brighton bruno rutta vs camel oil t ltd 2011 tzhccomd 2044 3 march 2011

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL CASE NO. 73 OF 2009 BRIGHTON BRUNO RUTTA.................. PLAINTIFF VERSUS CAMEL OIL (T) LIMITED......................... DEFENDAT JUDGMENT Mruma J. The Plaintiff Brighton Bruno Rutta instituted this suit against the Defendant Camel Oil (T) Ltd claiming Tshs 76,687,500/= being purchase price and interest accrued therefrom for non supply of petroleum. The plaintiff is also claiming general damages for Loss of business, inconveniences, psychological injuries and other short falls resulted for nonpayment of the amount claimed. It is alleged in the plaint that the defendant verbally and willful agreed to supply petroleum to the plaintiff upon receipt of deposited amount into the defendant account. It is further stated in the plaint that in different occasions the plaintiff deposited money to the defendant account in understanding that the defendant shall supply petroleum to the plaintiff but the defendant did not honour its obligation. Pg-1 The plaintiff avered further that he deposited to the account of the defendant cheques worth of money as follows: On 13/11/2007 Tshs 8,000,000.00 On 2/1/2008 Tshs 6,600,000.00 On 3/1/2008 Tshs 6,750,000.00 On 13/1/2008 Tshs 13,020,000.00 and on 23/1/2008 Tshs 25,000,000/= Furthermore it is stated in the plaint that the plaintiff being a businessman has been making follow ups from time to time and corresponds the defendant regarding the supply of petroleum or refund of the money deposited but the defendant has refused and/or neglected to perform his obligation under the contract. In paragraph 9 of the plaint it is stated that since the said transaction was aimed at generating profit, the plaintiff has lost profit for all that time the situation which has caused economic hardship and loss suffering. He is therefore claiming immediate compensation for loss so caused calculated at the tune of 25% of the principal sum deposited to the defendant's bank account. The amount claimed under this category is estimated at Tshs 15,337,500.00. Pg-2 The defendant on its part denied that the plaintiff had any claim against it. It is avered in the Written Statement of defence that sometimes in the past the defendant used to supply petroleum to the plaintiff for consideration. I is stated that the plaintiff was being supplied with fuel on the same dates he paid. This, according to the defendant's written statement of defence happened between November 2007 and March 2008. At the commencement of the trial the following issues were framed and agreed upon by the parties as issues at stake in this suit. They are: i. Whether there was an agreement of fuel supply between the plaintiff and the defendant. ii. Whether the plaintiff in consideration of the agreement deposited money in the defendant's account. iii. Whether the defendant basing in the agreement supplied petroleum thereon. iv. To what reliefs the parties are entitled. The plaintiff called one witness. That is Brighton Bruno Ruta PW1, who is the plaintiff himself. According to the plaintiff, he is a businessman dealing with buying and selling petroleum products, diesel, kerosene and gases. He told the court that he has been in that business for 8 years since 20002. He said that although he works with his father's company called Euro-Products Tanzania Pg-3 Limited but he personally has his own businesses of buying and supplying diesel and kerosene to his customers. The witness told the court that he get his supplies from the defendant Camel Oil (T) Limited and sometimes from other suppliers such as MGS, Eungen etc. He said that the defendant was his supplier for petroleum products. Explaining the modality of doing his business, PW1 told the court that normally he used to pay cash or by cheque through the defendant's bank account or cash payments to the defendant's accountant at their depots. The witness said that upon making payment one could either place a written order if he wants to load immediately or wait or up to six months before loading. He told the court that on 13th November, 2007 he deposited some monies the defendants' account with the National Bank of Commerce at Industrial branch the money which was intended to buy petroleum products from the defendant. This witness testified further that on 8th January 2008 he deposited another Tshs 6,600,000/= for the same purpose. Furthermore the witness said that on 5th January 2008 he deposited in the same account Tshs 6,675,000/=, on 18th January 2008, he paid another Tshs 13,020,000/= while on 24.1.2008 he deposited another Tshs 25,000,000/= by cheque in the same account with NBC Industrial branch and he paid cash Tshs 3,000,000/= to the defendant's accountant at their depot. Pg-4 The plaintiff testified further that on 23rd January 2008 he paid another Tshs 25m/=. He said that despite all those payments the defendants did not supply him with the products as agreed. He said that in June 2002(2008?) he went to the defendant's office to inquire about this but he was told to wait as the defendants were trying to confirm payments done with their accountant. Realizing that the defendants were not prepared to supply him with the products, PW1 instructed his lawyers to write a demand notice (exh. PI). According to his testimony he defendant didn't respond to his demand notice. When asked in cross-examination whether he has any evidence to prove his allegations that he made some payments to the defendants PW1 said that he had deposit slips from NBC bank and when asked why he did not produce them in his evidence he said that he gave all his documentary evidence to his lawyer. When he was referred to annexture BRUNO 1 to the plaint (which consists of a ledger account and deposit slip), PW1 told the court that he does not recognize those documents and that they were not his documents. When asked whether he has any evidence that he served the defendants with his demand notice, PW1 told the court that the first demand notice was served by fax and later on by dispatch which he said was at his home. The defendant called one witness namely Mr. Salehe Hussein Salehe DW1, an Operation Officer of the defendant company. Pg-5 This witness testified that he know the plaintiff because he was among their customers. He said that the procedure in their business is that, if a customer wants s to buy petroleum products from them he is directed to make payments through the defendant's bank account. Upon making payments he exhibits pay in-slip whereupon the defendant's officers check with the bank to confirm payments. When payment is confirmed the customer is supplied with the product he has purchased. According to DW1, the plaintiff purchased 7500 litres of Kerosene on 2.1.2008 for Tshs 6,600,000.00. The kerosene was duly delivered to him vide tax invoice No.CML/01/2750 and delivery note No.CML/01/2750 dispatched though truckNo.T.817 APF driven by one Emanuel Chaki. The witness testified further that on 3.1.2008 the plaintiff bought 7500 litres for Tshs 6,050,000.00 while on 5.1.2008 he bought another 7500 litres for Tshs 6,750,000/=. On 21.1.2008 he bought 1400 litres for Tshs 13m/= and on 24/1/2008 he purchased full worth Tshs 28,000,000/= DW1 tendered delivery notes and invoices exhibiting that those transactions were done, (see exh. DI). From the testimony of these two witnesses - ie the plaintiff (PW1) and Salehe Hussein Salehe (DW1), it goes without saying that there was an agreement of fuel supply between the plaintiff and the defendant. The evidence further shows that the plaintiff in consideration of the said agreement which is a simple sale agreement deposited money in the defendant's account. This is clear in the testimony of DW1 who said that it P& 6 was a procedure in their sale transaction for their customers (including the plaintiff) to deposit some payments in defendants accounts for the fuel they wanted to buy. According to this witness delivery of the products purchased would be upon confirmation of the payment made for the same. Taking into consideration the testimony of DW1 and exhibit DI, the 2nd and 3rd issues are answered in the affirmative. That is to say the plaintiff did deposit money to the defendant's account and the defendant did supply petroleum products in respect of the money deposited. In the premises and based on the evidence available the claim for Tshs 76,687,500.00 being amount for non supply of petroleum cannot sail though for want of evidence to support it. It is therefore dismissed accordingly. Having found that all supplies were paid for it follows that the plaintiff did not suffer any damages. He is therefore not entitled to general damages. In the event therefore, and for the foregoing reasons the plaintiff's suit is dismissed with costs. Order accordingly. A.R.MRUMA JUDGE Ih'sisa 0116 md cor 3/3/2011 1,533 words Registrar, Commercial Cour;. Pg-7