20160526 TZHC Dar es Salaam

c /1•• I, /, •' II V -; IN THE HIGH COURiT OF TANZANIA· (COMMERCIAL DIVISION). - AT DAR ES SALAAM . COMMERCIAL CASE:NO.61 OF 2 i 1: LEGEND-AVIATION (J>TY)LTD t/a KirG '.· ' _ · .:.;. SHAKA AVIATION ............. J....................... :••••••• PLAINTIFF VERsJs. . - r - , . WHIRLWIND AVIATION LIMITED ..,..1 1 ............................. DEFENDANT,c I . ·_ I . SJ 3rd September & 26 th May, 2016 JUDGEM1ENT I l I ii . I a i' MWAMBEGELE( J.: ' The plaintiff Legend Aviation (Pty) t/a King Shaka .A:via ion filed this suit·, - , I I against the defendant Whirlwind Aviatio '. Limited on 19.06.2013 claiming for.,. ·. the following reliefs: \; , I ''· (.a) A declaration that the defendant 1_reached both :the lease agreements and that the agreements terminate~ following the brJaches; ·, ' (b) A sum -of USD 245,858.38 (say tnited States Dollars Two Hundred - Forty Five Thousand Eight Hundrdd Fifty Eight and thirty eight cents only being the defendant's liability tb the plaintiff); • . - f: I (c) Interest on (b) above at commercial rate of 12% irrol October 2012 to the date of judgment; _ I I (d)General damages at a rate to be·as essed by the cmuM:; (e) Interest on the decretal sum from the··date of judgment to the date of satisfaction of the decree in full; (f) Costs- be provided for; ar.id · {g)Any other orders or reliefs as this Honourable court may deem fit. This case commenced hearing before my brother. Nyangarika, J: on .. · 15.12.2014. It was ML lusiu-Peter, lear_ned..:-counsel, who appeared for the plaintiff at the hearing. Only one witness testified in support of the case :_ -· · Mr. Russell Ashley-Cooper. He testified as PWL This witness was a Human:. Resources Manager of the plaintiff cqmpany. His testimony was pr~ceded by.· his'statement being filed earlier; The same was admitted in evidence as his examination-in-'chief and marked as PWSl .as per rule 49 (1) of the High • Court (Commercial Division) Procedure Rules, 2012 ~ -GN No. 250 of 2012. No defence witness was physically fielded. In view of the fact that it co·uld · not procure one Cornelius. J. Van Eijk, ._ the defence prayed for and was · · · granted leave to introduce ·in evidence his statement as his .evidence-in.:.chief... Thus the evidence of the defence was not subjected to cross-examination. Following a ruling of this court of 30.06.2015 to that effect, the st~tement of· · Cornelius J. Van Eijk wa$ admitted-in evidence and marked DWSl. The relevant background facts of this case are fairly simple and largely undisputed. Let me state them here. The plaintiff is a limited liability company incorporated in South Africa and deals with, inter alia, the business of hiring aircr-afts to other operators. The defendant, a1$0 a limited liability company but incorporated in Tanzania, carries the business of, inter alia,. Helicopter charter services. 2 I - , I On 06.02.2012, the plaintiff and defendapt .entered into twd different .Aircraft·, · · Lease Agreements. The first one wa~ _in -r~spect of a H_~licqpter ,d_escr.ibed as·' · - BELL 206 BIII with registration number .Z$~HCI (Serial N~mJer: 426$) and. the:·· second one was in respect of. a Hel.icobt1=r described registration .number ZS-RLC {Serial Numder 53379). + Lshrll hE,~Ceforth be. · · .. ,· · BELL 407 with. · referring to them as slmply "BELL. 206": Jnd. ~'BELL 407", riespectiv~ly .. · The ·i ·: two lease agreements ·were tendered an~ admitted -in ·1evibence as ~x~ibits· ,;' '., .I - I · '· and were, respectively, marked as Exh. PEil. (a) and Exh. PE+.(b).. _t 1 ·; · - - : - ·, : < - - - , : - '. II-" - _ 1 I _- _ .·- . f I . I ;l f ·• , It appears things did ~ot go smoothly as pl~nned · as ~~e efE;~d_aQJ ~lt,n,of,,:· ·: · make many payments 1n advance as agreed in both lea~e agreements,. :The:.·:.:-· I · _ · _! I · · ·· • - · ·' plaintiff claims that only one payment w9Is· made in advance . i .in:,• aq.:or~ar:ice·. . - -• .,, • with the agreements; the rest were 1ade late. an~ later random . part,. ;·, · payments were made sporadically and -ai the -ti me of- ry Iinf ,of this suit, the ::, ,",. : . amount due amounted to-USO 245,858.38. The plaintiff thus claims that the :·- · . ' . 1/ ' , . . I • defendant breached· the terr:ns of. the L~ase_ Agreer:nent§ and- cons~q~~ntlY-·.· .. ·_ >•. , . 1 1 .filed this suit seeking for the prayers indic~ted above. • 1 1 . · . .,: - - !I . , 1 On the other hand, the d~fendant admitl the claim p~rtl}i that it owes the': plaintiff only USO 28,700.00 as the amoJnt due from iJ t~l t~e said pl~in~iff. :. The defendant states that it could not_ continue with. Jhe, op,~rations. a?::,. : '. , .. , . i I planned because Bell 206 was grounded ifter two montrs -rnd_, Bell 407 .could: · not b~ operat~d after six ~onths as the 1CAA Re~ulatior,s_ requir~q ~hat it,- be · dereg1_stered in South Africa and thereafter registered, in Tanzania. The :; defendant also ascribes the failure to th!plaintiff's d+a~cj t~ ~se its (the plaintiff's) pilots. i 3 I I During the final pretrial conference on 05.11.2014, the following -two issuei- - were framed: 1. Whether there was breach of agreement by either party; 2. To what reliefs, if any, are the parties entitled. The breach of agreement for which the first issue is supposed to answer is in . _ respect of the two lease agreements; Exh. PEl (a) and Exh. PEl (b). I shall start with Exh. PEl .(a) which is the Aircraft Lease Agreement for Bell 206. On this, it is not in dispute that despite the fact that the Agreement was .executed· on .06.02.2012, Bell 206 was Flot delivered to the defendant until ' July 2012. As rightly put by the plaintiff and fortunately not denied ·by the - - defendant, clause 4 the Agreement stipulates that payments were to.be made. _- in advance. For easy reference, let me q·uote the clause, it reads: "Payment shall be made in advance as laid out in r Anexture · 1 · to include -- mobilization and i· i" I I i demobilization and the amount equal to one i i months (sic) flying. All other _charges such as fuel, airport charges, parking fees, en-route charges, ATNS charges and passenger taxes shall be paid by the hirer. - All ferry flights to and from Virginia Airport are from .the - -hirer's account. All - associated costs are arising due to i~portance.and use of the helicopter within Tanzania; or such 4 place as require.d by the Hir~r, are for the Hi~er's 1 ! I account." . . _. . ·1[ .: " -. 1 _ • -'.~ ·, .. · . .··. ·. . I' ".. _I I· . • ", :. •_K . . The evidence shows that Bell 206 was di~gnosed .to be n6t airworthy afte~ · · . 'I I operating for about two months hence.Jt, being grow;1de.d.; · Out: of the two,. months in operation nothing was paid to t~e plaintiff:. Th is 1 0-a.s, iR my.yieW~ a.. · ·: ·. · · .. · flagrant breach of what was. agreec;i in th~ Exh. 'PE1 (a). ·_ ~ am not ready tq-=- · .-. ·, accept the defendant's argument to the rffect that the· pl,ain_tiff's failure tch.c " deregister the aircraft in South Africa amo:unted to breaCh:df :.th.e Agreement:;-,· : I say so because the helicopter was g~ounded and the I plaintiff has not · •I claimed anything outside the two months tjre helicoptet,was ..airwortl')y;,_.1; : .; · • • _. • ~ : .'" . :';; I ~ • ' , I, \ 1 1· \l~ ♦, ~ • '"J,,. '- • . ' ·1· ·. . . '. . . . ' . , . . ; ,. -·· I also am not prepared to. accept the defe,hdant's ar:gument!to the ·effect-that .- :: ·:. ·. · he failed .to pa·y because;··the.·plaintiff insilted to us.e. its \0wn-p·Uots. ~· It,-was·- :C> . . ·.t: _ . II 1 • ! . part of the agreement that the. plaintiff w~uld supply the"d¢fendant :with..one , . pilot to run the .aircraft. This ·is eviden.t in!Annexture. 1 to t~e Agreement. ·. It: is provided under· Clause .2. 1.2· to the Anm~lture as follows: I · • · 11 I . · ..·' .. .•· . ., . · 1· . - ' ', . :' .. -: ;·. :: : - ~ "One pilot to be supplied bt King Shaka AviJtion· ,r on rotation basis to be agr~ed , at the ·rate I :of·~R-·· I 1500.00 per day." Ii · ·, .,•·:- _ I o, The supply of one pilot by the plaintiff w!s therefore_:p~rt ,bf ~lie Agreement . which the defendant signe~. He. ca~not tf 'I erefore _be ·he_ard t~ compl~in over I 1 the same. Worse more, this complaint does not arise neither 1r.r pleadings nor' in the communications between the partie]~-·beforethe c~selwas commenced. · I' I i . :1 5 ,· I i ' " ' II 1, The defendant, it seems to me, is therefore raising this alarm at this stage as an afterthought. As for Exh. PE1 (b) in respect of Bell 407, the same has a clause as Exh. PE1 (a). At the risk of repetition, I hereby reproduce it as under: "Payment shall be made in advance as laid out in Anexture . 1 to include mobilization . and demobilization and the ,. amount · equal to one months (sic) fly1rig. All other charges such as fuel, airport charges; parking fees, en-route charges, ATNS charges and passenger taxes shall be paid · by the hirer. All ferry flights to and -from Virginia Airport are from the hirer's account. All · associated costs are arising due to importance and · · use of the helicopter within Tanzania, or such place as required by the Hirer, are for the Hirer's account." · The plaintiff states, and · not disputed. by the defendant that Bell 407 was del.ivered to the defendant timeously. · Payment was made timeously only in the first month of the Agreement. and. thereafter no .. prompt payment was made and later no payment was made. The defendant admits to owe the plaintiff USO 27,800.00 only .. This concession is tantamount to an admission to the brea:ch of contract. The extent of breach and how much it owes the plaintiff is immaterial. · 6 The complaint to the effect that the plainti. 's failure to deregiste~the- aircraft . I. . . 1 in South Africa does nor seem to me to hold water. This i~ so.pecaust:! tl:le· ... ,, .. b_reach of Agre~ment ~as witn~ssed in the second month. of[~gre~ment. T~e., six months dunng·wh1ch the aircraft woulf be legally__ opera;ting;in·Tanzania, .., . as per Tanzania .·Civil·.· AVia~ion · · Authorilty ·,Regulationis . io\Jld . e~P.ire . in., ·september 2012. PWt testified that ~e commenceq tre dereg1strat1orr:.. >... · I process in South Africa but halted .the prockss:having ,seent~at i the . . defendant:-. . . was in arrears and there were ·noprospectr of payments:. f•hathe got from ..· th~ plaintiff's _course + the defendants were empty,:promises:that he would pay. 'It seep1s to me that· of a_ctiOn to_ mute deregistratirn lproeess in South · Africa was quite ·apposite in the c1rcumstaryce.• After~all, ;~t 1~ .1n:p.!~ad1ngs and . evidence and not disputed by the. defendaht that it .continu~d.to·run Bell 407, .. ·.., even after the expiry of the six :months. .. .i,- ! The complaint by- th.e defendant to. the effect that the: plaiottlJtinsisted to use I its own pilots · cannot be· accepted in -,respect of: B,ell ,407, .. cannot be I I .. acceptable. It iS in the plaintiff's repl~ to.e the defendqrt's,statement of . defence to the effect that the pilot to s 11 407 was the d~f~ndant himself; 1 This fact has not been denied· by the defendant anywhere. Above all, this 1 condition, unlike the Agreement. in respJct of Bell 206,· i$- ·not part of the· .. · Agreement over Bell 407. ·:. · . ' . . ! I ~ , . . . C •. , .., I • -.-.-- ! therefore find and hold that the defendant was in breach, lo; the ;greeme~t • . in respect of Exh. PEl (b) as well. ~ · i i ·1 7 As was held by the High Court of Uganda in Nakana Trading Co Ltd v Coffee Marketing Board [1990.-1994] 1 EA 448; a decision I find myself highly persuaded with: "A breach .occurs in contract when one or both · .. parties fail to fulfill the obligations imposed by the terms. Slnce the· contract was in writing the Court's duty· was to look at .it and determine whether it appl'ies to. tnefacts. No evidence. can be adduced to vary terms of a contract if the . language is plain and· unambiguous." · Failure by the defendant to make payments as stipulated in the Agreements, in my view, constituted nothing but breach. The first issu~ is the·refore answered thus: the defendant is ih breach ofboth Aircraft Lease Agreements executed between it and the plai'ntiff on 06.02.2012. The second issue is ancillary; it is about reliefs to which the parties are· entitled. Having found that the defendant is in breach of both agreements I now proceed to decide on the reliefs to which the plaintiff is entitled .. The plaintiff claims for, inter: alia, a :sum of USO 245,858.38 (say United States·. Dollars Two Hundred Forty Five Thousand Eight Hundred Fifty Eight and thirty eight cents only) being the defendant1s liability to the plaintiff. The plaintiff also daims for general da·mages at a rate to be assessed by the court. -The plaintiff has quite appositely not quantified the general damages prayed to be gr~nted. It is the court which decides which amount to award as general damaged - see Tanzania - China Friendship Textile Co. Ltd. Vs Our 8 I I i lady of the Usambara . Sisters· . :[ II 0Q6l TLR 70 and . Admiral~ Commissioners Vs Susqueh-H~nna [+9?fiJAC 655 in.which i~ \/I/as stq~ed:_~ "If the damage be generll, then it must be . :; averred that sucb dam_age bas been suffer~gr. but the quantifi~ation of sushi damage . is a .jury question [in . our J·urisdiction-the .. . II court]". -. · · ·_ 1. [Cited in Kibwana 11n</: fnother V$ ;/umb~ [1990-1994J1EA223]. jl · .I . , · .. I f · According to Black's Law Dictionary :~bridged .i~ f~it ion), .by Bryan A"· 1 Garner; Editor in Chief, the term "genera\ damages" is ;defined at page 321 ' l . .I . ' . type of wrong complained dr ·Gener.al .dam ges do not need to be specificanJ claimed or prove~ to have been. sustained". This position is reiterated by the court in the case of Kiqwana !Jntl~f1other- Vs Ju,nbe [ 1990-1994] 1 EA 223 where it was held that: I ·· r : " • . · . . · .. . ·. . i 1 · "The court, in granting damages will determine an amount which will give the injured I plarty reparation for the. wrongfuy·act and for :all I the direct and unnatural ~ con~equences of the wrongful". 9 In the instant case, the plaintiff being a business le_gal person, it is certain - tha't it has suffered damages as a result of the defendants' wrongful act of breaching the contract. Foi' that reas·on, is must be entitled to g·eneral damages. Given the· circumstances. of this case, I assess the general damages at Tshs. -10,000,000/=. As for- the claim of USO 245,858.38 (say United States Dollars Two Hundred _ Forty Five Thousand Eight Hundred Fifty Eight and thirty eight cents only, it is _ shown in the 34 tax invoices which were tendered in court as Exh. PE4 that the defendant owes the plaintiff the amount claimed out of which the former · admits only USO 27,800.000 and which is not included in the amount claimed. I think the plaintiff, on a balance of probabilities, has successfully proved his case against the defendant and therefore is entitled to the amount claimed in the plaint. - As for damages, the plaintiff has surely been- subject to inconveniences and loss of business. I assess general damages at Tshs. 10,000,000/= In the upshot, I enter judgment for the plaintiff and consequently declare and decree as follo.ws: (a) The defe~dant breached both the lease agreements and that the agreements terminated following the breaches; (b) The defendant should pay the plaintiff a total sum of USO 245,858.38 (say United States Dollars Two Hundred Forty Five Thousand Eight 10 . Hundred Fifty Eight and thirty eigh i cents only being the defendant's . liability to ·the plaintiff)i l- -. 'I " · I , (c) The de,fendant should pay the d1aintiff interest. ~n {b). above at. .. . . .. .I . . . . commercial rate of 12~/o from Octoby 2012 to the 1at~ of judgment; (d) The def~•n·d· ant shou.ld pay the plailtiff Tshs. 10,00,0,boo/=: as general damages,. . .. . J· . . . .. (e) The defen-~ant should pay the plaintiff 7% per a num interes~ on the decretal sum· from the date of this jldgment to thi dbte of._satisfaction of the decree in fuH; .and · . ·• . . j· . (f) The defeqdant should pay the plaintiff costs of the sui 1 •.• I. , ·. : .; .: ··•/ --· Order accordingly,.; th DATED at DAR ES SALAAM this 26 . . day of -~-May, •': 2016; : . ,( I 11 J. C. M. MWAMBEGELE I. JUDGE 11 ! I