Default Judgment AEC Mining v Pili Juma

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA COMMERCIAL DIVISION AT DAR ES SALAAM COMMERCIAL CASE NO. 137 OF 2023 AECI MINING TANZANIA LIMITED (FORMERLY KNOWN AS AFRICAN EXPLOSIVES TANZANIA LIMITED) ….……..………… PLAINTIFF VERSUS PILI JUMA POLLE ……………………………………………….. 1ST DEFENDANT T/ A TIMCO PROFESSIONAL TIMOTHEO MIHAMBO ………................................................... 2ND DEFENDANT DEFAULT JUDGMENT July 9th, 2024 & August 2nd, 2024 Morris, J In this suit, the plaintiff prayed for judgment and decree against the defendants jointly and severally for various reliefs. These include, payment of Tshs 106,726,080.00/= being unsettled debt; interest thereon at 18% per annum from 11.11.2022 to the date of judgment; court interest of 7% on the decretal amount from the date of judgment to final payment; costs of the suit and any reliefs at the Court’s discretion. 2 The claims above are founded on the plaintiff’s allegations that the defendants breached an agreement for supply of explosive products and services (the agreement) between them. I will first tell the material facts of this suit in brief. Around May and June 2020, the plaintiff and defendants executed the agreement. Among other services, the former covenanted to supply explosives to the latter. The business was conducted on orders, delivery and invoice modal. The plaintiff would supply the defendants with explosive products on credit. The defendants were to pay the plaintiff for the supplied/delivered products upon receipt of the plaintiff’s applicable invoices. Allegedly, plaintiff performed his obligations under the agreement. Accordingly, as of 30.06. 2020, the total value of the supplied explosive products to the defendants was Tshs 106, 726,080.00/=. Nevertheless, the defendants did not pay despite the plaintiff’s endless follow ups. The parties’ dispute therefrom gave rise to this case. However, the plaintiff’s efforts to serve the defendants with the Court summonses for them to file written statements of defence (WSD) and appear in Court were futile. Hence, summonses of 12.12.2023; 28.02.2024; and 09.04.2024 were wasted efforts. Finally, the plaintiff tried substituted service 3 by publishing the summons in Mwananchi Newspaper on 30.04.2024. Nevertheless, the defendants neither entered appearance in court nor did they file their respective WSD. Pursuant to the defendants’ inaction above, the plaintiff’s advocate prayed for the default judgment against both defendants. Accordingly, an application for default judgment was filed in court by the plaintiff under rule 22(1) of the High Court (Commercial Division) Procedure Rules, 2012 as amended by the High Court (Commercial Division) Procedure (Amendment) Rules, 2019 (the Rules). In support of the application an affidavit sworn by the plaintiff’s Principal Officer, Mr. Deon De Wet (the affidavit) was also lodged. Categorically, the application moved the Court for judgment and decree against the defendants as per the reliefs stated in the plaint. In view of what is presented above therefore, the issue for determination in this matter is whether the reliefs sought by the plaintiff in this suit are tenable in law. To begin with, I will recite rule 22(1) of the Rules under which this judgement was pursued for precision of the subsequent interrogations and conclusions. It provides as follows; 4 “Where any party required to file written statement of defence fails to do so within the specified period or where such period has been extended in accordance with sub rule (2) of rule 20, within the period of such extension, the Court may, upon proof of service and on application by the plaintiff in Form No. 1 set out in the Schedule to these Rules accompanied by an affidavit in proof of the claim, enter judgment in favour of the plaintiff.” From the foregoing excerpt, the law lays down five principles for the grant of the default judgment. First, the party required to file WSD fails to do so within time. Second, service of summons to such party is proved. Third, the plaintiff moves the court to enter default judgement formally. Fourth, the plaintiff’s application to conform with Form No.1 of the Rules. Fifth and last, the plaintiff proves his claim by filing the affidavit thereof. The above essentials are also covered in deepness by this Court in Alaf Limited v Ummy Hashim Kazungu, Commercial Case No. 120 of 2022; Nitro Explosive (T) Ltd v Tanzanite One Mining Ltd., Commercial Case No. 118 of 2018; A-One Products & Brothers v Techlong Packaging Machinery Ltd & Another, Commercial Case No. 105 of 2017 (all unreported) in this regard. 5 With viewpoint of the earlier introductory text in this judgement, the Court is satisfied that the foregoing five statutory conditions have been met. Specifically, the defendants failed to file their respective WSD; proof of service of summons to the defendants was established by the plaintiff; the plaintiff moved this court for the default judgment; and the application for default judgment has complied with the requirements of rule 22(1) of the Rules. Therefore, in line with the fifth condition proof of the plaintiff’s claims in the plaint is by way of an affidavit. In the premises, the predominant question at this point in time is whether the affidavit has proved the alleged cause in this suit. As stated above, the plaintiff’ claim is founded on allegations of breach of the agreement for supply of explosive products and services. This fact was also stated in paragraph 11 of the affidavit. It was pleaded specially in the plaint that the agreement was concluded between the plaintiff and defendants. Accordingly, the plaintiff supplied the defendants with explosive products on credit but the defendants did not effect payment upon receipt of respective invoices from the plaintiff. 6 Allegedly, the products supplied to the defendants by the plaintiff as on 30.06.2020 were worth Tshs 106,726,080.00/=. The plaintiff issued five (5) invoices: Invoice No. 911000498 dated 29.04.2020; Invoice No. 911000560 dated 29.05.2020; Invoice No. 911000567 of 29.05.2020; Invoice No. 911000610 of 30.06.2020 and Invoice No. 911000611 dated 30.06.2020. The Invoices were for payment of Tshs 48,289,266.44/=; 30,434,316.92/=; 36,600,467.34/=; 18,587,490.74/= and 11,990,178.24/= respectively. Such allegations were proved by the plaintiff’s deposition under paragraphs 5 and 6 of the affidavit. In the said paragraphs, reference was made to the attached copies of delivery notes and invoices (AECI-3 and AECI-4, respectively). The plaintiff’s further allegations in the plaint were that, the defendants are in breach of the agreement as they have failed and/or neglected to repay any part of the outstanding amount as agreed, despite various reminders. The reminders include demand notice dated 10.11.2022. This fact is also deposed in the affidavit with the supporting copy of the correspondence (AECI-5). 7 I have meticulously examined affidavit together with its supportive documents attached (AECI-3 and AECI-4). In fact, the documents indicate that the plaintiff supplied the products to the defendants. AECI-3 shows that the representatives of the parties duly signed delivery notes. To me, such revelation suffices to prove that, the products were actually supplied to and received by the defendants. Moreover, AECI-4 shows that it was issued by the plaintiff to the defendants. The invoiced amount totals Tshs 145,901,719.68/= VAT inclusive and 123,645,525.15/= VAT exclusive. I have further considered the demand notice (AECI-5). The same was written by the plaintiff and addressed to the defendants for claim of Tshs 106,726,080/=. It was received by the defendants’ representative on 11.11. 2022. However, the difference in figures contained in the invoices (AECI-4) and the demand letter (AECI-5) is not explained by the plaintiff. All that is indicated in the latter correspondence is that the demanded amount was “outstanding”. Be that as it may, the amount claimed therein is tallies with the one claimed in this suit. As the sum is the latest demand by the plaintiff, the Court draws positive inference thereof. Further, as the money herein has 8 been outstanding for sometimes, the plaintiffs earn the interest on it. To be precise, the facts and evidence in this suit remain uncontroverted by the defendants howsoever for absence of WSD. Therefore, basing on the above given examination, it is overt that, the affidavit has proved the claim in the plaint. For the foregoing reasons and analysis, the issue raised is answered in affirmation. Consequently, pursuant to rule 22 (1) of the Rules, this Court hereby enters a Default Judgment in favour of the plaintiff. For avoidance of doubt, the Court holds and orders that: a) The defendants jointly and severally shall pay the plaintiff Tshs 106,726,080.00/=. b) The defendants are jointly and severally liable to pay the plaintiff interest on the amount in (a) above at 18% per annum from November 11th, 2022 to the date of this judgment. c) The defendants shall pay 7% interest on the decretal sum from the date of this judgment to the date of full payment. d) The defendants shall bear costs of this suit. 9 It is so ordered. The right of appeal is explained. C.K.K. Morris Judge August 2nd, 2024