IN THE COURT OF APPEAL OF TANZANIA 
AT DODOMA
(CORAM: MWAMBEGELE. J.A.. KEREFU, 3.A. And MAIGE. J.A.)
CIVIL APPEAL NO. 175 OF 2019
NITRO EXPLOSIVES (T) LIMITED....................................................APPELLANT
VERSUS
TANZANITE ONE MINING LIMITED............................................RESPONDENT
[Appeal from the Judgment and Decree of the High Court of Tanzania 
(Commercial Division), at Dar es Salaam]
(MjiqQig?, J.)
dated the 13th of June, 2019 
in
Commercial Case No. 118 of 2018 
JUDGMENT OF THE COURT
26th October & 3rd November, 2021
MWAMBEGELE, J.A.:
The background facts leading to this appeal are very simple and not
difficult to comprehend. The appellant was the plaintiff in Commercial 
Case No. 118 of 2018 in the Commercial Division of High Court sitting at 
Dar es Salaam (the High Court). She sued the respondent for, inter alia, 
payment of USD 141,935.61 and Tshs. 71,167,875/25 which were 
outstanding amounts arising from the sale of explosives to the respondent. 
It was alleged in the plaint that the appellant and the respondent were 
parties to an agreement in which the appellant was to supply explosives to
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the respondent for her mining sites in Mererani area, in Manyara Region. 
According to the appellant, she supplied the explosives as agreed and gave 
out invoices to the respondent for each supply, whereas, the respondent 
promised to remit the payments on the same within sixty working days 
from the date each invoice was issued.
The appellant continued supplying the explosives to the respondent 
as agreed but stopped on 22.11.2017, as the respondent had not cleared 
payment for the invoices sent to her. The appellant sent several demand 
notices to the respondent to no avail, hence the suit.
The appellant duly served the respondent with a copy of the plaint as 
appearing at p. 9 of the record of appeal but the respondent never filed a 
Written Statement of Defence (WSD). In consequence whereof, the 
appellant filed an application for a default judgment in terms of rule 22 (1) 
of the High Court (Commercial Division) Procedure Rules, 2012 -  GN No. 
250 of 2012 (the Commercial Court Rules). In its "default" Judgment, the 
High Court dismissed the suit on the ground that the appellant failed to 
establish her claim as she failed to attach important documents and that 
the affidavit relied upon by the appellant was not self-explanatory as it did 
not contain all the details required to prove the case and also that the
documents attached were not authentic as they did not show who 
prepared them as well as who certified them as to their correctness. 
Moreover, it was the High Court's view that the agreement itself was not 
clear if it was an oral or written agreement which raised doubt as to 
whether there was such an agreement in the first place. The High Court 
therefore went on to dismiss the suit with no order as to costs.
The appellant was aggrieved by the decision of the High Court. She 
thus lodged an appeal to the Court with four grounds of complaint which 
may be paraphrased as under:
1. That the trial court erred in law and fact by holding that on a balance 
of probabilities the appellant failed to establish her claim;
2. That the trial court erred in law and fact by failing to take into 
consideration and analyzing annexture 2 in which the respondent 
admitted to the principal amount owed to the appellant;
3. That the trial court erred in fact by holding that the annexures in the 
affidavit in proof of the claim were not certified while they were 
certified; and
4. That the Trial court erred in law and fact by dismissing the 
appellant's claim.
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When the appeal was called on for hearing before us on 26.10.2021, 
Mr. Salimu Juma Mushi, learned advocate, appeared for the appellant. The 
respondent, though duly served, defaulted appearance. Given the state of 
affairs, Mr. Mushi successfully prayed to proceed with the hearing of the 
appeal in the absence of the respondent in terms of rule 112 (2) of the 
Tanzania Court of Appeal Rules.
Mr. Mushi had earlier on lodged written submissions in support of the 
appeal which he sought to adopt as part of his oral submissions.
In the written submissions, Mr. Mushi contended in respect of the 
first ground that the High Court erred in holding that the appellant failed to 
establish her claim. He added that the appellant deposed in the affidavit 
that she had an agreement with the respondent for the supply of 
explosives and that she did supply the respondent explosives worth USD
141,935.61 and Tshs. 71,167,875/25. He contended that the respondent 
admitted the claim through a letter dated 20.06.2018 which was a reply to 
the demand notice. That letter, he submitted, was annexed to the affidavit 
and the appellant craved leave of the court for it to be part of the affidavit. 
That, he argued, was enough proof of the case on the balance of 
probabilities.
With regard to the second ground of appeal, Mr. Mushi submitted 
that the High Court erred in not taking into consideration the contents of 
the letter; annexture 2 in which the respondent admitted to owe the 
appellant the principal amount claimed. That, he pleaded at paragraph 8 of 
the affidavit that the respondent admitted to the claim but that he never 
made good the amount claimed. He argued that it was an error on the 
part of the High Court to ignore the letter under discussion. The learned 
counsel supported his submission on the point with our decision in Bruno 
Wenceslaus Nyalifa v. The permanent Secretary, Ministry of Home 
Affairs & Another, Civil Appeal No. 82 of 2017 (unreported) in which the 
Court held that annextures to the affidavit should not be ignored.
In the third ground, Mr. Mushi submitted that the High Court erred in 
holding that the annextures attached to the affidavit in proof of the claim 
were not certified while in fact they were. He added that the documents 
were certified to be true by advocate Joseph Yahaya Mbogela on 
01.06.2019. It was Mr. Mushi's submission that the High Court's assertion 
to the effect that the appellant did not show who prepared the statements 
was not justified because they were prepared on the letter heads of the 
appellant thereby showing that it was the appellant who prepared them.
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After all, he contended, the question as to who prepared them was 
irrelevant.
The last ground of appeal is a complaint that the High Court erred in 
dismissing the appellant's claim because there was evidence that the 
respondent defaulted appearance and a default judgment ought to have 
been entered against the respondent. As distinct from an exparte 
judgment, a default judgment is given automatically, he submitted. He 
reproduced a definition by Black's Law Dictionary of what a default 
judgment is and added that a default judgment is given against a 
defendant and not otherwise. He went on to submit that had the High 
Court found that the appellant failed to prove her case, it should have 
ordered to prove it ex parte.
Having submitted as above, Mr. Mushi prayed that the appeal be 
allowed with costs.
We have considered the submissions of the appellant's counsel. The 
main issue for our consideration is whether the High Court erred in 
dismissing the appellant's claim. We will address this issue in the course of 
considering the first two issues conjointly.
We start by a statement that the Commercial Court Rules are 
applicable to proceedings in the Commercial Division of the High Court. In 
terms of section 2 thereof, the Civil Procedure Code, Cap. 33 of the revised 
Edition, 2019 (the CPC) is only applicable when there is a lacuna in the 
Commercial Court Rules. Under rule 22 (1), a plaintiff is entitled to apply 
for a default judgment by filling Form No. 1 set out in the schedule to the 
Commercial Court Rules. It provides:
"(1) Where any party required to file written 
statement of defence fails to do so within the 
specified period or where such period has been 
extended in accordance with sub-rule (2) of rule 20\ 
within the period of such extension, the Court may, 
upon proof of service and on application by the 
plaintiff in Form No. 1 set out in the Schedule to 
these Rules accompanied by an affidavit in proof of 
the claim; enter judgment in favour of the plaintiff."
In compliance with this rule, the appellant in the case at hand, 
having seen that the respondent was duly served but did not file a WSD, 
he sought, and was granted, the indulgence to invoke rule 22 (1) of the 
Commercial Court Rules. In the affidavit that accompanied Form No 1, 
Johannes Jacobus Viljoen, principal officer of the appellant, deposed, inter 
alia, that the respondent owed the appellant the amount claimed and
attached a demand notice thereof. The demand notice claimed USD
41,935.61 and Tshs. 71,167,875/25 short of which a suit would be 
preferred in court to claim the sum. The appellant also deposed that the 
respondent replied to that demand notice agreeing that she owed the 
appellant the principal amount and that she was willing to settle the matter 
without recourse to litigation. For clarity, we reproduce the respondent's 
response to the demand notice; the letter bearing Ref. No.
EA/TOA/2018/6/13 dated 20.06.2018:
"REF: EA/TOA/2018/6/13 20* June 2018
The Managing Partner (Salim Mushi),
Elite Attorneys,
P.O. Box 1976, Arusha
RE: DEMAND NOTICE FOR AN OUTSTANDING 
PA YMENT AND NOTICE OF INTENTION TO SUE
Reference is made to the above captioned matter.
We have taken note of your demands and acknowledge the 
principal amount owed to your Client. As you may be aware, 
for the past 10 months we have not been in operation due 
to matters beyond our control. As a result, we have not 
been in a position to generate funds to pay a large part of 
our suppliers, your client being one of them.
This past month we successfully concluded negotiations with 
the Government of Tanzania, whereby a new frame-work of
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operations will commence. Setting up this new framework 
takes time, we anticipate commencing operations sometime 
in the coming month or two.
We would like to inform your client that we have started 
internal processes to raise finances for kick-starting our 
operations. At the time of drafting this letter, our request for 
a facility from a financial institution has been partly granted.
We request to update and furnish your client with a concrete 
re-payment schedule in the following two weeks.
Kindly note, that it our intention to settle this matter without 
the need of recourse to litigation. We thank your client for 
their continued support and we assure them to have this 
matter finalized in the coming weeks. Together we have 
fostered a good-working relationship and your client remains 
an integral part of our operations for years to come.
Sincerely,
Signed
Kisaka Eneza Mnzava - Company Secretary
Mr. Mushi submitted before us that the High Court should not have 
disregarded this admission by the respondent. With profound respect, we 
think Mr. Mushi is right. The letter reproduced above was a response to the 
demand notice by the appellant bearing Ref. No. EA/TOA/2018/6/13 of 
13.06.2018. Had the High Court considered this letter, we are certain it 
would not have made the verdict it did. In Bruno Wenceslaus Nyalifa
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(supra), like here, the trial court ignored the documents which were 
annexed to the affidavit under the pretext that they were not tendered in 
evidence. We articulated at pp 9 -  10 of the typed judgment of the Court:
'We find further that the documents which were 
annexed to the appellant’s affidavit should not have 
been disregarded on the ground that they were not 
tendered in evidence. This is for obvious reason 
that, affidavit is evidence and the annexture thereto 
is intended to substantiate the allegations made in 
the affidavit Unless it is controverted therefore, the 
document can be relied upon to establish a 
particular fact"
We went on:
"... it was wrong for the learned judge to disregard 
the documents which were annexed to the 
appellant's affidavit on account that the same were 
not tendered in court at the time of hearing the 
application."
In the instant case, given that the respondent admitted the claim in a 
letter which was appended to the affidavit forming part of it, admitting not 
only indebtedness but also inability to settle the amount claimed for the 
reasons stated therein, and a proposal to settle the matter out of court, the
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High Court erred in holding that the appellant did not prove her claim. The 
contents of the letter; annexture 2 to the affidavit, if we are to digress, are 
plain enough to constitute admission which, had the suit been tried in a 
court other than the Commercial Court, would have entitled the appellant 
to apply for a judgment on admission in terms of Order XII rule 4 of the 
CPC. The High Court asked itself a lot of questions relating to the 
agreement between the parties whether it was oral or written, failure by 
the appellant to annex the said agreement if it was written, failure by the 
appellant to append invoices, etc. With profound respect, we do not think 
these document were relevant in view of the respondent's admission in the 
letter referred to above. We thus find justification in the appellant's 
complaint in the first and second grounds of appeal.
The third ground of appeal is a complaint on the annextures to the 
affidavit. The High Court held that they were not certified. We have had a 
glance at the annextures. They are certified as true copies of the original 
by Joseph Yahaya Mbogela and a rubber stamp impression appearing on 
each of the annextures shows that the said Joseph Yahaya Mbogela is an 
advocate, notary public and commissioner for oaths. We thus find 
justification in the appellant's complaint on this ground as well.
Having answered the first three grounds as meritorious, it follows 
that the last ground must be meritorious as well. That is, the High Court 
erred in dismissing the appellant's claim.
In the upshot, we find merit in this appeal and allow it. As a result, 
we set aside the dismissal judgment of the High Court and substitute it 
with a default judgment for the claimed amount. This appeal is allowed 
with costs in this Court and the court below.
DATED at DODOMA this 2nd day of November, 2021.
J. C. M. MWAMBEGELE 
JUSTICE OF APPEAL
R. J. KEREFU 
JUSTICE OF APPEAL
I. J. MAIGE 
JUSTICE OF APPEAL
This Judgment delivered this 3rd day of November, 2021 in the 
presence of Mr. Kelvin Mgendera, learned counsel holding brief for Mr. 
Salim Juma Mushi, learned counsel for the Appellant and in the absence of 
the Respondent who was duly served, is hereby certified as a true copy of 
the original.
v Jx H. P. NDESAMBURO
)z DEPUTY REGISTRAR
IM l COURT OF APPEAL
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