rizwan kassamali vs tanzania revenue authority others 1998 tzhc 2031 24 april 1998

IN THE HIGH COURT OF TANZANIA AT PAR £5 SALAAM CIVIL CASE NO. 526 OF 199£ RIZVAN KASSAMALI........ .V.... .'o'.APPELLANT

VERSUS 1. TANZANIA REVENUE AUTHORITY 2. THE NATIONAL SHIPPING CORP 3. THE TANZANIA HOUBOURS AUTHORITY b. ll/SARMSTRON CLEARING AND FORWARDING AGENCY..• RESPONDENT ’

RULING Kaji, J. This is an application by the applicant RIZWANI KASSAMALI for an order jthat the properties the subject matter in the main suit should be delivered to him for safe custody pending determination of the main suit. It has been, made under Order XXVII rr 2 and 3 of the Civil Procedure Code, 19661 and any other enabling .provisions of law# It was drawn, filed and argued by M.R,M, Lamwai & Co (Advocates) On 13th November, 1996, the applicant/plaintiff instituted Civil Case No. 326 of 1996 alleging that in 1995 properties comprising of used household*and personal effects and one Mercedes Begx, Registration No# CGF 888X-, 'Chassis TTb. NDB 12309322009939t were stuffed into Container No KNLU 30^931 -*9 and consigued to him from Great Britain as per Bill of Lading nnexture P.l* ---- Thai: container with its contents*"arrived at D*Salaam harbour in or about December, 1995* That container with its contents were delivered to the 3rd respondent TANZANIA HARBOURS AUTHORITY (hereinafter to be referred to as THA) to be handled by the 2nd respondent IHE^NATIONALSHIPPING AGENCIES COMPANY (hereinafter to be referred to as NA3AC0). He averred that he completed all clearing formalties and was allowed by the 1st respondent TANZANIA REVENUE AUTHORITY (hereinafter"to be referred to as TRA)tto-remove the said goods from >the post as,per Annexture P.2# However the 4th Respondent M/S

ARMSTRONG CLEARING AND FORWARDING LID , being carrier's agent at D*Salaam amended to Bill of Lading and instructed the other respondents not to release those goods and they obliged. It is his averment that the 4th respondent did so unlawfully and without any colour of ri^ht nor instruction from the consiguor or consiguee. He said the act of netaining those properties had occasioned loss in the sum of Shs# 40,000,000/= being loss of use of those goods and costs for making a follow up. He therefore claimed for the following reliefs:*- (i) A declaration that the properties stuffed into container No. KNUJ 30^931 - 9 and Mercedes Benz car Registration No. CGF 888X Chassis No. ND3 12309322009989 now in the custody of the 2nd respondent NASACO belong to him, (ii) An order that the said good be delivered to him immediately and in good condition, (iii) The respondents/defendants jointly and/or severally pay him the sum of Shs. 40,000,000/= being damages for the loss of use of the said goods and the costs of claiming those proparties, (iV) Interest on the decretal amount at the Court*s rate from the date of judgment till when payment is made in full* (v) The defendants/respondents to pay him his costs of and incidental to the suit* (vii) Any other relief(s) that the court may deem fit While the main suit is still pending, the applicant has filed this application alleging that those goods

have been removed from the container and left in the open at Ubungo yard and subject to destruction by weather, a result of which some of them have already been stolen and the car has been vandalised. He further alleged that the continued storage of those goods at Ubungo v ill lead- to a substantial loss to him as the respondents are totally unable to guard against destruction and theft* He went on deponing that on the balance of convenience he stands to lose more if those goods are not delivered to him at this stage than the respondents would suffer if this . application is granted. 'It was his feeling that he has very good chances of success in the suit. He said he is prepared to execute a Security Bond so that in case he loses the case whoever will be declared entitled to those properties may easily recover. The' respondents resisted the application on verious grounds. The 1st respondnt TRA resisted this application on the ground that releasing those properties to the applicant will prejudice TRA*s efforts towards recovery of Government Revenue as the applicant has so far failed to pay Impost taxes and other relevant duties. TRA went on saying that although the applicant tendered Annexture P2 purporting to have cleared those goods and paid the relevant taxes, yet no money w ,*was received by TRA, and the aid annexture was not passed by TRA and that the applicant probably

used false customs documents in his attempt to clear those goods. It is TRA*s feeling that under those circumstances those goods should be deemed to be uncustomed goods which are liable to for ^or^e^ u^|. t ,R.A. The 2nd respondent NASACO is resisting the release of those goods to the applicant on the ground that after amendment of the first Bill of Lading where the applicant was a "Notify party* his name disappeared. He is not mentioned anywhere in the amended Bill of lading either as a consfgBue, notify party or anything. The amended Bill of Lading mentioned B Adinani of Nairobi Kenya as both the consiquee and notify party. NASACO doubted the authenticity of annexture P.l because the name of the Line mentioned there - TRANSAFRICA LINE 13 unknown to them. The 3^d respondent T,H.A. is resisting this application on the ground that it was served with a stop order by NASACO not to release those goods to the applicant, and that the Mercedes Benz car was seized by Customs Authority in August, 1996, and therefore no longer under its custody. The *fth respondent ^/S Armstrong clearing and Forwarding Agency is resisting the application on the ground that the applicant or his agent purposted to pay purchose price, freight change and other charges in Great Britain by cheque. But that cheque was dishoused by the Banker* This made the shipper amended the Bill of Lading whereby B*

Adinani of Nairobi Kenya was named as both the consiguee and notify party and that the shipper did so in accordance with its rights for exercising its right of lieu over those goods. - k - It is the 4th respondents feeling that releasing those goods to the applicant who is not mentioned in the Bill of Lading as consiquee would be tentanount to allowing him to benefit from his own wrong and injust enrichment* In short that is the gist of matter* I have carefully considered the pleadings, learned counsel’s submissions and the numerous annextures some of which are difficult to read* I have also considered very carefully the overall circumstances surrounding this case. None of the respondents has seriously challenged the applicant’s .egation that the goods in question are stored in the open and subject to theft and destruction by weather and that some of them have already been stolen and the Mercedes Benz car has been vandalised. It is therefore my holding that they are not in safe custody* A safer custody is therefore needed to prevent the injury camplained of# The crucial issue is as to which custody is safer* Under normal circumstances custody by owner should be safer* The reason is obvious* It is like the Swahili saying t!UCHUNGU WA M/ANA AUJUAYE MZAZI** • But in the present case there is a dispute over ownership* While the applicant is saying he is the one by virtue of the

Bill of Lading Annexture P*lf the 2nd and 4th respondents are saying it is somebody in Nairobi Kenya n the name of B. Adinani by virtue of the amended Bill of lading. Or alrematively it is the shipper or shipowner,.This issue of determination of ownerslip is one of the issues in the main suit. This being the case it cannot be dealt with at this stage. Under those circustamces, at this stage the court will only look at as to who, the face of it, appears to be the most probable true owner* According to the pleadings, sub^iscions, annextures and the overall circumstances surrounding this case it would appear, initially the applicant was the owner/consignee when those goods were consignsd to him to be handled by Trans Africa Line which issued him with the Bill of Lading Annexture P*l* TRANSAFRICA LINE appointed Ariel Maritime (UK) LTD (Nedlloyd) as carrier agent which issued also its own Bill of Lading mentioning the *+th respondent as consiguee and the applicant as ??Notify Party*' (Annexture 1 by 2nd respondent# But when the cheque paid for freight charges was dishonomed by the Banker, the shipper decided to exercise its right in lien in those goods by directing that those goods should now be delivered to Adinani, of Nairobi Kenya* Whether that act of exercising the right of lien at that stage was proper is yet another issue to be determined in the main suit. Thus, theoratically,

the applicant, Adinani and the shipper each has. a claim of right over those goods until determination of true owner. 1^ uld appear Adinani and the shipper forwarding agent one represented by the 2nd and *fth respondent. But none of them has shown any keen interest in the safety of those goods despite the unchallenged allegation by the applicant on theft, vandalisau, destruction by weather and lack of prop^* guarding. It would appear they are only interested in payment of tbeir charges regardless of the condition or safety of those goods or dammarage or other charges that might accrue. Since it is only the applicant who has shown }reen interest in the safety of those goods, it is my view that he is the one who deserves to take care of them during the pendanee of the main suit if the principles of an interlocutory order of this nature are also in his favour. These are:- (i) jlas a prima facie case in the main suit against the respondents with overwhelming chances of success (ii) whether he cannot be adequately compensated in monetary terms for any injury he would suffer in the event the order api-VH^d for is not granted. (iii) whether he would suffer more if the order applied for is not granted then the respondents would suffer if the order applied for is granted, (iV) whether the intervention of ’ ;he court is necessary so as to prevent the mischief complained of. In their

written submissions learned counsel for the 2nd and 4th respondents pleaded lack of locus stand and cause of action by the applicant against them* But since they have raised the same issue in their written statements of defence as a preliminary objection on point of law, it will be dealt with in the main suit. According to the. pleadings I am quite satisfied that the applicant has a prima facie cose against the respondents jointly and/or severally. • But it is not easy at this stage to say whether he has over whelming chances of success. This will depend on evidence which can only be evailable at the trial. t The applicant is interested in his goods and not their monetary value. Therefore if the order applied for is not granted he will suffer on injury which can not be adequately compensated in monetary terms. According to the overall circumstances surrounding this case I am satisfied that the applicant will suffer more if the order applied for is not granted than the respondents would suffer if order applied for is granted. With all this I am quite satisfied that the intervertion of the court is necessary so as to prevent the mischief complained of. Also this will serve as a mitigation of loss in the event the applicant succeeds in his suit* It is upon the above reasons that -I grant the applicants application ~s presented under the following strict conditions:- 1) Applicant to pay all relevant and proper taxes to TRA as required by law* 2) Applicant to pay post charges to THA (if any) 3) Applicant to execute a Security Bond of the value of those goods. k) Applicant to execute a Security Bond to cover due costs to the 2nd and 4th respondents (if any) on behalf of thoir principals* Application granted with costs in the cause. - S. N. Kaji

JTJDGE 19712797 I Certify that true copy of the Original* / \ 2*f/Vl998