20010327 TZHC Mtwara

IN THE HIGH COURT OF TJNZL.NII AT M TWA&I \\&c or-- CIVIL CASE NO0 512000 D1T .lT1TT T 1mry'i .L).LIJi iJ..L).LQo *0*0.00000 00 0 versus: M/S VIRLIN TANZANIA LIMIDQOODENDANT

EX PARTE JUDGMENT K On 10th 4pri1, 2000 the plaintiff BEN HAKIMU instituted this suit against the defendant claiming for inter alia, payment of Tshs. 48,5872000/... being his agency Lee (commission). On' 11th a1pri1 9 2000 the defendant was served with a summons for orders through their representative who was here at Mtwara. The summons required the said company to file its writn statement of defence within 21 days from the date of service, and that the matter would come up for mention on 9/5/2000. But the said representative refused service. On 12th April, 2000 the Process Server MR FADHILI S. LUPENU filed an affidavit to that effect. On 9th May, 2000 the defendant was absent without notice and had not yet filed its Written Statement of defence for no apparent reason. The matter was adjourned till on 22/6/2000 for necessary orders. On 22nd. June, 2000 the plaintiff through his advQcate Mr. Kumwexnbe applied orally for leave to prove his suit ex parte by oral evidence. His application was granted under ORD ER Vfl R1E1LI.()j) of the Civil Procedure Code 1966. It was through that order that the matter procEeded ex parte. In his evidence the plaintiff testified to the effect that the defendant is a limited liability Company owning a cotton ginnery, an oil mill, a plastic factory and a soap factory in Bunda District and Nairobi Kenya, among other places, and was in 199912000

cashewnut buying season engaged in the buying and exporting of raw cashewnuts from Mtwara Region where it had an office. During the month of August, 1999 the defendant employed - 2 - the plaintiff to work at Mtwara as the defendaiits cornission agent in the buying of raw cashewnuts from outlying districts and areas in Mtwara. R€gion, ank the transportation of the same to the defendants ware house/storage facilities in readiness for shipment for the 199912000 cashewnut purchasing season. The plaintiff's duties as the defendant's commission, immediately before the commencement of the 1999/2000 cashewiiut season, was to mcke all the necessary preparations for the season, including the procurement of trading licences, storage facilities, office accommodation, residential quarters for the defendant's senior officers, and carrying out a pre-season survey of prospective cashewnut buying centres to what he did. The plaintiff went on.testifying that his duties during the actual cashewnut season was to purchase raw cashewnuts for and on behalf of the defendant from up country and have it transported by road to the defendant s ware house at Mtwara before shipment to overseas markets. He said he did all this by distributing the money to the defendant's officials who purchased cashewnuts from 11 districts of Mtwara and Lindi Regions including Tunduru District from Ruvuma Region. The

plaintiff went on testifying that it was agreed orally between him and the defendánt as it had always been in the past years in previous deals, that he would be paid an agency fee of 1% of the value of all the cashewnuts he would purchase and transport to Mtwara before shipment overseas. He said, during the 1999/2000 cashewnut season he bought for the defendant metric tons 5,048.200 the equivalent of 5,048,200 kgs at the average price of shs. 962,'50 per kilogram.. The total value was Tshs, 4,858,700,000— Since the agreed agency fee was 1% of the value of all the cashewnuts he would purchase and transporb to Mtwara before shipment overseas 9 and since the value of all the cashewnuts he had purchased for the defendant and transported to Mtwara before shipment overseas was Tshs. 4,858,700,000/- he said he was entitled to an agency fee of Tshs. 4858790O0/-. But when he demanded that payment the defendant refused to pay him alleging it had suffered a great loss. When efforts to settle the matter amicably failed the plaintiff filed this suit against the defendant claiming for the following reliefs:- Shs baing his agency fee1 Interest at the bank lending rate from the date of the claim to the date of judgment Interest on the decretal amount at the 0ourts rate from the date of judgment until payment in full. Costs 0 iny other relief the Court may deem fit and just. His evidence was

supported by that of the CBT Statistics Research and Planning Officer PW2 iLPHONCE MI.RK N..NDONDE. This witness who was dealing with issuing permits to cashewnut buyers and keeping records of cashewnuts purchased by each buyer confirmed that, during that cashewnut; season the plaintiff procured a buying permit for the defendant and that he was the buying agent of the defendant. That witness went on testifying that during that season the defendant bought a total of 5048.200 metric tons at Tshs. 4,858,500/-, He produced the Data Sheet to that effect as Exh P1 It was prepared by himself and signed by himself. As I said earlier, this case proceeded ex pste. There was neither a reply nor any question from the defendant. I have carefully considered the evidence by the plaintiff and his witness. The plaintiff gave a long stcy as to how he came to be acquainted with the defendant way back in 1993, and as to how they managed to do some similar deals for delivery of cotton seeds worth about TshsQ 150,000,000/-. Thus they trusted each other0 Under those circumstances there is nothing unusual that in the present deal the agreement was made orally as it had been in previous similar dealings. There is ample evidence by the plaintiff supported by P\T1 and Exh P1 that during 1999/2000 cashewnut huying season the plaintiff purchased a total of 5048.200 metric tons of cashewnuts for and on

behalf of the defendant, and that the total value was about Tshs. 4,858,892,500/.. Since it was orally agreed that the plaintiff would be paid 1% of the value of all the cashewnuts he purchased for and on behalf of the defendant, and since the value of the cashewnuts h pu h9 wa ahs S 4 iL i luo Wsb 48,588,925/. The plaintiff has opted to claim for shz. 48,587,000/- which is a little less than the actual amount 0 That is a blessing to the defendant. The plaintiff is entitled to be paid by the defendant Tshs, 48 9 587 1 000/.. as his agency fee. He is also entitled to be paid interest at the bank commerial rate from the date of the claim to the date of judgment, and interest on the decretal emount at the Court rate from the date of judgment until payment in full. He is also awarded his costs, It is so ordered S. 'T. KAlE

JUDGE 27/3/2001 Court: Judgment has been delivered in the presence of the plaintiff in person this 27th day of March, 2001. Mr. Kumwembe (Advocate) is absent With leave by the •Co.. if I- •-A S. N. KAJI - JUDGE 27/3/2001, B/C: Mis Nanyanga - R/.