BZM MAREKEBISHO 11

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY)

AT DAR ES SALAAM CIVIL CASE NO. 74 OF 2023 BZM LOGISTICS COMPANY LIMITED ……….…………………………….. PLAINTIFF

VERSUS TRANSYS GLOBAL FORWARDING PRIVATE LIMITED ….……..…1ST DEFENDANT VISTAS INVESTMENTS PRIVATE LIMITED ….………….……….. 2ND DEFENDANT CHAMPION INDUSTRIES LIMITED ………………………...……… 3RD DEFENDANT GREENWAY INVESTMENT LIMITED ………………..….….………. 4TH DEFENDANT

JUDGEMENT 16th July & 10th September, 2024 MWANGA, J. The plaintiff, BZM LOGISTICS COMPANY LIMITED, is a clearing and forwarding limited liability company incorporated in Tanzania with a registered place of business in the Dar es Salaam Region. Similarly, based in India, the first defendant also does business in clearing and forwarding. Sometimes, in January 2022, the first defendant entered into a business 1 arrangement with the Plaintiff for clearing and forwarding of goods of the 3rd and 4th defendants as its agent as the first Defendant had no office in Dar es Salaam, Tanzania. The services to which the first defendant engaged the plaintiff to clear and forward were for the goods shipped and transported from India by the second defendant to Zambia vis Dar es Salaam Port in favor of the 3rd and 4th Defendants in Lusaka-Zambia. As the facts reveal, such an arrangement went smoothly as each party honored its obligations. However, as the plaintiff alleged, the complexities and dispute arose when Sandeep, who is said to be the business contact person on behalf of the second, third, and fourth Defendants, requested the Plaintiff to withhold about 56 containers in Dar es Salaam port until the import license and exemption letter from the Zambia Revenue Authority were readily available. As discussed in this judgement, the main point of contention is that, following those

instructions, the Plaintiff hold the containers from 21st April 2022 until mid-June 2022. Such steps led to significant additional charges, including those for shipping lines, container detention, storage, warehouse rent, and transportation, amounting to USD 181,000.00. Presented by the plaintiff, those expenses were to be paid to the shipping lines and Porty 2 Authority. For instance, MSC (14-containers); Emirates(5containers); Diamond Shipping (2 containers) and Maesk line (4Containers). As also said, the Plaintiff kept demanding payment of the additional costs incurred due to the request to hold containers, and the Defendants, despite their assurances, failed to pay. Proceeding the above, the plaintiff said they paid all the said additional costs to avoid further costs, and apart from such additional costs, the second and third defendants have failed to return four (4) containers, namely TEMU7983262, TCLU532386, TEMU7561415, and TGHU9261255, which has encouraged the accumulation of USD 53 400.00 as of 3rd April 2023, totaling the non-repaid amount to USD 234, 000.00. Utterly believing to have the legal rights and the cause of action, the Plaintiff filed this suit against both defendants seeking Judgment and Decree as follows:- i. the payment of USD. 234 000.00 (say United States Dollars Two Hundred Thirty-Four Thousand) being a specific claim for the non- repaid amount of

shipping line container detention, storage charges, 3 warehouse rent charges, and transport additional costs in the course of clearing and forwarding of goods for the defendants; ii. the payment of USD. 20 000.00 (Say United States Dollars Twenty Thousand) being for loss of income and profit; and iii. An order that Defendants to pay Plaintiff a commercial interest of the amount in (a) and (b) above, at the rate of 22% per annum charged from September 2022 to the date of Judgment; iv. An order for the defendant to pay general damages for inconveniences caused to the plaintiff. v. Further interest of items (a) and (b) above at the court rate of 12% per annum from the date of the decree until payment in full. vi. The Defendant be condemned to pay the Plaintiff costs of and any incidental detriments to the suit; and vii. Any other reliefs that the court may deem fit, equitable, and proper to grant. After being served with the plaint, the Defendants, except for the first Defendant, entered an appearance and filed their defense denying each claim against them, stating that they had no business agreement with Plaintiff and had never promised to pay the additional charges raised against 4 them. Subsequently, the 2nd and 3rd Defendants, on the other hand, went further to raise a Counterclaim against the Plaintiff and the 1st Defendant, also claiming Judgement and decree on the

following; i. Payment of USD 1,500,000 being a loss occasioned by Plaintiff and the 1st Defendant in the main suit due to the detention of the containers, which caused the delay in the implementation of the project of the 2nd and 3rd Defendants’/plaintiffs consignees. ii. The payment of USD 39 200 covers trip expenses from Zambia to Dar es Salaam (to and from) incurred by 2nd and 3rd Defendants/ Plaintiffs in the counterclaim while pursuing the matter and the containers detained by the first Defendant. iii. The payment of USD 642 250 be paid as storage costs to engaged personnel stationed in Dar es Salaam for case follow-ups and the release of the containers after the attachment order. iv. An order to pay USD 101 462.46, the cost paid by 2nd and 3rd Defendants/Plaintiffs accruing from the detention of the containers after the order of attachment before Judgment issued by this court. v. Payment of costs and any incidental detriments to the suit vi. Any other reliefs that the Court may deem fit and just to grant. 5 The case was heard through witness statements, as agreed during the First Pre-Trial Conference, and the hearing was guided or confined to the issues raised by the court during the Final Pre-Trial conference. In the plaintiff’s case, the court raised the following issues, which are reproduced for ease of reference:- i. Whether the 2nd, 3rd and 4th Defendant instructed

the Plaintiff to hold 56 Containers; ii. Whether the 2nd, 3rd, and 4th Defendant promised to pay additional charges for the release of containers; iii. To what reliefs are parties entitled? It proceeded further that, for the case of the 2nd and 3rd defendants (first and Second Plaintiffs in the counterclaim), the court framed two issues, namely; 1. Whether the 2nd and 3rd Defendants/Plaintiffs in the counterclaim suffered any loss/damage for the actions of the First and Second Defendants.

2. If the First issue is answered in the affirmative, what reliefs are the parties entitled to? 6 Throughout the hearing, the Plaintiff was represented by Mr. Stephen Mosha and Fredrick Mpanju, learned counsels. In contrast, the second defendants hired Mr. Reginald Martin, and the third and fourth defendants enjoyed the services of Mr. Shezada Walli, assisted by Elisante Frank, who were both learned counsels. Ultimately, both learned counsels filed final submissions, which I shall not reproduce but use in my judgment where necessary and practical. With such prefaces, my noble task now is to dispose of each issue seriatim. As recalled earlier, the first issue for the plaintiff’s case was whether the second, third, and fourth Defendants instructed the Plaintiff to hold 56 Containers. The plaintiff summoned two witnesses and relied on six (6) exhibits to prove his case, while the defendants paraded three witnesses and equipped themselves with eight (8) exhibits. But before attempting to proceed with the raised issues, I find it relevant to review the evidence of both parties in support and against the plaintiffs’ claims, both in the main case and counterclaim due to complexity of the matter. 7 As explained above, the first plaintiff’s witness, Vijay Kumar PG, testified as (PW1). In the first issue, he drew the court's attention and relied on WhatsApp threads and email

communications between him and one Sandeep in exhibit PE1. According to him, at a certain point, he was requested by the 2nd,3rd, and 4th defendants to hold the containers at Dar es Salaam Port from April 2022 to June 2022 because a letter on exhibit PE4 from the Zambia Revenue Authority dated 2nd June 2022 to the Director of Southern Bioenergy Ltd allegedly to be the application for waiver, which was sent to him via WhatsApp was not ready then. He proceeded further that, in the first week of June 2022, when the letter was ready, the 2nd, 3rd, and 4th defendants sent documents to him and instructed via email and WhatsApp text to start loading the containers from Dar es Salaam Port via one Mr. Sandeep and Mr. Nishith Vyasi DW1). PW1 asserted that, such email communications and WhatsApp messages establishes the presence of business contractual relationships between the plaintiff and the 2nd,3rd and 4th defendants to hold the 56 containers. To substantiate these claims, in his final submissions, Mr. Stephen Mosha counsel for the plaintiff submitted that, during cross-examination, PW1 told the court that there was no official contract. The counsel insisted that, the 8 contract entered by PW1, in which he rendered the service of clearing and forwarding the defendant's containers to Zambia was implied one. He said the defendants were no issues during the period they worked

together despite lack of a contract between them. The counsel emphasized that what the plaintiff claims before the court from the 2nd, 3rd, and 4th Defendants is the additional charges incurred that the said defendants promised to pay. The counsel pointed out further that, during cross-examination, PW1 told the court that Sandeep promised to pay the additional charges for the 3rd and 4th Defendants and Prianka for the 2nd Defendant. He also said, during re-examination, PW1 told the court that he came to know Sandeep after being introduced by the 1st defendant. The counsel insisted that, PW1 referred the court to the WhatsApp conversation between him and Prianka dated 31st October 2022 in Exhibit PE1 and Sandeep dated 29th September 2022, in which Sandeep promised to start paying USD 100 and the remaining to be arranged on Monday. Per contra, the 2nd, 3rd, and 4th defendants denied having any business contractual relationships with the plaintiff. In his witness statement, Mr. Nishith Vyas (DW1) said the plaintiff never provided any services claimed in favor of the 3rd and 4th defendants. And that all communications between 9 Sandeep and the plaintiff were done in favor of other companies, not the 3rd and 4th defendants. He reiterated the position that, they had never requested to hold containers nor had any issues with the import license with the ZRA approval that hindered their

business transactions. Buttressing the above points n his final submissions, the counsel for the 2nd defendant alluded to the fact that under Section 110 of the Evidence Act, Cap 6 R. E 2022, whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. He asserted that Plaintiff failed to prove his case because, besides alleging to have been instructed over WhatsApp messages, no single message indicates there were clear instructions from the 2nd Defendant for holding the 56 containers as claimed, nor clear connection between persons alleged to have issued the instructions or even establishment of an assumption that they were given authority to act on behalf of the 2nd Defendant’s. He said, the Plaintiff was randomly communicating with persons involved in cargo transporting business and none of them gave him any clear instructions or establish mandate to act on behalf of any of the Defendants. He said it is through this random 10 communication that Plaintiff tries to derive his claim with the intention of defrauding the Defendants. Clarifying on the point, the counsel was of the view that failure to present any message with clear instructions proves that there is no agreement or instructions entered between Plaintiff and the 2nd Defendant. He said that, for any business of

that magnitude, it is risky for anyone to trade without explicit instructions. According to him, the only message used to insinuate that there are instructions to hold the containers is from Sandeep, and besides not establishing the authority of the aforesaid person, the same is not clearly establishing the said instructions to hold the containers. He pointed further that, Sandeep appears to instruct Plaintiff to hold unknown containers as he also requests to know who the consignees are and the total number of the containers. The counsel referred to the WhatsApp communication in exhibit PE1, highlighting that the Plaintiff confirmed that the containers were already loaded; thus, there was nothing to hold, and there are no other messages with directions to hold nor establishing the number of containers to be held as alleged. He said the 2nd Defendant came on board to resolve the detained containers to rescue them from being auctioned, as Plaintiff promised, and 11 that the reconciliation would be conducted later. And that if the containers were not rescued, they were to be auctioned, and Plaintiff couldn’t risk losing all the consignment. Nevertheless, he said, the same does not establish any direct link or business relationship between the 2nd Defendant and the Plaintiff. The same was merely for rescuing the containers from accruing additional charges and auctions. The counsel

contended that, the link created by the plaintiff regarding the letter from Zambia Revenue Authority as the basis for holding the containers is strongly disputed and misleading since the letter from ZRA is neither about exemption nor related to the alleged 56 containers. He added that the letter is an application for an advance tariff ruling involving 150 containers and not 56 containers subject to this matter. More or so, the letter is directed to Southern Bioenergy Limited and not any Defendants sued. The counsel added that, even the claims that shipping lines were holding the containers were not proved or supported by any document apart from mere allegations, as there is no invoice or email from shipping lines to substantiate the same. He narrated that, these accompany the absence of a clear statement showing all invoices, payments, and outstanding balances. 12 Additionally, he said that the plaintiff failed to establish the date of arrival of each container, the number of days for the delay, and the amount charged per day. To him, this would have enabled assessment of the actual cost incurred for verification purposes. He alleged, to the contrary, as per Exhibit DE 4, the same can only be established when the 2nd Defendant was trying to inquire from the shipping line (Maersk) over the invoice issued by Plaintiff, and the same is disputed for being invalid. He added that the

cargo was released without additional charges, while the invoice claims over USD 20,000/-. He said these are mere findings of waivers obtained by Plaintiff from relevant authorities, but they were not disclosed to the second Defendant so Plaintiff could benefit from them, hence the Plaintiff failed to substantiate his claim against the Defendants. As anticipated by the 3rd and 4th defendants, they supported the contentions of the counsel for 2nd defendants. The counsel said, the plaintiff also had failed to prove that the said Sandeep was acting under the authorization of the 3rd and 4th defendants. He argued that the plaintiff even failed to tender the agreement between her and the 1st defendant that the services were provided in favor of the 3rd and 4th defendants. Other arguments are that, per exhibit PE1-email correspondences, the containers 13 allegedly on hold belonged to other companies. i.e., five containers for Elcotra and five containers for Airbor. That marked the end of the arguments of both parties. I have reviewed the respective parties' pleadings, adopted witness statements, exhibits, and final submissions. The contention raised in this first issue is whether the 2nd, 3rd, and 4th defendants instructed the plaintiff to hold the 56 containers, establishing the contractual relationships between the parties. The counsel for the plaintiff contends that the contract

between the parties was implied. The law is settled. A contract may be written or unwritten. It is written where parties' expressions are reduced into writing and is unwritten where the proposal and acceptance take the form of words or conducts of the parties. The latter form is sometimes referred to as an implied contract. Again, how an offer is communicated by one party and accepted by another determines the form of a contract. See Sections 4, 5, 6, 7, 8, 9, and 10 of the Law of Contract Act, Cap. 345 R.E.

2019. This legal position was bolstered in the case of Mexon's Investments Limited vs DTRC Trading Company Limited, Civil Appeal No. 91 of 2019 (CAT- Unreported). Also, in the case of Leonard Dominic Rubuye t/a Rubuye 14 Agrochemical Supplies vs YARA Tanzania Limited, Civil Appeal No. 219 of 2018) [2022] TZCA 419 (13 July 2022), it was held; “It is trite that terms of any contract may be deduced from the conduct of the parties and the nature of transactions made between them.” (Emphasis is mine). On a careful perusal of exhibit PE1, one can note that PW1 sent WhatsApp text messages to Sandeep on 4th May 2022 that he was about to load ten (10) containers. The response was, “Don’t load all at a time”. PW1 expressed that five containers have already been packed and shall be held until further instructions. It appears from the end that the extra charges for shipping these containers were not paid on time. Hence, more charges accrued afterward, ultimately affecting other containers that were not the subject of being on hold. For ease of following, the text messages were crafted as follows, and I quote; “Sandeep Bhai I am loading ten containers this month. There is a big fuel addition due to increase of the fuel charges Bhai. Its not affordable. Every container they increased almost 800 usd for the last two months. I need your support on this as this is outside our scope bhai, Please

adv. Thanks. 15 What is the consignees names Bhai Elcontra or Champion These 10 are for Ndola…5 for aibor…5 are for Elcotra But don’t load all at a time. If possible delay at your end whatsoever its possible If they come all at border it may delay. Oh ho. These 10 already loaded. Okay will try to delay. Given me time. Let me see. Oaky Bhai So, I will invoice this transport addition Bhai. Please. Whatever loaded will come now. So I will invoice this transport addition, Bhai. Please. Whatever loaded will come now. Balance will loads. I will confirm this tomorrow. Okay bhai I will let you know tomorrow Bhai So we load only 5 containers now. The other 5 containers will hold till further instruction. But all documentation finished. 16 Another ones load may be next week middle Bhai if possible otherwise whatever its possible from your end. Well noted. Will delay abs will discuss before ,loading the containers . Better to hold than keeping it at the boader. Okay Bhai will let you know. Good evening Bhai We need to know when you can arrange the previous payment. As we need lots of fund now. Kindly assist us. Thanks. Good morning Bhai Good morning Bhai Will do the needful today Okay Bhai I also sent an email. Can you please check and reply. We need approval to start loading/get release of fund from office. Thanks”. Undoubtedly, what can be seen from the conversation above is that

the containers Sandeep sought to hold belong to Aibor (5) and Elcotra(5). From 17 the quote above, PW1 is seen conversing further with the said Sandeep that ten containers were for Ndola, five for Aibor, and another for Elcotra. Further emails from PW1 demanded payment of unpaid extra charges for the ten containers and insisted that invoices for extra charges be sent to Sandeep. However, it appears the plaintiff experienced delays in getting the previous payment from May onwards, hence the accumulation of additional charges. In the issue, the plaintiff was required to prove that the WhatsApp text conversations regarding the email of 4th April 2022 between PW1 and Sandeep were for the 56 containers belonging to the 2nd, 3rd, and 4th defendants and that he acted within their authority. The defendants vehemently denied this issue. Their arguments are that Sandeep requested to hold the ten containers belonging to another company. Also, the defendants have never sought any exemption of their goods from the Zambia Revenue Authority. As the law stands under Section 110(1) of the Evidence Act, Cap 6 [R.E. 2022], he who alleges must prove, and the standard is one on a balance of probabilities. From its inception, the relevant subsection reads; 18 S. 110 (1)- “Whoever desires any court to give judgment as to legal liability dependent on the existence of facts which he asserts must prove

that those facts exist.” A similar holding was held in the case of Abdul Karim Haji Vs. Raymond Nchimbi Alois and Another, Civil Appeal No. 99 of 2004 (CAT- unreported), when the court applied provision of section 110 of the Evidence Act, had this to say:- “…it is an elementary principle that he who alleges is the one responsible to prove his allegations.’’ As a matter of principle, the onus of proof lies to the party who alleges the existence of certain facts in which he invites the Court to pronounce judgment in his favor, and failure to do so means the alleged fact does not exist or did not happen at all. See also Sarkar's Law of Evidence, 18th Edition M.C. Sarkar, S. C., published by Lexis Nexis and quoted the following words: - " the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for negative is usually incapable of proof. It is an ancient rule founded on the consideration of good sense and should not be departed from without strong reason.... Until such burden is discharged the other party is not 19 required to be called upon to prove his case. The Court has to examine whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such a conclusion, he cannot proceed based on the weakness of the other party..." Be it as it may, Exhibit PE1

speaks louder than words. Ten containers, out of which five were on hold, belonged to Elcotra and Aibor, which are not subject to these proceedings. Therefore, instructions to hold containers (10) were given by Sandeep to the PW1 on 4th April 2022. As the counsel for the defendants put it right, for them to be held responsible, in law, the plaintiff ought to establish the linkage or relationships between the cargo of the third party, its staff being authorized, and the PW1. Furthermore, since the ten containers are out of the equation in this case, I was also eagerly curious to look for Sandeep's instructions regarding the allegedly remaining containers on hold, as the plaintiff put it, and whether he had the authority to act on behalf of the 2nd, 3rd, and 4th defendants. i.e., about 46 containers. I have revisited the proceedings and provided evidence. There are other proceedings and email correspondences dated 1/06/2022 in which Plaintiff (PW1) told Sandeep that there were about 50 containers at the Port, 20 and all started incurring storage and detention charges. Reference is made to the emails dated 22/06/2022(6 containers) and 25/06/2022(4 containers), and further that there were 34 other containers at the Dar es Salaam Port. Again, on 27/06/2022, Sandeep told the plaintiff that there was no need to hold containers. In emails, apart from the ten containers, I have again

found no communication, be it email or WhatsApp texts, showing that the 2nd, 3rd, and 4th defendants (Sandeep) instructed the plaintiff to hold any of the 56 containers. Similarly, even the said Sandeep is not seen giving such instructions to the Plaintiff to hold such number of containers. What I have noted in the testimonies of the plaintiff (PW1) is the complaints about containers remained on hold due to non-payment of previous additional charges. Suppose his testimony is worth believing and credible that the unpaid charges originated from the holding of ten containers; the 2nd,3rd, and 4th defendants cannot be held accountable because the ten containers on hold by the instruction of the said Sandeep do not belong to them neither had they instructed or given him authority Sandeep to act on behalf of other companies, i.e., Elcotra and Aibor. And no one can be punished for the wrongs of others. 21 Another sarcastic piece of evidence from the plaintiff (PW1) relates to the tendered letter from the Zambia Revenue Authority in exhibit PE 4. This letter has nothing to do with the holding of containers because the import license and exemption letter from the Zambia Revenue Authority were not ready then. As rightly contended by the counsels and testimonies of the 2nd, 3rd, and 4th defendants, the letter concerns the advance tariff ruling involving 150 containers and not waiver or

exemption of 56 containers subject to this matter. Again, it has the following shortfalls. One, 2nd, 3rd, and 4th defendants have never asked for such a favor from the Zambian Revenue Authority. Two, it was directed to Southern Bio Energy Limited, which is not the defendant in this suit, and it was not for the purpose (waiver or exemption or import license) for which the plaintiff wanted this court to believe. Three, the 2nd, 3rd, and 4th defendants have no connection to the letter and the purpose for which it was issued. Fourth, the letter by the alleged applicant to the Zambia Revenue Authority was written on the 11th of May 2022, while the containers were already on hold from April 2022. Given the above, if Plaintiff is to be believed, there will be no explanation for holding containers beyond the stated date. 22 To be more precise, it is also not known why the plaintiff did not provide the court with the Bill of lading and other documentation issued by shipping lines and the Port Authority showing the date and time when the containers arrived at Dar es Salaam Port, were cleared from the shipping lines, and exited the Port, apart from the document prepared by the plaintiff alone. He only said in the cross-examination that the bill of lading for those containers was irrelevant and the assertion was not worth considering. In the nature of this transaction, the bill of lading

was an essential legal document. As also discussed by the counsel for the defendants, there are no invoices, payments, or receipts for additional charges to the shipping lines. Moreover, the plaintiff could not even disclose the Contract between her and the first defendant. Even on perusal of exhibits PE2 and PE5, which are the tax, demurrage, and storage invoices and cargo services import invoices, one can note that the plaintiff raised them to various entities. For instance, they were raised from the Plaintiff to Champion Industries (3rd defendant), Greenway Investment (4th defendant), Elcotra Traders Ltd, and Southern Bioenergy. In view of the above, of these four entities, only the 3rd and 4th defendants are part of these proceedings but alleged extra charges were imposed on both. 23 Above all, if it was a football match, he was the team player. In other words, Sandeep was a material witness to this case. However, it is unclear why the plaintiff, being the only person who transacted with him and received instructions from him to hold the 56 containers, vehemently denied by the 3rd and 4th defendants, failed to procure him. His absence without any valid explanation put the court in a quagmire. Importantly as may be, in his plaint, the plaintiff said Sandeep is no longer working for the 3rd and 4th Defendant. The Court of Appeal has held many times, as in the case of Hemed

Said vs. Mohamed Mbilu [1984] TLR 113, that: “Where, for undisclosed reasons, a party failed to call material witnesses on his side, the Court is entitled to draw an inference that if the witness were called, they would have given evidence contrary to the party's interest." The evidence about the first issue of the Plaintiff's case shows that Sandeep did not instruct the plaintiff to hold the 56 containers. The proof in exhibit PE1 shows that the specific instruction was directed to the ten containers owned by entities other than the third and fourth defendants. Combining the above, I rule out that the 2nd, 3rd, and 4th Defendant did not instruct the Plaintiff to hold 56 Containers. Hence, the first issue is answered in the negative. 24 Now, let me move to the second issue: whether the second, third, and fourth Defendants promised to pay additional charges for the release of containers. PW1 said in paragraph 11 of his witness statement that the 3rd and 4th defendants made promises to pay the extra charges incurred as a result of an outcome delayed departures of containers as per instruction of Mr. Sandeep, who has been removed and replaced by one Nishith Vyas during October 2022, the promises which the 2nd defendant bolstered that they will make sure the payments are effected. PW1 referred to the WhatsApp threads and email correspondences dated 7th September 2022. In his final

submission, the learned counsel for the plaintiff referred to testimonies of PW1 stating that Sandeep and Prianka made the promises to pay the extra charges and that Sandeep was the contact person on behalf of the 2nd, 3rd, and 4th defendants. He said, through exhibit PE1, there was a WhatsApp conversation between PW1 and Sandeep dated 6th June 2022, where PW1 asked Sandeep when the previous payment would be made. Sandeep promises to pay by saying, “will do the needful today.” The counsel referred to a WhatsApp conversation dated 31st October 2022 between PW1 and Prianka, a director of the 2nd defendant, who said, 25 “Morning Vijay, thank you for Clearing the 12 containers. I have Informed the office to go through the invoices and reconcile them. Please do not delay any of the Vista shipments. We will do the needful after the Zambia team and Vistas go through the paperwork.” According to the counsel, the above extract of the WhatsApp message is from the 2nd defendant’s director to PW1 making promises of payment after the Zambian team (3rd and 4th defendants) and Vistas team have gone through the presented invoices by the Plaintiff and then made some reconciliation to pay the Plaintiff the additional costs incurred. He added that the invoices were given to the defendants via email. He referred to exhibit PE1 on the part of the emails with the following dates:

17/06/2022, 25/06/2022, 27/06/2022, 01/07/2022; 10/07/2022; 11/07/2022, 18/07/2022; 27/07/2022; 20/08/2022; 21/08/2022; 27/08/2022; 07/09/2022, and on pages 17 of 25 of the email dated 7th September 2022 was from Sandeep to PW1 promising the payment of all the “dues,” as he called them. He also referred the court to the WhatsApp message between Sandeep and PW1, where PW1 demanded payment from Sandeep concerning the accrued additional costs due to the holding of containers. He said that 26 payment promises were made to PW1 in these messages.; He was referring the court to the messages dated; 15/06/2022; 20/06/2022; 21/06/2022; 22/06/2022; 23/06/2022; 24/06/2022; 26/06/2022; 27/06/2022; 15/07/2022; 18/07/2022; 25/07/2022; 28/07/2022; 01/08/2022; 06/08/2022; 09/08/2022; 10/08/2022; 12/08/2022; 19/08/2022; 21/08/2022; 23/09/2022; 17/09/2022;2 7/09/2022. The counsel referred to the invoice attachments, including detention, demurrages, additional storage, cargo service import, tax invoices, and proforma invoices, collectively admitted as exhibit PE2. He said those are communications between Sandeep and PW1, and they focus on the request to hold containers and the additional costs incurred. He also referred to the 3rd and 4th defendants' joint written statement of defense and annexed copies of emails that start with an email dated 12th October, 2022, the addresser being DW1, the

addressee being PW1 and one Girish, an email that was copied to DW2, Prianka, and others in item 3(item of paragraph first paragraph). In the email, the address (DW1) requested all the invoices, receipts of payments, and supportive documents from PW1. It said that having been availed of the same, they shall reconcile the statement and differences, if any, and they will pay. 27 The counsel also tirelessly referred to an email dated 12th October 2022, in which Seby Joseph from the 1st defendant company was the addresser. The email was sent to DW1, which was copied to PW1, DW2, Prianka, and others. It requested funds to clear the detention and demurrage costs, and then they could reconcile the accounts later. He said that this court should pay attention and give weight to the same as they form part of the 3rd and 4th defendants’ pleadings. He added that DW1 tendered in court email communication, which was admitted as DE1 and, the emails dated 6th January 2023, 14th January 2023, 15th January 2023, and 30th April 2023 are emails written by PW1 to all of the defendants (1st, 2nd, 3rd, and 4th) encountering what transpired (holding of the container), the additional costs incurred, the promises made by the parties to pay and the promise to reconcile the accounts on their side but never did and his demand for them to pay. He asserted further that these emails necessitated the

conduction of the Zoom meetings where the 2nd, 3rd, and 4th defendants promised that after they had reconciled their accounts, they would settle the unpaid amount and continue doing business. The counsel referred to the evidence by DW2 when cross-examined on the issue of reconciliation on their part, specifically on pages 19 of 25. 28 The learned counsel is of the view that a promise to pay amounts to a contract, as well celebrated in the case of Catherine Merema versus Wathaigo Chacha, Civil Appeal No. 319 of 2017 (Unreported), where the court quoted with approval the case of Combe vs. Combe [1951] 1 All E.R 767. He proceeded also by citing the celebrated case of SASA KAZI FUEL CO. LIMITED VERSUS FERRANT PROCESSING CO. LIMITED, Civil Appeal No. 20 Of 2021, TZHC At Mwanza (Unreported). According to the counsel, all email correspondences suggested that the parties are not strangers to each other; they have a business relationship, and the proposal and acceptance take the form of the parties' conduct. Per contra, the second, third, and fourth defendants refused the plaintiff's contention. In fact, in the witness statement, the general manager of Trinity Product Limited, Santhoshi Kumar Sunkara (DW3), told the court that the director of the second defendant told him to effect payment over the containers that were detained and that such payment would be refunded out of the products

to be supplied by the second defendant to his company in the future. Likewise, the 3rd and 4th defendants raised the contentions that the 3rd and 4th defendants were not obliged to pay the plaintiff as there were 29 no contractual relationships with the plaintiff. Again, PW1 has failed to prove that Sandeep was the representative of the defendants mentioned herein. In his closing remarks, the counsel for the 2nd defendant contended that on proving whether there was a promise to pay, one must establish whether there is a valid claim to be paid by the Defendants and what exactly needs to be paid. He said that while addressing the first issue, it is unclear when each container arrived in Dar es Salaam and the cost for each day of the delay, etc. According to him, these could be useful in ascertaining the amount collected from the 2nd Defendant (Plaintiff acknowledges USD 642,160 as per BZM R6) and the actual cost due by the delay. He said that remains unclear as the Plaintiff did not establish the same. He added that, another contradiction added to the matter was the timelines for holding the containers. He pointed out that, during cross-examination, Plaintiff admitted that the instruction to hold the containers came from the 4th of May, 2022, and remained up to the 2nd of June, 2022. The same footing admitted that after the containers arrived in Dar es Salaam, there were 14 days

free from any charges. This means any container that arrives from 2nd May 2022 up to 16th May will not be charged. So, any containers that arrived from 18th May 30 2022 to 2nd June 2022 should also not be charged. Hence, the time when one could be liable for detention charges is only for containers that arrived between 16th May – and 18th of May 2023. However, Plaintiff failed to establish a timeline for the arrival of the containers and the actual cost for the delay caused within that timeframe. This proves that Plaintiff is doing a fishing expedition on the claim without any tangible evidence supporting it. The counsel insisted that Plaintiff has failed to establish that the 2nd Defendant promised to pay as the same is not substantiated nor supported by any evidence. He says all communication referred to in evidence by the Plaintiff with one Ms. Prianka is not only out of context and one way, but also the same Prianka never accepted any liability or contractual obligation and also requested on more than one occasion not to communicate over WhatsApp and bring and address any grievances through proper channel of communication. He said the reason for such a request is that Ms. Prianka knows that the 2nd Defendant has no direct or indirect contract with Plaintiff. For further clarification, he said that from the evidence presented in court, one can easily establish that the

containers arrived in Dar in May and June 2022, while communication via emails and WhatsApp with the 2nd 31 Defendant and Priyanka started around October or November 2022. To him, this establishes that there was no promise to pay as the same could not come after the containers were withheld and had already accumulated charges. He asserted that the 2nd Defendant opted to pay for the charges because the cargo was still under the 2nd Defendant, and he is responsible for paying all the costs for the transportation of goods to their contractor until the goods reach the final destination. He said, the plaintiff insisted on recovery of the storage charges, and as a result, the 2nd Defendant had to cover additional costs through the assistance of the 3rd Defendant and Global Corporate to the tune of USD 642,250. He said, that was done with the promise that at a later date, all reconciliation and settlement of accounts would be done. Moreover, the containers were accruing charges daily, and the shipping line would have auctioned the containers unless the charges were paid immediately. Thus, the said payments were made under pressure, not out of any agreed terms, before the risk of losing all the cargo. This means the payments were not yet justified, but since the 2nd Defendant was cornered, they had to pay and do the reconciliations later. 32 Additionally, since Plaintiff failed to

establish there were clear instructions to hold the 56 containers along with the failure to prove there was a promise to pay before holding the containers above, one can clearly determine that the alleged agreement between Plaintiff and the 2nd Defendant is unclear and was found on uncertain terms. The same cannot be enforced against any party who never agreed to any of the terms alleged by the Plaintiff. He said the same situation is dealt with under the Law of Contract (Cap 345 R.E 2019) under Section 29, where it is stated that an agreement, the meaning of which is not certain or capable of being made sure, is void. He said there was no clear offer and acceptance of the alleged arrangement between the parties, as there was no explicit instruction to hold the containers nor promise to pay made by the 2nd Defendant. Hence, the alleged contract (If any) is void. The counsel supported his contention as addressed in several cases, including the case of Salama Iddi Kanyorota vs Oketch Boaz Othiambo, K&A Company Limited (Civil Case No.41/2021) High Court of Zanzibar where it was established that agreements must have specific terms to be valid. He also cited authority in the case of Oysterbay Properties Ltd & Another vs. Kinondoni Municipal Council & Others (Civil Revision No. 4 of 2011) [2011] TZCA 33 167 (18 November 2011), where the Court of Appeal underscored the significance of

the certainty of the contract. He proceeded that the justification why certainty to the agreement is necessary might be found from the statement of Lord Wright of the House of Lords in Scammel v. Ousten (1941) AC 251. In his concluding remarks, the counsel said it is crystal clear that no explicit agreement was entered between the Plaintiff and the second Defendant as the terms of that agreement are unclear; thus, whatever arrangement the plaintiff alleged is void and unenforceable. On the other hand, the counsel for the 3rd and 4th defendants submitted that the parties are bound by their pleadings. He referred to paragraphs 8 and 12 of the plaint and paragraph 5 of the plaintiff’s witness statement. The counsel questioned if the defendants were liable and promised to pay the additional charges, why did the plaintiff direct claims against the 1st defendant if he was promised to be paid by the 3rd and 4th defendants? Why continue re-diving services despite the payment of costs and additional charges?. 34 The counsel added that, the plaintiff gave a contradictory statement in paragraph 12 of his witness statement, stating that he kept demanding payment from the 2nd, 3rd, and 4th defendants. In contrast, under paragraph 15 of the plaint, he demanded payments from the 1st defendant. In his view, the plaintiff should require the payments from the 1st defendant with whom they agreed.

Lastly, he said PW1 failed to tender their agreement because he was trying to hide the truth. I have carefully considered the learned counsel's submission and revisited the pleadings and evidence regarding this second issue. I have also gone through the WhatsApp messages in exhibit PE1 about the request from the plaintiff for payment of previous unpaid funds, and the reply from the defendants is that they would do what was needed that day. Again, in the WhatsApp message dated 31/10/2022, the said Prianka, for the 2nd defendant, told the plaintiff not to delay any of the Vista shipments (2nd defendant) as they will do the needful after the Zambia team (3rd and 4th defendants) and Vistas (2nd defendant) go through the paperwork. The second defendant (Prianka) told PW1 through WhatsApp that she had instructed her office to review and reconcile the invoices. 35 The plaintiff contends that the above WhatsApp and email communications and the response from the second, third, and fourth defendants’ amount to a promise to pay the extra charges incurred. It is my turn now to resolve the question of whether, indeed, such communications amount to a promise to pay. A promise to pay is a legal terminology. The law in section 2 (1) (e) and (h) of the Law of Contract Act, Cap. 345, R.E. 2002, as amended by Act No. 13 of 2015, defined the contract as every promise and every set of promises,

forming the consideration for each other, which is enforceable by law. Section 10 of the Act provides that all agreements are contracts if they are made by the free consent of parties competent to contracts, for a lawful consideration and with a lawful object. Under paragraph (g), an agreement not enforceable by law is said to be void. The Act provides further in section 37 (1) that parties to a contract must perform their respective promises unless such performance is dispensed with or excused under the provisions of this Act or any other law. Thus, the parties to the contract are bound to perform their respective promises. Failure to perform the contract is a breach of contract, and its effect is the possibility of ending the contract according to section 39 of Cap. 345. 36 Given the law above, the promise to pay is an enforceable agreement as its terms are unambiguous, like any other contract. Hence, its legal enforceability needs to be supported by the principles of contract law, such as mutual consent, the legal capacity of the parties, and the lawful purpose and intention to create legal relations. After reviewing the conversations of the respective parties in exhibit PE1 and the parties' final submissions regarding the promise to pay additional charges, this issue does not need to detain me much. First, the promise to pay cannot arise without existing contractual

relationships. As previously stated, I have found no sound legal explanation offered by Plaintiff for the holding of the defendant's containers. Without further, I must state that the ten containers held through the instruction of Sandeep do not belong to the 2nd,3rd, and 4th Defendant, and there is no evidence tendered to show that he was authorized to issue such instructions on behold of the 3rd and 4th defendants whose cargo was not theirs. Again, as both parties contended, such a promise to pay the extra charges that were subjected or qualified to the reconciliation of the accounts of both parties and as seen in Exhibit PE1 in the email dated 19th January 2023 the 3rd defendant (Nisheeth) queried about the additional charges 37 calling it purposefully mishandling of shipment with malafide intention. He insisted that such malpractice had robbed them of 642,250 taken by the plaintiff, delayed their project, and caused a loss of USD 1,500,000/=. He even needed the payment receipts from the third party (shipping lines or the Port) who received the money, but, according to the defendants, nothing was disclosed. Also, of significance, both parties admit that, even if there was such instruction, the reconciliation has not yet been done. Second, the promise to pay, as noted, was subjected to the reconciliation in the sense of settling the matter where the results would be that if

the money paid to the plaintiff by the defendants to the tune of USD 642,250 was sufficient to settle the claims, the plaintiff would not claim anything from the defendants and vice versa was true. Likewise, if the amount paid exceeds the claimed amount, the plaintiff must refund the defendant. To date, no reconciliation has been done as requested by the defendants. Given this, with such uncertainty of the promise, one cannot say, in the legal sense, that the defendants promised to pay the plaintiff extra charges. More or so, as rightly noted by the counsel for the 3rd and 4th defendants, it appears that in paragraph 12 the plaintiff reminded the 1st defendant about payment of additional costs, which were the outcome of holding containers 38 for an extended period. Still, the 1st defendant had always pleaded a shortage of funds and a huge amount to be paid. It is settled law that parties are bound by their pleading. See the case of Makori Wassaga Versus Joshua Mwaikambo & Another [1987] TLR 88 where the court clearly stated; “A party is bound by his pleadings and can only succeed according to what he has averred in his plaint and proved in his evidence; hence, he is not allowed to set up a new case.” From the above, if the evidence is at variance with or contrary to the averments in the pleading, it goes to no issue and should be disregarded by the court. Likewise. As submitted

by the counsel for the 3rd and 4th defendants, the plaintiff, in paragraph 15 of the plaint and paragraph 9 of the plaintiffs, the witness still emphasized that the claims were directed to the 1st defendant. The said paragraph 15 of the plaint reads; “That the plaintiff kept reminding the 1st defendant of the payment of the outstanding amount stated under paragraphs 11 and 14 above but received no payment at all, an outcome of which the defendants has terminated the services agreement and a new clearing and forwarding agent an implication of 39 which is not to pay the outstanding to the plaintiff.” Also, paragraph 9 of the plaintiff's witness statement, it reads; “That we reminded the 1st defendant of the payment of the additional costs which were the outcome of holding of 10* 40* containers which were holding as per the 3rd and 4th defendants.” With the above-quoted paragraphs, the counsel for the defendant raised pertinent questions that required clarification from the plaintiff. First, there are claims of additional charges from holding 10* 40* containers. Second, if at all the 3rd and 4th defendants instructed the holding of those containers, why were the claims, as per pleadings, directed to the 2nd defendants? Yet the contract between the plaintiff and 1st defendant was not produced for the court’s perusal. Third, if the 3rd and 4th defendants promised to pay, why were

claims directed to the 1st defendant? In all fairness, the plaintiff's pleadings are evasive and perplexing. As I have reiterated earlier, parties are bound by their pleadings, and evidence after that not supported by the pleading must be rejected. See the cases of Barclays Bank (T) Limited Vs. Jacob Muro, Civil Appeal No. 337 of 2019(CAT-Unreported), and Ndawavya Vs. Theresia Madaha, Civil 40 Appeal No. 45 of 2027(CAT-Unreported). A longstanding principle of our law is that, pleadings must not be evasive; they must be cogent and pungent. One significant effect of pleadings is that they bind the pleader. That said, I conclude that the second issue is also answered negatively. For clarity, the 2nd, 3rd, and 4th did not promise to pay the additional charges. The third issue, as crafted, was whether the plaintiff was entitled to any relief(s)., under paragraphs 16, 17,18, and 19 of the plaint and paragraphs 11, 12,13, and 14 of the plaintiff’s witness statement, it was stated that the plaintiff has suffered financial loss for the defendants holding the funds unjustifiably; the shipping lines and transporters reported her to theTASAC, termination of the service agreement with defendants. However, during cross-examination, PW1 was unable to substantiate his claims with evidence. For instance, he admitted that he had no proof that shipping lines held containers and stopped business

with him, had no contract with the 2nd, 3rd, and 4th defendants, unable to produce his contract with the 1st defendant, and that the 3rd and 4th defendants did not connect him with Sandeep, no value attached to the containers if the shipping line, no proof of termination of the contract with the 2nd, 3rd and 4th defendants and lastly, no evidence that TASAC ever reported him because of the act of the 2nd,3rd and 4th 41 defendants. In his final submission, the plaintiff's counsel said that under section 70 of the Law of Contract Act, Cap, 345 R.E 2019, the defendants are bound to compensate the plaintiff. He based his submission that the Plaintiff was requested to hold containers, and as a result, additional charges were incurred, and promises were made by the 2nd, 3rd, and 4th defendants for the payment of the extra charges after reconciliation of the account on their side, a thing that they had never done to date. He said further that the Plaintiff supplied the 2nd, 3rd, and 4th defendants with all the invoices as exhibited by exhibit PE2. He also referred to the statement of account of the Plaintiff in exhibit PE2, which shows the number of invoices issued, which corresponds with the invoices tendered as exhibited before the court and for which containers, the shipping line, the date which the said containers arrived and when they were cleared. Also, the statement of account

reflects the date and amount paid by the 3rd Defendant, and the amount due is USD 234,000.00. He closed his submission by saying that, in light of the above, he firmly believes that the Plaintiff has been able to prove before this court the third issue framed and the amount he is claiming: USD 181,000.00 being 42 additional charges incurred by the Plaintiff payable directly to the authorities and USD 53,400.00 being demurrages for four unreturned containers that the third and fourth Defendants took. The second, third, and fourth defendants said that since the plaintiff failed to prove the case, they are entitled to nothing. They both insisted that the plaintiff has no contractual relationships with the second, third, and fourth defendants and was never promised to be paid by them. Hence, they invited the court to dismiss the plaintiff's case. In their final submissions, the counsel for the 2nd defendant insisted that it is the 2nd defendant who has suffered detention of the containers without instructions and not the plaintiff. He ultimately raised contentions that will be resolved in the counterclaim. On the other hand, the counsel for the third and fourth defendants insisted that the plaintiff had failed to prove the claims as required in sections 110,111 and 115 of the Evidence Act, CA.6 R.E 2022. He also cited the case of Anthony M. Masanga Vs. Penina (mama Ngesi) and

Another reiterated the principle in Re B (2008). UKHL, where it was stated that the law operates in a binary system in which the only values are 0 and 1. The fact either happened or it did not. And if the parties who bear the burden of proof fail to discharge it, a value of 0 is returned, 43 and the fact is treated as not having happened. I have considered the evidence of both parties regarding this issue. Indeed, as stated in the case of Anthony M. Masanga Vs. Penina (mama Ngesi) and Another(supra), the fact that the plaintiff was instructed to hold 56 containers did not happen. Likewise, bearing the burden of proof, the plaintiff has also failed to discharge his duty of proving that, defendants promised to pay for additional charges. Hence, legally, a value of 0 is returned, and the fact is treated as not having happened. That said and done, this court finds that the plaintiff has failed to prove his case to the required standard, which is a preponderance of probability as per the requirement of the provision of section 3(2) of the Evidence Act and the case of Henry Rimisho Mtenga Vs. Airtel Tanzania Limited, Civil Appeal No. 145 of 2020 (HC-unreported). In the end, the Plaintiff's suit is dismissed entirely. Before I pen off, I would now discuss the two issues together as raised in the counterclaim, namely whether the 2nd and 3rd Defendants/plaintiffs in the counterclaim

suffered any loss from the actions of the Plaintiff and 1st Defendant(defendants) and if the same is answered in affirmative, to what 44 reliefs are parties entitled. But before that, to avoid contradictions, the plaintiff and 1st defendant in the main case shall be referred to as the 1st and 2nd defendants in the counterclaim respectively, whereas the 2nd and 3rd defendants in the main case shall be referred to as the 1st and 2nd plaintiffs. Regarding the first issue, Mr. Nisheeth Vyas, who testified as DW1, is from the 4th defendant as country manager. Still, he was also working with the 3rd Defendant in April 2022 in Dar es Salaam. He tendered exhibit DE1, which is the email correspondence dated October 2022, and copied to the 1st, 2nd and 3rd defendants, plaintiff, and others not present in court. He complained about the delay of 12 containers, which PW1 said had insufficient funds. According to the exhibits, DW1 informed partners that PW1 had not provided original payment receipts and invoices and, if any, would be settled. Once all were made available, they would reconcile the statement and differences. One Girish from the 1st defendant replied that the work for 12 containers would be completed for USD 180,000, and if the money is more, the balance shall be refunded, but if they come with higher expenditure, 45 they would provide proof and invoice. He proceeded to require

the plaintiff (PW1) to confirm the understanding. He also tendered the invoices and receipts in exhibit (E2 and PE5) as ID1. He insisted that no reconciliation was done as agreed by the parties. He paid BZM under the instructions of the 1st plaintiff, who owned the goods until they reached the destination or purchaser’s yard (CIF). Hence, the containers on hold belonged to 1st plaintiff. On the other hand, Mr. Narasa Mohana Woluri (DW2) the principal officer of the 2nd defendant, also working for Southern Bio Energy Ltd, tendered the Supply agreement between Ms. Bio Energy and 1st Plaintiff as ED2. He also tendered Swift copies of Bank Transfer receipts collectively as exhibit DE3. He also tendered email correspondences, statements of account for Southern Bio Energy Ltd, and receipts with no charges. Again, he tendered the cargo services import invoice dated 17/08/2022 collectively as exhibit DE5, where he said the 1st defendant was given an invoice with total value and a waiver, which the 1st defendant did not declare. In addition, he tendered hotel bill payment receipts as exhibit DE6 (a) (b) and (c). He said these were the costs incurred in following up on this case to the tune of USD 29,127. More or so, he tendered the Payment or Cash 46 receipts for the expenses incurred for the attachment of the containers as per order of this court from Sothern Bio Energy Ltd as exhibit

DE7 (a) (b) and (c). He said they directed the 2nd plaintiff to pay 1st defendant USD 484,539, out of which 342, 250 were paid by the 2nd plaintiff, and Global Corporate paid 330,000. Later, he said that the plaintiff had been paid 642,000 USD, but on cross-examination, he said he had not proved it. Also, he told the 1st defendant that, he did not justify holding containers despite being asked to do so; hence, the question of reconciliation remained pending. In re-examination, he corrected that the total amount claimed by 1st defendant is USD 642,250. DW3 was Mr. Santhosh Kumar Sunkara (DW1), who also testified for the 2nd defendant in counterclaim and gave an account of expenses suffered by the 2nd defendant, particularly in handling this case. He said the director of the 2nd defendant directed him to effect payments to the plaintiff on their behalf over containers detained at Dar es Salaam Port relating to this case. According to him, on 15/07/2023, he paid Tshs. 36,090,250/= for detention invoice No. 5578620243 and Tshs. 7,218,050/= for detention invoice No. 5578620192. Also, on 18/07/2023, Tshs.32,263,670 was paid for detention invoice No. 5578621514. He tendered exhibit DE8(a) (b) and (c), which are 47 the bill of lading, detention invoice, and payment receipts dated 17/19 and 23/04/2023. In his submission, the counsel for the first plaintiff submitted that, the claim

instigated by the 1st Defendant to distort funds from the 1st plaintiff had caused a lot of damages to the 1st plaintiff, as proved in the witness statement and the exhibits tendered in court. He said the detention of the containers without instructions has made the 1st plaintiff pay USD 642, 160 which, to date, the 1st defendant has failed to account for. Moreover, he said that with the order of attachment before judgment, the 1st plaintiff incurred additional costs for containers detained at the Port on 10 May 2023. Thus, up to the time of the release of the containers on the 21st of July, 2023, the cost incurred by the 2nd Defendant caused by the court order is a total of USD 101,462.46, including port charges. He added that the attachment order was secured out of ill intentions as the 1st Defendant deliberately used fake emails to serve the summons for application for attachment before judgment while communicating with the 1st Plaintiff using other email addresses as tendered in court by the 1st Defendant himself. Further, the 1st defendant accrued a loss of USD 1,500,000/ occasioned due to the detentions of the containers, which caused a delay in the 48 implementation of the project, and the same was penalized as provided in the agreements with Southern Bioenergy tendered in court as exhibit DE 2 (a) and (b). He concluded that, all together, they form the basis and

proof of the counterclaim filed in court by the 2nd Defendant. On her part, the 1st defendant (plaintiff in the main suit) submitted that the actions by the 1st defendant referred to before this court are whether the 1st defendant was asked to hold the containers and or that was done suo motto Arguably, he insisted that it is pretty evident through the testimony by PW1 as well as exhibit PE1 that the plaintiffs had requested the plaintiff to hold the containers up until they acquired tax waiver of the goods they were importing from the Zambia Revenue Authority and a letter to cement for the same was admitted as exhibit PE4. He submitted that, whoever comes to equity must always come with clean hands. According to him, the plaintiffs in the counterclaim had promised to pay after the reconciliation of their accounts as exhibit PE1. Still, the plaintiffs never honored their promise to pay, nor did they reconcile their account. He said DW2, when cross-examined regarding the account reconciliation, was frank in admitting that they had never reconciled their account. Therefore, they cannot raise a counterclaim against the plaintiff as they are estopped 49 under the law. It was added that the failure by the second, third, and fourth defendants to reconcile their accounts justifies their conceded status to the plaintiff’s claim. On top of that, he said that the plaintiffs have never

suffered loss from any actions of the 1st defendant, as holding the containers was done as per their request, and the plaintiffs were served with proforma invoices in time, as shown in exhibit PE2 & PE5. The counsel cited the case of Zuberi Augustino versus Anicet Mugabe [1992] TLR 137, stating that specific damages must be pleaded and proved. Therefore, the 1st and 2nd plaintiffs. Defendants have failed to demonstrate what they have specifically pleaded. After going through the pleadings and evidence, I will be brief and straight to the point. One, as alleged by the counsel for the first defendant, it is not true that the plaintiff's claims are not specifically pleaded. In the plaint, Paragraphs 6 and 8, the 1st defendant was paid a total of USD 642,250 to cover the storage and transportation costs of 56 containers. Also, paragraphs 14 and 15 of the plaint show that the plaintiffs' claim is USD 1 500,000, which is lost due to the delay in the commencement of the project, and USD 101,462.46, which is the cost, including port charges. Also, USD 39,200 as trip expenses, USD 30,000 for follow-up of the case in Dar es 50 Salaam, general damages, and costs of the suit. Two, as I have rightly held regarding the first issue in the main case, there is no doubt that the defendants did not instruct the plaintiff to hold containers. Again, the promise to pay was subjected to queries about

why the containers were on hold without any justification. See exhibit PE1. It was also subjected to reconciliation before the payment was made. More or so, as depicted earlier, the letter from the Zambia Revenue Authority has nothing to do with the waiver, nor was it written by the plaintiffs. Likewise, the extra charges had already counted back to April 2022 when it was written to the authority. Third, the 1st defendant admits that he was paid some money, and his only unpaid balance was USD 234,000. Given that, and the fact that the plaintiffs did not instruct the holding of containers, the plaintiff was not entitled to any payments from the plaintiffs. The only remedy is to order a refund of the paid sum to the plaintiffs. Having said that 2nd, and 3rd defendants, who are plaintiffs in the counterclaim, are entitled to a refund of the paid amount of USD 642,250 for alleged storage charges, warehouse rent charges, and transport costs. Moreover, as the holding of the 2nd and 3rd defendants' containers was unjustified, the plaintiffs are also entitled to a specific claim on expenses 51 incurred relating to the containers' detention after the court's order of attachment before judgment. Hence, plaintiffs are entitled to USD 101,462.46. And USD 29 127 as expenses from Zambia to Dar es Salaam incurred in the following-up of the release of containers. Otherwise, the counsel for the

1st defendant was right to say that the plaintiffs in the counterclaim failed to prove their claim of USD 1,500,000, an alleged loss occasioned due to the containers' delay caused by the 1st defendant’s acts of detention. Also, the trip expenses payment of USD 39 200 from Zambia to Dar es Salaam (to and from) incurred by the plaintiffs for follow up of this case, are claims that can be taken care of through another forum, and not this one. I am also aware that the plaintiffs in the counterclaim requested this court to grant general damages and interest. The law is settled in our jurisdiction that the trial judge or magistrate awards general damages after consideration and deliberation on the evidence on record that justifies the award. The judge or magistrate can award general damages, although he has to assign reasons for granting the same. This position was discussed in the case of P.M Jonathan vs. Athumani Khalfan [1980] TLR 175, where Lugakingira, J. as he then was stated that; 52 “The position as it is, therefore emerges to me is that general damages are compensatory in character. They are intended to take care of the plaintiff's loss of reputation, as well as to act as a solarium for mental pain and sufferings.” (emphasis is mine). Based on the above, the awarding of the general damages in our jurisdiction falls under the court's discretion to be granted, and the same

has to be done considering the circumstances of a particular case. Understandably, the meaning of the general damages does not need proof as it is awardable at the court's discretion after determining and quantifying the damages suffered by the party. Only what the claimant is supposed to do is just to plead in the plaint. This position of law is assembled from Peter Joseph Kilibika vs Partic Aloyce Mlingi, Civil Appeal No. 30 of 2009 (CAT -Unreported), when the court of appeal quoted with approval the words of Lord Denning as stated in the case of Admiralty Commissioners vs. SS Susquehanna [1950] 1 ALL ER 392 on the award of general damages where it is said that; "If the damage is general, then it must be averred that such damage has been suffered, but the quantification of such damage is a jury question.” I have taken into consideration the fact that there were no instructions 53 to hold the containers from the plaintiffs, nor promises to pay the extra charges as 1st defendant believed. I have also considered that the containers' products were for business purposes and in no way shall spare the plaintiffs from colossal business losses. The losses and inconvenience caused entitle the plaintiff with general damages. In exercise of court’s discretion, justice dictates that general damage of USD 50,000 to the plaintiffs will suffice the situation. That said and done, this court

finds that the plaintiff has proved his case in the counterclaim to the required standard, which is preponderous of probability. Consequently, this court enters judgment in favor of the plaintiffs in the counterclaim and, therefore, orders the 1st defendant to pay the Plaintiffs the following reliefs: 1. The first defendant in the counterclaim is to pay the plaintiffs specific claim of USD 642 250 as a refund, which includes storage charges, warehouse rent charges, and transport costs paid by the first Plaintiff to the first defendant.

2. The first defendant is to pay the plaintiffs claim of USD 101 462.46, incurred by the Plaintiffs in the counter claim as accrued 54 from the detention of the containers after the order of attachment before Judgment issued by this court.

3. The 1st defendant to pay the plaintiffs USD 29 000 as specific claim incurred for engaging personnel stationed in Dar es Salaam for the follow-ups and release of containers after the attachment order.

4. For the inconvenience caused, the first defendant will pay USD 50,000 in general damages to the Plaintiffs.

5. The 1st defendant to pay Costs of the suit. Order accordingly. H. R. MWANGA

JUDGE 10/09/2024 COURT: Judgement delivered this 10th September 2024, in the presence of Fredrick Mpanju learned counsel for Plaintiff, and Reginald Mathias, 55 Shehzada Wali and Elisante Frank for the 2nd, 3rd and 4th Defendants respectively, and in the absence of the 1st Defendant. H. R. MWANGE

JUDGE 10/09/2024 56