furniture centre dar es salaam ltd vs plus networks t ltd 2023 tzhccomd 213 10 july 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL CASE NO. 77 OF 2022 FURNITURE CENTRE (DAR ES SALAAM) LIMITED.... PLAINTIFF VERSUS PLUS NETWORKS TANZANIA LIMITED...................... DEFENDANT DEFAULT JUDGEMENT A.A. MBAGWA J. The plaintiff and defendant are legal entities incorporated under the laws of Tanzania. The dispute between them arises from the alleged breach of contract for supply of furniture and the attending fittings. It is contended that between July and August, 2021, the plaintiff supplied the defendant with different kinds of furniture worth TZS 106,893,808.80 on credit. It was agreed that the defendant would pay the purchase price within thirty (30) days of issuing the invoices. According to the plaintiff, the defendant did not honour the agreement terms for until 31st day of May, 2022, the defendant paid only TZS 13, 670, 650. As such, after several reminders to no avail, the plaintiff resolved to institute the present suit praying for judgment and decree against the defendant in the following orders; i (i) For payment of TZS 92,761,656 being the total outstanding amount for supply of various types of furniture. (ii) For payment of the agreed interest on the outstanding amount at the rate of 3% per months computed from the dates the payment fell due to the date of filing this suit. (iii) For payment of interest at the commercial rate prevailing at the date of judgement, or at such rate as the honorable court may deem fit and just accruing and computed from the date of filing the suit to the date of judgement on the outstanding amount of TZS 92,761,656. (iv) For payment of Tanzania shillings 15,000,000.00 as specific damages arising from the loss of profit during the period which the defendant withheld payment from the plaintiff. (v) For payment of the general damages as may be assessed by the court. (vi) For payment of legal fees, expenses, other resultant costs and expenditure incurred by the plaintiff as a result of defendant's breach and actions; (vii) For payment of any other costs, loss or liability incurred by the plaintiff due to defendant's actions. (viii) For payment of costs of this suit; and 2 (ix) Any other relief (s) as the Honorable Court may deem fit and just to grant. Upon service, the defendant filed written statement of defence on 12th December, 2022 disputing the plaintiff's claim. However, after filing the written statement of defence, the defendant did not make any appearance in court. As such, after several adjournments on account of defendants' absence, the plaintiff's counsel one Ms. Gladys Tesha, on 22nd day of February, 2023 successfully moved the Court to strike out the defence pursuant to rule 31(l)(b) of the High Court (Commercial Division) Procedure Rules hereinafter to be referred as the Rules. Consequently, this Court ordered the plaintiff to prove its case as per rule 22(2) of the Rules. In a bid to prove the claims, the plaintiff filed Form No. 1 along with two affidavits sworn by Prasad Kumar and Merey Bajrey. She also produced six documentary exhibits which were attached to the affidavit of Prasad Kumar and marked annexure LHA1 to LHA6. The said produced exhibits are; twelve (12) invoices (annexure LHA1), ten (10) post dated cheques (annexure LHA2), email printouts invalidating the cheques (LHA3), undertaking agreement dated 4th February, 2022 (LHA4), demand notice dated 14/05/2022 (annexure LHA5) and board resolution authorizing institution of the case (annexure LHA6). 3 The brief facts of this suit as gleaned from the plaint and affidavit may be recounted as follows; Sometimes between June and August 2021, the plaintiff entered into an agreement with the defendant to supply the defendant with different kinds of furniture and fittings for its office facilities on credit terms. It was thus agreed that the payment would be made within thirty (30) days after issuance of the tax invoices. In execution of the agreement terms, between 10th July 2021 and 27th August 2021, the plaintiff supplied to the defendant different kinds of furniture worth TZS. 106,893,808.80/= and subsequently issued tax invoices with invoice number 23587, 23591, 23594, 23619, 23623, 23629, 23640, 23641, 23648, 23757, 23758, and 23776. The said tax invoices were produced in evidence as annexure LHA1 to the affidavit of Prasad Kumar. However, upon supply of the materials and issuance of tax invoices, the agreed 30 day time lapsed without any payment from the defendant. Thus, after several reminders and follow ups by the plaintiff through Merey Bajrey, the defendant managed to pay TZS only 13,670,650.00 only out of the outstanding amount of TZS. 106,432,306.91 hence leaving the balance of TZS. 92,761,656.91/= unpaid. Further efforts to secure the outstanding balance of TZS. 92,761,656.91/= did not yield results. Nonetheless, upon continual demands by the plaintiff, the defendant issued ten (10) postdated 4 cheques (annexure LHA2). Astonishingly, through email communication (annexure LHA3), the defendant cancelled the said cheques on the ground of insufficient fund in the account. After a while, the defendant and plaintiff on the 4th day of February, 2022, entered into another agreement titled 'agreement of undertaking' in which the defendant acknowledged the debt of TZS 92,761,656.91 and promised to have paid the said sum by May, 2022. The plaintiff produced the said agreement as annexure LHA 4. Despite the defendant's pledge in annexure LHA 4, nothing was paid. In consequence thereof, the plaintiff through a board resolution (annuxure LHA6) decided to institute the present case namely, Commercial Case No.77 of 2022. Following the evidence brought by one party, the plaintiff, the issue for determination is whether the plaintiff has proved its case. I have carefully scanned the pleadings, affidavits and documentary exhibits tendered. The tax invoices (annexure LHA1), cheques (annexure LHA2) and agreement of undertaking (annexure LHA 4) tell it all that the duo had business relationship in which the plaintiff supplied the defendant with furniture of different kinds along with their fittings. Furthermore, the agreement of undertaking (annexure LHA 4) is loud and clear that the defendant was indebted to the plaintiff in the sum of TZS. 92,761,656.91/= as of 4th 5 February, 2022. I am thus satisfied that the defendant breached the agreement terms for its failure to pay the purchase price within thirty days as agreed in the contract. I am further satisfied that even after signing the agreement of undertaking, the defendant continued to default payment. The next question for determination is what reliefs is the plaintiff entitled to? The plaintiff has, among other reliefs prayed for payment of Tanzania Shillings 15,000,000.00 as specific damages arising from the loss of profit during the period which the defendant withheld payment from the plaintiff. I have keenly canvassed the evidence adduced by the plaintiff but at no point I found the evidence in support of this claim. It should be clear that specific damages must be specifically pleaded and strictly proved. See the case of Puma Energy Tanzania Limited vs Ruby Roadways (T) LTD, Civil Appeal No. 287 of 2020 CAT at Dodoma and Reliance Insurance Company (T) LTD & 2 others vs Festo Mgomapayo, Civil Appeal No. 23 of 23 of 2019, CAT at Dodoma. Applying the settled principle in the foregoing authorities to the evidence adduced, I am of unfeigned opinion that the plaintiff has not established the claimed specific damages to a tune of TZS 15,000,000/=. I would therefore dismiss the prayer for specific damages for want of proof. 6 7 With regard to the interest of 3% from the date of default, I have found that the tax invoice clearly provided this term. Further, clause 3 of the agreement of undertaking unequivocally spells out that in case of failure to effect payment by May, 2022, the plaintiff would have the right to demand the entire balance due. In the event, I am satisfied that the plaintiff has proved its case on balance of probabilities. Consequently, I enter judgment and decree in favour of the plaintiff in the following orders; (i) Payment of TZS. 92,761,656 being the total outstanding amount for supplied furniture. (ii) Payment of the agreed interest on the outstanding amount of TZS. 92,761,656 at the rate of 3% per month computed from the dates the payment fell due to the date of filing this suit. (iii) Payment of interest on the decretal sum of TZS. 92,761,656/= at the commercial rate of 10% from date of filing the suit to the date of judgement. (iv) Payment of TZS 5,000,000/= say Tanzania shillings five million being the general damages (v) Payment of costs of this suit; 7 In terms of Rule 22 (2) of the High Court (Commercial Division) Procedure Rules, the plaintiff is hereby ordered to publish the decree at least in two newspapers of wide circulation in the country within ten (10) days from the date of this judgment. It is so ordered. Right of appeal is fully explained. A.A. Mbagwa JUDGE 10/07/2023 8