COMMERCIAL CASE NO

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL CASE NO. 5 OF 2023 CFAO MOTORS TANZANIA LIMITED…………………PLAINTIFF VERSUS INSURANCE GROUP OF TANZANIA LIMITED……DEFENDANT DEFAULT JUDGMENT Date of Last Order: 22/5/2023 Date of Judgment: 30/6/2023 NANGELA, J:., This is a default judgment. It arises from a claim regarding the Defendant’s breach of contract and failure to enter defence despite having been duly served through a Court Process Server. Briefly stated, the Plaintiff in this suit has, by way of a plaint filed against the above-named Defendant, prayed for judgment and decree in the following orders, namely: - 1. Immediate Payment of TZS 90,000,000/=being an outstanding Page 1 of 7 amount which remains due and payable to the Plaintiff. 2. Interest at the commercial rate of 17% from the date the claimed amount become due to the date of judgment. 3. Interest of the Court’s rate of 7% from the date of judgment to the date of payment in full 4. General damages to be assessed by the Court. 5. Cost of and incidental to the suit. 6. Any other relief (s) that the honorable court may deems fit. The facts as gathered from the plaint are that, on 3rd February 2020 the Defendant issued to the Plaintiff a Motor Repair Authorization for the repair of a Motor Vehicle with Registration No. T277 DPS, Mercedes Benz Actros/Tractor belonging to M/S Jambo Food Product Limited, who is one of the Defendant’s clients, at a total cost of TZS 158,762,880.97. Page 2 of 7 It is averred that, after repairs, the total amount due from the Defendant to the Plaintiff per a tax invoice dated 18th June 2020 was TZS 160,935,184.01. It is stated, however, that, later, on 25th June 2020, the Defendant wrote to the Plaintiff promising that the outstanding amount was to be paid within 45 days. Before the Plaintiff released the repaired Motor Vehicle, however, the Defendant made a down payment of TZS 40,935,184.00/= sometime in November 2020 and was left with unpaid balance of TZS. 120,000,000/= only. It has been alleged that subsequently, the Defendant issued Equity Bank Tanzania Limited cheques worth the unpaid balance of TZS 120,000,000/=. Upon presentments, only one batch of the cheques valued at TZS 30,000,000 was cleared and the rest amounting to TZS. 60,000,000/= was dishonoured. On the other hand, another cheque valued at TZS 30,000,000/= was not deposited, and together, all these amounted TZS 90,000,000/= which remains unpaid. Page 3 of 7 Unfortunately, to date, the Defendant has neglected, failed, or refused to pay the said amount of TZS 90,000,000/= despite various demands from the Plaintiff’s, hence, this suit. On 4th April 2023, Mr. Pascal Kihamba, the counsel who appeared for the Plaintiff, prayed that the Defendant be availed with a fresh summons which the Plaintiff’s counsel undertook to bring to the attention of the Defendant given that the latter’s office is known to the Plaintiff. The application was granted, and a re-service was done through Court Process Server, one Mr. Najim Nurdin Nyanza on 13th April 2023. Mr. Nyanza has filed an Affidavit to that effect. Up to 8th May 2023, no defence was filed in Court. That being the case, the Plaintiff moved this Court, pursuant to Rule 22 (1) of the High Court (Commercial Division) Procedure Rules, 2012, GN. No. 250 of 2012 (as amended by GN. No. 107 of 2019 (the Rules)), applying for a default judgment. Page 4 of 7 This Court granted the prayer, and the Plaintiff has filed Form No.1 with its Requisite annexures, this Court fixed a date for this judgment. The Form No.1 was accompanied by an affidavit. In proving the claim, the Plaintiff filed in this Court, on 23rd May 2023 the said Form 1 and the affidavit of the Principal Officer of the Plaintiff. I have carefully gone through the affidavit and the exhibits annexed in proof of the claim. In view of the available proof based on the exhibits CMTL 1- 5, and the affidavit filed together with Form No.1, am satisfied that the claims have been established as the Defendant having breached the contract has as well unjustifiably failed to pay the Plaintiff the outstanding balance equal to TZS 90,000,000/=. Since the Plaintiff has fully complied with the requirement stipulated under Rule 22(1) of the High Court (Commercial Division) Procedural Rules, G.N. 250 as amended by G.N. 107 of 2019, this Court makes a finding that the Plaintiff is entitled to a default judgement and hereby Page 5 of 7 proceeds to enter judgment and decree in favour of the Plaintiff and states as follows, that: 1. The Defendant is ordered to pay to the plaintiff a sum of TZS 900,000,000/=. 2. The Defendant is hereby ordered to pay interest on the above sum at the Commercial rate of 15% from the date of judgment till the date of full payment. 3. The Defendant is hereby ordered to pay interest on the decretal amount at the court rate of 7% from the date of judgment till the date of full payment. 4. That the Defendant is condemned to pay costs of this case. FURTHER ORDER 5. That, in terms of Rule 22 (2) (a) and (b) of the rules, I further order that the decree in this suit shall not be Page 6 of 7 executed unless the decree holder has, within a period of ten (10) days from the date of the default judgment, published a copy of the decree in at least two newspapers of wide circulation in the country and after the period of twenty one (21) from the date of expiry of the said ten (10) days has elapsed. It is so ordered. DATED at DAR-ES-SALAAM, THIS 30TH DAY OF JUNE 2023 ......................................... DEO JOHN NANGELA JUDGE Page 7 of 7