DAR ES SALAAM: OSE Power Solutions Limited has suffered another defeat in its case against Airtel Tanzania Limited over payments of 2.2bn/- in a dispute involving supply of goods and services.
This follows the decision of the Court of Appeal to dismiss with costs the application lodged by OSE Power Solutions, the applicant, for review of judgment of the Court, which invalidated the decision of the High Court, requiring the mobile service provider company, the respondent, to pay the said sum.
Justices Barke Sehel, Patricia Fikirini and Amour Khamis ruled that the arguments given by the applicant in support of the application for review of the Court's judgment are not good and do not have sound grounds for review.
"(....) we find that, the applicant has not satisfied the requirements for grant of an order for review of the Court's Judgment under rule 66 (1) (a), (c) and (d) of the Rules. Accordingly, the application is hereby dismissed with costs to the respondent," they ruled.
In the case, the decision that the applicant sought to review addressed fifteen grounds of appeal on which the High Court was faulted by Airtel and one of the grounds related to the trial court's alleged error on admissibility of documentary exhibits that were received in evidence against the law.
It was alleged that the said documents, purchase order, invoices, site checklist and printed copies of emails were not part of amended plaint and that the trial court abdicated its duty in ensuring the compliancy of requisite conditions for admission of exhibits including test of relevancy and suitability.
The counsel for the applicant, in response thereof, admitted that, the disputed documents were not part of the amended plaint but the trial court had discretion to admit them notwithstanding non - compliance of the law.
It was asserted that on account of lack of objection by the respondent, the documents were properly admitted in evidence. Focusing on whether the disputed documents were properly admitted, the Court relied on rule 14 of Order VII of the Civil Procedure Code.
Such provision requires documents relied on by the parties to be attached to the pleadings and other decided cases, to point out that, upon amendment of the plaint the previous plaint ceased to have legal effect.
Upon perusal of the record, the justices could not be convinced by the applicant's counsel assertions because in its judgment, the Court pronounced itself fully on the disputed exhibits and gave reasons as to why it did not allow the claim founded on such exhibits.
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They pointed out further that the Court properly exercised its jurisdiction under rule 36(1) of the Rules by re-appraising the evidence on record and drawing inferences of fact.
"In our view, the conclusion reached by the Court took on board the applicant's concerns and did not spare a thorough discussion of the said exhibit. It follows that the applicant's argument cannot be sustained. We think the line of reasoning advanced by the applicant is better suited to an appeal...
"The fundamental flaw in the applicant's argument is on its failure to appreciate that, reasons for appeal are not necessarily reasons for review. This Court has no power to preside over the appeal on its own decision," the justices said.
Throughout the time from 2009 to 2012, the applicant supplied some assorted products such as generators, spare parts, fuel, batteries and other electrical goods to the respondent and rendered professional services in their installation at Airtel Tower and other sites.
