EXPARTE AMC TANZANIA LIMITED COMMECIAL NEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SHINYANGA SUB REGISTRY AT SHINYANGA COMMERCIAL CASE NO. 5636 OF 2024 AMC TANZANIA LIMITED ………………………………..PLAINTIFF VERSUS JUNIOR CONSTRUCTION COMPANY LTD…………… DEFENDANT EXPARTE JUDGMENT 6th August & 6th September, 2024 Massam, J:. The plaintiff in this case entered into Motor Vehicle Sales Contract with the defendant on 3rd day of October 2019, in which the defendant agreed to purchase the Brand New 4X4 Nissan Patrol with registration No. T 853 DRU for the consideration of payment of Tshs 207,990,000/= (USD 90,000 VAT inclusive. They agreed further that defendant was to make the payment to the plaintiff within six months from 30th day of November 2019 until 30th day of April 2020. Also, it was alleged that on 13th day of November, 2019, the defendant entered into another Motor vehicles sales contract with the plaintiff for purchase of 4 units of Brand New 4x4 Nissan hard body with registration number T 752 DSD,T 757 DSD,T760 DSD,T 761 DSD for the 1 consideration of USD 25,500 VAT inclusive for each Motor vehicle which resulted to the total consideration of USD 102,000 VAT inclusive which is equivalent to TZS 235,824,000/= and defendant was to make payment of the said amount within 12 months thus from 28th day of February 2020 until 27th day of November, 2020. Appellant, they added that during the course of their relationship he fulfilled her duties as per the terms and conditions of the agreement by delivering the said vehicles to the defendant without any claim whatsoever regarding their condition. Moreover, the plaintiff issued various invoice to the defendant to the tune of TZS 443,814,000/= for the payment on the vehicle which were provided to the defendant. However, the defendant has managed to pay only TZS 152,519,800/= hence leaving an outstanding balance of Tshs. 291,294,200/= and the defendant has failed to pay the said amount despite multiple follow-ups and remainder from the plaintiff, hence plaintiff with Board Resolution resolved to file the instant matter. The plaintiff before this Court claiming against the defendant for the following reliefs; i. A declaration that the defendant is in breach of the terms and condition of the sale agreement entered with plaintiff. 2 ii. Payment of total sum of TZS 291,294,200/=(Tanzania Shillings Two Hundred Ninety-one Million Two hundred Ninety-Four Thousands Two hundred only or its Equivalent in United States Dollars) being the outstanding payment for the five units of motor vehicles with Registration Number T 752 DSD, T 757,T 760,T 761 and T 853 DRU which were supplied by the plaintiff to the defendant which emanates from the payment obligation under the Motor vehicle sale contracts between the parties entered on 3rd October 2019 and on 13th November 2019. iii. Interest at a commercial rate of 12% from the date of the said sum stated in paragraph II became due to the date of the judgment. iv. Interest at court rate of 10% on the decretal sum from the date of judgment to the date of final payment v. Payment of TZS 50,000,000/= as the general damages vi. Costs of this suit, and vii.Any other relief the Honorable court shall deem fit and just to grant. 3 This suit was heard ex-parte due to the fact that the defendant did not appear despite of many summonses which this court issued through plaintiff to serve him but he was nowhere to be found as his office was closed for longtime, after that plaintiff succeeded to attach a copy of summons on the door of the defendant office, but still, he did not appear. Later the plaintiff with order of the court succeeded to summon the defendant by way of substituted service through Mwananchi Newspaper dated on 5th July, 2024. At the hearing of this case, the plaintiff was represented by Ms. Ester Mlimandambo Advocate while the defendant as I have said was absent without any notice or excuse after having been dully served as explained earlier. Three issues for court determination of this suit were framed namely; i. Whether there was contract between the plaintiff and defendant. ii. If issue No. (i) is in affirmative, whether the defendant owes Tshs. 291,294,2000/= of the Plaintiff. iii. To what reliefs are the parties entitled to 4 In the side of plaintiff’s case, he had a total of two witnesses namely; Gregory Sinclair Hubbard (PW1) and Dennis Erroneous Lugongo (PW2). PW1 Grecgory Sinclair stated that he is managing director, principal officer and oversight manager of the plaintiff. He took the office from former managing director who namely Mark van Oyen and during the hand over there was the legal proceeding of the Junior construction arising from motor vehicles sales contract. He stated that the first contract was entered on 3rd October 2019 for the purchase of the new Nissan patrol to the value of 90 thousands united states dollar, the terms of the contract was to deposit 25 thousand dollars as initial payment and the balance of 65 dollars will be paid in instalment over four months ending in April 2020 and the contract was admitted as exhibit P1. He added that on November 2019 they entered another contract and the same was to purchase four new Nissan hardbody Np 300.AR 006- 4 for the total costs of 102, 000 USD with initial deposit of 20,4 and the balance of instalment to be paid quarterly of 81 600 dollars and the November 2020 will be the final instalment and the said contract was admitted as exhibit P2. 5 Additionally, after two contracts the vehicles was delivered in good condition to the defendants and they signed delivery notes but the defendants did pay only initial payments and they had a meeting where they resolved to institute a case against defendant. Lastly, he prayed this court to declare that defendant breached the contract, payment of total sum of TZS 291,294,200/= or its equivalent in united dollars being the outstanding payment of five motor vehicles ,interest at a commercial rate of 12 percent from the date of breach of contract to the date of judgment, and interest at court rate from the date of judgment to the date of final payment and payment of Tshs 50,000,000/= as the general damages ,costs of the suit and any other reliefs this court shall deem fit and just to grant. PW2. Dennis Erneous Lugongo testified that he is financial manager of the plaintiff and after being joined the company he was informed on the debt of Junior construction. He further stated that the defendant on October 2019 bought four Motor vehicle and he was required to pay USD 90,000 which is equivalent to Tshs. 207,900,000/= defendants was required to pay USD 25,000 for registration process which is equivalent to Tsh 57,750,000/=After given motor vehicle, the 6 defendant was required to pay six instalment, in five instalment he was required to pay USD 10,000= per instalment which is equivalent to Tshs. 23,100,000/= and the last instalment defendant was required to pay USD 15,000, which is equivalent to Tshs. 34,650,000/= Additionally, he stated that the second contract of four motor vehicle was bought with total amount of USD 102,000 in each motor vehicle, defendant bought it in USD 25500 in each motor vehicle which is equivalent to Tshs. 235,824,000/= per each car was Tshs. 58,956,000/= the defendant was required to pay USD 20400 for registration which is equivalent to 4,7164,800/= and defendant deposited USD 65400 which is equivalent to Tshs 152,429,800/= out of Tshs. 443,724, 000/= so the debt claimed is Tshs 294,200,000/= The defendant paid through bank account but the last payment he paid it through his personal account with the name Suleiman Masooud Suleiman, and bank statement were admitted as exhibit P3 collectively. It was noted that, after the defendant made advance payment, the registration conducted, they obtained registration card which bears two names, defendant and plaintiff name and, they still have that card because defendant did not finish up the payment as they agreed and the 7 said cards were admitted as exhibit P4 collectively. Moreover, PW2 stated that, the defendant received the said motor vehicle with good condition and they had delivery note which was admitted as exhibit P5 collectively.After the defendants received the said motor vehicle, they issued them with tax invoice in order for them to make a payment, they had five invoices which had amount of Tshs. 443,724,000/= and the same was admitted as exhibit P6. Finally, PW2 said that the plaintiff is claiming from defendant Tshs. 291,294,200/=money which came from the business of purchasing the five motor vehicles which defendant failed to pay it. Having heard the plaintiff only and going through the pleadings, I have now to determine this suit basing on evidence which brought before this Court. In my determination of the matter, I shall be guided by the following principles of law. One, is that in civil cases, the burden of proof lies on the person who alleges anything in his favor as founded in section 110 of the Evidence Act. Two, is that the burden of proof envisaged above is on the balance of probabilities. See Section 3 (2) b, of the Tanzania Evidence Act and as stated in various decisions, including Anthony Masanga v. 8 Penina Mama Mgesi and Another, Civil Appeal No. 118 of 2014 and Hamza Byarumshengo v. Fulgencia Manya and 4 Others, Civil Appeal No. 33 of 2017 (both unreported). Starting with the first issue that Whether there was contract between the plaintiff and defendant. The meaning of contract is defined under Section 2 (1) h of the Law of Contract Act Cap 345 to mean an agreement enforceable by law is a contract. Also, under section 10 of the Law of Contract Cap 345 provides that; - ‘’All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void: Provided that, nothing herein contained shall affect any law in force, and not hereby expressly repealed or disapplied, by which any contract is required to be made in writing or in electronic form or in the presence of witnesses, or any law relating to the registration of documents”. 9 Guided with above authority. I have scanned the evidence of plaintiff and going through pleadings thereto, indeed, the evidence of PW1 and PW2 showed that on 3rd October 2019 and 13th November, 2019 the plaintiff with free consent entered the contracts with defendant to purchase Brand New Nisan Patrol for USD 90,000 and Brand-New Nissan Hardbody for USD 102,000 as exhibit P1 and P2 respectively shows. Coming to the second issue that if issue No. (i) is in affirmative, whether the defendants owed amount of Tshs 291,294,2000/= by the Plaintiff. It is undisputed fact that, there was written contracts between the parties. The testimonies of PW1 and PW2 showed that on 3rd October, 2019 and 13th November, 2019 the plaintiff entered the contracts with defendant to purchase Brand New Nisan Patrol for USD 90,000 equivalent to Tshs. 207,990,000/= and Brand-New Nissan Hardbody for USD 102,000 which is equivalent to Tshs. 235,824,000/= which are equivalent in total to Tshs. 443,814,000/= and the said contract was admitted as exhibit P1 and P2 respectively shows. More over the evidence shows that the plaintiff delivered motor vehicles to the defendant in good condition and received the same however the defendant paid Tshs. 152,519,800/= only and hence leaving an outstanding balance of Tshs. 291,294,200/= 10 In the case of UNIVELER TANZANIA LTD VERSUS BENEDICT MKASA trading AS BEMA ENTERPRISES CIVIL APPEAL NO. 41 OF 2009 CAT Dar es salaam the court held that; -“under our laws, once parties have freely agreed on their contractual clauses, it would not be open for the courts to change those clauses which parties have agreed between themselves”. Guided with authority above and going through the evidence adduced, the testimonies of PW1 and PW2 shows that PW1 and PW2 showed that on 3rd October, 2019 and 13th November, 2019 the plaintiff agreed with defendant to purchase Brand New Nisan Patrol for USD 90,000 and Brand-New Nissan Hardbody for USD 102,00 which are equivalent to Tshs. 443,814,000/= as exhibit P1 and P2 respectively shows. More over the evidence shows that the plaintiff delivered motor vehicles to the defendant in good condition and received the same however the defendant paid only Tshs. 152,519,800/= hence leaving an outstanding balance of Tshs. 291,294,200/= as exhibits P4, P5 and 6 shows. Basically, after analysis of the evidence on records, there is no objection that the defendant owes Tshs. 291,294,200/= of plaintiff arising from the contract of purchasing the motor vehicles. 11 Back to the last issue as to what reliefs are the parties entitled to. In my thorough digest, the defendant had contract with plaintiff and had breached the same. The defendant shall pay the plaintiff Tshs. 291,294,200/= being the outstanding payments for the five Motor vehicles which were supplied by the plaintiff to the defendant, interest at commercial rate of 12% per annum from the date of the institution of the suit to the date of judgment and decree, General damages of Tshs. 50,000,000/=, Interest at a court rate of 10/% on the decretal sum from the date of judgment and decree to the date of full satisfaction of the decree and Costs of the suit are hereby ordered to paid by defendant. It so ordered. DATED at SHINYANGA this 6th day of September, 2024. R.B Massam Judge 12