CEVA v JUNACO judgment main suit 2025 2

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL CASE NO. 2991 OF 2024 CEVA LOGISTICS TANZANIA LIMITED …………………… PLAINTIFF VERSUS JUNACO (T) LIMITED.….............................................DEFENDANT JUDGMENT Date of last order:12/12/2024 Date judgment: 21/02/2025 AGATHO, J.: In this suit the Plaintiff claims against the Defendant for payment of United States Dollars Two Hundred Forty-Seven Thousand, Seven Hundred Sixty-One and Fifty-Two Cents (USD 247,761.52) being outstanding payment for airfreight services provided by the Plaintiff to the Defendant from Turkey to Tanzania. The plaintiff claims that the services were provided to the defendant pursuant to the agreed rates, the CEVA Standard Terms and Conditions, and the terms of credit contained in the Credit Application Form dated 14lh January 2022 (paragraph 4 of the plaint). The suit is based on breach of terms of the credit agreement and the plaintiffs standard trading conditions (para 10 of the plaint). The plaintiff further claims that 1 upon rendering services as agreed, she raised certain invoices for a total sum of US $322,068.52 (para 5,7 of the plaint) of which the defendant paid US $50,000 leaving US $247,761.52 outstanding (para 9) now being claimed in the suit. It is claimed further that the defendant has on several occasions through various correspondences admitted to the indebtedness as claimed and promises to pay have gone unfulfilled. On her side, the defendant through amended written statement of defence partly disputed the claim. The ground for the dispute is on the undisclosed rate applied by the plaintiff to calculate the amount claimed. The defendant stated that the rate agreed to between the plaintiff and the defendant for the shipment in question was US $1.6 in terms of the quotation agreed upon by the parties. The defendant alleges that when the rate as stated is applied, the total claim yielded is US$95,204.80 of which US $69,000 was paid and US $26,204.80 is outstanding which the defendant admits. Upon such admission, the court entered a judgment on admission. As for the plaintiff’s claim of US $247,761.52 the defendant disputes it. She thus prayed for dismissal of that claim. Regarding the plaintiff’s case, one witness Ms. Barbara Kusimba (PW1) testified on behalf of the Plaintiff. It was her testimony that the Plaintiff is a 2 clearing and freight forwarding company that provides customs clearance and freight management services to a vast clientele within Tanzania and beyond. That the Defendant engaged the services of the Plaintiff for the provision of air freight services from Turkey to Dar es Salaam via among other communiques, email correspondence dated 18 February 2022 (Exhibit Pl). PW1 further testified that the Plaintiff provided services to the Defendant, including airfreight services in 2021, for a consignment transported from Turkey to Entebbe, Uganda. That the claim before the court relates to the services to the Defendant that were provided pursuant to the Plaintiffs Standard Trading Conditions (Exhibit P2) and the terms of credit contained in the Credit Application Form dated 14 January 2022 (Exhibit DI). PW1 testified further that the Plaintiff had to engage its sister company in Turkey, Ceva Uluslararasi Ta§imacihk Ltd.§ti, to secure airline bookings since the Defendant’s cargo was being moved from Turkey. That the total cost for these services, amounted to United States Dollars Three Hundred and Twenty-Two Thousand and Eighty-Six and Fifty-Two Cents (USD 322,086.52). That the Defendant has so far and to this date only made 3 partial payments leaving the outstanding cumulative balance of USD247,761.52. It was the testimony of PW1 that, according to the Credit Application Form (Exhibit DI) as well as the Plaintiffs Standard Trading Conditions (Exhibit P2), payments for the services rendered were to be made within Seven (7) days of invoicing. That in the invoices issued (Exhibit P5) and in Exhibit P2, the Defendant was made clearly aware that if there were any issues/discrepancies with the invoices raised to the Plaintiff, the Defendant had 7 days to seek rectification from the Plaintiff. However, during the entire period of the transactions with the Defendant and thereafter, the Defendant never went back to the Plaintiff to ask for the invoice to be rectified. That, despite several follow ups and promises by the Defendant to pay, the overdue account was not settled and even after the agreed payment period had elapsed, the Defendant apologized and, through email correspondences (Exhibit P5), promised to make settle the outstanding amount. However, to date, the outstanding amount remains unpaid, hence the institution of this suit before the court. PW1 stated further that in all correspondence between the Plaintiff and the 4 Defendant, the Defendant acknowledged the debt and even made commitments to pay. For defence side, the Defendant’s evidence was adduced by Ms. Judith Lambert (DW1). In her testimony, DW1 admitted having received the services from the Plaintiff but disputed the rates used claiming that the allegedly correct agreed rate was a flat rate of USD 1.6 per kilogram for all the consignments thus, refused to pay the outstanding amount and admitted that the outstanding amount is USD 26,294.80 and not USD 247,761.52 as claimed by the Plaintiff. Following the admission on 26 July 2024 the court issued a judgment on admission for the admitted outstanding amount of USD 26,294.80. Having so done, the bone of the dispute left is the outstanding sum of USD 247,761.52 as claimed by the Plaintiff and disputed by the defendant. The matter thus went to full trial. Prior to hearing of the case, the court with assistance of the parties framed the issues as follows: (i) What were the terms of service in respect of the claim as per the agreement between the parties; (ii) Whether there was a breach of the agreed terms of service by either party, and to what extent; 5 (iii) What reliefs are the parties entitled to. To begin with the first issue, what were the terms of service in respect of the claim as per the agreement between the parties. It is axiomatic that contractual obligations are based on the terms agreed upon by the parties. These become binding upon those who are privy to the contract. As the law stands the terms that bind the parties may be written or unwritten. They may be in a standard quotation or in any other document or means of communication, such as email if they can be brought to court to substantiate the claims. Reference is made to Section 21 of the Electronic Transactions Act [Cap 442 R.E. 2022] herein cited as ETA that provides for legal recognition of contracts concluded electronically in Tanzania. In this case, PW1 testified that the parties had agreed to use standard quotation for airfreight to transport the defendant’s cargo. The same has been the practice in several transactions. However, the transaction in dispute has rates of USD 3.99 per Kg, which is higher than others. Unceremoniously, PW1 admitted that for this transaction no standard quotation was signed. Nevertheless, she told the court that there are email correspondences (through which the parties negotiated the USD 3.99 per Kg and the same was agreed upon. The email in point is dated 18th February 2022, part of as exhibit P1. The 6 defendant never disputed the authenticity or content of this email. It is trite law held in Emmanuel Saguda @ Sulukuka and Another v Republic, Criminal Appeal No. 422 “B” of 2013 CAT that failure to cross examine a witness on a key point amount to admission of that fact. Back to the case at hand, in the court’s view and considering Section 21 of ETA that contract may be negotiated and eventually formed electronically, meaning even by email exchanges, in this case there was a binding contract. The defendant has admitted the service was rendered, her dispute on the rates applied withers because one cannot rely on the traditional or standard quotation where there is a rate that was negotiated separately via email (exhibit P1 collectively). Had there been no email negotiation, then we would have inferred the application of standard quotation as the parties’ custom and practice in conducting business dictates. Again, looking at exhibit P5 (print out of email exchanges between the parties), it shows that the defendant’s personnel not only accept the disputed invoices but also promise to make payment of the invoiced amount. Turning to issue (ii) whether there was a breach by either party of the agreed terms of service, and to what extent, this will not detain the court considering the finding on the first issue. Since the court has concluded that 7 the dispute rates were negotiated separately via email, the failure of the defendant to pay the said rates as testified by PW1 constitutes a breach of contract. The extent of the breach is the defendant’s failure to pay rate of the outstanding sum of USD 247, 761.52 being payment for airfreight services provided by the plaintiff to the defendant from Turkey to Tanzania. The rater of USD 3.99 per Kg applied after negotiations done via email dated 18th February 2022, exhibit P1. The court observed that the exhibit D2, price quotation bearing a rate of USD1.6 per Kg was issued by the plaintiff to the defendant but the latter did not accept it timely. Moreover, the exhibit D2’s validity period is three months, which is contrary to the plaintiff standard quotation (exhibit P4) validity period of one month. These latter controversies are non-issue as it is settled that the USD 3.99 per Kg applies the case at hand. Consequently, that was the rate agreed upon by the parties in respect of the transaction, whose amount is still outstanding. That said the defendant’s refusal to pay USD 247,761.52) being outstanding payment for airfreight services rendered by the Plaintiff to her from Turkey to Tanzania constitutes a breach of contract. The law under Section 37(1) of the Law of Contract [CAP 345 R.E. 2019] obliges the parties to perform their obligations in respect of their freely concluded 8 contract. The provision provides that: “The parties to Contract must perform their respective promise, unless such performance is in dispensed with or excused under the provisions of this Act or of any other law”. Moreover, in Simon Kichele Chacha v Aveline M. Kilawe, Civil Appeal No. 160 of 2018, the Court of Appeal of Tanzania emphasized that the law does not afford excuses from a party for failure to perform her undertakings in a contract that she entered freely in absence of fraud, misrepresentation, undue influence or coercion. From the above the defendant in the present case was bound to perform her undertaking in the contract. Her excuse that there was a standard quotation cutting across all transactions while this rate was negotiated separately is unacceptable. Therefore, the defendant’s reluctance to pay the outstanding amount for the services rendered is nothing but a breach of contract. As for the final issue, (iii) what reliefs are the parties entitled, the plaintiff prayed for granting of the reliefs sought in the plaint while the defendant prayed for dismissal of the suit with costs. Based on the evidence adduced, the court holds the view that the plaintiff proved the case on the balance of probability as required in civil proceedings. Hence the reliefs 9 sought in the plaint are granted. In the end the plaintiff’s case is found to have merits. I thus proceed to declare and order as follows: 1. That the defendant has breached the contract by refusing to pay the airfreight for services the plaintiff has rendered to her. 2. The defendant shall pay USD 247,761.52 outstanding amount claimed by the plaintiff as airfreight for transport cargo from Türkiye to Tanzania. 3. The defendant shall pay interest at court rate of 7% on the amount in 2 above from the date of judgment to the date of full payment. 4. The costs of this suit shall be borne by the defendant. Order accordingly. DATED at DAR ES SALAAM this 21st Day of February 2025. U. J. AGATHO JUDGE 21/02/2025 10 Court: Judgment delivered by Hon. Joyce Minde, Deputy Registrar, today, this 21st February 2025 in the presence of the parties. U. J. AGATHO JUDGE 21/02/2025 11