| dc.description | JNM MINING SERVICES LTD v. MINERAL ACCESS SYSTEMS TANZANIA LTD
COURT OF APPEAL OF TANZANIA AT DAR-ES-SALAAM (Mkuye, Kihwelo and Makungu, JJ.A.) CIVIL APPLICATION NO.395 OF 2019
(Appeal from the Judgment and Decree of the High Court of Tanzania at Dar es Salaam,Ngwala, J., dated 19th day of June, 2019, in Civil Case No.177 of 2015.)
Breach of Contract – Notice of Termination of Contract – Requirements – Whether the parties are duty bound to comply with the terms and conditions of that contract.
Civil Practice and Procedure – Pleadings – Issues – Whether the Judge is obliged to decide on each and every issue framed to resolve the dispute.
This is an appeal from the decision of the High Court of Tanzania at Dar es Salaam, whereby the appellant herein aggrieved by decision of Ngwala, J. who dismissed the case on account of failure to prove its claim beyond the standard required in civil litigation. The appellant herein entered into a mining consultancy agreement with the respondent on 3rd September, 2014, and among the fundamental terms of the mining consultancy agreement was the termination clause, which required either party wishing to terminate the agreement to communicate the material breach in writing and in a manner specified in the agreement in view of amicably settling the dispute. In the trial court the appellant who was the plaintiff sued the respondent for breach of contract claiming among other things, TZS. 120,950,000 as special damages, interest on specific damages at the rate of 31% per month from the day of filing the suit and general damages to the tune of TZS. 100,000,000.00. The High Court Trial Judge dismissed the suit in its entirely with costs, and thereafter the appellant raised four points of grievance through a memorandum of appeal, i) by faulting the learned trial Judge for her failure to acknowledge that the appellant issued a notice of termination of contract in compliance with Clause 5 of the Consultancy Agreement, ii) the learned trial Judge erroneously held that the appellant did not prove the case to the standard required in civil case and iii) faulted the learned trial Judge for failure to address the framed issues and instead came up with her own facts that led to a wrong conclusion.
The questions for determination raised by the Court are; whether the appellant in the instant appeal complied with the letter and spirit of the agreement as required under clause 5 of the consultancy services agreement. Whether the learned trial Judge did not address the framed issues and instead came up with her own facts that led to a wrong conclusion.
Held: (i)The function of the law of contract is to provide an effective and fair framework for contractual dealings and it is on that account that the function of courts is to enforce and give effect to the intention of the parties as expressed in their agreement and in the instant appeal, the intention of the parties was expressly stated in clause 5 of the consultancy services agreement which quite unfortunate was not followed by the appellant. In view of the foregoing, the first ground of appeal is misconceived and therefore is hereby dismissed. Having dismissed the first ground of appeal the Court find no need to discuss the second ground of appeal which is automatically disposed as it is directly related to ground one.
(ii) The Court is alive to the time-honored principle of pleadings that each issue framed should be definitely resolved and that a judge is obliged to decide on each and every issue framed to resolve the dispute. The Court found considerable merit in the submission by the counsel for the respondent in that the learned trial Judge resolved all the issues that were framed. The Court did not accept and found the argument by the learned counsel for the appellant to be incorrect. Therefore, grounds three and four are held to be devoid of merit. They are accordingly dismissed.
Appeal Dismissed with costs.
Case Laws referred to:
• Edwin Simon Mamuya v. Adam Jonas Mbala [1983] TLR 410.
• Sinyoma Company Limited v. Bulyanhulu Gold Mine Limited, Civil Appeal No. 172 of 2017 (unreported).
• Alnoor Sharrif Jamal v. Bahadur Ebrahim Shamji, Civil Appeal No. 25 of 2006 (unreported).
• Sheikh Said v. The Registered Trustees of Manyema Masjid [2005] TLR 61
Statutory provisions referred to:
• Tanzania Evidence Act, Cap.6 R.E. 2002, section 110 and 111.
Mr. Richard Mathias Kinawari, for the Appellant.
Mr. Denice S. Tumaini, for the Respondent | en_US |
