MASOLELE GENERAL AGENCIES v AFRICAN INLAND CHURCH TANZANIA 1994 TLR 192 (CA)

 

MASOLELE GENERAL AGENCIES v AFRICAN INLAND CHURCH TANZANIA 1994 TLR 192 (CA)

Court Court of Appeal of Tanzania - Mwanza D

Judge Omar JJA, Mnzavas JJA and Mfalila JJA

CIVIL APPEAL NO. 13 OF 1994

9 August, 1994

E (From the decision of the High Court of Tanzania at Mwanza, (Masanche, J)

Flynote

Civil Practice and Procedure - Claim for loss of profits - Need for specific proof of

specific claims - Burden of proof. F

-Headnote

This was an appeal against an ex-parte judgment of the High Court dismissing a claim

for loss of profits by the appellant company to the sum of 1.6 million shillings.

G Having won the tender for the supply of iron bars, the appellant company

supplied 225 pieces worth Shs 1,023,700/=, which amount was paid. However, the

appellant claimed that the parties had agreed that payment was to be made upon

supply, and the respondent failed to honour this agreement and made payments

almost a year after delivery of the last supply.

H It was the appellant's case that if payment had been timely, it would have realised

a profit of Shs 1,600,000/= from its cement business. The claim was dismissed by the

Trial Judge on the basis that the claimed loss of profit had not been proved.

Held:

(i) Once a claim for a specific item is made, that claim must be strictly

proved, else there would be no difference between a specific claim and I

1994 TLR p193

a general one; the Trial Judge rightly dismissed the claim for loss of

profit A because it was not proved;

(ii) A bill of costs is nothing more than tabulated costs incurred by a party

in the conduct of the case and which he seeks to be reimbursed by the other party. It

is not an entitlement that may be claimed in the body of a suit.

Case Information

Appeal dismissed. B

No case referred to.

Kahangawa, for the appellant. C

[zJDz]Judgment

Mfalila, JA, delivered the following considered judgment of the Court:

This appeal is against the ex-parte judgment delivered by Masanche, J dismissing a

claim for loss of profits by the appellant company against the respondent the D

African Inland Church Tanzania. In the suit, the appellant company claimed the sum

of Shs 1,660,000/= being loss of business profits it allegedly suffered in the following

circumstances: That in January 1990, the respondent church floated a tender for the

supply of iron bars. The appellant company won the tender and supplied 225 pieces

worth Shs 1,023,700/=. The whole of this amount has been E paid. However, the

appellant claimed that both parties had agreed that payment would be made upon

supply, but that the respondent failed to honour this agreement and made the

payment almost a year later after delivery of the last supply on 22 December 1990.

The appellant's case was that if payment had been F made timeously, it would have

realised a profit of Shs 1,660,000/= from its cement business between January and

September, 1991.

In dismissing this claim, the trial judge held that loss of profits in the cement business

had not been proved. In his view claim for loss of profits, like a claim for special

damages, must be strictly proved. G

In his memorandum of appeal, the appellant complained that the trial judge

misdirected himself on the law as to the standard of proof with regard to loss of

business profits as particularised in paragraph 6 of the plaint. At the hearing of this

appeal, Mr Kakangwa learned advocate who appeared for the appellant, made a H

valiant attempt to expand on this point. But on our part, we are satisfied that the trial

judge's views on the burden of proof were correct. Once a claim for a specific item is

made, that claim must be strictly proved, else there would be no difference between a

specific claim and a general one. In the present case, the appellant company claimed

loss of business profits in the sum of I

1994 TLR p194

MFALILA JA

A Shs 1,660,000/= it would have realised from the cement business. All that was said

in evidence by the Director of that company apparently in proof of this claim was as

follows:

`I had taken Shs 2 million as loan from the bank. The bank took interest of

31% per month. The overdraft facility was to end on 20/6/91. I tender (Exist P2). I

had bank money to buy the B iron bars. I dealt with cement. One wagon gave me

Shs 280,000/= (for 800 bags) I could take one wagon per month. That was since

January 1991.'

C This was all the evidence led on behalf of the appellant company on its cement

operations. No documents were produced to back up these figures which therefore

appear to have been plucked from the air. For instance apart from the appellant's

word, there was no evidence that it deals in cement. What was the D purchase price

of one bag of cement, from which point, what was the transportation cost of one bag

and at what price was it finally sold? The appellant's witness said that one wagon

could be taken a month. Nothing definite here. This is not the kind of information on

which any court could award loss of business profits.

E We were however surprised by the trial judge's last paragraph to the following

effect:

`After a careful consideration, I am of the view that the plaintiff has not

succeeded to prove loss of profit. I think he can claim whatever he is entitled to, in

his bill of costs, if he mind to present it.' (Emphasis supplied.)

F A bill of costs is nothing more than tabulated costs incurred by a party in the

conduct of a case and which he seeks to be reimbursed by the other party. It is never

`a claim of whatever one thinks one is entitled to'. A claim of whatever one thinks

one is entitled to is made in the body of the suit. We only hope that the bill of costs

which was presented by the appellant was not in any way affected by this G

misleading direction.

With this remark we order that this appeal which is without merit be dismissed. As

the respondent did not appear we make no order for costs. H

1994 TLR p195

A