balton t ltd vs mount meru flowers ltd 2022 tzhccomd 139 26 may 2022

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT ARUSHA COMMERCIAL CASE NO. 03 OF 2021 BALTON TANZANIA LIMITED....................... PLAINTIFF VERSUS MOUNT MERU FLOWERS LIMITED................................ DEFENDANT Date of Last Order: 20/05/2022 Date of Judgement: 26/05/2022 DEFAULT JUDGEMENT MAGOIGA, J. This is a default judgement. The plaintiff, BALTON 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. Payment of United States Dollars One Hundred Fifty-Seven Thousand, Eight Hundred and Twenty and Forty -Five Cents (USD. 157,820.45) equivalent to Tanzania Shillings Three Hundred Sixty-Four Million, Five Hundred Sixty Thousand, Five Hundred and Four and Eighty-eight Cents (Tshs.364,560,540.88); i b. Interest on the outstanding amount calculated at 12% per annum from the date the amount became due/default 31st May, 20202 to the date of judgement; c. Interest on the decretal sum at the court's rate per annum from the date of judgement to the date of full and final payment of the decretal amount; d. Defendant be ordered to pay the plaintiff general damages and punitive damages to be assessed by this honourable court; e. Costs of the suit; f. Any other order this honourable court may deem fit, appropriate and just to grant. The brief facts giving rise to this suit are not complicated. It is stated that, within Arusha and on numerous occasions between 17th December, 2017 and 7th May, 2019 the defendant ordered and the plaintiff supplied Agro products, chemicals and pesticides valued at United States Dollars One Hundred and Sixty- Two Thousand, Eight Hundred and Twenty (USD. 162,820/=) but the defendant managed to pay only USD.5,000/=on April 2020. 2 Facts go that the plaintiff diligently carried out and without failure her contractual obligations by supplying the relevant orders and issued tax invoices for the goods supplied on credit. It was stated that the outstanding invoices were to be paid within 90 days after delivery and issuance of tax invoices. Further facts were that parties communicated by emails and eventually the defendant sent a commitment letter acknowledging the debt of USD. 162,820. The plaintiff's efforts to have the outstanding money paid has been in vain, hence, this suit claiming the reliefs as contained in the plaint. The plaintiff managed to serve the defendant with the plaint on 3rd March 2021 but who through the legal services of Mr. Gibril Mangula filed written statement of defence which was found out of time and same was struck out by this court. The learned advocate for the defendant, one, Mr. Gibril Mangula after conceding that the written statement of defence was filed out of time without court's leave, told the court that he will take appropriate measure to remedy the situation but did nothing to file an application for extension. When the suit called on for orders on 20th May, 2022 no defence has been filed nor any application for extension of time made to file one. In 3 circumstances, Mr. Sheikh Mfinanga, learned advocate for plaintiff prayed to be allowed to proceed under the provisions of Rule 22(1) of the High Court (Commercial Division) Procedure Rules, 2012 as amended by G.N.107 of 2019 and that he had filed an application under Rule 22 of this court's Rules. 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. In the circumstances, I fixed this suit for judgement and went to consider her application for default judgement. The plaintiff in order to prove her case filed Form number 1 accompanied with affidavit in proof of the claim as provided for under Rule 22 (1) as amended by G.N. 107 of 2019, paving way for this default judgement. In proving the claim, the plaintiff on 2nd day of February, 2022 filed in this Court, Form 1 accompanied by the affidavit of, one, PAUL MSELLA who is the Country Finance Controller and principal Officer of the plaintiff. Having carefully gone through the affidavit and the exhibits 1-7 collectively annexed in the affidavit in proof of the claim, I am satisfied that the plaintiff has discharged his legal burden required in civil cases in reliefs claimed in paragraphs (a) which is specific damages as claimed in the plaint. In 4 essence this suit revolves around breach of contract for non payments of the good supplied and received by the defendant. Paragraph (a) of the plaint is on the claim of specific damages which are to be strictly proved. See the case of ZUBERI AGOSTINO vs. ANICET MUGABE [1992] TLR 137. 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(1), 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). 5 In the instant suit, there is no dispute that the defendants were served in accordance with the law. However, despite such proof of service, no written statement of defence has been so far filed nor any application for extension of time made 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 1-7 thereto, I am satisfied that the plaintiff has been able to prove USD. 157,820/= being an amount specific claims in paragraph (a) of the plaint. In the circumstances, I am inclined to enter a default judgment against the defendant and decree in favour of the plaintiff as follows; (i) I order the defendant to pay the plaintiff USD. 157,820/= or its equivalent to Tshs.364,560,504.88 being outstanding balance of the value of good supplied and received; (ii) I order the defendant to pay interest on the outstanding amount calculated at 12% per annum from the date of the amount became due i.e 31st May, 2020 to the date of judgement; 6 (iii) I order the defendant to pay interest on decretal amount at the court's rate of 12% per annum from the date of judgement to the date of full and final payment of the decretal amount; (iv) The defendant is equally ordered to pay Tshs.5,000,000/= being general damages for inconveniences caused to the plaintiff; (v) The plaintiff will have costs of this suit. [n terms of Rule 22 (2) (a) of the Rules as amended by G.N. 107 of 2019,1 further order that the decree in this suit shall not be executed unless the decree holder has, within a period of ten (10) days from the date of this judgement, publicize the decree in Daily Newspaper and Mwananchi Newspaper one copy each 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. Date at Arusha this 26th day of May, 2022. 7