chinese tanzania joint shipping line sinotaship vs karaka enteprises ltd 2021 tzhccomd 3434 1 december 2021

IN THE HIGH COURT OF UNITED REPUBLIC OF THE TANZANIA (COMMERCIAL DIVISION) AT DAR-ES-SALAAM COMMERCIAL CASE No.140 OF 2019 CHINESE-TANZANIA JOINT SHIPPING LINE (SINOTASHIP) VERSUS KARAKA ENTERPRISES LTD......... DEFENDANT Date of Last Order: 29“' September 21 Date -Judgement: Is* December 21 JUDGEMENT NANGELA, J:, 'XX Th^Plaipdff^a- legal entity carrying on the business of shippingCand local agency in the United Republic of TanMniaxas 'agents of COSCO Shipping Lines Co. Ltd, V (hereinafter referred to as COSCO), is suing the Defendant, a company registered and carrying out business of clearing and forwarding in accordance with the laws of the United Republic of Tanzania. The basis of the Plaintiffs suit is an alleged breach of two contracts which the two parties signed on 31st March 2018. According to the facts, one of the contracts signed involved transportation of Dump Trucks from Dar-es- Page 1 of 38 Salaam Port to the agreed port of destination, while the other contract involved containers in which transported consignments were stored. From their transactions, the Plaintiff claims from the Defendant payment of a total of United States Dollars, Thirty Four Thousand One Hundred and Twenty Ninei^S^ 34,129.00) as demurrage charges arising from the Defendant's failure to return, within the .prescribed time, a Container No. COSU 6207890180. Besicles/ihe Plaintiff claims, as well for payment of "^07.00, which arises from the Defendant's failure to~deliver to the consignee in the port of destinationrone’Big Dump Truck. The Plaintiff is also claiming^forgeneral damages, and interest on the decretakamount/and costs of the suit. In total, therefore, the^RJaintiff is claiming for USD ($) 89,736.00. Atto€t^mg''of this suit, the Plaintiff enjoyed the legal services\of Captain Ibrahim Mbiu Bendera, Learned Adv^cai^Initially, the Defendant was represented by Mr. HoseaxChamba, Learned Advocate, but he later withdrew from representing the Defendant. As such, one of the Defendants's Directors, Ms. Janeth Kalashani, appeared for the Defendant and was the only witness for the Defence. In the course of the hearing, the Plaintiff called two (2) witnesses who had earlier filed their witness statements in Court. The two witnesses were Mr Herman Page 2 of 38 Ernest Sarwatt, whom I will later refer to as PW-l, and Ms Eva Murani Tirukazile, whom I will refer as PW-2. The Plaintiff did also submit to the Court a total of eight (8) exhibits (Exh.P-1, to P-8) to prove its case. The Defendant had only one witness, its Director, Ms Kalashani whom I shall refer to hereafter as DW^l, and submitted a total of three (3) exhibits (Exh.D-1 to D-3) to support its case. At the end of the hearing, both parties filed closing submissions which I will also\mpsider as I dispose of this matter. I will briefly\supM)anse the testimony of the witnesses before P'tackle the issues one by one. ~ Initially, when this CourbconySned for its final pre- trial conference it settled fqr<three agreed issues which I 1, Whetffer^theJ9efendant is liable to pay tli^Plaintiff demurrages due to the 'Defendant's failure to return Container No/cOSU 6207890180 and for non- ) delivery of one Dump Truck to its consignee within the prescribed time. 2. Whether, the Container No. COSU 6207890180 was returned to its owner and if not, whether the Defendant is liable to the Plaintiff for its non-return or loss. 3. To what relief are the parties entitled. Page 3 of 38 Before tackling each of the issues listed here above, I find it apposite to give a summary of the testimony and evidence offered by the witnesses called by each of the parties. In his testimony, PW-1 established that, the parties had concluded two contracts (Exh.P-1). In one of those contracts the Defendant was required to transport transit containers to Zambia, Rwanda, Cqngo Burundi, while under the 2nd agreement, the Defepdant was to transport 20 Dump Trucks andrTO^daig Dump Trucks (to Likasi in the DR-Congo)/asxwellt;as 10 (small Dump Trucks) to Kapulo in -DfeConga It was PW-'s testimony that, the agreemenvgovej;ning the transport of containers had allowedToT’payment of 70% of the agreed A payments to the Defendant/upon the signing ceremony while the 30%,was\to be paid after the return of the empty conta1n|r£to,the Plaintiff. Accbr^iqg to PW-1, the Defendant was paid for the confahiltsj and, that; the Plaintiff also paid some of the transporters to return the empty containers as they could not be paid by the Defendant. However, PW-1 did not tell the Court how much was paid and for which containers. It was the testimony of PW-1 (and also PW-2), however, that, one Container No. COSU 6207890180 was not returned to the Plaintiff within prescribed time. As such the failure has warranted a claim of USD ($) 35,129.00 as specific loss arising from the daily increase of demurrage Page 4 of 38 charges at a rate of USD ($) 80.00 per day up to the time of filing the suit for failure to return the empty container. On cross-examination, PW-1 told the Court that, as the Defendant failed to return the respective container, the delay attracted demurrages and, since such were not settled, the 30% payment amount withheld by the Plaintiff was used to settle such charges. He also told the Court that, the 30% retained amount was also used to pay for the transporters who returned the container as they were not paid by the Defendant. Exhibit P.7 was tendered and among others, it does show some payments made to transporters and the clearance of demurrage charges. He testified, therefore, that, nothing was left of the 30% balance. However,^V-f^jdtestify that, when the Plaintiff engaged the transporters to return the containers to the Plaintiff, the )Defenaant was not involved in that arrangeme'ntxyyhat he claimed was that, the Defendant was/noFavailable despite several communications by e- mail,_calls and physical visit to the Defendant's office, and that, the transporters used to knock at the Plaintiff's office claiming to be paid. He maintained, that, the Plaintiff used the 30% amount retained to off-set the charges; although the amount could not be paid in full as it was huge and the excess is what the Plaintiff is now claiming from the Page 5 of 38 Defendant. As I said, Exhs.P-3 and P.7 were tendered in Court to establish that fact. As for her part, PW-2 testified that, the Defendant failed to deliver one big dump truck to its consignee and owes the Plaintiff USD ($) 55,607.00 as demurrages. She also testified that, the Defendant failed to return one container to the Plaintiff despite having been fully paid for the assignment as per the contract signed between^the two parties. PW-2 testified, therefore, that, the\non^elivery of the dump truck and the non-return/of\the container (No. COSU 62078901180) made thezRlaintiff'to demand from the Defendant payment '6^USdX($) 89,736.00, as demurrages. In winding-up the Plaintiff's case, final A submissions were filqd/by the Plaintiff, In the submissions, the Plaintiff contended that, the Container was being/^ed j ^maritime transport of goods to consignees^ for the defence case, DW-1 (Ms Kalashani) admitt.ed/in her defence, and during cross-examination that, to date, one container which is partly a subject of this suit has not been returned. Nevertheless, it was DW- 1's testimony in chief, as well that, the Defendant was able to transport and return 16 containers to the Plaintiff but, as already noted earlier, she admitted that one container on transit has not been returned. She however laid blames on the Plaintiff for all that. According to her Page 6 of 38 testimony, DW-1 stated • Thethat, the Plaintiff Defendant's TIN had deliberately refused to pay the Defendant • Certificate a balance of USD ($) of incorporation • VAT Certificate 45,959.43. DW-1 tendered in Court as exhibit an invoice • TAFA Certificate, and which the Defendant had raised with the Plaintiff valued • SUMATRA-Certificate. at USD ($) 45,959.43. The Invoice was admitted as Exh.D-2. It was a further testimony of DW-1 that, due to such non-payment of the dues, the Defendant'failed, to pay the transporters hired to return the contairrer^apci as a result, one of them decided to withhold^orj^container, the subject of this suit, as he claims foispayments of outstanding dues. DW-1 testified\that*the Defendant has suffered economic hardship^as^he .Defendant run out of cash to pay the transporters having been subjected to economic hardship DW-1 testified,\as well, that, the Plaintiff coercively took from/theV Defendant business licences and other company documents in a bid to assure delivery of the Dum^truCk/and that, to date, the Plaintiff has never retCrhed'such documents. In particular, DW-1 told this Court that, the documents taken by the Plaintiff were original copies of the following: Page 7 of 38 According to DW-1, since the Plaintiff refused to return these documents, the Defendant has been unable to renew its operational business licence for a third year now as the procedures would require that the originals be presented, which originals are withheld by the Plaintiff. She told this Court that, whenever the Defendant attempted to approach the Plaintiff, the latter would not allow or grant access to the Defendant. This means that A\ 1> she has been put out of business for the past three years now. In view of the above, DW-rstestified that, the Plaintiff is not entitled to be paickthe'arriount claimed as demurrages resulting frorir^We^Fnon-return of the container, the subjectzof this suit. The reasons assigned A to that were that.it wa|Jthe Plaintiff who frustrated the contract as theTatter failed to pay the Defendant 30% balance clai^fecJ bythe Defendant as per Exh.P-2. Moreover, Dm also based her reasoning on the coercive taking ofdthe Defendant's business licences and other documents, an act which she claimed to have paralysed the operations of the Defendant, as the latter failed to renew her licences and failed to operate her business. On cross-examination, however, DW-1 was asked whether the Defendant brought any counterclaim. Her response was to the effect that, she could not afford for the payments which would have been involved. Further, DW-1 stated that, the Defendant cannot be liable for the Page 8 of 38 loss or charges in respect of the said container because that container is still under the custody of the transporter who demands to be aid having delivered the cargoes successfully. It was also the Defendant's closing submission that the Plaintiff failed to honour the contracts to wit, that, the Plaintiff failed to pay 30% of the contract in order to enable the Defendant to execute its ^contractual obligations, one being that of retuning empty containers to the Plaintiff without demurrages. We^Derendant maintained that, there was no justification/whatsoever, regarding why the Plaintiff should~notK have paid the Defendant the 30% having^deliveced the consignment. k The Defendant submitted that, ,had the Defendant been paid the 30% on deman^tlje container would have been returned. 'xX, FinaJ^t^__pefendant submitted that, since she suffered lossxin, hands of the Plaintiff, as she failed to renew hen business licences and certificates taken by the Plaintiff,-she is entitled to be given her certificates and be generally compensated for damages and the costs so far incurred. From such disclosures, three issues were framed by the Court and agreed by the parties, the first issue being: Whether the Defendant Is liable to pay the Plaintiff demurrages due to the Defendant's Page 9 of 38 failureto return Container No. COSU 6207890180 and for non-delivery of one Dump Truck to its consignee within the prescribed time. Looking at the facts and the evidence as adduced by the respective witnesses for the parties, there is no dispute that the Plaintiff had a business relationship with the Defendant governed by Exh.P.l, {Container Clearing and Forwarding & Road Transport Agreement. 'The testimonies of PW-1, PW-2 and DW-1 as well asExhrP-1, were all to that effect. In their testimonies^RW-1, PW-2 and, even DW-1, do not dispute "me fact'that in the course of executing the contracts^pne container was not returned. What seems to 'be'/contentious between the \y parties is who is to/blan^for that and who should shoulder the liabjh^wna^pever. In his closmg^sybmissions, the learned counsel for the Plaintiff reikjped to convince this Court that the Defenpgrt should be liable. Three reasons have been given: first, is that, in her defence, the Defendant admits y thab-one container has not been delivered to date. The second reason is that, the Defendant failed to challenge the fact that she was paid 100% for the transportation of both the missing container and the undelivered Dump Truck. The final or third reason given is that, since the Defendant failed to meet her obligations, there is no counter claim in her statement of defence. Page 10 of 38 However, as observed from the Defendant's evidence, much as there is admission that the relevant container was not returned, the Defendant seems to shift the blame on the Plaintiff. In particular, and as regards the missing container, the Defendant evidence was that, the container is still withheld by one of her transporter because the Defendant failed to pay owing to the Plaintiff's failure to pay the Defendant a total of USDxf$) 45,959.43. She submitted in Court, Exh.D-3w^icJi^the Plaintiff never disputed. In fact, what the Defendant -is^sayihg- is that, the Plaintiff had contributed to tlie“deilay‘ to return the container. In other words, the\Deren^ant is stating that, the Plaintiff had breache^the^c^ntract as well. As such, she is arguing thatthe^wmurrage claims in respect of the delayed return'of\tfje container should not be paid because, Jiad^the^ Plaintiff paid the retained amount as per Exh.D-3, the Defendant would have z paid the transporter who withheld the contain.er'and the same would have been returned. To be able to pronounce whether the Defendant is liable or not, one has to go back to the parties' contract as it guided the parties relations on matters of liability and the extent of liability. Liability on the part of the Defendant as the "C & F & Transport Agent" is provided for under clauses 8.1 of the contact, Exh.P-1. According to Clauses 8.1 and 8.3 of Exh.P-1, the Page 11 of 38 following is well stated as liability that may ensue in respect of loss or delayed return of containers: "8.1 The C &F Agent & Transporter shall: 8.1 Be liable and fully indemnify SINOTASHIP for...loss of SINOTASHIP Containers ...whilst in the C & F Agent & Transporter's care, custody, possession and/or control..." 8.2.... 8.3 Indemnify SINOTASHIP, and be, fully liable for any reasonable amount of direct costs incurred as a direct result of the late delivery or 'misdejivery^of empty or full containers whereat is diie to the Transporter's negligenre^wifful misconduct or error, '(indudfng airect costs to get misdelivered^cbntainers delivered to the cprrectxdestination)..." From the above^clauses and, taking into account the admission c?f^DW-^that, the disputed container No. COSU 62078^0180/is yet to be returned, it is clear that, theCDefendant's failure to return the respective containersatl|acts what clauses 8.1, and 8.3 of Exh.P-1 A pro^^However, as the agreement indicates, there is a limit to liability on the part of the Defendant. According to the proviso to Clause 8 of Exh.P-1, it is stated, at the 2nd paragraph that: "The C & F Agent & Transporter's liability under this agreement, shall at all times be limited to USD 40,000 for anyone conveyance, alternatively to C & F Agent & Transporter's maximum liability insurance cover available at the Page 12 of 38 time of the claim, whichever is the greater." In her claims in respect of the container No. COSU 6207890180, the Plaintiff is claiming for USD 34,129.00 as demurrage charges for non-return of the Container. As noted earlier, the Plaintiff submitted Exh.P.3 and Exh.P7 which provides details in respect of what was paid to the Plaintiff and demurrage charges that accrued due to late return of empty containers. It means, therefore, \the above amount is well below the limit proyideclfbr>dnder the proviso to Clause 8 to the Exh.P.l. However, before one concludes ^whether the Defendant will be solely liableSjr not? there is still a ij* specific question that needs-^tcp be considered. That specific question is infrelation to the DW-l's testimony (> z y* that, the Plaintiff^ntributed to the failure on the part of the Defendanttp discharge her obligations smoothly due to the lajter^feilure to honour its obligation to pay the invoices->(Exn:D-3) which invoices the Defendant had brought to’ the attention of the Plaintiff for clearance. ^Essentially, if one closely follows the testimony of DW-1, what she seems to assert is that the Plaintiff 'frustrated the contract', when she failed to pay the Defendant USD ($) 45,959.43 which represented the 30% retained amount for the contract relating to the transport of containers. She also stated that the Defendant's business was further frustrated by the fact that the Page 13 of 38 As Regards the first question, the key to it hinges on ^whether or not the Defendant is banking on the Plaintiff took doctrine from the toDefendant of frustration neck, andbusiness save herimportant if so, licences, onhence, whether the basis of the the sending factsDefendant therea was of this caseinto non- a 'frustration state operational of theof affairs. The doctrine of frustration of contract'. From contract such Defendant's is well-known assertions, principle there under the are at least common law. four casequestions In thebasic that have cropped-up of Felix Rutazengelera in my mind vs. Co-Operative for discussion. callingRural and The first Development Bank can it be is: [1996] said382, T.L.R thatthe by Court of Appeal the not honouring of Tanzania (Exh.D-3) invoices made thethat, it clear Plaintiff that frustrated the possible 14 of 38 Pageexecution of the Defendant's contractual obligations? The second is: can it\te/said that by not honouring the invoices (Exh.'Plaintiff was equally in breach of the contract?/ The third question is: if the answer to^thfejsecond'’question will be in the affirmative, should 'this., courf brush it aside or consider them as part/Of'the Defendant's defence? The fourth questionJs:\was it not appropriate that such matters should'oeXaised as counter-claims and if so, were they^and>if not; what is the effect? I will deal with these questiqnsjiereunder. principle has not been abolished in this country, even if the Law of Contract Act, Cap 345 appears not to cover all aspects of the law of contract. In essence, what the doctrine entails is that, where events occur, that make the performance of the contract impossible, and, these frustrating events are not the fault of "oureither do not then, courts party, readily the contract invoke the is brought to an end doctrine with of frustration neither unless Under party at fault. it is our Law of (Mract^ct, shown that the contract as originally conceived,R.Ebears Cap.345 2019, little or no is contained in section 56 this doctrine resemblance (2) to the new of. The respective state ofstates as fol^yysjz provision things. It is not sufficient merely to "A contract to do an act^which after show that conditions have changed so that one partythe is contract is jnade—pegomes in a more impossible, becoj^es^oiTwhen the onerous position, financially or personally. It should be shown that it But when is now can onetoinvokettte impossible defence of frustration? The perform the contract not merely more difficult or answer to this question iszreadily available in the case of 1 < / M/S Kanyarwe\ Building Contractor vs. The AttorneyjGen^eral and Another [1985] T.L.R 161. In that case^tW^Court (Mwalusanya J, as he then was) observedThafer Page 15 of 38 expensive ... [Frustration] is a sort of shorthand: it means that a contract has ceased to bind the parties because the common basis on which by mutual understanding it was based has failed. It would be more accurate to say, not that the contract has been frustrated, but that there has been a failure of what in the contemplation of both parties would be the essential condition or purpose of the performance....The principle is that where supervening events, no't due to the default of either party, render the performance of a contract, indefinitely impossible ancftherejs' no undertaking to be^boung^n any event, frustrationl ^fisuesT’T have impossible’ for emphasis....The fact that it has'become more onerous or more expensive^br one party than heXough^Ls^not sufficient to bring about^xfrustration. It must be more than merely more onerous or more expensive. It must be positively upjust to hold the parties bound. It is often difficult to draw the line. But it must be done. And it is for the courts to do it as matter of law." Looking at the facts of this case and what DW-1 has raised as frustrating circumstances, do these warrant invoking the doctrine of frustration? In my view, the response is in the negative. As it may be noted, what is being raised here by DW-1 was not impossibility to perform the contract but rather some difficult Page 16 of 38 circumstances that pushed the Defendant into an awkward economic position, the circumstances themselves having in them the Plaintiff's hand. As per the decision of this Court in the above cited case of M/s Kanyarwe (supra), it is not sufficient merely to show that conditions have changed so that one party is in a more onerous position, financially or personally to warrant invoking the doctrine of frustration. Instead, there must be supervening events, nbtMue to making it clear that, in any event,"'her party is to be bound. In the Indian ea^\of .Sri Amuruvi Perumal A z*V- Devasthanam vs IGi^Sabapathi Pillai And Anr. A.I.R [1962] Mad^432, the Court, while considering section 56^OT^gJndian Contract Act (which is somewhat in parimateqa^a our section 56 of Law of Contract Cap^Fp'jE 2019), was of the view that: "It must be borne in mind, however, that S.56 lays down a rule' of positive law and does not leave the matter to be determined according to the intentions of the parties.... It is also settled that the theory of frustration or impossibility of performance of a contract cannot be applied to cases of commercial transactions. In other words, the impossibility referred to in S. 56 is not commercial impossibility. In his Page 17 of 38 treatise on ” Impossibility of performance, 1941 Edn. Roy Grenville McElory states at p. 194 under the heading "Commercial Impossibility is not frustration": "So far as existing authorities go, no change in economic conditions, however serious, and however deeply it may affect the contract, can by itself amount to impossibility such as to avoid it. There is no implied condition as to ’commercial', impossibility. It is false and misleading, therefore, to use^the term ’frustration’ to describe siich^a^y situation. From the above understan^ingTtherefore, it is clear to me, that, even if the DefenclanU^this case was trying to rely on the doctrine^dWmstration, she cannot invoke that doctrine as her d^nce/This is due to the fact that, there was no frustration of the contract or applicability of xO \X the doctrine ofyfrustration as the Defendant or as DW-1 would wantxttus Court to believe. That being said, was there^i^ other reasons that would have made the Defendant unable to fulfil her obligations under the contract? In the case of Mohamed Idrissa Mohammed vs. Hashim Ayoub Jaku [1993] T.L.R 280, the Court of Appeal held that: "where a party to the contract has no good reason not to fulfil an agreement, he must be forced to Page 18 of 38 perform his part, for an agreement must be adhered to and fulfilled." Now, were there, therefore, good reasons regarding why the defendant did not discharge her obligation under the agreement? A response to the above brings me to the scrutiny of the rest of questions I raised earlier on and the evidence availed to the Court. The second was: can it be said that by not honouring the invoices (E^ii.p-3)'tthe Plaintiff was equally in breach of the contract? Admittedly, it is settled law, as, once^stated in the case of Vitus Lvamkuyu vs. Imalaseko/Investment, Civil Case No.169 of 2013 cases Board [1990 - 1994] 1 EAZ448 cited in Legend Aviation (Pty) LimitedXt/a^J^ing Shaka Aviation vs. WhirlwincLAviatibn^Limited, Commercial Case No. 61 of ZOlS^ighZgourt Commercial Division (unreported), that: \y "A breach occurs in contract when one or both parties fail to fulfil the obligations imposed by the terms............. " According to DW-1, the Defendant raised Exh.P-3, with the Plaintiff but the latter did not honour them. DW- 1 had stated that, she was expecting to use that amount to pay transporters of the containers, including the container which is the subject of this case. In his Page 19 of 38 testimony, however, PW-1 stated that the Defendant was paid 100% of the amount she was supposed to be paid under the contract. I have revisited the testimony of PW-1. While he stated in chief that the Defendant was 100% paid, his evidence is somewhat contradictory. I find it to be so, because, at one point, PW-1 stated that the contract had stipulated for payment of 70% at the time of signing ^and 30% of the remaining balance upon retumfog^of/the containers. He tendered Exh.P-3 whicnHs^anzaccount detailed ledger in respect of the DefdndantC According to Exh.P-3,^out—of^ 18 containers indicated thereon, full paymenbof botli 70% and the 30% was in respect of four/xJr^lnere'only. The rest indicated A that 30% balancewas^uqpai.d. The containers indicated in Exh.P-3, for whiclr3p% retention balance was yet to be paid, were^the^apne, as those for which an invoice, Exh.D-3 was^raised by the Defendant (except one No. COSU6174958040 which was not indicated in the ledger (Exthp?3j). PW-1 testified, however, that, the payments in respect of the container in dispute were fully paid. Indeed, it is true, as per Exh.P-3, that in respect of the container in dispute, the 30% balance was paid. But, Exhibit D-3 shows that the invoice was raised not for just one container and the amount which remained as balance was to a tune of USD ($) 45,959.43. In the testimonies of Page 20 of 38 both PW-1 and PW-2, nowhere was it mentioned that invoices raised by the Defendant were disputed. What the PW-1 stated while under cross- examination was that, because some containers had incurred demurrage charges, the Plaintiff had used the 30% to offset the demurrage amount and also to pay for transporters she had engaged to return some of the Containers. Pw-1 told this Court that had it noLbe soothe AX P demurrage charges for the unreturned containers^/ould have been too huge to pay. However, as pefcthe^contract A between the parties (Exh.P-1), the obligation to return x X the empty containers was of the^Defendaht. Moreover, when Dw-Westified^in Court, she told this Court that, the Defendant .was not involved in that Plaintiff's arrange^ient^vjtivtransporters and, further that, the Plaintiff frustrated her business for not paying the DefendantXthe/J30°/o balance as agreed, which the Defendant had_expected to utilise, to pay the transporter who^withheld the container in dispute. Taking those circunistances, can it be said that the Plaintiff was equally in breach of the contract? As I stated earlier here above, breach of contract can be occasioned as well, due to failure of both parties to fulfil their obligations. On the part of the Plaintiff, the evidence does show (see Exh.P.l and Exh.D.3) that, the Plaintiff was duty bound to pay the Defendant the Page 21 of 38 balance of 30% for transported containers within 14 days of their return. In particular, according to Clause 9.6 of the contract (Exh.P.l), it was an agreed payment term under the contract that, invoices raised were to be honoured within 14 days of the return of containers unless disputed. If there was any dispute it was in respect of the one missing container, the subject of U^is suitxbut not the rest. Indeed, as I pointed out here^above, Exhibit D-3 was not raised just for one container as the amount was cumulative of the remaining 30jtf> balance, in tune of USD ($) 45,959.43. As I stated earlier, the^Rlaintiff did not raise any objection against Exh.^3 >and did not provide reasonable explanatioi^re^afding why the amount raised by the Defenda'ntytmder Exh.D-3 was not paid. What was provide^S) PW-1 on cross-examination was that, the balance orS^, was used to pay for demurrage charges andftrahsporters of empty containers. Even so, the Defendant, who had the duty to return the containers, was not, as per the testimony of DW-1, involved in such arrangement. In my view, the Plaintiff ought to as well honour its obligations, failure of which amounts to breach of the same contract. It follows, therefore, that, the Plaintiff was also in breach of the contract. From the above finding, there comes the third question which I had raised and which was: if the Page 22 of 38 answer to the second question will be in the affirmative, should this Court brush aside that fact or consider it as part of the Defendant's defence? As it may be noted, in her testimony, DW-1 testified that, the Defendant was to have utilised the amount she had raised in the invoice (Exh.D-3) to pay for transporters who were to return the empty containers. She also stated that, while other containers were returned the only remaining^One, ^and which is the subject of this claim, was withhelcLby a transporter after the Plaintiff failed to honc^Exh.'D-3. The above testimony of DW^^and^the fact that nowhere the Plaintiff disputed^that~:Exh.D-3 was not honoured when the Defendant>aised?it to the attention of the Plaintiff for payment,^rings)to my mind a discussion regarding the principl^qPduty to rescue", (as espoused under the American, contract law) or the doctrine of "mitigation/of damages" as prevalently understood under the commonjaw. As^Melvin A. Eisenberg puts it in his article: The DutyJoRescue in Contract Law, 71 Fordham L. Rev. 648, 672-75 (2002): "If in a contractual context, B is at risk of incurring a significant loss, and A could prevent that loss by an action that would not require A to forgo an existing or potential significant bargaining advantage, undertake a significant risk, or incur some other cost that is either Page 23 of 38 significant or unreasonable under the circumstances, then, as a matter of fairness, A should be under a duty to take that action." Moreover, in his article "Damages in contract at common law" (1932) 48 L.Q.R. 90-108, page 106, George Washington puts it that: "Mitigation of damage in common law is a concept which came into existence during the eighteenth century, when damages for breach' of contract became more strictly controlled by the courts: as a system, of rules controlling the assessment of damages began to be^created, the Courts showed—an—active defendant-the^consequences of his own stupidity, laxity or inertia. ^Fhisattitude, however, was for^the rhost part indirectly ^manifested, andthe law of mftigation as we have it to-day is a very'recent growth, still in process of adjustment". (Emphasis added). X From the fairness point of view, therefore, the utility-ofthe above doctrine is seen in the course of mitigation of damages a result of the breach of the contract. Its underlying spirit is that, an affected party cannot recover damages for any loss (whether caused by a breach of contract or breach of duty) which could have been avoided by taking reasonable steps. It follows, as a response to the third question I had raised suo motu, that, this Court cannot just brush aside Page 24 of 38 the evidence of DW-1 and Exh.D-3. Going by how events in their business relations unfolded, each party had contributed to the breach of the terms and condition of the contract signed and executed. As such, the Plaintiff is equally to blame, just as the Defendant and must share the losses. Having stated so, response in respect of the fourth question comes into the stage. This was whether -it is appropriate to consider Exh.D-3 and the restohconcerns which DW-1 raised in this case regarding^fie^cpriduct of the Plaintiff or the Defendant should^iavejpised all that as counter-claims; and, if not raised~as'counter claim in Essentially, the^e'js^' no/ gainsaying that the Defendant could, hajverajsed all those matters as counterclaim. Wfiile\under cross-examination, DW-1 did assert that/the/Defendant did not raise a counterclaim in her written\sta,tement of defence. That being said, it meiansihat such a failure precludes the Defendant from raisirig-the matters as "counter-claims" against Plaintiff in this pending action. into account as part of the defence raised by the Defendant or consider the utility of the Exhibits which the Defendant submitted to the Court in defence of her case. In my view, fairness and justice would demand that such Page 25 of 38 exhibits and the DW-l's testimony be equally considered in the course of rendering verdict to the matters laid before the Court. For instance, was it appropriate to impound the Defendant's business licenses, thus, putting her out of business? I think this was uncalled for. From the above lengthy deliberations, whilst the first issue is partly responded to in the affirmative, i.e., that the Defendant is liable to the Plaintiff, as per^the provision of Clause 8.1 and 8.3 of Exh.P^l<^ta<pay demurrages charges due to the Defendant's^failure to return Container No. COSU 6207890180, fop the sake of fairness and justice, based on^th^~~parties' contractual context, the Plaintiff should'as^wejl^be prevented from saddling on the DefendaWthe cdnsequences of his own, A laxity or inertia when^tfjeDefendant raised Exh.D-3 to her attention. '"Fairness and justice would demand, therefore^6^^|rtie^share the blame. The second part of the first issue is in regard to the contractor Transportation and delivery of the Dump T (S> J . .. ... . ... .. . .. Trucks^Perhaps it will be apposite to scrutinise the evidence given by each part in respect of the undelivered Dump Truck. In his testimony, PW-1 told this Court that, although the Defendant was fully paid for the job, she failed to deliver one (1) Big Dump Truck to the intended consignee. PW-1 tendered in Court Exh.P-2 which contains the terms and conditions on transporting the dump Page 26 of 38 trucks, as well as the Bill of Lading and packing list, all of which contained the relevant specification concerning the Dump Trucks CBM. According to the testimony of PW-1, the Defendant did not perform her obligations of delivering the Dump Trucks as per the contract, meaning that the latter breached the contract and was liable to pay USD ($) 55,607.00 as demurrage charges for failure to^bliveivthe One Big Dump Truck to its consignee. I have looked at the exhibits Exh.P^an(TExh.P.6, which were tendered in Court by th^Rlaintiff's witnesses. Exh.P-6, dated 18th September*2019^rid signed by Pwl, as well as Exh.P-5, IndicdfeXthatX’ total of USD ($) a 28,889 were paid as/70°/<Mpf the agreed payment for transport of 10 sj^all^^mp'Trucks. It is indicated that Nine (9) were notx^livered to their port of destination and that, zone/(l)-was still at Tunduma. However, according to^the Plaint filed in this Court, the nine (9) smallDtimpnrrucks which are shown in Exh.P-5 as K j undelivered seem not to be in dispute between the parties. What is in dispute is one (1) big Dump Truck said to have been left at Custom's bonded warehouse at Tunduma. Exh.P~5 does not indicate whether the 30% balance was paid to the Defendant. It shows, however, that, the Defendant needs to refund to the Plaintiff a total of USD 55,607.00. As it may be remembered, PW-1 had Page 27 of 38 earlier told this Court that, according to the agreement for transportation Exh.P-1, 70% of the agreed payments to the Defendant were made payable upon the signing ceremony while the 30% balance was to be paid after the delivery of the Dump Trucks to the consignee. According to paragraph 8 of the Plaint, the Plaintiff alleges that, the controversy surrounding Dump Trucks includes also delayed delivery of the rest owing to^tie Defendant's failure to assemble them and, witmregard to the undelivered; it was due to tn^dDefendant's unwarranted action of writing fcnthe JPRA to stop releasing it to the consignee. In his testimony, PW-lHendered in Court Exh.P- 8A and Exh.P-8B (date^27/03/2019 and 10/01/ 2019 A. respectively), indicatirroth^t, the Defendant occasioned the whole mess(Asssuch, in his final submissions, it was \y argued fo^the^jnjtiff, that, since the Dump Truck was a transported'Cargo, the issue of demurrages resulting from thepef^i'Klant's delays to deliver it cannot be escaped. xSirher testimony, DW-1 admitted that, one big Dump Truck, which was to be delivered to its rightful consignee in Congo DRC, could not be delivered. However, DW-l's testified that, as regard the delayed transport of the Dump Trucks, that, the same was due to wrong cubic measurement (CBM) specifications. DW-1 testified that, that anomaly not only occasioned delays in delivery of the Dump Trucks which had to be re- Page 28 of 38 assembled, but did also increase the port handling charges and other incidental costs on the part of the Defendant which have never been refunded. Furthermore, according to DW-1, the mode of transport which had earlier been agreed to be road haulage had to be changed to railroad haulage due to those changes in the CBM Specifications. DW-1 told this Court that the Plaintiff contributed to the delayed and the non-delivery of the one remaining Dump Truck as well. She asserted that, tfe^inuff had communicated to the Defendant that, the^Dump Truck was ending up in the hands^of^w^r^ consignee and, thus, demanded that the Defendant avail PW-1 particulars k vZ and identificationsdocuments' of the person the A /MS Defendant claimed to\be the consignee, if at all they are as per the Bill of Lading. To back up that assertion, DW-1 submitted JEScnJD-2,/an e-mail dated 17th May 2019. DWU\Iestified, therefore, that, on the basis of their communications, and with the blessings of the Plaintiffs' officer, one Herman Sarwatt, (PW-1) the Defendant called upon the Custom Officials at Tunduma border post to withhold the release of the remaining Dump Truck. She tendered in Court as exhibit, a document which were received as Exh.D.l. From the above narratives, DW-1 testified that, the Plaintiff is not entitled to be paid the amount claimed as demurrages resulting from the non-delivery of the Dump Page 29 of 38 Truck left at Tunduma Custom's warehouse as per Exh.D-1. It was DW-l's testimony that, the same should not be paid because, demurrages are not paid for transit cargoes as nothing is expected to be returned to the shipping line, as opposed to cargoes in container for which demurrages are charged for failure to return empty container. DW-1 reasoned that, once delivered the Dump Trucks were no longer returnable to the Plaintiff >and there has been no claim for non-delivery rrom/the consignee. In her closing submissio^. the. Defendant submitted that, as per the evideqce^of PW-1 and PW-2, the Defendant performed hencontractual obligations in respect of the Dump-^Ttiicks'/^except one which was surrendered to the Ci4tQms^uthorities (the TRA) due to miscommunicatioFTmade by the Plaintiff to the Defendant in respect of the rightful consignee. I haVex^camlned the above testimonies by the witness!^ for both parties concerning whether the Defendant is liable to pay demurrage charges for the Dump Truck which was left stranded at the Custom's bonded warehouse at Tunduma border. In the first place, no evidence was tendered to show that the Dump Truck is still stranded at Tunduma Customs' warehouse. Although PW-1 stated on cross-examination that it was auctioned by the Customs officials, no evidence was availed to that effect. Page 30 of 38 I note, however, that, her Written Statement of Defence, the Defendant attached two letters REF.DTCL/CCE/260819/02 dated 26th August 2019 and REF.DTCL/CCE/300719/01 dated 30th July 2019. Although these were not tendered in court, they form part of the pleadings and, in my view; this Court cannot be precluded from referring to them. The first letter requested for change of the clearing and forwarding agent (CFA) from the Defen±h^to/one Destination Cargo Tanzania Logistics of PrQJ^Box 32292, DSM in the name of Huruma Mweriga, ID|NO.DTCL-O12 based in Tunduma, on the grouricl'that the Defendant had not been licensed for the FY^2Q19^S1id, that, there was still a dump truck withheltbransom by the Defendant due to the latter's disputeSwith/fhe Plaintiff. The letter was from Feng Fan SurluUdkasi, Katanga, Congo, DRC. The second letter was from the same person, and was addressed, to the Commissioner General of the Cus^mi^ Excise, TRA, requesting for a waiver of 1/10 of DumpSTruck en route to Lubumbashi and which was dumped in Tanzania, TZDL-18-1183763; CFA Karaka Enterprises Ltd. In her Written Statement of Defence, the Defendant annexed as well a TRA communication to Feng Surlu showing that a request for waiver was granted and the said Feng Surlu was required to accomplish clearance within 14 days of the letter dated 21st August 2019. From Page 31 of 38 such disclosures, I cannot agree, as submitted earlier in the closing submission of the Plaintiff, that, the remaining Dump Truck is still at Tunduma incurring demurrage charges. As I said earlier, although PW- said it was auctioned, there was no evidence either to that effect. That fact aside, is the Defendant liable to the Plaintiff for payment of demurrage charges? Although DW-1 stated that there was confusion regardipg the true consignee, and that, the Plaintiff had contributecbto/it; I find it difficult to agree with DW-l's testim^w.'^/'^ First, as it was stated by PW-l^\Exh\p-2 was sent to the Defendant with a view tozensure*that, if the Trucks were to be handed over by<the Defendant, the latter should be sure of getting/some relevant information including the owner^r^consignee name, including Passports, letters 'indicating that person was a consignee, \y letter frorrvTuri'duma-'Customs. In my^yiew, Exh.D-2 does not indicate that the Plaintiff^direcred the Defendant to have the Dump Truck surrendered to the Customs Warehouse, but rather, it requires its delivery to a consignee named in the Bill of Lading. Second, as per Exh.P5 and P.6 which PW-1 had tendered to show the expenditure incurred in respect of the 10 big Dump Trucks under a Bill of Landing (BL) No.EUKOSHTZ1532891, it is clear that, the BL, which was received as part of Exh.P-2 showed who was a Page 32 of 38 By way of Exh.P.8A (dated 27/03/2019, the consignee. Besides, a letter (also part of Exh.P-2) sent to Defendant did further write to the Customs officials the Defendant on 07th June 2018, from one Feng Fan requesting for a non-release of the Dump Truck as the Sarlu showed that the Defendant was authorized, on "payment misunderstandings" between the Defendant behalf of Kailjee Construction Zambia Ltd, to clear and the consignee were yet to be resolved. It was not the 10X Dump Trucks from the Port of Dar-es-Salaam, clear what other payments were being claimed but and, the trucks were to be delivered to Feng Fan Sarlu according to the Plaintiff, payments in respect of Plant in Kapulo, Congo D.R.C. and the port of destination Page 33 of 38 was Likasi, Katanga Province, in Congo D.R.C^Z v As such, there cannot be a point that tne^Rlaintiff had a hand in the delay to deliver the^ofie'^emaining Dump Truck to its consignee since thexDefepdant had the BL and related documentsjmd^the~email sent to the Defendant (Exh.D-2), wasriobautnonzing the Defendant to surrender the DumoTTOMo the Customs warehouse. On the contra^according to Exh.P.SA and Exh.P.8B, it Wcfextfre Defendant who, on 10th January 2019 (as^per^xh.p.SB) requested that the Dump Truck be withneldXJjy the Customs officials as she had "misunderstandings" between the carrier (Defendant) and the^coosignee. transport of the Dump Trucks was 100% paid to the Defendant as per Exh.P.5 and Exh.P6. It follows, therefore, that, the Defendant is liable to the Plaintiff and should refund to the Plaintiff a total of USD 55,607.00 in respect of the Dump Truck which she failed to deliver to its consignee in time. The second issue was: Whether, the Container No. COSU' 6207890180 was returned to its owner and''1 if not, whether the Defendant is liable to the Plaintiff for Its non-return or loss^?>^. As it was partly made clear wnen I addressed the first issue herein above, there^is ho dispute that the respective container No. COSU?6207890180 has not been returned to its owner.xAs Instated earlier, although the Defendant is liable forxljaying breached the agreement governing the paraes'jielations, the Plaintiff does equally share thjz^blame__^or having failed to honour invoices raised and which covered other containers not in dispute in this^cise. As such, both parties share the blame or the loss'and'mat settles the second issue equally in the same way as I partly did for the 1st issue (on the matter regarding breach of the container related contract and the lost container). The third and final issue is about re!ief(s) which the parties are the patties entitled to. According to the Plaintiff's prayers number (a), (b) and (c), appearing in the Plaint, the Plaintiff has asked this Court to Order the Page 34 of 38 Defendant to repair all damages sustained on the container No. COSU 6207890180 and return it to the Defendant. The Plaintiff has as well prayed to be paid USD ($) 34,129.00 as demurrage charges. However, as I stated earlier, as far as the non­ return of the respective container is concerned, both parties share the blame and thus the loss. This is particularly so because, they were both in breath °Mbe same contract. For that matter, the prayers sought as number (a), (b) and (c), appearing in tffe^Plaint, are hereby declined. y Next is the prayers numbef<(d)~in~which the Plaintiff seeks to be paid USD ($]^5^607.00 for failure to promptly complete the-trahsportation of the dump trucks. In my view, as earlier<s£atedriere above, the prayer has merits and the^Plaintiff has proved it to the required standards^F^^eipg the case, the prayer number (d) is hereby grahtecL, ^Tfib^Plaintiff's prayer number (e) is to the effect that,^the'T’laintiff be paid interest at commercial rate of 21% per annum from the date of filing this suit, until payment in full. In my view, the bank lending interest rates in Tanzania in 2019, according to the available data from the World Bank, were at 16.9%. For that matter, the Defendant shall be liable to pay interest at a rate of 17% in respect of the amount stated in No.2 above to the Plaintiff from date of filing this suit, until payment in full. Page 35 of 38 The other prayer made in the Plaint by the Plaintiff is the prayer for general damages. However, in the circumstances of this case, that prayer number (f) (for payment of general damages) is denied. I do so because, it will not, in the circumstances as detailed in this case, serve the interests of justice. On the other hand, I do find it pertinent to make an order that the Plaintiff should forthwith restore to^he Defendant the licences and certificates which the^Rlaintiff confiscated from the Defendant. As I statec^fterein, I do not see the reason why such were^confiscated by the Plaintiff. Since the Defendant 'did~rrot~raise a counter­ claim, I will just end up by maitogsjJch kind of an order. Finally is the whether.the .Plaintiff is entitled to the A 'v* award of costs tha^behg^prayer number (g) in the Plaint. In my view, considering the circumstance of this case wherein J^'ade_|_finding that the Plaintiff has in part a share of blame^prayer number (g) is hereby denied. The just^an^^ppropriate order is that of making each party shalljjparown costs. In the upshot, this case partly succeeds as shown here above and, this Court settles for the following orders, that: 1. Concerning the non-returned container No. COSU 6207890180 and the breach of contract relating to it, this Court makes a finding Page 36 of 38 that, both the Defendant and the Plaintiff are equally to blame for having breached the contract and must equally share the losses. For that reasons, prayers (a), (b) and (c) contained in the Plaint are hereby denied. 2. The Defendant is liable to pay the Plaintiff USD ($) 55,607.00 due to the Defendants failure toz promptly complete ^.the transportation of one Big Dujnp Trucks. 3. The Plaintiff's which is to /th^ffec^that, the Plaintiff^bex^pai’d interest at commercial rate'Of 21% per annum fr^m^tne^date of filing this suit, -until‘'payment in full is granted but the^payable interest shall be at a rate of 17% per annum and not 21% per annum. In the circumstances of this case, that prayer number (f) (for payment of general damages) is denied. 5. Considering the circumstance of this case, wherein I made a finding that the Plaintiff has in part a share of blame, prayer number (g) is Page 37 of 38 hereby denied. Each party is to bear its own costs. It is so ordered. DATED AT DAR-ES-SALAAM ON THIS 1st DAY OF DECEMBER 2021 Page 38 of 38