20072606 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DlVISION) AT DAR ES SALAAM COMMERCIAL CASE NO. 4 OF 2004 CALTEX TANZANIA LIMITED ........... PLAINTIFF VERSUS PETROMARK AFRICA LIMITED ... DEFENDANT JUDGMENT Dead line for final submission April 30, 2007. Date of Judgment June 26, 2007. MJASIRIJ The Plaintiff CALTEX TANZANIA LIMITED has filed a claim against the Defendant PETROMARK AFRICA LIMITED a limited liability company incorporated in Tanzania seeking the following reliefs; (a) US$ 93,045 and TShs 6,833,235.76 (b) Interest on US$ 93,045 and TShs 6,833,235.76 at the rate of 8% per annum and 24% per annum respectively from the date -of filing the suit until judgment. therefore reflected the outstanding balance against· the Defendant. PWI gave a detailed account of the cheques credited to the Defendant's account and the receipts issued for TShs 5 million, 2.5 million, (three cheques). Tshs I million, TShs 3 million, TShs 2 million, TShs 1.8 million (Exhibits P2 - Pl I) and a cash payment of TShs 3 million. With regards to the claim for interest PWI testified that the claim for interest is based on the fact that the amount has been outstanding for a long time and the fact that the Plaintiff pays interest to Banks when it borrows to pay its suppliers and employees. The Defendant did not present its defence in court. The court was forced to invoke the provisions of Order I 7 Rule 3 and to proceed to decide the. suit because of the failure by the Defendant to present its defence. i Mr. Mbuya learned Counsel for the Plaintiff in his written submissions argued that the Defendant has not produced any evidence in court in support of its defence. Mr. Mbuya further argued that the Plaintiff has given evidence in court and produced exhibits to support its case. 4 With regards to the Plaintiff's claim of interest of 8% on the USD amount and 24% percent on the TShs amount Mr. Mbuya brought to the attention of the court section 29 of the Civil Procedure Act Cap 33 [R.E.2002] empowering the court to order interest to be paid from the date of filing the suit to the date of judgment. Mr. Mbuya cited the Tanzania Court of Appeal Decision in the case of Njiro Furniture Mart Limited V Tanzania Electric Supply Co. Ltd l 995 TLR 205 in which N yalali CJ (as he then was) stated as under:- " Under section 29 of the Civil Procedure Code 1966 a court has power to order interest to be paid up to the date ofjudgment at such rate as it may seem reasonable. " Mr. Mbuya further submitted that in view of that the claim for interest in this case is justified and the Plaintiff is therefore entitled to interest at the Commercial Bank rate from the date of filing the suit to the date of judgment. According to Mr. Mbuya the prevailing commercial interest rate ranges from 20% to 33% per annum. Counsel also cited the case of New Tyres Enterprises Ltd V Kenya Alliance Insurance Company Ltd 1987 KLR 380 and Tate 5 and Lyle Food and Distribution & GLC [1982] 1 WLR 149 Counsel also cited Kemp and Tollad and Engen Petroleum {T) Ltd V Tanganyika Investment Oil and Transport Limited, Civil appeal No.103 of 2003 Court of Appeal of Tanzania (unreported) where it was held that the court should take judicial notice of mercantile practice. Upon reviewing the evidence of PWl and the submissions made by the Counsel for the Plaintiff, I would like to state as under: With regards to Issue No. l, it is my finding that the Plaintiff has established that apart from the amount admitted by the Defendant in the Written Statement of Defence there is an outstanding amount of USD 34,224.78 and TShs 1,322,561.76 . due from the Defendant to the Plaintiff being the balance of Petroleum products supplied by the Plaintiff to the Defendant. In view of the requirements under the law of Evidence the Plaintiff has the responsibility of proving his case on a balance of probability. The fallowing provisions of the Evidence Act 1967 are applicable. Section 111 provides as under: "The burden ofproofin a suit proceedings lies on that person who would fail if no evidence at all were given on either side. " 6 Section 112 provides as under: "The burden ofproof as to any particular fact lies on that person who wishes the court to believe its existence unless it is provided by any law that the proof of that fact lies on any particular person." Section 115 provides as under: . "In civil proceedings when any fact is especially within the knowledge of any person the burden of proving the fact is upon him." The Defendant failed to present its defence. It is my finding that the Plaintiff has proved its case on the balance of probability the standard required under the law in respect of civil proceedings. Issue No .1 is therefore answered in the affirmative. With regards to issue No.2 the reliefs the parties are entitled to, I would like to state as follows:· Mr. Mbuya in his submissions strongly argued for the award of interest of 24% for the TShillings claim and 8% for the USD claim. I have carefully reviewed the authorities relating to 7 the award of interest and section 29 of the Civil Procedure Code 1966. The award of interest is discretionary. It is the duty of the court to examine and . evaluate the surrounding circumstances in order to determine the rate of interest to be awarded for the period prior to the delivery of judgment. In the Njiro furniture Mart case, supra the Court of Appeal held that under section 29 of the Civil Procedure Code 1966 a court has power to order interest to be paid up to the date of judgment. The Tanzania Court of Appeal reaffirmed the position in the Njiro future Mart case in the case of Engeu Petroleum {T) Limited V Tanganyika Investment Oil Transport Limited. Where it was held as follows: "Under section 29 ofthe Civil Procedure Code 1966 the court could take judicial notice ofthe mercantile practice ofcharging interest on debts but not exceeding bank rates. " In taking into consideratiori all the circumstances surrounding the Plaintiffs claim, I am of the view that the interest of 24% per annum and 8% per annum is tenable. In view of the fact that the Plaintiff has established his claim of the balance of USD 34,224.78 and TShs 1,322,561.76 8 •. the court is of the view that the Plaintiff is entitled to its claim for interest on the said amount. Judgment is therefore entered in favour of the Plaintiff for the balance of USD 34,224.78 and TShs 1,322,561.76 under the following terms and conditions: (a) Interest on the sum of USD 34,224. 78 and TShs 1,322,561.76 at the rate of 8% and 24% percent per annum respectively from the date offilling the suit until judgment. (b) Interest on the decretal amount at the court rate of7% per annum until payment in full. (c) Costs ofthe suit. It is ordered accordingly. Sanda Mjasiri Judge June 26, 2007 DELIVERED in Chambers this 26 th day of June in the absence ofboth parties. Sgd. Sanda Mjasiri Judge June 26, 2007 · 2588-words 9