Africa-Press – Tanzania. Dar es Salaam
. The Court of Appeal has vacated an order requiring Airtel Tanzania Limited to pay its supplier OSE Power Solutions Limited Sh2.2 billion for breach of contract.
The highest court of the land said the order could not legally stand because the invoices and other documents that OSE presented as proof of service were not properly admitted in the High Court.
“The trial court erred in relying on documents that were improperly admitted and which led to findings that there was a breach of contract and that the respondent’s claims had been proved,” said justices—Shaban Lila, Winfrida Korosso and Panterine Kente.
The decision follows appeal by Airtel which challenged order of the High Court that it pays OSE Sh1.9 billion and $143,484 as cost of goods and services supplied and another Sh20 million as general damages for breach of contract.
The contractual dispute can be traced between 2009 and 2012 when Airtel contracted OSE for supply of generators, spare parts, fuel, electrical installation for the Airtel towers.
The supplier (OSE) was also to do other electrical and general services of Airtel towers and generators including supply of fuel and batteries to the sites.
But on March 3, 2012 OSE sued Airtel after accusing the company of failing to settle payments for the goods and services supplied through a plaint that was later amended with court’s permission.
At the hearing of the appeal, Airtel contended that the High Court erred in admitting and relying on documents which were not part of the amended plaint
“There was violation of law in admitting various exhibits, that is, the purchase order, invoices, site checklist and printed copies of emails referred and used by the respondent (OSE),” argued Airtel.
It was their contention that documents attached to the original plaint that was abandoned were admitted by the trial court despite not being attached in the amended plaint
OSE maintained that the documents they relied on to prove their claims were not part of the amended plaint, and that their admissibility was proper since it complied with section 65A of the Evidence Act.
Following the arguments, the court was to decide on the correctness of admitting documents which were not annexed to the amended plaint but were part of the original plaint.
“We are of the view that had the trial judge carefully considered the law which governs the process where there is an amended plaint, she would not have arrived at the conclusion she did,” said the judges.
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