global hardware ltd vs tanzaland textiles ltd 2021 tzhccomd 3431 30 november 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT DAR-ES-SALAAM COMMERCIAL CASE NO.39 OF 2020 GLOBAL HARDWARE LIMITED....................... PLAINTIFF VERSUS TANZALAND TEXTILES LIMITED.......... DEFENDANT Last Order: 0£h September2021 Judgement: 3(P November2021 JUDGEMENTS^ NANGELA, J.: The Plaintiff herein zhas. sued^the Defendant and \\ \\ V prays for judgemenoand decree against the latter as follows: IV^This Honourable Court be pleased \ to\ make an order that the )] Defendant is liable to pay the Plaintiff the sum of TZS 747,002, 000 (Tanzania Shillings Seven Hundred and Forty Seven Millions and Two Thousand only) as outstanding amount owed to her, being an amount resulting from the supply of hardware and building materials. Page 1 of 30 2. Interest be paid at bank rate on the dectretal amount calculated from the date of filing the suit to the date of final judgment. 3. Payment of General damages as may be assessed by the Court. 4. Costs of this Suit. 5. Any other relief as this Honourable Court deems just and proper to grant. I will briefly set out the JacK^f<this^ase/?It is $x \\ ? averred that, on divers' dates, irh2019xthe Plaintiff and Defendant entered into<^sin^s^t^q^ction through which the Plaintiff's cdiripany^upplied ro the Defendant a (( Yx \\ number of hardware^and builaing^materials on credit. It is XX \\ xz Yj v alleged that^the ^materials supplied to and received by //XX \\ Xx*^ / the Defendant had a total value of TZS 1,136,000,002, and/tfia;Mne>DefehdaQt>promised to make good the debt aftera shortwiileijt is the Plaintiff's averment that, the \\ \\ Defendant only made a part payment of TZS X?'—J 389,000,000/-. On 22nd and 23rd January 2020, the parties met and discussed the matter and on 24th January 2020 the parties entered into a memorandum of understanding wherein the Defendant made an undertaking to make available payment of the remaining balance amounting to TZS 747,002, 000. However, despite of the Page 2 of 30 commitment to pay, the Defendant failed to honour it, hence, this suit. In his Amended Written Statement of Defence filed in this Court, the Defendant disputed the claims. However, the Defendant stated that, much as there was a Memorandum of Understanding (MoU) entered between the two parties, after the Defendant made deposits into the Plaintiff's account, including deposit of TZS 35, OOO,OOO/=, he was hampered by tftKoutbreak of Corona Virus pandemic, which affecteaJiis^)ysinessf/ When the parties appearecl forvfinal> pre-trial conference on the 29th Ailg^^Zl^tfePlaintiff enjoyed the legal services opFftj BakariXJumaand Ms Hakme Pemba, learned.advocates/while'the learned advocate Mr \\ 'z h v George Sang'udi appeared for the Defendant. On\the materialXday the following issues were drawp-and-agr^e^by^tie parties and the Court: Whether there was any agreement to supply hardware and building materials between the Plaintiff and the Defendant. 2. If the 1st issue is in the affirmative, whether he supplied the Defendant with hardware and building materials worth TZS 747,002,000/-. Page 3 of 30 3. If the 2nd issue is In the affirmative, whether the Plaintiff is entitled to payment, 4. To what reliefs are the parties entitled. At the commencement of the hearing of this suit, both parties called one witness each. Further, the Plaintiff relied on one exhibit (Exh.P-1). On the other hand, the Defendant relied on one exhibit (Exh.D’ilas well. At the closure of both the Plaintiff's and the'Defence;s case, both \\ >> counsels for the parties hereinxoray^^to^file^xlosing submission. I readily granted^the prayer(and tney have duly complied with the filing-'Schedule-givenvby this Court. I will therefore^consider'the'te^timonies offered by the witness foi^e^ph <parir^ and their supporting documente/^^subq^tor^Jn/the course of addressing the issues'before I render, my final verdict. To begin with, rnmence by^summing up the case for the Plaintiff, as Instated herein earlier, although the Plaintiff had mcatecrtiiat he would be calling two witnesses to aid his case, it turned out, however, that, the Plaintiff ended up calling only one witness only named James Jerome Olotu, who testified as Pw-1. In his testimony in chief, Pw-1 told this Court that, he works as a principal officer of the Plaintiff and, that, the Plaintiff is a registered company dealing with Page 4 of 30 wholesale and retail business, making available for sale various building materials. Pw-1 told this Court further that, the Plaintiff entered into a credit supply transaction with the Defendant sometimes in 2019 worth TZS 1,136,002,000/=. He testified that, in their agreement, the Defendant had committed to pay the Plaintiff, but at a future date. Pw-1 testified further that, out of the amount owed, the Defendant paid TZS 389,900,000/ = only. Pw-1 told this Court as welRhat,\after^nia|Ty^effOrts in demand of the payment^Jth^Rlaintiff's /Director, met with the Defendant on th^^^S^^nd^Z^ 01 of January 2020 at Southern SuOiQtel>and'the Defendant made a (f commitment or undertook.tO'CieaKthe remaining balance. \\\\ v Pw-1 ^tender^d x^nCpurt a Memorandum of Understanding (MoU) dcited'24‘h January 2020. The same wa^/admitted<as^EXh.p?l. However, Pw-1 told this Court that}k\despite^gning the MoU, the Defendant failed to clear tne^^tanding amount, and hence, the Plaintiff was forced to knock at the doors of this Court seeking for justice of the case. On being cross-examined as to whether there was any local Pro-forma or Tax Invoices from the Plaintiff or EFD receipts issued to the Defendant in respect of the cargo alleged to have been supplied, Pw-1 responded that, there was no such document. He also acknowledged Page 5 of 30 that, there was no evidence of delivery note from the Plaintiff to the Defendant or any document evidencing that the Plaintiff had supplied to the Defendant such hardware and building materials worth TZS 747,002,000/=. However, Pw-1 reiterated that, the parties had signed a Moll (Exh.Pl) which indicated that the Defendant was indebted to the Plaintiff to the tune of such an amount, and, that, initially, the Defendant had paid TZS 389,000,000/=. He reiterated'the,faGt\tha't/>the Defendant signed Exh.Pl, acknowledgingzto beiindebted to the Plaintiff and, that^\Exh.Pl^^/a§^igned after the supply had been effe^d^x^^^^ On further, cross-examination, Pw-1 told the Court that, Exh^Plx-was signed^ft|pthe Plaintiff had reported the matte^to^t^PoliG'e^fellowing the reluctance on the part^ofTh'e-Defenclant-tQ/pay for the supplies made to him on credit "t^he^laintiff. Pw-1 told the Court further, that, tnej^Jjes have had a long business relationship since 2019, and that, the last payment made was in December 2019 when the Defendant paid TZS 30,000,000/. However, he failed to submit evidence regarding that payment. On a further cross-examination, Pw-1 conceded that, much as the matter being a civil claim was improperly reported to the Police, it was still right for the Page 6 of 30 Plaintiff to have reported it as the Defendant had absconded. He conceded that the MoU (Exh.Pl) was discussed on 22nd, 23rd and on 24th January 2020 it was signed by both parties. While still under cross-examination Pw-1 stated that, the actual value of the supplies which remain unpaid for was TZS 797,842,080/=. However, he admitted that, what is stated in paragraph 3 of the Plaint is a claim of TZS 747,002,000/=. On being re-examined, Pw-1 stated'that?there?were % \\ > SsX/ no local Pro-forma Invoicesjssued>since<the parties had vSL\\\\ been in a business relatibnship.'and-'tljeDefendant used ^X.X to ask for the materials-and the Plaintiff would supply as f <\x per the request o|i credit^Xand^without issuing any document. As-regards\the issuance of payment receipts ZZ^\ ZZ'Zr'Z (EFD Receipts) J? w-1 stated that, the Cargo was supplied on c^e3it^soxe|ei'pts^.were to be issued after receiving payments. He\corifirmed that the Plaintiff's claim is for TZS 747,^£^Q00/=, and that, that amount is reflected in Exh.Pl. So far that is what was stated in support of the Plaintiffs case. As for the Defendant's case, the Defendant called one witness Mr Baraka Nyang'anyi Marela, who is the Managing Director of the Defendant. He testified as Dw-1 and I will refer to him as such. In his witness statement which was received in Court as his testimony in chief, Page 7 of 30 Dw-1 told this Court that, on 19th March 2020 he purchased building materials from the Plaintiff worth TZS 50,000,000/-. He state, however, that, he only deposited a sum of TZS 35,000,000/-. He tendered in Court as exhibit, a Single Customer Credit Transfer (TT) which was admitted and marked as Exh.Dl. Dw-1 told this Court, however, that, towards the end of 2020, the Defendant failed to repay the amount owed due to outbreak of Covid 19, and, that, the Plaintiff took the matter to the Police aLOysterbay-whereyhezwas given OB/IR/433/2020. stated^tiiat^he was Dyv-l \\ detained for 3 days and afterMnterrogationXit was agreed -e.Moll (Exh.Pl) that JT be-prepared and the parties sign the He told-this^Courtxthat^he was released from the Police on<c6ndition ^at'he'signs the MoU which he later signedr*D^Xtold''the>Court that, he signed the MoU (Expa^l) under the undue influence since he signed it immediate^jfter his release from the Police. He denied that the Defendant ever signed or entered into any contract with the Plaintiff in relation to the supply of hardware and building materials and that the alleged claim of TZS 747,002,000/- was untrue and unjustifiable. He prayed that the suit be dismissed with costs. During cross-examination, Dw-1 told this Court that, it is indeed true that the parties have had a business Page 8 of 30 relationship and that, the Defendant once took goods from the Plaintiff on credit. He denied, however, that the claim for the unpaid goods is TZS 747,002,000/-and stated that, the remaining balance is TZS 15,OOO,OOO/=.He conceded, however, that the amount he claim to be the remaining balance was not stated in his testimony in chief. Besides, while under cross-examination, Dw-1 affirmed to have said that the Moll ,was signed under an NX /\ undue influence of the Police^^ow^erT^he^cgnceded that, that fact was nowhere pleadedNm the> Written , X>-. NX \\ Statement of Defence. He. tolaNhisXo.urtx that he was arrested on 18th Jani3ary^2020\andswas not release until after four (4) days, on 22n^danuanj^'020. However7^, PWx.lXacknowledged to have signed Exh.Pl on^^^4^Jcin'u|ry '2'020, but, he stated that, at the tij^l^was'still^Q.der the Police Custody. However, Dw-lvdid acknowledge that, at the time of signing the Exh.Pi^hg^^l accompanied by his advocate, who also signed it. As regard the purchase he made from the Plaintiff, he stated that, Dw-1 stated that, such purchase was made on the 19th March 2020 and, that, he paid TZS 35,000,000/-, a payment he made via Exh.DI. Dw-1 stated further that, that payment had no relationship with the claims made by the Plaintiff. He acknowledged, however, that, Exh.D-1 is dated 20th Page 9 of 30 March 2019 but stressed that it has a relationship with the purchase he made on the 19th March 2020 as he was not given the supplies on the material date. He stated that, he had paid and waited for the whole year before being supplied as he used to take supplies on credit. Dw-1 further stated while under cross-examination that, the Defendant was not given receipts or pro-forma invoices when he purchased the supplies as the Plaintiff refused to give him. There was no re-examination of Dw- 1 and that marked the end of the Defendant's<case./As I \\ \\ stated, both learned counsels forthe parties herein filed their closing submissionS^^iOT^l^ill,^alongside the testimonies made tcp£h.e Gourt^onsider them as I deliberate on the agreed issues. \<\\ v Yi To begin. wit^\hpweyer, let me reiterate the principle That, in 'law,\he who alleges must prove. The principle-iSvfir^ily established under our law of evidence. Seewie Registered Trustees of Joy in the Harvest vs. HamraJ^Kasungura, Civil Appeal No. 149 of 2017 and the case of Manager, NBC Tarime vs. Enock M. Chacha [1993] TLR 228. In particular, sections 110, 111 and 112 of the Evidence Act, Cap.6 R.E 2019 provides as here below: "11O.-(1) Whoever desires any court to give judgement as to any legal right or liability dependent on the Page 10 of 30 existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. 111. The burden of proof in a suit proceeding lies on that person who would fail if no evidence at all were given on either side. 112. The burden of proofkasjo ahy\ particular fact lies <bn that\personx who wishes the^ourt to'believe Jin its existence, unle^^s^pr^ide^Xby \\ x\ law that/the''prooNofxthat fact shall .. lie on any other persotV It is also ^cardinal principle of law that, in civil cases, parties~are^to'prove -their cases on the balance of probability^See^th'e^ca^of Silayo vs. CRDB (1996) Ltdi^2002r^EA^8 (CAT) and Catherine Merema vs. Wathigo^Chacha, Civ. Appeal No.319 of 2017 (unreported)r-That being said, has the Plaintiff in this case discharged his duty to prove the case to the required standards? To respond to that pertinent question, let me address the issues I raised earlier one after the other and see what culminates in their aftermath. The first issue was: Page 11 of 30 "Whether there was any agreement to supply hardware and building materials between the Plaintiff and the Defendant." Under the law of contract, if a Plaintiff is to succeed in an action regarding breach of contract as it seem to be the case in this suit, the Plaintiff must, in the first place, prove that: there was a contract between the parties, that the Defendant was in breach of thecontract, and that the Plaintiff had suffered loss as a result of that breach. In essence, however, existence\0f\6therwise of an <\ AX agreement to supply buildingxrnaterials.between parties is a matter to be ascerainici fr^m\the>facts of the case as \\ adduced by thewvitnessesyAs'it] was succinctly discussed -s. VS. 7J by the Cou^of^App^ab'inAhe/case of Louis Dreyfuls Commodities/Tanzania, Ltd vs. Roko Investment TanMni^ttcl>^civnA^peal No.4 of 2013 (unreported), the 'general principle about contract is that, it arises becaus^dije^party makes an offer or proposal and the other party accepts it to procure what in law is referred to as consensus ad idem. The Court of Appeal also emphasised in the case of Zanzibar Telecom Ltd vs. Petrofuel Tanzania Ltd, Civil Appeal No.69 of 2014 (Unreported), that: "Under our law, all agreements are contracts if they are made by free Page 12 of 30 consent of the parties who are competent to contract, for a lawful consideration and with a lawful object and are not on the verge of being declared void. That is the essence of section 10 of the Law of Contract Act, Cap. 345 of the Revised Edition, 2002 (the Contract Act)". The particular section 10 under the'taw of Contract Act, Cap.345, R.E 2019, provides that^xx /\ Furthermore, section\7\of~the Act makes it clear that; acceptance oran~offejxmust be clear and unambiguous. Under sectibnxff'ofthe said Act, performance is amongst u. Xv, k the modes of acceptance. In tnis'present suit, the learned counsel for the Defendant has, in his closing submissions, denied that the Defendant ever entered into a contract of supply with the Plaintiff. He has submitted that, there has been no single document tendered by the Plaintiff to prove that the two entered into a contract. In my view, even though it is true that there was no written agreement between the Plaintiff and the Page 13 of 30 Defendant, it cannot be denied that the Plaintiff and the Defendant entered into a contractual relationship. I hold so because; existence of a contract may be also inferred from the conduct of the parties and the circumstantial evidence surrounding the particular case. See, for instance the case of Zanzibar Telecom Ltd vs. Petrofuel Tanzania Ltd (supra). In that case, the Court of Appeal referred to the ^English case of Reveille Independent LLC. vsX Anotech International (UK) Ltd. [2015.] EW^C"(Comrq.),/axase whose facts were similar to the sltiiation^wliich^the Court A \\ W was faced with. Having narratea^ne-'fagte the Court noted that the English CourtP^ \\\\ With suck^finding, the Court of Appeal in the case of Zanzibar Telecom Ltd vs. Petrofuel Tanzania Ltd (supra) was convinced that, such a holding by the English Court was "a sound principle, which we accordingly approve." Another analogous situation may be observed from the case of Catherine Merema vs. Wathigo Chacha, Civ.Appeal No.319 of 2017 (unreported) whereby, the Page 14 of 30 Court of Appeal, quoting with approval its own decision in Engen Petroleum (T) Ltd vs. Tanganyika Investment Oil and Transport Ltd, Civ. Appeal No.103 of 2003 (unreported) stated, at page 16 that: "a careful scrutiny of the evidence, conduct of the parties and the circumstances of the case established that there was an oral contract of sale of petroleum products by the appellantx(plaintiff company) to the respondent (defendant company)."s In this case, it is cleanfrom-tfi^evidence of Pw-1, NS that, the Plaintiff an.d^the\DefendanC'had a business relationship wherein khe ^laintifR^ipplied hardware and building materialsxto the Defendant on credit basis. This fact was^pp^ed^^^Dw-*l’zwho, while under cross- examinationNacknowledged that, it was indeed true that the\parties; have^had a business relationship and, that, the Defendant) used to collect goods from the Plaintiff on credit basisT^ In addition, there was also tendered in Court Exh. Pl and DI, all of which tend to cement the proposition that the two parties had a contractual relationship wherein the Plaintiff supplied goods to the Defendant and the supply was based on credit. Further still, even if the Defendant seems to be contesting the amount claimed, it is clear that, in his testimony in chief, Dw-1 admit that, Page 15 of 30 the Defendant purchased goods from the Plaintiff and, that, towards the end of 2020 the Defendant failed to repay the amount owed due to outbreak of Covid 19. The same version of admission can be gleaned from the Amended WSD filed in Court by the Defendant. The reading the WSD from paragraph 4 thereof, shows that, the Defendant admits there being an agreement between the parties regarding payments which were to be made within a time. This was definitely payments^based on the supply of goods between the^^oS^p^i^qJar/’the Defendant states further, under tnaKparagraph>that: "However, ttje^^^hdan^f^Jjer states ^that^ d'ues^to^^eXserious effects bf the Defendant^ business W Z/xX XX causedvby the deadly Corona Virus //^ecei^e^an^emic/(sic), she could X^npt )ma^tjJrther payments on the \\From tne above facts taken together, there is no doubtXasJjjtated herein earlier, that, the two parties entered into a contract of sale of goods and their conducts do suggest, that there was offer and acceptance. A contract of sale of goods is governed as well by the Sales of Goods Act, Cap.214 [R.E.2002]. Under the Sale of Goods Act, section 3(1), (2), (3) and (4) provides that: "(1) A contract of sale of goods is a contract whereby the seller transfers Page 16 of 30 or agrees to transfer the property in goods to the buyer for a money consideration, called the price, and there may be a contract of sale between one part owner and another. (2) A contract of sale may be absolute or conditional. (3)Where under a contract of sale the property in the goodsx^is transferred from the sellerxto the\ buyer the contract isxglled^Xale;^ but where the-Utransfer of/the /vX-xX \\ property in the^goods is-to^take place „__ v xx x>K \y at a futureJjme^oRsuoiect to some J/ conditions to^^x^lfill^d^after the transfer^the contract is called an X<xv J J agreement to-sellS7 (4) An agreement to sell becomes a sale whenXhe time elapses, or the ^conditions are fulfilled, subject to which the property in the goods is to be transferred." It is also clear, under section 5(1) of the Sale of Goods Act, Cap.214 R.E 2002, that, a contract of sale may be oral or written or partly both. In this particular case, there was no written agreement as such but the available evidence does point, with no doubt, towards existence of a contract of sale. That being said, the first issues regarding whether there was an agreement to Page 17 of 30 supply hardware and building materials as between the Plaintiff and the Defendant, is responded to affirmatively. examination, Dw-1 issue The second was: did-not deny"If the f*signed tcrhave is in the issue Exh.Pl to (f affirmative, whether acknowledge that thetheDefendantvwas Plaintiff supplied the Defendant indebted to the Plaintiff to the^e^0fsT«)7)l7,002,000/. What the with hardware and building materials worth TZS 747,002,000/-. Defendant ‘raisedIninthis his^WSD the also case, and evidence adduced supported and by Dw-1 in hi<^Qr^ny^EmS^alleged relied feet that upon by the Plaintiff to establish Dw-1 that the was under Defendant was supplied undue with hardware influence^ of Policeand building when he materials worth signed Exh.Pl. TZS 747,002,000/- However^J^pre on credit. I discuss as toAccording there evidence whether to.,the was any of and Exh.P.l, Pw-1,influence undue there on the is no party of doubWhat thej’let Dw-1 or not, laintiff me supplied goods discuss the worth value that amount of Exh.Pl. In his testimony b&tn'in?Ghief\anci\during cross- Exh.Pl is a memorandum of understanding, (Moll) between the Plaintiff and the Defendant. Essentially, in the arena of commercial interactions, the use or signing of MOUs is not uncommon. Such documents and sometimes contracts stand as one of useful ways to Page 18 of 30 define commercial relationship between parties involved. In this particular suit at hand, the MoU was signed by both parties on 24th January 2020 as part of their joint reconciliation to end their dispute. For the sake of clarity, I will reproduce the operational parts of Exh.Pl, in verbatim here below. It reads as follows: "NOW THEREFORE: Upon carrying out a joint reconciliation parties have agreed as followsfc^^X 1. THAT, the tota1\^^ue^of/th^ hardware supplied and\deliyered \\ to Tanzaland Textiles-TimitedCby z \\ \\ \> GlobakHardware Linqited is TZS ^97}842,(^^ 2<XTHA^o^oPtNe total of TZS 1,136,0027000/ = being value J pf-the ^hardware supplied and delivifeS, Tanzaland Textiles Limited effected payment of TZS 389,000,000/=. 3. THAT, the balance of TZS TZS (sic) 747,002,000/- remain unpaid to date and the partied (sic) have agreed that the same paid (sic) in 02 (two) instalments for a period of 02 (two) months from the date of signing this MOU. Page 19 of 30 4. Any party in the MOU shall at any time be at liberty to contact the other party to ensure compliance to (sic) the MOU agreement hereof. 5. THAT, in the event of default by either party, the aggrieved party will be at liberty to take necessary steps for appropriate remedy." ^\\ As I stated earlier, the vital question that needs to be looked at before disposing the.second issue-isWAaf is % \V the value of Exh.Pl? In^other^wgra^ files' it bind the parties? Essentially, the. bindingXnaturejDf a document regarded as a Memorandum.of^Understanding (MoU) is not a matter oRmerexdefinitioh out is dependent upon some factors'ascertainaofefrdrn7the document itself. That J) V approach was/endorsed> by the Court of Appeal of Tanzania irNthe case of M/s Mwananchi Engineering and Construction Corporation Ltd vs. Mr Silvano Copetti, Civil Appeal No.104 of 2011, CAT (unreported). In that particular case, the Court had the following to say concerning a Memorandum of Understanding which was relied on by the trial Court: "First, whether or not a M.O.U amounts to a contract is not a matter of mere definition. Second, the intention of the parties to the M.O.U was to be gathered primarily Page 20 of 30 from the terms and conditions stipulated therein and not the mere appendage of their signatures to that instrument...... In our respectful view, the M.O.U itself provides in large measure, the means of resolution of the acute question whether or not it was an enforcement sale contract. Third, the title of the document "memorandum of understanding^ could not have bee^determb^nf'ot W w/^ the parties' int^tior^^^ts^legal character as^^sale^greement."^ Referring Mitra's Law of Contract and to cr . xx xx Specific Relief, 6th Ed., 2011, pp.177-178, the Court went ahead and stated that: J I "It well established that, the Court^i^order to construe an agreement, has to look to the \ x> substance or the essence of it rather than to its form.... It is true that the nomenclature and description given to a contract is not determinate of the real nature of the document or of the transaction thereunder. These, however, have to be determined from all the terms and clauses of the documents and all the rights and results flowing Page 21 of 30 therefrom and not by picking and choosing out of the ultimate effects of result." From the above excerpts of the Court of Appeal's decision, it is clear, therefore, that, even if a document may be titled as an MOU, it may still be considered legally binding depending on the language used in the MOU and the certainty of the terms. In the instant case at hand, if I armasked about the status or value of the Exh.P.l as ^<^o^erativeppart captured earlier here above, I am^qfasettled'^/igw/that, it constituted a separate agre’fement&etween the parties to settle the existing deb^f\7^^47;0Q2,000/- which stood unpaid on the date/of^the^sjgning of the MOU (Exh.Pl).The agreement though not the subject of the parties disputeXit does provide corroborative evidential valueLtoJne>l?laintifPs, case. In fact, as Exh.Pl was found to be reliablyajseful in establishing the first issue, so it in \\ \\ X> establishing the\second issue. ItJ^wdfth noting, however, that, when Dw-l's gave his testimony in chief, and, in particular, with regard to the MoU (Exh.P.l), Dw-1 stated that the document (Exh.Pl) was signed under an undue influence state of affair. That fact was further reiterated in his testimony during cross-examination. In my view, what he seems to be alluding to is a defence of undue influence. Looking at the pleadings, it is Page 22 of 30 clear that what Dw-1 brought to the attention of the Court was not pleaded by the Defendant in his Amended Statement of Defence. Rather, the undue influence issue was canvassed by the parties when Dw-1 submitted his testimony in chief and during cross-examination. However, in law, although an issue may have not been pleaded, once that matter is canvassed by the parties, the Court may as well make a finding on that matter. That particular point was. weliXconsidered/irKthe case of Agro Industries J-td. v;. Attorney^General , 'Qs \\ [1990-1994] 1EA1. In that'particular-case,\which was also cited by our Court^of-Appeal^x^ case of Rungwe Freight Constriction &^nothervs. International Commercial-Bank^T^Ltd, Civil Appeal No.133 of 2015 (CAT) (unrcpor^ecl),tin^Court^ held as follows on that pointT^^ "A\Court may base its decision on an unpleaded issue if it appears from the course of the trial that the issue has been left to the Court for decision... So long as a Court allows the counsel to address it on certain issues, then the judge has to conclusively decide them." In this suit at hand, the closing submissions by Defendant's counsel did canvass on the issue of undue influence in relation to the signing of Exh.Pl. This fact Page 23 of 30 was also raised in the course of the hearing when Dw-1 was testifying both in chief and when he was being cross- examined. The Plaintiff's closing submissions have also alluded to it submitting that it is baseless. With those submissions I am indeed entitled to deliberate on that point as well since, if established will taint the reliability of Exh.Pl. In law, undue influence is an equitable doctrine that involves a claim that, one person hastaken advantage of a position of power over another person. Section 16(1) of the Law of Contract Act, Cap.345 R.E 2019, provides to XXx^ XX that effect. If proved, that sort ofjnequity in power between the parties can vitiate one party's consent and renders any ensuing agreement from their dealings XX XX v Xh unenforceable simply because, parties are required to ZLX XX x\ X2x~~XZ freely exercise their independent will. /^Section 16 (2) and (3) of the Law of Contract Act, Cap.345 R.E 2019 further provides that: \\ \A XX. In particular and without —'prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another- (a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or Page 24 of 30 (b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress. (3) Where a person who is in a position to dominate the will of another, enters into a contract^with him, and the transacti^^^^ears^ on the face of it or<bn thexevidence. \X adduced, to be^uqconscionaDle; the burden Sl^ch contracCwas,nocinduced byundue [( XX \\ Influence shalklie upon the person <\ W </\\ \> irf'a^position to dominate the will of the ot^eXi~^7 / tRrovided^that, nothing in this ^suBsection shall affect the < X^ovisions of section 120 of the ) Evidence Act." Having stated the legal position regarding the plea of undue influence, I now turn to consider whether or not Dw-1 signed Exhibit P.l under a state of undue- influence. As stated by Pw-1 and well accepted by Dw-1, it is undisputed fact that the dispute between the parties had dragged them to the Police at Oysterbay vide OB/IR/433/2020. Page 25 of 30 In my view, even if the respective OB/IR/433/2020 was not produced in Court, there was no dispute about that fact. It is also an undisputed fact that Dw-1 was placed under Police arrest on 18th January 2020 till 22nd January 2020 when he was released and, that; after his release, the parties thereafter negotiated their matter and signed Exh.Pl on 24th January 2020 not at the Police Station, but at South Sun Hotel, and, in the presence of thgjrllawyers. In my view, since Dw-1 signed the MoU after his release from the Police, and since the same MoU was negotiated and agreed upon away from the Police Station XX XX "■"XZX’ and, in the presence of the Dw-l's lawyer who also r? w xx signed it, I do not see how the issue of being under an undue influencejrises I, therefore, find it clear, that, the contention that Exh.Pl^as^sidf^d^bw^bw-l under undue influence, (( meaning that.he'signed it contrary to his own volition, is not irferito^^ With such a finding, Exh.Pl is a valuable piece of evidence which prove the fact that, the Plaintiff supplied the Defendant with hardware and building materials worth TZS 747,002,000/- and that the latter was still indebted to the Plaintiff to that extent claimed. The second issue is thus responded to affirmatively. The third issue need not take my time longer. It is about whether the Plaintiff is entitled to payments Page 26 of 30 if the second issue is in the affirmative. I would say definitively that the Plaintiff is entitled to be paid since the two earlier issues discussed here above, have established that the parties were in a contract of supply of goods on credit and, that, the goods were supplied but payments were not paid in full. In my considered views, the Defendant's reliance on the outbreak of Covid 19 Pandemic as a scapegoat or xx force majeure event cannot shield her from liability under the contract. There was no evidence led to the effect that the products supplied were affected by the Pandemic. Moreover, therewas_nowhere the parties had agreed or discusses matters regarding force majeure. £27 XX XX As such that was an afterthought on the part of the Defendant. Finally is the last issue which is: to what reliefs aredhe^pa^ip^dntitle^. In this case, there is no doubt thafe'the Plaintiff'fias been able to discharge his burned of proving<hjg_£|se within the required standard. Since the balances of probability tilts in favour of the Plaintiff, he is the one who is entitled to the reliefs prayed in the Plaint filed in this Court. However, I note, in one of the Plaintiff's prayers, that, the Plaintiff has asked to be paid general damages. In law, unlike specific damages which need to be pleaded and proved, general damages need not be proved. Page 27 of 30 It follows, therefore, that, if the Plaintiff merely avers that he suffered general damages that averment will suffices. Such averment may be a mere statement in the pleadings or in the prayer part of a claim and will be adequate to establish general damages for purposes of award by the Court. This particular principle is well supported by numerous decisions of this Court and the Court of Appeal. (See the cases of^Xooper Motor Corporation Ltd vs. Moshi/ArushaxXOccupation Health Services [1990] TLR 96. andxFredrick\Wanjara, <X VXv M/S Akamba Public Road ServiceyLimited A.K.A \\ Akamba Bus Service vs.xZawadi Juma\Mruma, Civil Appeal No. 80 Of 2009-GAT (Unreported). (f /xXx'X In the Wanjara's casejsu^ra) the Court was of the view toat^t^re^evTO^prd and fast rules in the determina^^'oQj^h^r^amages and, that, such damage^anqof^be^approached with mathematical precision. However, if they are to be awarded, it is a trite law tiiatxgy^yaward must be assessed as being the direct, natural or probable consequences of the wrongful act of the party condemned to pay them. See the decision of the Court of Appeal in the case of African Marble Co. Ltd vs. Tanzania Saruji Corporation, Civ. Appeal No.38 of 93 (unreported). In view of the above, and in respect of this case at hand, it is my considered assessment, taking into account Page 28 of 30 the evidence of Pw-1 and the fact that the Plaintiff has suffered inconveniences regarding the payments since 2019 to date, I find it appropriate to award the Plaintiff TZS 5,000,000/ as general damages. In the upshot, and since the Plaintiff has managed to prove its case to the required standards, I hereby enter judgement and decree in favour of the Plaintiff and make consequential orders as follows, that: 1. the Defendant is hereby ordered to pay the Plaintiff tne^sum of <\ W \\ TZS 747,002, 000 (Tanzania: Shillings Seven-^.Huhdred\\and Forty Sevens Mil!ions^and\Two Thou^fld^ only)\as\^utstanding ^amLlnt owed^roher, being an \\ \\ v amount^resulting/rom the supply "Xo^f^^^vVare and building /^rnater^s^made by the Plaintiff to X\the Defendant; ■2. the Defendant is to pay interest y at bank rate of 14% on the dectretal amount calculated from the date of filing the suit to the date of final judgment. 3. The Defendant is to pay the Plaintiff TZS 5,000,000 (Tanzania Shillings Five Million) as general damages. 4. The Defendant is to pay costs of this Suit. Page 29 of 30 It is so Ordered Right of Appeal Explained. DATED at DAR-ES-SALAAM, this 30th Day of November, 2021 * The Page 30 of 30