20150827 TZHC Dar es Salaam

1 IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) ·AT DAR ES SALAAM CIVIL CASE NO. 136 OF 2009 EURO PRODUCTS LIMITED ................. PLAINTIFF , V. BALHABOU ISLAAM ALLY SALEH ........ DEFENDANT JUDGMENT Date of last Order 16 I 6/ 2015 Date of Judgment 27/8/2015 Shangwa, J. This case was presented for filing on 5 th October, 2009. On 4 th November, 2010, Counsel for the plaintiff filed an amended plaint after having been allowed to do so by this Court, Mwaikugile, J (rtd) on 28 th October, 2010. In its amended plaint, the plaintiff company, Euro Products Ltd is praying 2 against the defendant Balhabou Islaam Ally Saleh for the following reliefs:- (1) Immediate payment of USD 670, 000 or its equivalent in Tanzania shillings. (2) General damages. (3) Interest on USD 670, 000 or its equivalent in Tanzania Shillings at commercial rate from the date of filing this suit to the date of Judgment. (4) Costs of this suit. (5) Any other relief (s) as the Court may deem fit and just. At paragraphs 3 and 4 of the amended plaint, it is respectively averred that the plaintiff and defendant entered into an oral contract for the 3 supply of fuel by the former to the latter and that between March and June, 2006, the plaintiff supplied the defendant with fuel worth USD 670, 000 on credit. At paragraphs 5 & 7 of the amended plaint, it is respectively averred that on 31 st March, 2006, 15 th April, 2006, 30 th April, 2006 and 15 th May, 2006, the defendant issued cheques NO 000213, 000214, 000225 and 000226 respectively in favour of the plaintiff being payment of the aforementioned amount. That upon presenting the said cheques to the Bank for payment, the same were returned with endorsement "return to drawer" and that from the date when the said cheques were so endorsed to date, the defendant has failed and or neglected to 1• 4 effect payment of the outstanding sum despite repeated demands and notice of intention to sue. Hearing of this suit started before me on 19 th June, 2013. It proceeded in the absence of the defenq_ant after being told by his Advocate Mr. Kibatala that he resides outside the country in Dubai and that he could not physically appear to defend the suit. His attempts to defend this suit by affidavit were rejected by the Court in its ruling delivered on 22 nd July, 2014. The Court preferred his physical appearance to defend the suit instead of his affidavit. Thereafter, Mr. Kibatala decided to call one witness on his behalf namely Melei Ally Saleh. l ,, 5 Three issues were framed for determination by this Court namely:- 1. Whether the plaintiff supplied fuel to the defendant. 2. Whether the defendant is indebted to the tune of USD 670, 000 3. To what reliefs are the parties entitled. These issues are straight forward. On the· first issue, the Court is asked to determine as to whether or not the plaintiff supplied fuel to the defendant. P.Wl Sostenes Bruno told this Court that he is a Director of the plaintiff Company Euro Products Ltd which deals with business of selling fuel. That between 2005 and 2006, he supplied fuel to the 6 defendant who gave him postdated cheques for USO 150,000 dated 31/3/2006, USO 100,000 dated 15/4/2006, USO 250,000 dated 30/4/2006 and USO 170, 000 dated 15/5/2006 respectively. That whenever these cheques were due for payments, he used to take them to the defendant's bank namely Standard Chartered Bank Tanzania Ltd International House Branch, Dar es Salaam but that all of them were endorsed refer to drawer. That the defendant was informed about the dishonoured cheques but that nothing better was done by him to effect payment. That a letter dated 15th June, 2006 with ref. N0.006 /06/Tl0T annexture 'A' to the written statement of defence purported to have been signed by one Habi Litahunga on his behalf to show 7 that the fuel supplied to the defendant was repaid in kind by the supply of cubic metric 1, 500 of gas oil is nothing but a forged document. The testimony of P.W.1 that the plaintiff supplied fuel to the defendant and that a letter attached to the written statement of defence as annexture 'A' is a forged letter was supported by the testimony of P.W.2 Habi Litahunga and P.W. 3 NOE 2912 Det sgt Johannes Mungendi respectively. P.W.2 Habi Litahunga told the Court that between January, 2005 up to March, 2010, he worked with the plaintiff Company as a Sales and Marketing Manager. That he used to make sales transactions with the defendant to whom he used to sell petrol and diesel. That the defendant used to purchase 8 fuel using his Company's name called Tanganyika Investment Oil and Transport Company (TIOT). That in 2006, the plaintiff supplied him fuel worth USD 670,000. That he issued four postdated cheques which were written in his name but that they were dishonoured by the Bank. That he used to see him frequently whenever he went to purchase fuel from the plaintiff Company. Also, P.W. 2 told the Court that he has never written a letter addressed to TIOT annexture 'A' to the written statement of defence. P.W.3 told the Court that the signature on annexture 'A' to the written statement of defence is a forged one. 9 In this case, there is no dispute that in 2006, the defendant issued four postdated cheques to the plaintiff for 1, 800,000 Litres of fuel worth USO 670, 000 and that those cheques were dishonoured. P.W.1 produced these cheques during his testimony. They were received collectively 1n evidence and marked as exhibit Pl. These cheques are personal cheques which were issued in the name of the defendant Balhabou Islaam Ally Saleh. As the defendant issued those cheques to the plaintiff, and as those cheques were issued for the sole purpose of paying for 1,800,000 litres of fuel, it is undeniable that the plaintiff supplied fuel to the defendant. In fact, the evidence of P.W.1 and P.W.2 plus exhibit Pl (dishonoured cheques) is sufficient ... 10 to prove on the balance of probabilities that the plaintiff supplied fuel to the · defendant. This disposes of the 1st issue which is answered in the positive. On the second issue, the Court is asked to determine as to whether the defendant is indebted to the plaintiff to the tune of USD 670, 000. As a matter of fact, the defendant denies the plaintiffs claim of USD 670,000. The witness who was called to testify on his behalf namely D. W. 1 Melei Ally Salehe told the Court in his examination in chief that the defendant is a Co - director and shareholder in a Company known as Tanganyika Investment Oil and Transport Ltd. That in 2006. 11 the plaintiff Company supplied them 1, 800,000 litres of diesel which they stored at Engen Depot and Malawi Cargo. That they issued postdated cheques to the plaintiff as security for the diesel they received from the plaintiff. That those cheques were in the name of the defendant because he is a shareholder. That 'they did not pay cash to the plaintiff but that they paid its Chief Manager in kind. That in 2009 when the plaintiff lodged its claim for payment of those litres, they went through their files and found that the plaintiff had no pending claim which had not been settled in respect of fuel which was supplied to them. That in January, 2009, their Company Tanganyika Investment Oil and Transport Ltd (TIOT) fell under 12 receivership and that PTA Bank was appointed as Receiver Manager. That the plaintiff's claims ought to have been lodged to PTA Bank. That the plaintiff Company was supposed to lodge its claim from the defendant within three months from the date when it supplied fuel to him and not after after several years as it did. In his cross- examination, D.W-1 said that the one who purchased fuel is TIOT and not Balhabou Islaam Ally Saleh (defendant). In his closing submissions, Mr. Kibatala strenuously contended that the plaintiff supplied fuel to TIOT and not the defendant. That the defendant could not have used such huge amounts of fuel for his personal use. That the defendant was a mere guarantor of the fuel which was supplied by 13 plaintiff to TIOT. That the cheques were issued as security for fuel but not as purchase price of fuel from the plaintiff. That the fuel was repaid in kind to the plain tiff. On the other side, Mrs Mutabuzi, Advocate for the plaintiff insisted at page 4 of her closing submissions that the defendant is indeed indebted to the plaintiff to the tune of USD 670, 000 and that there is no evidence presented by the defence side to prove the contrary. That as the defendant failed to appear and defend himself, the plaintiff's case stands uncontradicted. She contended that it is not conceivable that a person who is being sued for such large amounts of money resulting from serious 14 allegations of issuing dishonoured cheques and forgery could fail to appear in Court and defend himself. As it has already been held, there is sufficient evidence to show that the plaintiff supplied fuel to the defendant namely 1,800, 000 litres. The Court gave sufficient opportunity to enable the defendant who lives in Dubai to appear and defend himself but he failed to do so. Much as I agree with Mr. Kibatala that the defendant could not have used such huge amounts of fuel for his personal use, as he did not appear to defend himself and as he is the one who used to collect fuel from the plaintiff Company following oral agreement between him and the ,_. 15 plaintiff, even if the fuel he used to collect from the plaintiff Company was used by Tanganyika Investment Oil and Transport Company Ltd (TIOT) in which he was a shareholder and a director, he cannot escape liability to pay the debt in issue to the plaintiff namely USD 670,000 be it as guarantor or in his individual capacity. Moreover, the agreement for supply of fuel was between him and the plaintiff. It was not between the plaintiff and TIOT. If at all, he was guarantor ofTIOT, he should seek indemnity from it or from its Receiver Manager i.e PTA Bank. -Mr. Kibatala's argument that the cheques which appear in the name of the defendant - exhibit Pl were issued by the defendant to the plaintiff as security for fuel and not as purchase price of fuel is f-' 16 inconceivable. But whether or not those cheques were issued as security for fuel and not as purchase price of the fuel, whatever the case may be, the fact remains that those cheques were dishonoured by being marked in red ink as "refer to drawer". · Also, Mr. Kibatala's argument that the fuel was repaid in kind to the plaintiff is bizarre as there is no credible evidence to substantiate that the fuel was so repaid to the plaintiff. It can be remembered now that the letter which was attached by the defendant to the written statement of defence as annexture 'A' to show that the fuel was repaid in kind by supplying the plaintiff cubic metric 1, 500 of gas Oil was described by both P.W. 2 Habi Litahunga who was a Sales and Marketing Manager f: • • 17 to the plaintiff Company and P.W.3 NOE 2912 Det Sgt Johannes Joseph Mungendi, a handwriting expert to be a forged document. I hold therefore that the defendant is indebted to the plaintiff to the tune of USD 670, 000. This disposes of the second issue wpich is answered in the positive. On the third issue, the parties have asked this Court to determine as to what reliefs each is entitled to. In my op1n1on, the plaintiff is entitled to immediate payment of USD 670, 000 by the defendant or its equivalent in Tanzania shillings, interest on the said sum at Court rate of 12% per annum from the date of filing the suit to the date of ....L_____ __ 18 full satisfaction plus costs of the suit to be assessed by the taxing officer of this Court. Thus, I enter Judment in favour of the plaintiff and award the plaintiff the aforesaid reliefs. ~ A.Shangwa JUDGE 27/8/2015 . ,r Deliv.ere"d in open Court in the presence of the plaintiff and in the presence of Mr. Omari Msemo for Mr. Kibatala for defendant. ~ JUDGE 27/8/2015