TANZANIA – Serengeti Breweries Limited (SBL), a Tanzanian subsidiary of East Africa Breweries Limited, has lost an appeal to the ruling of the commercial court that had rejected its Sh1 billion (US$427899) claim from Break Point Outdoor Catering Limited for alleged breach of a contract for the supply of beer and spirits.
The beer manufacturer and Break Point entered into a contract for the supply of beer and spirits between 2012 and 2013 on a “transaction on empty beer crates” basis.
However, after a series of smooth sale transactions, the trade relationship turned sower as SBL expressed discontent over Break Point’s mode of implementing its contractual obligation.
SBL went ahead to file a lawsuit against its partner in the trade agreement, to which it claimed that after conducting reconciliation, it discovered that the company was indebted to Sh1 billion in the outstanding balance after the supply of beer and spirits.
At the hearing of the initial case at the commercial court, Break Point denied the allegation and raised a counter-claim of Sh439 million it claimed to have overpaid SBL.
The commercial court dismissed SBL’s claim for want of merit as well as Break Point’s counter-claim on similar grounds.
The trial judge held that there was no evidence to establish that the respondent (Break Point) was indebted to SBL or that Break Point had made any overpayment to be entitled to any monetary refund from the appellant.
SBL was discontented and filed an appeal in 2019 to have the court overrule the previous decision of the commercial court that dismissed a suit in which it had sued the sports and recreation company for non-payment of Sh1 billion, allegedly being the purchase price for beer and spirits supplied to the firm.
In support of their claim, the lawyer for SBL counsels Elizabeth Mlemeta, relied mainly on the delivery notes, the sales invoices, and the load control sheet, which she said were the basis of establishing her client’s claim.
Nevertheless, the highest court of the land has upheld the decision of the commercial division of the High Court that SBL has failed to adduce convincing evidence to prove the Sh1 billion claim.
Justices of appeal Rehema Mkuye, Panterine Kente, and Paul Khwelo in the latest decision said: “Because the appellant failed to bridge the yawning chasm between her claim and the evidence on record, we are unable to fault the learned trial judge.”
According to an analysis of the Justices of appeal, SBL’s document titled “General Conditions of Sale” was silent regarding the mode of payment.
In determining the appeal, the justices of appeal considered the fact that for every sale transaction between the appellant and respondent, payment was secured by Break Point’s issuance of a postdated cheque which remained under SBL’s custody and could only be returned to the respondent after payments.
“As we have shown, the appellant (SBL) had not even a single postdated cheque in her possession issued by the respondent as would have created the impression that indeed the respondent is still indebted to her,” said the Justice court.
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