THE Court of Appeal has dismissed with costs the appeal by City Coffee Limited against payments of over 450m/- to Registered Trustee of Ilolo Coffee Group in a transaction involving supply of 120,251 kilogrammes of coffee.
Justices Richard Mziray, Rehema Mkuye and Jacobs Mwambegele ruled against the City Coffee Limited, the appellant, after holding that the grounds advanced in support of the appeal against the High Court judgment lacked merits. “We find this appeal seriously wanting in merits.
It stands dismissed with costs to the respondent (Registered Trustee of Ilolo Coffee Group). It is so ordered,” they declared.
During hearing of the appeal, the appellant had contended that the trial judge erred both in law and facts for condemning him to pay for the coffee which was not supplied and delivered by the Registered Trustee of Ilolo Coffee Group, the respondent, to the appellant.
The appellant lawyers had also submitted that the trial judge erred both in law and facts in her judgment for ordering the payment which was not proved by the respondent and that she erred both in law and facts in her judgment for not considering the strong evidence of the appellant.
In their judgment, however, the justices were of the view that the respondent, on a balance of probabilities, through exhibits tended, proved that the consignment of coffee under discussion was delivered to the appellant.
There were claims by deference witness that the receipt evidencing the supply of the coffee was forged.
Referring some other decided cases, the justices said that allegations of fraud must be strictly proved, although the standard of proof may not be so heavy as to require beyond reasonable doubt.
They said that it is clear allegations of fraud in civil cases, the particulars of fraud, being a very serious allegation, must be specifically pleaded and the burden of proof thereof is heavier than a balance of probabilities generally applied in civil cases.
“Adverting to the case at hand, the appellant did not plead fraud in the Written Statement of Defence. The appellant simply said there were no such deliveries to her.
Not a complaint came forth regarding forgery,” the justices noted. According to them, the allegation just surfaced in the testimony of defence witness during cross examination by the respondent’s counsel.
“We do not think the appellant proved this allegation to the required standard; a standard higher than the balance of probabilities - not even on the balance of probabilities.
That, being a statement from the bar, is unacceptable. If anything, that is purely an afterthought,” the justices ruled.
They also ruled that the High Court did not err in ordering payment as it did, for, the respondent had sufficiently established that she delivered the alleged coffee to the appellant.
On the complaint that the High Court did not consider the strong evidence of the appellant’s witness, the justices found no scintilla of merit in such protest.
They observed that with what was articulated by the High Court in the appellant’s witness was considered to the hilt. “We find no iota of truth in the appellant’s complaint.
The third ground of appeal also fails,” they ruled. The appellant lost a suit in the High Court in which he was sued by the respondent for 486,786,952/= being the value of 120,251 kilogrammes of coffee delivered and sold to her but not paid for.
After a full hearing during which the appellant featured one witness and tendered exhibits and the respondent fielded three witnesses and also tendered exhibits, the trial court awarded the respondent 451,955,700/- plus interests and 4m/- as general damages, as well as costs of the suit.