19820624 TZHC Dar es Salaam1

. IN TH;E HIGH CCXJRT · ◊F T.ANZANIA ::.AT. . DAR E SALAAM ..C.IVIL .CASE: NO. 121 OF 1981 ' KOT.AK TRADING. ·coMPANY LIMITED· •. , • • • • • PLAINTIFF Versus MANG 'ULA MECHANICAL & MACfilNE TOOLS . "COMPANY LIMITED •.• · • · •" •' •.• · •.• ' • • DEFENDANT -- JUDGM:ENT . MTENGA, J .. - ·The .plaintiff is·~- limited· liability Company incorporated in ·Tanzania and· the defendant ·-·is a limited liability company~ incorporated. 'in ·Tanzania .. On ·9,th November, 1979 Mr. Bbagwanji ·Ka.raa.ridas Saclidev (PW. 1) who· i:S• a member of the Boa.rd of Directors:L:·1n the Plaiz1tiff' s Company ,wrote·.,a letter. Ex; P.1: ·to· t'he defendant company in:troduc;:~ the"pi;;intifi's comp~;•to the defendant comiany:.~anir:,t1iti· iitter reads a~ f ollowEn- , .. ~ Messr.s.".:~ ':ula ·tvl~chanicai_,a.nd ...-...;. ..... Machine Tools Co .• Ltd., P.O. Box·:30. Mang~ ill.; ' • , Kilombero ., i,;.. ,,,.. . . . . . I - ,. ._J De~ ~irs,'_ ' 1 :' "'I" 1 • t , .!... we· have plea.sure·to introduce ·9urselves as one· of the _dealers in Har~~ares and Building Materials in Dar es Salaam. ·. · .· · We have been gi~en t.o.. uriderstand that you ma:nufac-ture nian hole covers in different sizes. · __._, · · · · ""'u 't:~- ~ j ' ' ;; . t_ • • • • "i: •:"[• t! _. l' • i , We - s ~ .be1grateful, if you, wµl please _.l.et us ha;ve · your pricelist for the same at· your earlie~t convenience so as to enao1e· us td place:1 'our order:: . · .., · .~so, please let us,have your pro..:.forma.· invoice for the _foliowmg:-• ' . . . ' ., .. ~- ' ~ ( .: , ,. ·1 l • • • . •. ' • t J " • ~ ' • .f 'II:. j ' j ::.1 . ., ' : -~ ··: .;_100-pcs.-_.nhole Oo;vers,.Size.. 1~" x . .1s(. ,,,_. 100 n- · " . " ., · ·." . "1.aw x?· 24n· - ~-<, 1 00 n.· . j ,tt,:• : ' " ;If. . _i 2·4·tfJ xr ,2,4(1t .~ : , : • ·- ~ 11 100. • , >•\~ . 0 n .. 15_~~- X 15.'\_;_·: .. ~-· - 2' - !~ID. adaition to the above request, we shal,l be grateful if you will please let us kn.ow- the other ite~s which are manufactured by you. Thanking you in anticipation of an early reply. Yo"'1.rn f.q:"i"t.tfullY-, for KO'.I·.t.:K TRl..DING CO.. "LTD. (Sgd) B .. K. S.ACHDEV Direc-to:r" ,h-. stat.ed letter-, the ·defendant?·· •. CompanJ ~;-:.:'(., ~~ a letter Ex:o P.,2. to the plaintiff -company 7 attached. with a proforma invoice and it was dated the 26th November, i979 and ·th.:i..s lettEr reads as under:- NDC GROUP CCMPANY ·CABLE VIPO'LI Our Ref:: ACC /~TI'li&i."VJ.T./ OC /7 8/75 Phone ·• 1 Mang I ula ·:'!· .it) 26th Novemverf 1979 M/S KOta:k Trading ~ompany Limited, P. 0., Box 1785 , DAR ES Sli.Ji.AJ~. Dear Sir, · RE: MANHOLE COVERS • Enclosed1 please find herewith our proforma Invqice No. 657 dated 21st November, instant for the following: ( 1 ) 100 pc.s Manhole covers size 18" X 18" @ 204.80 20,480; .- . . . = (2) II II II " II 18 11 X 24" @ ~15.06 == 21·500:.00 .' . (3) II II II II II 24" X 24 11 @ 228.60 22,860,,0(\ .= .. (4) " n II II II -~ 15" X 15 II @. 132.30 = t3i23.Q~CO... .~:-• Tbtru. Shs. Also we are informing you that we manttfactu.re other...btdlding materials according to orders. Your letter of even reference dated 9th Novemb.er, '1979 . refers in this respect,. Yours faithfully Mangtrua Mechanical & Machine Tools Co. Ltd~ (Sgd) H,.M , ) Ki.+,-c,rika For Ge~en1,l_M.,_all§ge£. In the said profoma invoice attached to the letter Ex. ~.2, the column written "Any other charges"· is marked nil. _On qth December, 1978, the plaintiff company wrote back to the defend~t company enclosing in the letter a cheque of shs. 78,070/~ ear marked ·for the. p~ice -~f -·go . ods r~f'er;ea~- ...... •W. . . ...• . ;' . to in the invoice as shown :in Exh. F.2 .. The letter : was tendered as Ex. F.J. On 3rd J'anuary, 1980 the plaintiff company wrote another letter to the defendant company demanding fort he delivery of the said manhole cove~s and the letter had been tendered as Ex. F,.·4 and :in reply, on 13--t;;h February,·· 1 980 the plain tiff company received a telegram fr~m th~ defenda~t company Ex. F.5· infonning them that on: ·15th Jarruary, ·19ao they sent to the plaintiff company 192 pieces· of manho1:e covers and tha-t the said manhole covers ·, were :Lying in the defendant company's branch office at Mikocheni · in Dar· es:. Salaam and that the balance of 208 . . . manhole cove~ will be dispatched to the plaintiff company soon. Later, the defendant company brought to the plaintiff company's p~emises here in Dar es Salaam 191" nian hole covers instead of 192 man hole covers as promised in their teleg~·Ex. P.5, through their delivery note No. 1228.dated 15th J anuaryi 1 980 Ex. F. 6. Hereafter, the plain tiff ·company .·. :: received'' 1111 ·other pieces of mM. hole covers through d~l:i. very '- note NcS. ,· ,01. 6 dated 12th Ma-rch, 1980 and tendered in Court· file defendant company effected delivery of the abOv;·stated 111 pieces of'Manhole covers in the plaintiff company 1 s premises~ The outstanding ·baian~e 'or': man· hole covers J~-'-., to be delivered by the defend~t compaizy .. to the plaintiff company is 98 worth of shs. 20·~866/= as •hown in the plaint in paragraph 4. • •• /4" 4- - On 27th March, .1980 th~ plaip tiff · omp'a!LY rect=>J. •. :,; c wa>a letter Ex. P.8 from tp.e defendant ,.company and this letter ~as . : . . i .• attached to it with , two invoices that is invoice No. '851 . ' . . . dated 12th March, 1980.and inyoice No. 868 dateµ 26-th ' ' . transport, charges 'is shs. 9320/= whereas in i?iV~ice No. 8,68 ., it is wriiten that ·transport charges is shs. 12.407/90 that is to say the deferidaht . ., t,binprany has charged the ·:, plaintiff company shs •. 21,727 /90 as transport charges for the deliv.ery of. manhole covers to him for the two occasions as stated above.. On receipt .of letter Ex~ P.8 from, the,. defendant company, the plaint:i.ff pompariy on ·21atA,pril .... .. 1 ,1986" . '(' . . wrote back to the defendant company pr6t~sting_ ain,on~- ·other l things that -_~o far he had received .oniy".19f .·man~. hote, ·covers. and. •··. ,. not 192 as shown in their invoice no. 868 ·attached to, their , , .! . . • ;... letter Ex. ·P.8 o-l 27th March, 1980, that "he objected to,;·.', .. • 1 , ··, ,- • transport charges:. w.hich were not -s1.:iown', in their proforma::. . invoice attached to their letter. ~x;-j{~2; that tre price" . 15" ~ ·r5•i" on the said prof'ot,na quoted for man hoie covers size. . . . , 1 I, • • ;, I invoice attached·. tti the letter ~. l?.2 wa:s shs. 132/3.0 .... each and not 13,2/50 ·each as shown in the· 'in~oi;ce attached . !: .; '. .·. - ,.... . . This letter of protest written '. ~ . by the plaintiff·company to the defendant company has been tendered as Ex •. P.9. T his letter Ex; P.9 was not responde.d by the defendant company resulting the plaiht:fff company writing another letter to the d~fendant compaey reminding trem that he was .st·ill. c:l:ainiing from them a· delivery of 98 man hole covers for the;;_: bal,ance of ;;shs~ ,. 20866/=. This letter of reminder was ·tendered as Ex. P.1 O.:· There was no response . from the defendant company• 5 - The defendant · ComP3-ny is a subsidiary company of N.D.C. and the plaintiff company on 25th August, 1980 decided to bring the matter· to the attention of N .D .c. and as a r·esult he wrote a letter Ex. P.11 to N .D.C • . .... . There was ho reply to· t'his letter and oh 6th October; . . 1980 the plaintiff 9ompany w±-ote ·a:noth~r letter Ex. l? .12 to · N.D.C~ 'but again there_was no response from N.D.C. and again on· 14th November, 1980 he wrote another letter Ex. P.13 to N.D .c. · It should be noted here that all these le.tters written to N ~-D.C. w~re copied to the defendant company for information. When the plaintiff company received no response from the said N.D .c. he decide·d to employ services of an •advocate 'arid accordingly on 1st March, 1981 the plaintiff c·o~pany wrote a letter to Mr. Kessaria the learned counsel for. the plaintiff company instructing· him to persue with the. matter.;' Oh 27th March, 1981 the defendant.-. company wrote a letter Ex. P.15 to the plaintiff company tellJnc~ them that they 4ave re-cei ved the money i~ . question and .. . they .. also enclosed in -this letter a document called "Sales Policy" .. . • • PW!1 ~s.serted that that was the first tim~ that h~ received the sales po~icy of the defendant company and all through<?,ut he reiied on the proforma invoice attached to tlle letter Ex, P~g and Ex. P.5. However, the learned Co~~el fo~ the,. plaintiff wrote back to the defendant company protesting tbat his client canrro~ be bound. with the sales policy attached to the letter~-.. P,15 f and ·this letter . was tendered . as Ex. P.16. PW.1 .furtheraaserted that the 302· man hole covers deliver_ed to him by the defendant company ca.iD.e from the defendant's branch ·otfice here_ in Dar es Salaam and not from Mang'ula. All effo~s of getting delivery of the rel'.D!:3.ining 98 :pieces o:f manhol~ covers were fruitle'3s am the plaintiff company . './6 - 6" :..:.. ·-·· preferred this. suit against:·the defendant com_pany in order to recover shs. 20,866/= being the _amount- for which they have not been supplied with the goods. The plainti:ff Company further cla:ims that the defend~nt :company without telJ. ir:c:- him, misappropriated ·his money s,hs •. 20,866/= alleging that the money was used for transport charges without giving the plaintiff prior notice to this· effect -and this money was emr marked for by· the. plaintiff for purcmsing man hole covers from the defendant. On beha.J.:f. of the defendant_, Mr. Geofrey Buninange (DW~1) who is the Commercial Manag~r of the said defendant desposed' that sometime in November, 1979 the plaintiff placed an order for 400 pieces of man hole covers with the defendant and money was duly paid but that they deliverBd to the plaintiff only 302 man hole covers and the balance of the money paid to the defendant comp:1.ny was treated as transport charges for tra~porting the said 301 pieces of manhole covers to the plaintiff's premises from Mang 1 ula. ·-·..• ··- . He further told ·t he court that according to the. d~feI}dan t' s cOinpaey 1 s soJ..ee policy which he tendered a.a h. D.1,<the ' . buyer has to meet expenses for transport:1:Ilg the goods. However on being cross-examined by the .learned -counsel·.: for the plaintiff, he conceded that the sales policy Ex. D.1 was. not brought to the notice of the plaintiff when the contract was made and that that was the first time f-or the- plaintif'f to deal with the defendant company. The said sales policy was brory.gb:t to the attention of the plaintiff seven months after the '.302 man hole covers were delivered· to the plaintiff.· He further conceded tbat the said sales policy ought to have been brought to. the attentio~ of the plaintiff when the contract was made. • •• /7 At the inception __ of the trial of this suit, counsel for b?th parties agree~ that this suit gives to seven contested issues, vi~:- 1" Where were the goods to be delivered. 2; Had the defendant any right to appropriate 78,070/= towards transport charges as stated in para three and £ive of the defep.ce. 3. Was the plain tiff induced to believe that goods would be delivered at Dar es Salaam. 4. Was the sales policy of the defendant company part of the agreement between the parties. 5. Was there a failure of consideration for shs. 20, 866/= •. 6. Is the plainti:ff entitled to shs. 2185/= interest? 7. @eneral relief. Whether it is for the bcyer to take possessi?n of tho goods or for the seller to send them to the bu~er; is a· questionrepending in each case on the contract, express or implied between the parties. The rule assumed. ... and st·ated PY tex .:.. writers was th~t pfima facie, it is: the ;duty of the . ,.! ·beyer to take the goods, and that the seller's <;lut:r._.,is f_ulfilled by his• putti.ng the goods at the 'disposal ·of the buyer at the pla~e of delivery - see the case· of Wood V. ·Tossel (1844) 6.QeB. 234 there seems to be -nothing in the wording of the "Sale of Goods Ord ilia.nee· Cap. 21 4" · to displace this rulee · However, where· there i;s an express term as to place of deli very, it is a condition of . the contract to the benefit of -which hoth ·p~ties are . entitled. Apart from any such contract, express or impl~ed, the place of ~elivery is the seller•s place of business, if he has one, arrl if not his residence. Section 31 (1) of the Sales· of Goods Ordinance provides:- " ( 1') Whether it is for the buyer to take possession oft he goods or. fort he seller to send trem to the buyer is a question depending ila each case·' on the contract; express or implied• between the parties~ Apart from.any such contract, express. or implied the place of d~livery is the sellerrs place of bu.s:iness, if he has one and if not, his residence." li, however, the contract is for specific goods, which to the knowledge .of th~ parties when the contract is made, are in some other place, then that place is _the plac·e of deliv•ery,.- Where the place of delivery is not indicated. by the contract,. and is wi thi~ _the option of the seller or of . the buyer respectively, it is a ·condition precedent to the liability of the buyer or of._t he seller respectively to_ accept· or deliver· the goods that _p,e should receive notice of. the place of. . delivery - ,See Halsbury 1 s Laws of England }rd Edition Volume· 34 page 94 para 139 •. In the instant suit as rightly_pointed out by the learned counsel for the plaintiff company, th~- place of delivery of the said ·man hol'e covers is Dar es Salaam . in the plaintiff's premises.from the defend_~ Companyts ' branch offi ce at Mikocheni in Dar e·s Sala.azµ. . This vi~:W is supported by the letter Ex. P.1 of 9th November, t979 wri"tten by the plaintiff to the defendant asking for quotatiotis for the goods and a reply ex~ P.2 .from the defendant Company· attached to it with the proforma inv_oice detailing the prio~ for 400 pieces of man hole together wi-th other expenses • ••• /9 !Jllie purpose oft his proforma :invo1c·e is to inform the buyer ~he plainti:ff the costs of the 400 pieces of man hole covers, together with the other incidental expenses of which the fl plaintiff company may be held responsible and_. the terms and . ~ . . conditions of which the said -400 pieces of man hole covers we-·:·o to be sold. Thls view is further fortified by telegram Ex. P.5 which reas as follows:- " 41195 DSM 1 41252 MOR.2 2 MOR 3 A5 MANGULA 37 12021548 M/S KOT.AK TRAJDE BOX 1785 DAR ES SALAAM WE BROUGHT. YOU ON. THE 15 JAN 80 . 192. MANHOLE COVERS STOP IJtYING AT OUR BRANCH OFFICE MIKOCHENI DAR STOP BALANCE OF YOUR S 208 STOP WILL COME. SOON REG.ARDS NJAU MANGULA COL 1 92 1785 15 80 208 41195 DSM 1 41252 MOR 2 This telegram clearly shows that the defendant canpany was to deliver the goods to the plain tif.f company here in Dar es Salaam and acc:oirdingly they·delivered 302 manhoi"e · covers to ·the plaintiff Company's premises on two occ~sions, . ·with a· promise that the remaining manhole covers will be d~livered to the plaintiff soon. · The ol:fe:ude.nt con:pm:iy ' : •• • G cannot now be h~ard stating that in accordance with the C'~mpany's plicy, Ex. D.1 the plaintiff company is. liable to ·prq for ,~an.sport cmrges because the said policy was brought to · the attention of the plaintiff company seven months after the delivery of 302 manhole covers to the plaintiff Company's p±-emi"ses. • •• /10 - fO - In the telegram from th~ defendant company to the plaintiff company ex. P.5 it is clearly stated that the goods are to be collected in Dar es Salaam from the defend.ant's branch office at Mikocheni. There is no m~ntion of transport charges in the telegram. Going back to the proforma invoice attached to the letter Ex. P.2, . prices . were· . 11.sted •but· . there is no. mention of transport charges and -relying on this document,- the plaintiff sent to the defendant a cheque for shs.-- 7:8,,070/= · •. for the purchase of 40~ manhole covers. The defendant company responded by delivering 302 manhole ~-overs· without~ mentioning anything ·a bout transport charges. It goes without evying therefore that Ex.P.2 the proforma invoice am· Ex.P.5 the telegram are documents forming part of the contract and I entirely agree w.i th the view expressed by· Chesire and Fifoot's ~ of Contract 8th Fdition page 107 ·that parties ~ a written contract are to be confined within the f·our · corners o_f the document in which they have chosen'.· tc{·;ens·hrine their agreement. Neither of them may adduce evidence to show that his intention has been mis-stated in the document or that some essential feature of the transaction has·been omitted. kccordingly I hold.that the place of delivery agreed by the defendant through ..' Ex. P.~ the telegram and the proforma invoice Ex. P.2 is Dar es Salaam. This being the position, I agree with the learned counsel for the plaintiff that issue 3 collapses because Ex. l'.2 and P.5 coupled with the delivery of 302 manhole cover-s to the plaintiff's premises by the defendant without demanding for transport charges clearly induced the plaint i:ff into believing that the goods were to be delivered at his premises free of transport charges for no prior notice of transport charges- was gi -yen to the plain tiff• .... 111 ..;. The second issue can eaai-zy be disposed of. As I- stated above that the. plaint i:ff paid shs. 78_;070/= to the defendant for the sole: purpose of buying 400 pieces of manhole c◊-vers and· nothing else and the defend.ant has no right whatsoever to appropriate this sum of money for any other purpose·~- In support of this view, section 59 . ·. of the Law of Contract Cap. 4?3 prov~dea:- ,;Where a debtor, owing several distinct debts to one person, makes a payment to him, either with express intimation, or under circumstances implying that the payment is to -b~ applied to the the -:discharge of some particular debt, the payment, if accepted., must be applied acco'rdi~." That i,s to say in the instant case that, all the shs. 78,070/=: paid by the plaintiff to the defendant should be appli~d,: for. the purchase of 400 pieces of :manhole_ covers -as agreEd' 1n the i,roforma invoice· ·att_ached to .fSX• P, 2 and the,.. t~legram Ex. P. 5 and :'nothing else. Issue number 4 goes together with issue n:umber 1 ~d as I stated above that the sales policy :Ex. n··~ 1 cannoj; VJJ.?:Y or contradict Exs. P.1;. and P.5 which forni . the· contract . ·.. ~ between the parties because it wa~ brough~ in seven months after the delivery of 302' manhole Covers~ Since the plaintiff company paid shs, 18~??0/::::. to the . defendant company for the purchas~ of 400 p~eces of manhole covers and only 302.pieces of manhole cove~s were delivered • to the plaintiff, there is therefore a failure of cons :ideration in that t$, defendant ?ompany failed to supply I. the •plaintiff goods worth of shs. 20_, 866/== and the plaintiff comp.any therefore is entitled to the relief claimed plus ~terest thereto as provided under section 55 of the "Sale . " ...... .A ,, tt - 12 - In the Written Statement of Defence, the defe~dant compaT,:r counter ·claimed from the plainti~f company shs. 20,866/= fo'r· trans~orl charge_s and shs. 1 ,01°4/40 the difference "p ~ • b~tween. shs. 79,084/40 which·was the total cost of the manhole. cov_~rs '..supplied ·to the plaintiff by the defendant and shs. 78,070/= which the plaintiff deposited with the ·... defendant f~r th.e purc}?.ase of 400 manhole covers.. However, the learned. c ouns.el for the defendant did not lead arzy eviAence. in support. of this counter claim. ·This counter claim .. therefore fails. and I dismiss: it_•. i. Suffice otcl.y to say that on- the· evidence' before me I am satisfied that the plaintiff has succeeded in: establishing . ·, that he is ent~tled to an a.ward of ·shs. ; . 20,a6'i>i= being t~e value of 98 ~ieces of manhole covers -i.mdelivered to him. In the resu1~, there will be. judgment for. the plaintiff for shs. 2U,866/= 'the pr~ce .of ·95 undelivered pieces of mahole covers ·and shs. 2,:185/= inte'te~t· .:the;~~n : :·· . . ·;, .-, _:..1_._ ·. . ', and f?terest at sev~;n _per _c:ent· from the· date of th;ls suit iJ . -i I ~'f to t_pe .date of decree. I would also award the plaifftiff costar of this action. I accordingl;v- give judgment. in '·favour ·\' of the :plaintil'f with c.osts. as prayed in the plaint ais9 costs of the dismissed counter claim is awa~-em,: t_o the plaintiff. ,/ (C. G/MTENGA) JUDGE 24/6/1982' .,., the defendant. 1