Mexon's Investment Limited vs DTRC Trading Company Limited (Civil Appeal No. 91 of 2019) [2021] TZCA 3551 (16 November 2021)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: LILA. J.A.. KITUSI. J.A., And KAIRO. J.A.^ CIVIL APPEAL NO. 91 OF 2019 MEXON'S INVESTMENTS LIMITED..................................................APPELLANT VERSUS DTRC TRADING COMPANY LIMITED ...... ....................................RESPONDENT (Appeal from the decision o f the High Court of Tanzania (Commercial Division) at Dar es Salaam (Songoro, J.) dated 4hJanuary 208 in Commercial Case No. 120 o f 2015) (Awadhi, 3.) Dated the 4th day of January, 2018 in Commercial Case No. 120 of 2015 JUDGMENT OF THE COURT 4hOctober, 2021 & W h November, 2021 LILA JA: The respondent successfully sued the appellant in the High Court (Commercial Division) for payment of TZS 82,940,000.00 being the unpaid amount of the fertilizers supplied and delivered to the appellant. The appellant was thereby ordered to pay the claimed amount, general damages to the tune of TZS 25,000,000.00 and interest at 12% per annum on the decretal amount and costs of the case. Dissatisfied, the appellant has accessed this Court faulting that decision. i

From the pleadings and the evidence on record, it clearly appears that it was undisputed that the parties entered into a sale contract in which it was a term that the respondent would supply and deliver to the appellant 529 tons of fertilizers for the period of one year from 26/9/2012 to 25/9/2013. That contract ended smoothly by each party performing its part of the contract and there was no formality by either party to renew the same was made. It was, however, the respondent's claim that, notwithstanding the expiry of the contract period, supply and delivery of fertilizers to the appellant continued whereby the appellant received 231 tons of fertilizer worth TZS 205,440,000.00 from 5/12/2013 to 12/12/2013 and the appellant effected payments against the invoices such that TZS 82,940,000.00 remained outstanding as of 4/11/2014. The respondent's claims were seriously disputed by the appellant alleging, substantially, that no contract between the parties existed after the lapse of the first contract and that the claims were not proved at the required standard. 2

In his judgment, the learned judge, relying on clauses 1.1 and 2.0 of the contract (exhibit P2), the testimonies by PW1, PW2 and PW3 and tax invoices and consignment notes (exhibits 3), was convinced that supply and delivery to the appellant of fertilizers continued after the expiry of the contract on 25/9/2013 hence the contract of sale existed/continued after the expiry of the former contract. By acceptance of the goods supplied, the learned judge held, it could be inferred from the conduct that payment would be done. As for the issued TZS. 300,000,000.00 bank cheque (exhibit P5), he decided that it was payable and was for payment of supplied consignments and future business. In the end, he found the appellant liable to pay for the supplied fertilizers, damages and costs as shown above. The finding by the High Court aggrieved the appellant who has advanced five grounds of appeal seeking to fault that decision. These are:

1. The trial court erred in law and in fact by holding that the appellant owes the respondent the sum of Tanzanian Shillings EightyTwo Million Nine Hundred and Forty thousand (TZS. 82,940,000.00) in absence of requisite and cogent evidence. 3

2. The trial court erred in law and in fact by holding that a dummy cheque worth Tanzanian Shillings Three Hundred Million (TZS. 300,000,000.00) is bankable for purposes of payment.

3. The trial court erred in taw and fact by finding that after expiry of the contract between the parties, the respondent continued to supply fertilizers to the appellant and that the appellant accepted such deliveries.

4. The trial court erred in law and in fact in admitting the respondent's exhibits which exhibits had not complied with the mandatory requirements of law.

5. The decision of the trial court is otherwise faulty and bad in law and in fact. Subsequent to lodging of the memorandum of appeal, the appellant and the respondent lodged, respectively, written submissions in support of the appeal and submission to oppose the appeal. Instead of reciting the contents of submissions, we propose to only make reference to them in the due course of the judgment. Mr. Daniel Welwel and Mr. Lusui, both learned advocates, represented the appellant at the hearing of the appeal. For the respondent, Mr. Emmanuel Marwa, learned advocate, resisted the appeal. Both sides

relied on the written submissions they had earlier on lodge which they adopted in full with no further elaborations. Given the nature and substance of the grounds of appeal, we find it convenient to first consider ground 3 and 4 of appeal jointly. That is done not without a purpose. The respondent's claims were founded on existence of contract. Prevalence of contract was determined by the learned judge after consideration of business relationship between the parties as exhibited by the documents tendered as exhibits. If the two grounds are not sustained, it is obvious that the matter will end there with no reason to consider the remaining grounds of appeal. Then we shall consider ground 1 followed by ground 2 and lastly ground 5 of appeai. The complaint in grounds 3 and 4 touches on documents tendered and admitted as exhibits. The complaint is two-limbed. First; they were wrongly admitted as exhibit in contravention of Rule 48(2) read together with the Third Schedule Part 3, items 3.3 (a) to (d) of the High Court (Commercial Division) Procedure Rules, 2012 (the Rules). Second; the documents (exhibits) were heavily relied on to establish extension of the contract after the expiry of the first contract.

Starting with the first limb which need not detain us much, the appellant's complaint is that, going by his own words; "Rule 48(2) read together with the Third Schedule Part 3.3 (a) to (d) require that all documents intended to be exhibited in court should be annexed to respective witness statements and be marked as provided for in the Third Schedule." As rightly submitted by the appellant and as reflected at page 143 of the record of appeal, the same issue was raised and overruled by the court. In so doing, the court said that under Rule 48(l)-(i) of the Rules, it was not a pre-condition that an exhibit must be annexed to the witness statement which position is supported by the respondent in their written submission. We hasten to say that there is a clear misconception of the import of item 3.3 of the Third Schedule of the Rules on the part of the appellant. For clarity, we take the liberty to reproduce it as under:- "3.3. At the top right end corner o f the first page (and on the back sheet) o f each exhibit there shouid be dearly written . a. The party on whose behalf it is tendered; b. The initials and surname o f the witness; 6

c, The number o f the witness statement in relation to that witness; d. The identifying initials and number o f each exhibit referred to. "(Emphasis added) While the above is the case, Rule 48 which provides for what should a witness statement entail, does not impose as a condition that an intended exhibit should be annexed to the witness statement. Clear as it is item 3.3 concerns how exhibits should be written or marked. It has nothing to do with the exhibits being annexed to the witness statements as complained by the appellant. The condition put forward by the appellant before the High Court and before us has no legal backing hence a misconception. We therefore see no justification to fault the judge's finding in his ruling dated 11/5/2017 and his admission of the exhibits. Ground 4 of appeal is hereby accordingly dismissed. The second limb emanates from ground 3 of appeal. The learned judge is being faulted for holding that the respondent continued to supply the fertilizers to the appellant who also received them after expiry of the contract between the parties. While avoiding the risk of repeating what we have explained in the summary of the case above, from the submissions by the parties, it is plain that the express and written agreement (contract) for

sale of the fertilizers (exhibit P2) ended on 25/9/2013 and our reading of the respondent's claim indicates that there was no issue about the fertilizer supplied during the subsistence of such contract. The claims are founded on the fertilizers allegedly supplied and delivered to the appellant after expiry of the contract. On the other side, their contention is that, after the expiry of the written contract, there was no contract between the parties and there was no proof that the respondent continued to supply and deliver to the appellant fertilizers which were allegedly paid for in part leaving the claimed amount unpaid. These arguments by the parties raise two crucial issues which call for our determination. One; whether there was contract between the parties after the expiry of the written contract, and, two; whether the respondent continued to supply fertilizers to the appellant. We begin with the first issue. It is obvious that a contract may be written or unwritten. It is written where parties' expressions are reduced into writing and is unwritten where the proposal and acceptance takes the form of words or conducts of the parties. The latter form is sometimes referred to as implied contract. The way an offer is communicated by one party and accepted by the other party determines the form of a contract. 8

Sections 4, 5, 6, 7, 8 and 9 of the Law of Contract Act, Cap. 345 R.E. 2002 (now 2019) (the LCA) take care of that. Reverting back to our case, it is vivid from the learned judge's judgment that he was aware of the expiry of the written agreement but deduced continuance/existence of the contract through the consignments of fertilizers allegedly supplied and received by the appellant. He relied on the seven tax invoices and delivery notes (exhibit P3) tendered by PW3 to arrive at that finding. He was however convinced that the contract of sale (exhibit P2) which expired had no provision as to what would happen to the fertilizers supplied thereafter. And, this seems to support the appellant's contention in the written submission that no contract existed thereafter. We don't think this is a true construction of the contents of exhibit P2. Clause 1:2 of exhibit P2 provides thus:- "Kifungu 1:0 K1P1ND1/MUDA 1:1 ............. (IM/A) 1:2 Endapo ndani ya miezi 3 kabla ya mkataba huu kumafizika hakutakuwa na taarifa yoyote ya maandishi kutoka pande mmojawapo, kuhusu kuendelea na mkataba basi itahesabika moja kwa moja muda wa mkataba huu umeongezwa kwa kipindi kilekile. 9

1:3. ............ (N/A)" Another relevant clause of the contract is clause 7.0 which states that:- "7.0 KUVUNJA MKATABA 7.1 Upande wowote unaweza kuvunja mkataba kwa kutoa taarifa ya siku 7 7.2 Endapo wakala atakiuka yote yaliyomo kwenye mkataba huu basi Kampuni itavunja mkataba baada ya kutoa taarifa kwa maandishi ya sababu ya kuvunjika kwa mkataba huu ." With the existence of these clauses in exhibit P2, the discussion on whether or not there was continuation of the contract was unnecessary. Neither of the parties claimed to have had indicated to the other party in writing his intention to discontinue the earlier contract within the specified period of three months before 25/9/2013 or terminated the contract. These were terms of contract to which parties were bound to comply with (See section 37 of the LCA). It being a written contract, in terms of section 101 of the Evidence Act, Cap. 2019 (then Cap. 2002) (the EA) a party to a written contract is not permitted to lead oral evidence tending to contradict the terms of the contract stipulated therein. In that accord and in terms of 10

clause 1.2 of exhibit P2 the contract automatically extended by one year beginning on 26/9/2013 and was to end on 25/9/2014. Besides, the issue whether or not there was continuation of the agreement or contract between the appellant and the respondent could be determined by considering the transaction involving the parties to this suit. Under the expired contract which was for sale of fertilizer under which the respondent supplied fertilizers to the appellant for sale, it becomes clear that a contract of sale of goods existed between the parties. Such agreement, we hasten to say, falls under the provisions of section 3 (1) of the Sale of Goods Act, Cap. 214 R. E. 2002 (now 2019) (the SGA) which states: "3 (1) A contract o f safe o f goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration called price, and there may be a contract o f sale between one part owner and another." In law, it is not necessary that an agreement of sale should be in a written form. We are reinforced in this view by the provisions of section 5 (1) of li

the SGA, which states: "5 (1) Subject to the provisions o f this Act and or any other written law in that behaif, a contract o f sale may be made in writing (either with or without seaI) or by word of mouth > or partly in writing and partly by word o f mouth or may be implied from the conduct o f the parties." In the present case, after considering the conduct of the parties, the learned judge was satisfied that the transaction involving the parties to this suit meant the contract continued. We entirely agree with the respondent that the learned judge's finding was correct. Like the learned judge, we examined the tax invoices and the DRTC Consignment Notes which show the fertilizers were supplied and delivered between 11/12/2013 and 12/12/2013. To say the least, we are impressed by the manner the learned judge examined all the tax invoices, the delivery notes and the DRTC consignment notes to arrive at the conclusion that the respondent continued to supply and the latter received the fertilizers after the expiry of the former contract hence establishing that the parties' contract continued. We can do no better than he did in that aspect. 12

Even assuming that the above was not the case, the appellant would still be liable to pay for the fertilizers supplied and delivered to him in terms of section 70 of the LCA. That section states:- "70. Where a person lawfully does anything for another person , or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore , the thing so done or delivered. Provided that, no compensation shaii be made in any case in which the person sought to be charged had no opportunity o f accepting or rejecting the benefit" (Emphasis added) Since, in the instant case, it was established that the plaintiff supplied the fertilizers for sale and the same was delivered to the appellant as we shall very soon demonstrate, the appellant would still be caught up by the web and his liability to pay for the supplied fertilizers would still stand. Apart from resolving the issues which arose in grounds 3 and 4 of appeal, the above findings have laid down a foundation such that it is now 13

easy to determine the appellant's complaint in ground 1 of appeal. Basically, the complaint is grounded on the allegation that there was no cogent evidence establishing the appellant's liability to pay TZS. 82,940,000.00. We, at first, entirely agree with the appellant that the respondent's claim was for a liquidated sum of money hence needed proof and the burden of proof rested on the respondent. The balance of probabilities is the standard set in establishing claims in civil claims and the respondent's claims were not an exception. We appreciate and agree with the appellant that the cited cases of Stanbic Bank Tanzania Limited vs Abercrombie & Kent (T) Limited, Civil Appeal No. 21 of 2001, Zuberi Augustino vs Anicet Mugabe [1992] TLR 137 and Anthony Ngoo & Davis Anthony Ngoo vs Kitinda Kimaro, Civil Appeal 25 of 2014 expounded the correct position of the law. The issue we are invited to determine here is whether or not the claim of TZS. 82,940,000.00 was sufficiently proved by the respondent. The appellant contended that it was not. Reliance was put on PW1, PW2 and PW3's averments in their respective witness statements which he said were unsatisfactory. PW3, who tendered exhibit P4 (Statement of Account of the respondent) which revealed the outstanding amount as being TZS. 14

82,940,000.00, was seriously criticized for making a sweeping statement over the appellant's indebtness to the respondent. Exhibit P4 was also challenged that it being a computer generated document, it was not supported by record, PW3 not being the maker could not produce it in court but the accountant, it was not a jointly made document hence does not qualify to be a reconciliation statement and finally that it made reference to bank deposits while the issue of bank payments was not pleaded in the plaint. The respondent, on the rival side thought otherwise. Under this complaint, we think, the Court is being asked to re evaluate the evidence placed before the trial judge and find the trial judge's findings faulty. We are aware that it is settled law that the duty of the first appellate court such as what we are now, is to reconsider and evaluate the evidence and come to its own conclusions. The proceedings take the form of a re-hearing where the court is entitled to re-assess the facts and form its own conclusions based on the facts. (See Mwita Sangali vs Republic, Criminal Appeal No. 266 OF 2011 and Pandya vs R (1957) EA 336). We will perform that duty by re-evaluating the evidence of PW1, PW2 and PW3. However, before we venture into that exercise, we find it apposite to state that reception of evidence in the High Court 15

(Commercial Division) is guided by the Rules. Rules 48 and 49 are relevant here. In sum, they require, where proceedings are commenced by a plaint like in the instant case, evidence-in-chief be given by way of presenting in court witness statements which have to be made on oath or affirmation. In compliance with that requirement, the respondent (then plaintiff) presented witness statements by PW1, PW2 and PW3. The statements therefore formed part of the plaintiff's evidence. On the appellant's side (then defendant), DWl's witness statement was presented and formed the only defence evidence. We have seriously examined the witness statements of PW1 and PW2 as well as their oral evidence in court. We entirely agree with the appellant that such evidence, taken alone, could not be able to prove the respondent's claims. They could not sufficiently show how the claimed unpaid balance was arrived at. However, like the learned presiding judge, we are satisfied that PW3's witness statement and his testimony in court including the exhibits he tendered, particularly exhibits P3 and P4 proved the claims. He was, both in his witness statement and oral account, clear on how the claims arose. He produced tax invoices and delivery notes (exhibit P3) and statement of account in respect of the appellant (exhibit 16

P4) which by 4/11/2014 showed the outstanding balance to be TZS.82,940,000.00. In His judgment, after examining exhibits P3 and P4 the learned judge reasoned thus:- "Moving to the 3rd issue o f whether or not the defendant owes the piaintiffa sum ofshs. 82,940,000:00\ I find there is testimony o f PW1, PW2 and PW3 and exhibit P3 which shows defendant was supplied bags o f fertilizers by the plaintiff. Also the same witness maintained a sum o f shs 82,940,000 has remained outstanding and their testimony is supported by the DRTC Trading Company Ltd Statement Exhibit P4 which shows that by 4/11/2014 the defendant has an outstanding debt ofshs 82.940,000. It seems to me the plaintiff has discharged his burden which shows about 4,600 bags o f fertilizers were delivered and accepted by the defendant after the expiry o f the contract, and plaintiff has issued as exhibit statement of account showing indebtness. I am convinced that the presented evidence proves that the defendant is indebted to the sum o f shs 82,940,000 because if the defendant is denying the liability, he would have tendered receipts or invoices or bank slips which shows payment o f all consignments were duly made. In view o f exhibit P4 and 17

testimonies o f PW1, PW2 and PW3 I find and decide that the defendant owes the piaintiffa sum ofshs 82,940,000." The appellant's denial of the claims as contained both in the witness statement of DW1 and oral evidence in court centered on absence of a renewed contract. We have amply demonstrated above that the contract continued. That finding renders the appellant's defence fallacious and baseless. The finding notwithstanding, we shall consider the evidential value of exhibit P4 which has been seriously challenged by the appellant. The first challenge is that it is not supported by any record it being a computer prepared tabulation. Neither was the relevant law forming the basis of the challenge was cited to us providing that as a requirement nor any elaboration made to us. We could not therefore comprehend the nature of the infraction complained of. We refrain from entering into a realm of speculation. To be safe, we hereby disregard the challenge. Secondly, section 63 of the EA is also allegedly to have been violated in the process of tendering it and that PW3 not being the author could not tender it. To grasp the essence of the complaint, we hereunder reproduce that section. It provides:- 18

"63. The contents o f documents may be proved either by primary or by secondary evidence." We do not see the relevance of that section in the present case and the complaint pointed out. This provision does not deal with who is competent to tender documents but rather how documents may be tendered as exhibits. In consequence, we find the challenge misplaced. The appellant lastly contended that exhibit P4 makes reference to payments made through bank which allegation was not pleaded in the plaint. It is a principle of law that each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment being properly made. Again, this contention is baseless. It is plain that paragraphs 7, 8 and 9 of the plaint talk of the claim and payments made by the appellant to the respondent. Paragraphs 8 and 9, to be specific, made reference to statement of account and cheque the copies of which were annexed to the plaint. These presupposed payments were made through bank. It cannot therefore be said that the issue of the bank being involved in the payments was not pleaded in the plaint. The appellant's contention is therefore nothing but a kick of a dying horse. It is baseless. 19

In conclusion, like the learned judge, it is our finding that the respondent proved his claims for payment of TZS. 82,940,000.00. The figure was arrived at by the learned judge after examining all the tax invoices and delivery notes. He was correct in his calculation. The appellant was therefore, by his action or conduct, estopped from denying that the fertilizers were supplied and delivered to him subject for payment to the respondent of the above sum of money. Closely linked to the above ground is the complaint in which the appellant seeks to fault the trial judge for awarding the respondent general damages at the tune of TZS. 25,000,000.00. The appellant contended that placing reliance on staying with the money for four years as a basis of granting that amount as damages was improper because that is taken care of by awarding costs. As a matter of law, the appellant's failure to pay the outstanding debt amounted to failure to perform his part of the contract hence a breach of contract in terms of section 37, 38 and 73 of the LCA. Such breach entitled payment of damages to the respondent. The rationale for that can be deduced from what was stated by the Court in the case of Tanzania Sanyi Corporation V. African Marble Company Ltd [2004] TLR 155:- 20

"Genera! damages are such as the law will presume to be the direct , natural or probable consequence o f the act complained of, the defendant's wrong doing must, therefore, have been cause, if not a sole or a particularly significant cause o f damage" In the matter under our consideration, the complained wrong doing was refusal to pay the debt to which the respondent claimed in the plaint that it caused mental torture, disregard, humiliation and loss o f prospective business opportunities . In justifying the award of general damages, the learned judge stated:- "On claim o f damages the court noted from tax Invoices that fertilizers were supplied from year 2013 and still there is an outstanding amount In other words a sum o f shs 82,940,000.00 was withheld by the defendant, if released would have been released to the plaintiff would have been invested in plaintiff business. But that opportunity was denied. The cardinal principle in awarding damages is "ratitutio in integrum", that is the law will endervour, so far as a money can do it, to place the injured person in the same situation as if the contract had been performed . The principle was stated in the case o f Cooper Motor Corp. Ltd vs Moshi/ Arusha Occupational Health Services, 21

Civil Appeal No. 1 o f 1990 (unreported). For that reason, I hereby assess and award general damages to the sum o f shs 25,000,000.00 because the defendant has stayed with plaintiff money for about 4 years..." There is no doubt, the learned judge had knowledge of the guiding principle in the assessment of general damages and the case he cited propounded the correct position of the law. Apart from the guidance provided in the cited decision, the learned judge ought to have had an eye on the provisions of section 73 of the LCA which not only stipulates the rights of parties in the event of breach of contract but it also gives guidance and limitations on what should be considered in the determination of the damages to be awarded. For ease of reference we hereunder reproduce that section in extensor.- "73.-(l) Where a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course o f things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach o f it (2) The compensation is not to be given for any remote 22

and indirect loss or damage sustained by reason o f the breach . (3) Where an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge is entitled to receive the same compensation from the party in default as if such person had contracted to discharge it and had broken his contract. (4) In estimating the loss or damage arising from a breach o f contract, the means which existed o f remedying the inconvenience caused by the non-performance o f the contract must be taken into account." We have taken liberty to examine the evidence by the plaintiff's witnesses both in their respective witness statements and oral accounts, unfortunately, we were unable to find evidence, however slight, establishing loss, injury or damage the respondent sustained following failure to be paid the outstanding debt which was to be made good by the damages to be awarded. In the absence of such evidence we do not see how the court could assess the extent or determine the amount to be awarded. The duty lay on the respondent and was not discharged. The learned judge's finding was not evidence based. Worse still, the reasons he gave were not alleged in the plaint. The respondent was bound by his 23

pleadings and therefore ought to have led evidence to prove his allegations contained in the plaint. With respect, the grounds on which the assessment was based were of the learned judge's own formulation. That is not permitted. The course taken by the learned judge reminds us of the court's remarks, from which we intend to seek inspiration so as to make our point, in the case of Backlays Bank vs Jacob Muro, Civil Appeal No. 357 of 2019 (unreported), in which the Court cited with approval the passage of an article by Sir Jack I. H. Jacob Titled "The Present Importance of Pleadings," published in Current Legal problems (1960) at page 174 in which it was stated that:- "As the parties are adversaries, it is ieft to each one of them to formulate his case in his own way, subject to the basic rules o f pleadings... For the sake o f certainty and finaiity, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is not part of the duty of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute 24

which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the reaim o f speculation." The exposition of the law accorded with the observation in Morghan's Law of Pleading in India, 10th Edition at page 25 that:- "The Court cannot make out a new case altogether and grant relief neither prayed for in the plaint nor flows naturally from the grounds of claim stated in the plaint. % Emphasis added) Introduction of evidence not led by the respondent into the judgment, in our view, amounted to a judge making a new case of his own and leading evidence in its support. A fair and impartial court is forbidden to do so. On that account we find the award of damages at the tune of 25,000,000.00 was faulty. We allow this ground of appeal and hereby quash and set aside that award. Now back to ground 2 of appeal. It was not controverted that the appellant issued to the respondent a cheque worth 300 Million shillings (exhibit P5). The appellant claimed it was a dummy cheque not payable 25

whereas the plaintiff through PW3 contended that it was guarantee for payment of supplied fertilizers and future business but when it was presented to the bank for payment it was returned unpaid for want of sufficient amount in the appellant's account. Much as the appellant's liability to pay the supplied fertilizers is not at issue now, this ground of complaint seems to have lost relevance. However, for the sake of it we determine it. Our reading of the appellant's arguments through DW1 in both his written witness statement and evidence in court in respect of the reason for issuance of exhibit P5 could not impress us at all. He simply said it was not a bankable cheque. The parties were doing business hence issuance of a cheque could have no other meaning other than payment or consideration for the goods either supplied or to be supplied as rightly contended by the plaintiff. We stop there. In view of our discussion and findings in grounds 1, 2, 3 and 4, the contention in ground 5 of appeal one may not afford to hold that the trial court decision was faulty and bad in law and in fact. Conversely, save for the award of general damages which we have disallowed, the trial court's decision was proper for reasons we have endeavoured to narrate in our 26

discussion of each and every ground of complaint. This ground succeeds only to that extent. In fine, save for the appeal against award of damages which we have allowed, the appeal has no merit. It is dismissed. As the appeal has partly succeeded, we see no justification to grant costs to either party. We accordingly order each party to bear its own costs. DATED at DAR ES SALAAM this 12.th day of November, 2021. S.A. LILA JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL The Judgment delivered this 16th day of November, 2021, in the presence of Mr. Daniel Welwel, learned counsel for the Appellant and Ms. Jackline Majule, learned counsel for the Respondent, is hereby certified as a true cqp^bf £W^Q$qinal K -. \ 0 - N f j O t f m * M i|| G > H HERBERT

• s * ? / / DEPUTY REGISTRAR

• COURT OF APPEAL 27