Court name
Court of Appeal of Tanzania

Masolele General Agencies vs African Inland Church Tanzania () [1994] TZCA 20 (09 August 1994);

Law report citations
1994 TLR 192 (TZCA)
Media neutral citation
[1994] TZCA 20

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

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 Gmisleading 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