20190208 TZHC Dar es Salaam1

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CIVIL CASE NO. 186 OF 2017

I

BETWEEN . JAPHET MALIMA EGI NA .................................. 1st PLAINTIFF MAGANA CONSTRUCTION CO. LTD ................... 2ND PLAINTIFF VERS-IJS CAMPANA ADALBERTO MARCO ................. 1st DEFENDANT GE.CO. POWER LTD ...................................... 2ND DEFENDANT JUDGMENT (EXPARTE) E.B.LUVANDA, J The plaintiffs above named are claiming against the aforementioned defendants for a sum of Tsh 1,300,000,000 being the contractual amount as agreed in the contract; an order for an excavator be returned into the possession of the plaintiff who is the lawful owner; interest at 30% from the date of contract to the date of judgment; general damages to a Tune of Tshs 150;000,000; costs and any other reliefs. 1 \I The matter proceeded exparte after the defendants had defaulted to enter appearance and file a written statement of defence. The plaintiff was represented by Mr. Ramadhani Karume learned Advocate. It was the evidence of the plaintiff that on 20.8.2013 they -ent-ered -into a-three- m-onths---contra-ct -(--exhibit r>-1 ) ,-tro-m --- -- 20.8.2013 to 21.11.2013 where the defendants hired an excavator of the plaintiff for payment of Tsh 900,000/= per day. That on completion of the contract they ought to pay a total sum of Tshs 81,000,000/= but the defendants paid Tsh 5,000,000 on 2.10.2013 and Tsh 3,000,000 on 6.11.2013, a total of Tsh 8,000,000 only (as per

customer account statement ID, 1) leaving behind unpaid balance of Tshs 73,000,000/=. That after expiry of a contract he travelled to Zanzibar to claim a balance due and take back his excavator, only to be sued by the defendants at Mwanakwerekwe District Court (Zanzibar) and obtained an injunctive order restraining the plaintiff to take possession of the excavator, and the same order remained in force until on 9.3.2017 when a case was 2 dismissed, but the defendants remained in possession of the excavator to date. It is true that the plaintiffs had entered into a contract with the defendants, for hire of an excavator for a duration of three months from 22.8.2013 for a charge of Tsh 900,000/= per double shift (as per exhibit P1). Unfortunately the -·-- ~ont_ract _(exhibit_ Pl)_ iL silence _as todescriptioo_ a-□ d~ - · - particulars of the executors subject matter of this suit. PW 1. mentioned the excavator in question as bearing registration number T594 BNR. Be as it may, it was the terms of the said contract that payment will be effected monthly not later than 3rd day the following month. This means that each calendar month the defendants were supposed to pay a sum of Tsh 25,200,000 (for a breakdown of a charge of Tsh 900,000 per day times twenty eight 28 days). According to ID 1, reveal that the defendants had transferred a sum of Tshs 5,000,000 into plaintiff account on

2.10.2013 and a sum of Tsh 3,000,000/= was transferred by the defendants into the plaintiff bank account on 6.11 .2013. Actually this amounted to fundamental breach of the terms of contract excavator, as what was paid by the defend-ant was less and below the agreed 3 sum. Indeed the second installment was paid on 6.11.2013 beyond the time limit set for payments. I am aware of a clause under the contract (last paragraph of exhibit P1) which was to the effects that a sum of Tsh 15, 100,000 which the defendants had incurred to repair an excavator were to be deducted to the payment due. But that alone cannot be surely said to had set off a monthly sum of Tsh --~25,200,000 for payment effecte_d on_ 2/ 10/201 ~ and 6.11.2013 as aforesaid. It was the evidence of the plaintiff that, even after expiry of a contract the defendants remained in possession of the excavator to date. Basically continued retention of the excavator by the defendants is unlawful and contrary to the agreed terms of an agreement. In the circumstance the plaintiff is entitled to payment of a claimed sum Tsh 1,284,900,000 which is a balance due after deducting a sum of 15,100,000 incurred by the defendants for repair of an excavator. 4 As the defendant also continued retaining and possessing unlawfully the plaintiff's excavator, the latter is also awarded general damages assessed at a sum of Tshs 50,000,000/=. The plaintiff will have costs of this suit. An excavator registration No. T. 594 BNR to be returned in possession of the plaintiff. A suit is granted to the ~ t demonstrated above. 6 B. LUVANDA

JUDGE 08.2.2019 5 08.2.2019 Coram: Hon Luvanda, J For the Plaintiff: Mr Ramadhani Karume Advocate For the Defandant: Absent CC: Placidia Court: Judgment (exparte delivered at chamber E.B LUVANDA

JUDGE 8.2.2019 6