jubaili agrotec ltd vs mount meru flowers ltd 2022 tzhccomd 136 25 may 2022

IN THE HIGH COURT OFTANZANIA (COMMRCIAL DIVISION) AT ARUSHA. COMMERCIAL CASE NO. 04 OF 2021 JUBAILI AGROTEC LIMITED........................................... PLAINTIFF VERSUS MOUNT MERU FLOWERS LIMITED................................DEFENDANT Date of Last Order: 20/05/2022 Date of Judgement: 25/05/2022 EXPARTE JUDGEMENT. MAGOIGA, J. The plaintiff, JUBAILI AGROTECH LIMITED by way of plaint instituted the instant suit against the defendant praying for judgement and decree in the following orders, namely: a. An order that the defendant pays the plaintiff the amount owed to the tune of United State Dollars Eighty Thousand Seven Hundred and Eight-Five (USD.80,785.00) for failure to make payment of the accrued balance from the supply for fertilizers; b. Interest on the amount mentioned in prayer (a) above herein at the rate of 25% per annum from the date of filing of the present suit to the date of judgement; i c. Interest on the decretal sum at the rate of 7% per annum from the date of judgement to the date of full satisfaction of the decree; d. General damages and costs of the suit; e. Any further order or reliefs that this court may deem fit. To get the gist of this suit and its ex-parte judgement, I find it imperative to state albeit in brief facts as gathered from the pleadings. The plaintiff and defendant had business relationship where the plaintiff supplied agrochemicals to the defendant from 2018 to 2019. The defendant, however, failed to meet the plaintiff's requirement to make payment as was agreed despite sent invoices and emails as remainder. The defendant in acknowledgement of debt contacted the plaintiff with payment plan where parties signed acknowledgement of debt. Further facts were that despite signing the acknowledgement debt, the defendant made no payment of the outstanding balance igniting this suit, hence, this ex-parte judgement. Upon being served the defendant filed a written statement of defence disputing the plaintiff's claims and prayed that the instant suit be dismissed with costs for being baseless and lacks merits. 2 On 16th May, 2022, when this suit was called on for Final Pre Trial Conference, Mr. Mgalula, learned advocate for the plaintiff move this court to exercise its powers under Rule 31(1) (b) and (c) of this Court's Rules as amended by G.N. 107 of 2019 and struck out the defence for defendant's failure to attend Final Pre Trial Conference despite being served as proved by an affidavit to that effect and allow them to prove the suit by witness statement and enter an ex parte judgement. The provisions of Rules 31(1) (c) as amended provide as follows: Rule 31 - (1) Where at the time appointed for the pre-trial conference, one or more of the parties fails to attend, the Court may:- (a) Dismiss the suit or proceedings (b) Strike out the defence or counter claim (c) Upon proof by witness statement or otherwise enter ex parte judgement; It was against this background, the plaintiff was ordered on 20th day of May, 2022 to file witness statement in proof of the claims. In compliance with Court's order, the plaintiff filed witness statement on 20th May, 2022 3 and PW1 under oath came to adopt her witness statement and tendered exhibits Pla-b in proof of the claim. The task of this Court now is to scan through the witness statement and see if the claims by plaintiff have been proved to the standard required in civil cases. Before the Court goes into the witness statement, it is imperative to understand the import of Rule 31 (1) of the Rules as amended. Going by the provisions of Rule 31 (1) clearly set out discretion but serious consequences to a party who default appearance to the proceedings on the day fixed for trial conference. These are; One, for plaintiff's failure to attend, the Court may dismiss the suit or proceedings. Two, for defendant failure to appear, the Court may strike out defence or counterclaim. Three, upon proof by witness statement or otherwise the court may enter ex parte judgement. Four, any party affected by the above three orders, have a remedy to make an application within 14 days from the date of the order to have the order set aside by the Court on such terms as it considers just. Five, where the Court has adjourned the first trial conference, and in the subsequent trial conference the party who fails to appear/attend the trial conference 4 fails again to appear, the Court shall have no other option but to dismiss the suit. With that in mind and back to the instant suit, the Court upon being satisfied that summons were dully served opted to exercise option number three by ordering the proof by witness statement and the intended witness to come to court to prosecute his/her case. The phrase "witness statement" is defined under Rule 3 of this Court's Rules to means a statement given pursuant to Rule 48 of the Rules in lieu of examination in chief. Rule 48 as amended thus provide the following: Rule 48- Notwithstanding the provisions of rule (1) of rule 49, the Court shall, at the final pre-trial conference, determine the manner in which evidence is to be given at any trial or hearing by giving appropriate directions as to- (a) The issues on which evidence is required; and (b) The way in which any matter is to be proved. Guided by the above rule, issue to be proved is whether the amount of USD.80785/= which is alleged to have not been paid for the agrochemicals supplied and received by the defendant is genuine. The way in which this 5 issue is to be proved was through witness statement. It should be noted further that the claim is for specific damages and as such should be strictly proved as well, being a trite law in our jurisdiction. See the case of ZUBERI AGOSTINO v. ANICET MUGABE [1992] TLR 137(CAT). After going through the witness statement and exhibit Pla-b all proved the amount claimed in the plaint. On that account, this court is satisfied that the plaintiff has been able to prove the balance of USD.80,785/= to the standard required in civil cases. The plaintiff is thus, entitled to the principle claim of USD.80,785/= together with claims of interests as claimed in the plaint in prayer clause (b) and (c), this court further order the defendant to pay Tshs.5,000,000/= being general damages for inconveniences caused and costs of this suit to be borne by the defendant. It is so ordered.