alois finance tanzania limited vs quality leasing company and another 2021 tzhccomd 2040 29 march 2021

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM. COMMERCIAL CASE NO. 94 OF 2020 ALOIS FINANCE TANZANIA LIMITED............................... PLAINTIFF VERSUS QUALITY LEASING LIMITED COMPANY.................... 1st DEFENDANT QUALITY GROUP LIMITED........................................ 2nd DEFENDANT Date of Last 0rder:17/03/2021. Date of Judgement: 29/03/2021. DEFAULT JUDGEMENT. MAGOIGA, J. This is a default judgement as result of breach of contract and failure to enter defence despite dully served ON 12/10/2020 and 10/11/2020. The plaintiff, ALOIS FINANCE TANZANIA LIMITED by way of plaint instituted the instant suit against the above named defendants praying for judgement and decree in the following orders, namely: a. A declaration that the 1st and 2nd defendants are in breach of the Vehicle Lease Agreement dated 22nd July, 2016 and the Letter of Corporate Guarantee dated 22nd July, 2016; i b. Payment of USD.44,618.06 equivalent to TZS.103,510,995.10 being the outstanding amount that the 1st and 2nd defendants failed to remit to the plaintiff for goods "Rover Range Autobiography 4.41 SDV8" delivered in accordance with the Vehicle Leasing Agreement dated 22nd July,2016; c. Payment of interest at commercial rate prevailing at the date of judgement, or such rate as the honourable court may deem fit and just, accruing and computed from the date of judgement of this suit; d. Payement of general damages amounting to TZS.50,000,000.00 as general compensation of any cost, loss, or liability incurred by plaintiff due to defendant's actions and in pursuit to recover the goods; e. Payment of costs of this suit; and f. Any other relief(s) that the Honourable Court may deem fit and just. The plaintiff is enjoying the legal services of Mr. Francis Pius, learned counsel. The facts of this suit as gathered from the plaint are that, on 22nd July, 2016 the plaintiff and 1st defendant entered Vehicle Lease Agreement No. TZ16CCB0340 for an irrevocable lease period of 36 months, leasing a Range Rover Autobiography 4.4L SDV8 worth USD.518,098.09 equivalent to 2 TZS. 1,202,099,914.33 inclusive of VAT as per the terms and conditions as contained in the agreement. The said vehicle was delivered and received by the 1st defendant in good condition. It is further alleged that the 2nd defendant through Letter of Corporate Guarantee dated 22nd July 2016 agreed to be bound by the Lease No. TZ16CB0340 dated 22nd July 2016 between the plaintiff and the 1st defendant guaranteeing the repayment of the whole amount as per the agreement together with interest or costs arising thereof. Further facts were that on 15th September 2016 to 18th September,2020, the plaintiff issued the 1st defendant with invoice of USD.518,098.34 but the 1st defendant paid only USD.490,179.07 leaving unpaid amount of USD.27,919.27 plus late fee of USD.16,698.79 which makes a total of USD.44,618.06. It is further alleged that, even efforts by the plaintiff to have the money paid by issuing demand notices were in vain, hence, this suit claiming the reliefs as contained in the plaint. Consequently, the defendant breached the terms of the agreement and the plaintiff claim the repayment to the tune of TZS.91,500,672.15, hence this suit. 3 The record of the Court is loud and clear that, the defendants were served with the plaint and summons on 12/10/2020 and on 10/11/2020. Upon being served with the plaint and summons the defendant engaged Mr. Charles Kaboigola, learned advocate to defend them. On 12/11/2020 when this suit was called on for orders, Mr. Kaboigola learned advocate for the defendants appeared in court for the defendants and Ms. Ester Peter, learned advocate for the plaintiff. Mr. Kaboigola informed the Court that "we have been served and I have been instructed to represent the defendants and we intend to file defence within the prescribed time." Consequently this suit was adjourned to 13/12/2020. On that date, no defence was ever filed and the suit was again scheduled on 15/02/2021. The learned advocate for the plaintiff, in the circumstances, prayed that she be allowed to comply with the provisions of Rule 22(1) of the High Court (Commercial Division) Procedure Rules, 2012 as amended by G.N.107 of 2019. I granted the prayer because time to file written statement of defence and time for filing extension of time to file written statement of defence had long elapsed. It is upon this background, this Court on strength of such proof of service, granted the plaintiff's prayer to prove her case by filing Form number 1 accompanied with affidavit in proof of the claim as provided for under Rule 4 22 (1) as amended by G.N. 107 of 2019, paving way for this default judgement. In proving the claim, the plaintiff on 12th day of March 2021 filed in this Court, Form 1 accompanied by the affidavit of, one, Yohane Sunguya who is the principal officer of the plaintiff. Having carefully gone through the affidavit and the exhibits 1-5 annexed in proof of the claim, I am satisfied that the plaintiff has discharged his legal burden required in civil cases. In essence this suit revolves around breach of contract on the part of the defendants for unjustifiably failure to pay USD.43,195.33 which is equivalent to TZS. 100,229,376.54 being outstanding amount that the 1st and 2nd defendants failed to remit to the plaintiff for goods "Rover Range Autobiography 4.4L SDV8" delivered in accordance with the Vehicle Lease Agreement, hence, breach of contract. In the foregoing, therefore, I find this suit proved to the standard required in civil cases with reservation on the amount claimed in the plaint and proved. This Court faced with similar situation in the cases of NITRO EXPLOSIVE (T) LIMITED v. TANZANITE ONE MINING LIMITED, COMMERCIAL CASE NO.118 OF 2018 (HC) DSM (Unreported) AND A-ONE PRODUCTS AND BOTTLERS LIMITED v. TECHLONG PACKAGING MACHINERY LIMITED AND ANOTHER, COMMERCIAL CASE NO 105 OF 2017 (HC) DSM (Unreported) in the interpretation of Rule 22 (1) as amended, held that for the plaintiff to enjoy fruits of justice under Rule 22, the following cumulative ingredients must be proved, namely; (a) Proof of the service to the defendant but who has failed to file written statement of defence. (b) The plaintiff must make an application in the prescribed Form No. 1 to the First Schedule to the Rules. (c) That the said application in Form No.l must be accompanied by an affidavit in proof of the claim (emphasis and underline mine). In the instant suit, there is no dispute that the plaintiff was served in accordance with the law and instructed an advocate who is on record that was representing the defendants. However, despite such proof of service, no written statement of defence has been so far filed nor any application for extension of time to file one. Equally, it is not in dispute that the plaintiff has made an application in prescribed Form No. 1 and same was accompanied with the affidavit in proof of the claim. In the totality of the above, this Court having carefully gone through the affidavit and exhibits 1-5 thereto, I am satisfied that the plaintiff has been able to prove USD.43,195.33 equivalent 6 to TZS. 100,229,376.54 as per exhibit P4 and not USD.44,618.06 which is equivalent to Tshs.103,510,995.10 as claimed in her in the plaint. In the circumstances, I am inclined to enter default judgment in favour of the plaintiff to the tune of USD.43,195.33 which is equivalent to Tshs.100,229,376.54 in item (a) of the plaint being principal and accrues interests as of 22nd July 2016 as exhibited in exhibit P4. Other prayers in items (c) and (e ) are eqully granted as prayed in the plaint save for item (d) which is granted at the tune of TZS.5,000,000.00. The reasons am taking this stance are not far to fetch in this suit; one, plaintiff performance of the contract as agreed on 22nd July, 2016 whereby by virtue of exhibit P4 the said amount of USD.43,195.33 equivalent to TZS.100,229,376.54 was on 21st August 2020. Two, by virtue of exhibit P4, the amount of balance of unpaid debt is USD.43,195.33 and not the one claimed in the plaint. Consequently, therefore, in terms of Rule 22 (1) of the Rules as amended by G.N. No. 107 of 2019, I hereby enter judgement for the plaintiff and decree as follows: a. I declare that the 1st and 2nd defendant are in breach of the Vehicle Lease Agreement dated 22nd July, 2016 and the Letter of Corporate^ Guarantee dated 22nd July, 2016; 7 b. The defendants are jointly and severally ordered to pay the plaintiff USD.43,195.33 equivalent to TZS.100,229,376.54 being an outstanding amount due and late fee as of 21.08.2020 c. The defendants to pay the plaintiff prevailing commercial interest at the date of judgement or 18% from the date of this judgement. d. Payment of general damages to the tune of TZS.5,000,000.00 e. The defendant to pay the costs of this suit. In terms of Rule 22 (2) (a) of the Rules as amended by G.N. 107 of 2019, I further order that the decree in this suit shall not b executed unless the decree holder has, within a period of ten(10) days from the date of the judgement, serve by email and courier or DHL a copy of the decree to the defendant and a period of twenty one days (21) from the date of expiry of the said ten (10) days has elapsed. It is so ordered. day of March, 2021. S.M. MAGOIGA JUDGE 29/03/2021. 8