GADGETRONIX

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT ARUSHA COMMERCIAL CASE NO. 5 OF 2017 GADGETRONIX.NET LIMITED ........ PLAINTIFF VERSUS MARK-KIM CHEMICALS COMPANY LIMITED ........ DEFENDANT JUDGMENT 28/08/2018 & 29/10/2018 SEHEL, J. The present suit arose from a sale purchase agreement whereby the plaintiff placed an order to the defendant for the purchase of 230 kVA Perkins generator. It i s alleged in the plaint that sometime in May, 201 6 the plaintiff and the defendant entered into negotiations for the supply of 230 kVA generator and the defendant agreed to supply the same. The i plaintiff upon receipt of the Pro-forma invoice of a generator with specification of 230 kVA paid the defendant USD 53,690.00 and upon its receipt, the plaintiff sent i t to Serengeti for installation at the premises of their client, namely Kubukubu Tented Camp part of Tanganyika Wilderness Camps in the Serengeti. It is stated in the plaint that on 25th May, 201 7 the generator blew up after operating at excessive l aod of 212.5 kVA equivalent to 170 kW and causing an electric short at the Camp together with damage to the laundry m.machines. It is further alleged upon inspection it was found that the generator is l 80kVA which could only stand a maximum load of l 44kW. The plaintiff alleged that it had to transport another generator to the Camp at a cost of Tshs. 5,400,000 while making efforts to contact the defendant who refused to either replace the generator or refund the money paid. Thus, the plaintiff instituted the present suit claiming present suit for the following reliefs:- a) An order for payment of United States Dollars Fifty Three Thousand Six Hundred and Ninety (USO 53,690,00) being aU 2 compensation for the value of the amount paid for the 230 kVA generator; b) An order for payment of Tanzanian Shillings Five Million Four Hundred Thousand {Tshs. 5,400,000/=) being expenses incurred for the transportation of the broken down generator and a back up generator; c) An order for payment of interests in (a) above at a rate of 15% per annum from 13th June, 2017 to the date of judgment; d) An order for payment of interest in (b) above at a rate of 27% per annum from May, 2017 to the date of judgment; e) An order for payment of court interest at a rate of 12% on the decretal sum from the date of decree to the date of full settlement; f) An order for payment of punitive damages as shall be assessed by jhe court; 3 g) An order for payment of general damages as shall be assessed by the court; h) Costs be provided for; i) Any other order and relief as the Honourable Court may deem fit to grant in the circumstances. The defendant after being served with the plaint, filed its written statement of defence wherein it did not deny the supply out denied the allegation of supplying l 80kVA generator and placed the plaintiff to strictest proof. The defendant averred that the 230kVA generator was supplied to the plaintiff on 14th June, 2016 wherein a delivery note was signed by the plaintiff’s authorized officer acknowledging receipt of the same. The defendant further averred that the defendant was not involved in the i nstallation and the i osses incurred by the plaintiff was due to the plaintiff’s negligence by not checking whether the generator supplied was the one i t ordered. In terms of Rule 49 of the High Court (Commercial Division) Procedure Rules, GN 250 of 2012 a proceedings commenced by 4 plaint, evidence in chief must be given by a witness statement. The Plaintiff did file two witness statements of Hassanain Sajjad Sajan (PW1), the managing director of the plaintiff; and Loshi N. Mellyari (PW2), an engineer of the plaintiff. The defendant also filed two witness statements of Edmund Kuzengwa (DW1), a sales representative of the defendant; and Mohamed Abishiri Msangi (DW2) a technical representative of the defendant. Thereafter, the following issues were recorded by this Court for the determination of the present suit:- 1. Whether the defendant supplied the plaintiff with a generator of 230kVA. 2. Whether the plaintiff suffered any damages. 3. To what reliefs are parties entitled. I will consider the evidence brought before this Court when dealing with each issue. Starting with the first issue that is whether the defendant supplied the plaintiff with a generator of 230kVA. 5 PWl who appeared before this Court on 6th day of June, 2018, his witness statement was received to form part of examination in chief and part of proceedings of this case. In essence the fact that the defendant supplied the plaintiff with generator is not disputed what is in dispute is the capacity of the generator. PW 1 in his statement established that the plaintiff ordered from the defendant a 230kVA generator for supply to its customer one Kubukubu Tented Camp of Tanganyika Wilderness Camps. He also said upon receipt of 230kVA generator Pro forma Invoice of the generator with specification of 230 kVA, the plaintiff paid the defendant and upon receipt of the generator, the plaintiff sent it to its customer in Serengeti for installation at the premises. On 25th May, 201 7 the generator blew up and caused an electric shot and damaged the laundry machines at the camp. PW 1 said soon after the information, he sent an engineer for an inspection who discovered that the generator is l 80kV A and could only withstand a maximum load of ,44kW-~ 6 PW2 who also appeared for cross examination on 6th day of June, 2018, his witness statement was received to form part of examination in chief and part of proceedings of this case. He explained that he examined a metal plate fixed to the engine of the generator that described the engine type as PR82236*R002393Y* and a sticker attached to the inner body of the said generator with various information amongst them being the capacity indicated to be l80kVA. Upon inspection, PW2 discovered that the actual capacity of the generator supplied was 180 kVA and not 230 as it was shown in the invoice and delivery note. The said generator was brought before the Court for inspection and the Court noted these marks. DWl on his part appeared for cross examination on 26th day of July, 2018 and his witness statement was received to form part of his examination in chief and part of proceedings of the case. DWl testified that on 14th June, 2016 he received an official invoice number. 438 requiring the supply of a 230kVA Perkins generator to a customer named Gadjetronix.Net for the value of United States 7 Dollars Fifty Three Thousand Six Hundred Ninety. Upon receipt of such an invoice, he prepared a delivery note number 2475 dated 14th June 20 1 6 stating that what was supplied and delivered was a 230kVA Perkins generator with engine number PR82236*R002393Y* Serial Number R002393Y and Model Number IP 200K. DWl then took a 230kVA Perkins generator and delivered it to the plaintiff agent who made the negotiations on the very same day named Shabani Selemani. He said after delivery of the goods, DWl gave Shabani Selemani a delivery note to sign as evidence of receiving the 230kVA Perkins generator of which he did so but later on DW 1 came to be told that the generator blew up. DW2 appeared on the same date on 26th day of July, 2018 and his witness statement was received to form part of his examination in chief and part of proceedings of the case. He explained that on 14th June, 2016 a generator was collected from their premises by the buyer, Gadjetronix.net, from Arusha and about eleven months later they were informed by their customer, Gadjetronix.net that the generator had a malfunction and 8 specifically oil and seal had broken. DW2 explained that technically the reason the alternator explode was either due to mishandling of the alternator at the time of dismantling it or the alternator was not properly aligned at the time of replacing it. DW2 further explained that the model of the generator supplied to the plaintiff could not have exploded when overloaded rather it would have an automatic shutdown. He also said it was the buyer who refused for the defendant to install the generator because if they would have installed it then the defendant could have measured the levelling of the platform and the load analysis so as the plaintiff could have been advised accordingly but the buyer refused hence the damage occurred. From the testimonies of the witnesses it is clear that the defendant did supply a generator to the Plaintiff. The crux of the matter is whether the said supplied generator was the one ordered. The counsel for the plaintiff basing on the pleadings of the defendant, more specifically, Paragraphs 3, 5, 10, 12, and 14 of the written statement of defence, argued that the defendant admitted 9 to have supplied the blown up generator. He also put reliance on the cross examination of DW 1 that the defendant did not know the type of the generator it sold because DWl never inspected it. Counsel for the defendant on his part argued that the delivery was complete through the plaintiff's representative who signed the delivery note acknowledging receipt of 230kVA. To support his contention, the counsel cited the case of Sangijo Rice Millers Company Limited Vs S.M Holdings Limited [2006] TLR 89 where Masati, J (as he then was) held: “The rules as to the delivery are set out in Section 31 of the Sale of Goods Act (Chapter 214) the general rule is that delivery of the goods may be made by the seller doing any act or thing whereby the goods are put into the custody or under the control of the buyer or his agent in that behalf. (See Atkinson Vs. Malling), or whereby the buyer or his agent is enabled to obtain such custody or control. (See Smith Vs. Chance)." The counsel for tee defendant further contended that the acceptance and usage of the generator over eleven months wa~ 10 enough to satisfy the requirements Section 37 of the Sale of Goods Act, Cap. 214 which provides: “The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them or when the goods have been delivered to him, and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them." The counsel also argued that there i s no reason why the plaintiff failed to bring as a witness Selemani Shabani who received the generator as such there is great possibility that the generator supplied might have been changed with another generator. An issue of warranty was also raised by the counsel for the defendant arguing that the plaintiff has breached the warranty by conducting self i nstallation which could have been the reason for explosion. As intimated earlier, there is no dispute that the defendant sold the generator to the plaintiff. It i s also not disputed that the plaintiffs n ordered a 230kVA generator. It i s contended by the plaintiff that the supplied generator is not 230kVA as ordered while the defendant argued that i t supplied the ordered generator. It i s trite law that ‘ ‘He who alleges a particular fact has a duty to prove that fact.” The plaintiff in proving his allegation, he brought before the court the said generator which upon inspection it was noted to contain the following descriptions: Manufacture date: February, 2015; AVR: AS 440; kVA: 180; Hz: 50; Phase: Ill; PF: 0.8; RPM: 1,500; Starter: WDG311; Volts: 230/400; AMPS259.8; Startercon Y; Rating CONT; Ambiant Temp 40; ID Number TPl 50200542; Engine Type PR82236*R002393Y*; Model Perkins. The generator had another sticker that reads: The capacity is 180kVA; standby kVA is 200 AMP; Serial number R0023934; Model IP200K. The above are the descriptions found and noted to be featuring in the generator brought before the Court. I had time to scrutinize Exhibit P3 which is a delivery note relied heavily by the defendant being a proof showing that the defendant supplied the ordered generator. Exhibit P3 has the following details: 12 generator with engine number PR82236*R00393*; serial number R002393Y and Model IP200K was received by Shabani Selemani. The descriptions appear in the delivery note are almost the same with the ones appear in the generator brought before the court with the exception of capacity. The delivery note shows that the capacity of the generator is 230kVA while the generator itself reads l 80kVA. The counsel for the defendant argued that since the goods was received by the plaintiff then it be taken that the goods supplied is the one that was ordered. I totally subscribe to the holding in the case of Sangijo (Supra) that the general rules as to the delivery of goods are set out under Section 31 of the Sale of Goods Act, Cap. 214. In the matter at hand, the goods which is the generator in all respects was delivered to the buyer at the seller's place but it is the contention of the buyer (the plaintiff herein) that the delivered goods is not the one that was ordered. It is contended by the defendant that since the plaintiff accepted the good and remained with it for almost seven months then it is deemed that the goods has been accepted. With due... 13 respect to his line of reasoning acceptance in the matter at hand could have been deemed if the buyer had an opportunity to inspect the goods. It is on evidence from the witnesses of both the plaintiff and defendant that the goods supplied was never inspected before it being delivered. Section 36 of the Sale of Goods Act, Cap. 214 provides: “(I) Where goods are delivered to the buyer which he has not previously examined, he is not deemed to have accepted them unless and until he has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract. (2) Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract." DWl who is a sales person of the defendant in his witness statement explained on how he delivered the goods to the representative of the plaintiff but did not state as to whether the said representative was given a chance to inspect the goods. Furthermore, it was the testimony of DW1 in his cross examination that he recognized the generator as being Perkins 230kVA because it was the only generator left in their stock as such he did not inspect it to ascertain as to whether the goods supplied is the one ordered by the plaintiff. Section 15 of the Sale of Goods Act, Cap 214 provides:- “Where there is a contract for sale of goods by description, there is an implied condition that the goods shall correspond with the description ...” In the matter at hand, it is not stated or shown that the goods supplied was the one ordered by the plaintiff. From these evidences and from the position of the law, I answer issue number one in the negative in that the defendant did not supply the plaintiff a generator of 230kVA rather it was 180kVA 15 I now turn to issue number two of which I would like to combine it with issue number three becouse they overlap. The plaintiff is claiming specific damages of USD 53,690.00 being monies paid to buy the generator and Tshs. 5,400,000.00 being transportation costs. Specific damages have to be specifically pleaded and proved, as held in the cases of Mtali Vs. Mtali [2008] 2 EA 229; Kiptoo Vs. Attorney General [201 0] 1 EA 200; Zuberi Augustino Vs. Anicet Mugabe [1992] TLR 137; and Masole General Agencies Vs. African Inland Church Tanzania [1994] 192. For instance in Masolele (Supra) the Court of Appeal of Tanzania held: ‘‘Once a claim for specific item is made, that claim must be strictly proved, else there would be no difference between specific claim and general one. The trial judge rightly dismissed the claim for loss of profit because it was not proved." In the matter at hand, there is ample evidence through the testimonies of PW 1; and DW 1; Exhibits P2 and P3 that the generator was bought at USD 53,690.00. I have held herein that the generator 16 supplied is not the one that the plaintiff ordered. In the case of Sangijo (Supra) it was stated: "Under the Sale of Goods Act (Chapter 214) the buyer has several remedies for breach of contract. He may sue for non delivery (section 52) or for specific performance (section 53) and recover special damages and interest if he had paid the price in advance. Whether the buyer could look for an alternative supplier is implied, but not openly envisaged by the Sale of Goods Act." The plaintiff herein has sued for recovery of damages and interest. The plaintiff is therefore entitled to the payment of USO 53,690.00 and I proceed to grant i t. However, I decline the prayer for payment of Tshs. 5,400,000/= since no evidence has been brought to establish the claim in terms of receipts. The plaintiff is also praying for interest at the rate of 15% per annum on special damages from 13th June, 2017 to the date of judgment. There is no contract in place that parties signed for payment of interest. However, it is established by evidence that the 17 plaintiff did pay the defendant USD 53,690.00 which money if could have been invested then it could have earned some interests as such I grant the prayer for payment of interest on USD 53,690.00 chargeable annually at the commercial rate prevailing as at 5th June, 2017 when the defendant was notified of the default but declined to remedy, from the date of filing of the suit to the date of judgement. The plaintiff is also claiming interest rate on decretal sum. Interest on decretal sum is provided under Order XX Rule 21 (1) of the CPC that it should be between 7% to 12% per annum. In that respect, the Plaintiff is awarded 7% interest rate per annum on decretal sum from the date of this judgment till full satisfaction of the decree. Thirdly, the plaintiff is asking for payment of general damages. This prayer is declined because the interest awarded on specific damages suffices to cover the loss, if any, suffered by the plaintiff. As for the prayer of general damages is declined also the prayer for interest of it dies with it^> 18 The Plaintiff is also asking for punitive damages. The principle of awarding punitive or exemplary damages has been stated by the Court of Appeal of Tanzania in the case of Rev. Christopher Mtikila Vs. Attorney General T.L.R [2004] at page 179 and 180 when it said that exemplary damages are not compensatory but are rarely awarded to the plaintiff in two classes of cases. They are awarded:- a) When there is oppressive, arbitrary or unconstitutional action by servants of the Government; or b) Where the defendant’s conduct has been calculated by him to make a profit for himself. In the matter at hand, the dispute does not concern public servant and no evidence was adduced by the plaintiff to show that the conducts of the Defendant was so calculated so as to make a profit for itself. Since there is no such evidence then I decline the prayer for punitive damages. Lastly, the Plaintiff is asking for the costs of the suit. As a general rule, costs follow the event; unless the awarding court in its discretion,^ 19 finds good reosons for ordering otherwise. (See Njoro Furniture Mart Ltd v Tanesco [1995] .TL.R 205). In the situation at hand, there can be no doubt that the plaintiff incurred expenses as such the Defendant is condemned to pay costs of the present suit to the Plaintiff. In the end, judgment is hereby entered in favour of the plaintiff and it is hereby decreed as follows: 1. The defendant shall pay the plaintiff United States Dollars Fifty Three Thousand Six Hundred and Ninety (USD 53,690.00) being compensation for the value of the amount paid for the 230 kVA generator; 2. The defendant shall pay the Plaintiff interest on USD 53,690.00 chargeable annually at the commercial rate prevailing as at 5th June, 2017 from the date of filing of the suit to the date of judgement; 3. The defendant shall pay the plaintiff interest at court's rate of 7% per annum on the decretal amount from the date of judgment to the date of full payment; and 20 4. The defendant shall pay the plaintiff costs of the suit which shall be taxed. It is so ordered. Dated at Dar es Salaam this 29th day of October, 2018. 29th day of October, 2018 21