1st respondent specific damages to the tune of USD 11,818.00 and TZS. 50,000.00 and interest at the commercial rate of 21 % from the date when payment was due to the date of judgment. It further ordered both the appellant and the 2n d respondent to pay the 1st respondent general damages to the tune of TZS. 100,000,000.00 plus costs of the suit. As indicated earlier, the appellant and the 2n d respondent, unsuccessfully appealed and cross appealed to the High Court, hence this second appeal. The appellant's memorandum of appeal comprised of the following nine grounds:

1. That, the first appellate court erred in law and fact by continuing to m isconstrue or m isapprehend the evidence on record by holding that on the balance o f probability there was evidence to prove delivery o f two empty containers by the 1st respondent to the appellant.
2. That, the first appellate court erred by awarding exorbitant interest to the 1st respondent at the rate o f twenty one percent (21% ) on a claim partly based on United States Dollars currency.
3. That, the first appellate court erred in law and facts in granting genera / damages to the 1st

respondent basing on reasons which had no any connection with the appellant. 4) Alternatively, that, the first appellate court erred in law and facts by granting exorbitant genera! damages in the circum stances o f the case. 5) That, the first appellate court erred in law and fact by holding that the appellant could have raised a counter claim against the 1st respondent on the m issing containers. 6) That, the first appellate court erred by holding that the first report on m issing containers was made after five (5) months which fact is contrary to the evidence on record. 7) That, the first appellate court erred by holding that the appellant had a legal burden o f proof in respect o f the Interchange documents as mentioned in exhibit P2. 8) That, the first appellate court erred by considering payments effected between the respondents as a basis for delivery o f empty containers to the appellant. 9) That, the first appellate court erred by not holding that the 1st respondent did not deliver em pty containers to the appellant.

On the other hand, the 2n d respondent filed a notice of cross appeal raising the following grounds:

1. That) the first appellate court erred in law and fact to award general damages o f TZS, 50,000,000.00 over and above special damages.
2. That, the first appellate court erred in law in confirm ing the award o f general damages for breach o f contract over and above special damages.
3. That, the first appellate court erred in law and fact in holding that special damages had been pleaded and strictly proved.
4. That, the first appellate court erred in law by upholding the award o f 21% on the claim s without proof o f such entitlement.
5. That, the first appellate court erred in law when it failed to note that there was no evidence to ju stify the award o f interest
6. That, the first appellate court erred in law when it made a finding based on the documentary exhibits not tendered in evidence. The appellant also filed written submissions in accordance with rule 106 (1) of the Tanzania Court of Appel Rules (the Rules), and therein she abandoned the second ground of appeal. The 1st respondent also filed the 10

reply submissions in terms of rule 106 (7) of the Rules but the 2n d respondent did not file any written submissions. When the appeal was called on for hearing, Mr. Erasmus Buberwa, learned advocate appeared for the appellant, whereas, Messrs. Daniel Welwel and Gasper Nyika, learned advocates, appeared for the 1st and 2n d respondents respectively. When given a chance to address the Court on the appeal, Mr. Buberwa adopted the written submissions and highlighted some few matters. On the first ground of appeal, Mr. Buberwa argued that the 1st respondent alleged to have delivered two empty forty inches containers with identification marks INBU 5355980 and MSCU 4335272 to the appellant on 11th April, 2011 and 20th April, 2011 respectively, and that, he was issued with the EIRs and IRs dated 11th April, 2011 and 20th April, 2011 to accept the delivery of the containers. It was his submission that the 1st respondent was required to tender in evidence the copies of the alleged EIRs and IRs before the trial court to establish its case but it failed to do so claiming that the documents were in possession of the appellant. Mr. Buberwa faulted the trial court and the first appellate court when they relied on the contents of a letter dated 20th October, 2011, li

exhibit P2, which the 2n d respondent clearly stipulated that the EIRs were fake as the appellant denied to have issued them. He argued that, since there was nothing before the trial court to prove that the empty containers were actually delivered by the 1st respondent to the appellant, the 1st respondent failed to prove its case on the balance of probabilities. Mr. Nyika supported the appellant's appeal on the first ground of appeal that the 1st respondent failed to establish its case on the preponderance of the balance of probabilities. He submitted that the burden of proof lies on the person who alleges it. He pointed out that, according to paragraphs 4 and 5 of the plaint, the 1st respondent alleged to have delivered two empty containers to the appellant and sought, among other reliefs, payment for the delivered containers. He contended that, in order to prove the two containers were delivered, the 1st respondent ought to have tendered in evidence the EIRs and IRs but it failed to produce them. He contended further that the first appellate court shifted the burden to the appellant and the 2n d respondent to prove the documents were not genuine while the 1st respondent did not discharge its duty. Relying on the case of Paulina Samson Ndawavya v. Theresia Thomas Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453 (11 December 2019; TANZLII), he argued that the burden of proof never shifts to the adverse party until the party on whom onus lies 12

discharges his, and that, the burden of proof is not diluted on account of the weakness of the opposite party's case. Responding to the appeal, Mr. Welwel first adopted the written submissions he filed to this Court and argued that, on the strength of the evidence of the 1st respondent, the two lower courts rightly held that the containers were delivered to the appellant. It was his submission that, in a second appeal, the Court rarely interferes with the concurrent findings of fact by two courts below unless there is clear misapprehension of evidence or miscarriage of justice or violation of law. To support his argument, he cited the criminal cases of Mohamed Selemani v. The Republic (Criminal Appeal 105 of 2012) [2012] TZCA 221 (2 July 2012; TANZLII), Benjamin Nziku v. The Republic (Criminal Appeal 151 of 2010) [2012] TZCA 149 (28 March 2012; TANZLII) and Buruhani Hawezi v. The Republic Criminal Appeal No. 51 of 2012 (unreported). He pointed out that both PW1 and PW2 testified before the trial court that they physically went to the depot of the appellant to deliver the two empty containers, and that, the factual evidence of these two witnesses was not materially challenged by the other side. He added that DW2 had no personal knowledge of all factual issues as he was not in the employment of the appellant during the transaction period. 13

Having carefully considered the rival arguments on the first ground of appeal, we find that the issue before us is whether the 1st respondent discharged its duty of proving, in the required standard, that the two empty containers with numbers INBU 535590 and MSCU 4335272 were delivered to the appellant as instructed by the 2n d respondent. The counsel for the appellant impressed upon us to find that the decision of the first appellate court was not supported by the evidence. He contended that there is no scintilla of evidence proving that the 1st respondent returned the two empty containers to the appellant. It was his submission, in order to prove the containers were returned and received by the appellant, the 1st respondent ought to have tendered in evidence the EIRs and IRs but it failed to produce them. In order for us to adequately determine this issue, we have to revisit the entire record of appeal. Before, we do that, we need to point out, as enjoined by counsel for the 1st respondent, that this being the second appeal, the Court rarely interferes with the concurrent findings of facts by two lower courts. It can only disturb them where it is clearly shown that there has been a misapprehension of evidence, a miscarriage of justice or violation of some principle of law or procedure- see the case of Amratlal Damodar 14

Maltaser & Another v. A.H. Jariwalla t/a Zanzibar Hotel [1980] T.LR. 31. Further, we wish to re-emphasize the ever-cherished principle of law that the burden of proof lies on the party who alleges as stipulated under sections 110 and 111 of the Tanzania Evidence Act (the TEA) thus: "110 (1) Whoever ■ desires any court to give judgm ent as to any iegai right or lia b ility dependent on the existence o f facts which he asserts m ust prove that those facts exist (2) When a person is bound to prove the existence o f any fact, it is said that the burden o f proof lie s on that person . 111. The burden o f proof in any su it lie s on that person who would fa il if no evidence were given on either sid e." Generally, the standard of proof in civil proceedings is on the preponderance of probabilities, however, there are certain instances where a higher standard of proof is required, such as, allegation of fraud

• see: for instance, our decision in the case Omari Yusufu v. Rahma Ahmed Adbulkadr [1987] T.L.R. 169. Let us now see as to whether the 1st respondent managed to prove, on a preponderance of probabilities that, the two empty containers were delivered to the appellant. We have alluded to earlier that the first 15

appellate court concurred with the trial court and held that the containers were delivered to the appellant. Here, we wish to reproduce the reasoning of the first appellate court thus: 7 have considered the reasoning and evaluation o f the tria l court and the reasons given in his judgm ent, which to my considered opinion was right in his reasoning. In addition to his reasoning on this point, my reasons fo r agreeing with the tria l court are: one, I have read the contents o f exhibit P2, which was a letter from the 2nd respondent, dated 20th October, 2011 at paragraph 2 the said letter speaks for itse lf and for clarity I find it apposite to produce the impugned paragraph here verbatim: am very sorry to inform you that the interchange you presented to us as the proof o f the containers return to shipping depot, has been rejected by the shipping owners and explained as faked docum ents' This piece o f evidence tells a ll about the interchange documents for delivery were delivered to the 2nd respondent to enable paym ent which was not in dispute and after being acknowledged by the appellant. This is to say, the appellant and the 2nd respondent had the interchange documents that were alleged to be fake 16

documents but they never wanted to produce them during tria l to prove the faked allegations and ju stify the rejection o f paym ent The pertinent question is, if the presented documents were found faked ones, why was not this incidence not reported to police for investigation a t a ll m aterial time. Two, the allegations that the said documents were fake ones, came from the appellant and the 2nd respondent, therefore, had a legal burden o f proof under section 110 (2) o f the Tanzania Evidence A ct to prove what they alleged and wanted the court to decide in their favour. Three, if the appellant and the 2nd respondent had a genuine claim against the 1st respondent, why they did not raise a counter claim which could have allow ed them to claim the m issing containers. Four, the conduct o f the parties and the time taken to report back the alleged containers is to be resolved in favour o f the 1st respondent The first report o f the m issing came after elapse o f five months down the road. They waited five months to complain, in particular, when they received the claim invoices for paym ent is when they came up with the w ild claim, this conduct unless proved otherwise is an unacceptable in the circum stances o f this appeal. This conduct is other than the negligence on the part o f the appellant and the 2nd respondent" 17

With great respect, we are not persuaded with the observation made by the first appellate court as exhibit P2 cannot be a proof that the containers were delivered to the appellant. We have stated herein that EIR is a vital document because it traces the movement of the container from its collecting point up to its final destination. According to the evidence on the record, the 2n d respondent instructed the 1st respondent to collect empty container numbers INBU 5355980 and MSCU 4335272 from AMI depot and deliver them to Shoprite then to the appellant's offices. This means that the 1st respondent was required to have a copy of EIR showing the condition of the container at each stage of its movement, that is, from its collecting point at AMI up to its final destination at the appellant's offices, and as said, EIR is used to verify that the equipment was transferred from one point to another and was delivered in the same condition as it was received. In paragraphs 4 and 5 of the plaint, the 1st respondent alleged that, on 11th April, 2011, and on 20th April, 2011, it returned the said empty container to the appellant and it was issued with EIRs and IRs. Therefore, the burden of proof lies upon the 1st respondent to prove that it returned the empty containers to the appellant as instructed by the 2n d respondent. Much as we agree with the counsel for the 1st respondent that PW1 and PW2 testified to the effect that they physically went to deliver the 18

empty containers at the offices of the appellant, their evidence need to be considered in the light of the whole evidence on record and without losing focus that the burden of proof always lies on the person who alleges. It is instructive to point out here that copies of the alleged EIRs were attached to the plaint but were never tendered in evidence. Given that EIR is an essential document which ensures that the transfer of the container was done smoothly and efficiently from one point to another, we strongly believe that the 1st respondent ought to have tendered in evidence to establish its case. In the appeal before us, we gathered from the record of appeal that the only documentary evidence establishing the status of containers received by the appellant is exhibit D1 collectively which was tendered by DW2. Exhibit D1 are copies of the EIRs of 11th April, 2011 and 20th April, 2011 which show that container numbers INBU 5355980 and MSCU 4335272 were not among the seven containers received by the appellant on 11th April, 2011 and 20th April, 2011. It is, therefore, on our respective view that, on the balance of probabilities, the oral testimonies of PW1 and PW2 cannot override the documentary evidence of exhibit D1 which is normally used to verify delivery of the containers. Since the 1st respondent failed to tender in evidence the alleged EIRs of 11th April, 2011 and 20th April, 2011, we entirely agree with the counsel for the appellant and the 19

2n d respondent that the 1st respondent failed to discharge its duty of proving the two empty containers were actually delivered to the appellant. In addition, as rightly submitted by Mr. Nyika, the burden of proof never shifts to the adverse party until the party on whom onus lies discharges his. In that respect, the burden of proving that EIRs which were in 1st respondent's possession were fake documents could only have shifted to the appellant and the 2n d respondent after the 1st respondent had tendered in evidence the alleged documents. Since the 1st respondent did not tender them in evidence, we find that the first appellate court erred when it shifted the burden of proof to the appellant and the 2n d respondent while the same were not proved to have been issued by the appellant. Besides, our reading of exhibit P2, it clearly depicts that the EIRs presented to the 2n d respondent as proof of delivery were found by the appellant to be fake documents. Given the misapprehension of evidence and the violation of the cherished principle of law on the burden of proof, we are entitled to interfere with the concurrent findings of the two lower courts which we hereby do. Since the first ground of appeal suffices to dispose the entire appeal, we see no need to proceed in determining the remaining grounds of appeal and the cross-appeal. 20

In the end, we find merit in the appeal. Accordingly, we allow it by quashing and setting aside the judgments of the two lowers courts and the decrees arising therefrom. Further we make an order that the appellant and the 2n d respondents shall have their costs. DATED at DAR ES SALAAM this 2n d day of September, 2024. B. M. A. SEHEL JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL The Judgment delivered this 6th day of September, 2024 in the presence of Mr. Erasmus Buberwa, learned counsel for the appellant, Mr. Jacob Kaisi, learned counsel for the 1st respondent and Mr. Gasper Nyika, learned counsel for the 2n d respondent; is hereby certified as a true copy of the < 21