himat transport tours safaris ltd vs fernando robles 2007 tzhc 454 6 june 2007

IN THE HICH COURT OF TANZANIA A T ARUSHA CIVIL CASE NO. 32 OF 2002 HIMAT TRANSPORT TOURS & SARAFIS LTD.- PLAINTIFF - versus - FERNANDO ROBLES................................... DEFENDANT J U D G M E N T BWANA, J. 1 . This is an ex-parte judgment entered in favour of the plaintiff. The Defendant - who was a business partner and one of the Directors of the Plaintiff Company - left this jurisdiction in January, 2001, never to return. Several attempts by the Plaintiff to have the Defendant back (from Spain where he resides) have proved futile. Eventually this case was filed before this court on 23rd August 2002. Since then, the Defendant has neither entered appearance nor filed a defence. Eventually on 31st May, 2007, this court ordered that the case proceed ex-parte, in terms of order IX R 6 (1) (a) of the Civil Procedure code. 2. The Plaintiffs' case is straight forward, in 2000, the Defendant joined the Company as director of marketing, it was agreed (and a contract signed to that effect - Exh. P1) that both Himat Lai, PW1, and the Defendant would work together. PW1 was and still is the director of the Plaintiff Company. The two would then share profits - 60% to PW1 and 40% to the Defendant, in addition, the Defendant was to pay for all office expenses. 3. in early 2000, both PW1 and the Defendant attended a Tourist Fair in Spain. As a result of that trip, the Plaintiff started receiving many Spanish Tourists, initially all the money was to be paid into the Plaintiffs account. Later on it was realized that the Defendant informed Spanish Tour Agents to divert any payments into his personal account (as opposed to the company account). Therefrom, PW1 noticed that there was no money being deposited in the company account even though many tourists were coming. When asked, the Defendant is said to have told PW1 that the Spanish Tour Agents were yet to transfer the money but that was no cause for worry as it would come. This kind of answer was given throughout 2000. in January 2001, the Defendant left for Spain, never to return. 4. Before leaving, PW1 had just discovered that the Defendant was operating a private, personal account. While leaving, the defendant left some cheques for paying fuel costs. However, when banked, those cheques were dishonoured and returned with the words "Account Closed" - Exh. P.4. There followed some correspondences between counsel for the parties herein - Exhs. P.2 and P.3. The matter was reported to the police. 5. in this case, the Plaintiff requests this Court to enter judgm ent in its favour and order the defendant to pay the Plaintiff the sum of US$ 109530 as special damages being a total sum of money that was supposed to be transferred to the Plaintiff's account but which, instead, the Defendant diverted to his personal account. The Plaintiff also prays for general damages; interest on the decretal sum; costs of this suit and any other reliefs. 6. I have considered the evidence of p w i together with the Exhibits tendered in Court, and am satisfied that the Plaintiff has proved its case as per standard of proof in cases of this kind. Therefore, an ex-parte judgm ent is entered in its favour. Further, I do order as follows:- 6.1. The Defendant to pay the Plaintiff the sum of USS 109,530 as claimed. 6.2. The Defendant to pay the Plaintiff the sum in TShs. Equivalent to USS 10,000 - as general damages. 6.3 The above decretal sum (6.1 and 6.2) to carry an interest of l 1/2 % per anum from the date hereof until final settlement. 6.4. Costs of this suit awarded to the Plaintiff, it is accordingly Ordered. O -. f; ° / / / N - * ' </*/f ^ \ \*\ < **. | / 1Ui ! t' ^ * ’vi \z'* ? , * * / r* > . x \ .ft' - .vl- /»/ ’ • ' '•'■■•.- ..*a /* W. o JUDGE i 6/ 6/ 20^7 SJB/jn