mahmud dost mohamed ta ruvuma oil supplies vs songea district council 2015 tzhc 2148 24 march 2015

IN THE HIGH COURT OF TANZANIA AT SONGEA (ORIGINAL JURISDICTION) CIVIL CASE NO. 4 OF 2015 MAHMUD DOST MOHAMED T/A RUVUMA OIL SUPPLIES................................................... PLAINTIFF Versus SONGEA DISTRICT COUNCIL........ ......................DEFENDANT EX PARTE JUDGMENT Last Order: 10th March, 2016 Date of Judgment: 24th March, 2016 CHIKOYO, J. Basically, Mohamed Dost Mohamed t/a Ruvuma Oil Supplier herein will be referred as the plaintiff, through the legal services of Mr. Waryuba, learned Advocate, has sued Songea District Council herein will be referred as the defendant in which the plaintiff is claiming Tshs. 173,819,812/= beinq unpaid money for the petroleum products supplied in the various defendant's departments in 2012 and 2013; bank interest rate of 25% per annum from 2013 plus Court interest rate of 12% per annum from the date of judgment to full payment; general damages of Tshs. 20,000,000/= and costs of the suit. The plaintiff in his plaint alleged that/ the parties herein entered into a contract where the plaintiff was supposed to supply petroleum to the defendant, but it would appear that the defendant breached that contract « “ *« by not paying the agreed amount of money for the service supplied by the plaintiff. According to the court records, on 1/2/2016 when this matter was called for hearing, it was only Mr. Waryuba who appeared hence he successfully prayed this matter to proceed ex parte, since even the defendant has not • j filed the written statement of defence, thus the matter was scheduled for an ex parte hearing. However, the court records reveal that on 2/3/2016 the defendant filed its Written Statement of Defencewhich basically strongly opposed the alleged claims of the plaintiff. For the sake of clarity, I find the written statement of defence do not have any legal value because, it was filed by the defendant without being ordered to do so, and more so, as stated above on 1/2/2016 this court had already ordered this matter to proceed ex parte because the defendant never appeared in court and also never filed the written statement of defence. This defect was also noticed by Mr. Waryuba on 10/3/2016 and A he successfully prayed the said written statement of defence to be strike out. This court ordered the matter to proceed ex parte because, the Court of Appeal of Tanzania, in the case of Kalyangi Construction and * ♦ Building Contractors Ltd Versus China Chongqing International Construction (CICO) Civil Appeal No. 85 of 2009 (CAT'Tabora) (Unreported) at page 12 the Court had this to say; t ♦ • ♦ '...since the Written Statement of Defence was filed late < 4 (everi by a day), the Written Statement was not properly before the court, and the defendant, although could be present, had no right to cross examine the p la in tiff or his witnesses or be heard in defence. The tria l court should have heard the p la in tiff ex-parte/[Emphasis is mine] Having in mind with the above.that, the matter preceded ex parte, bu t. before I turn into the merit of the instant suit, I find it appropriate to summarize the facts leading to this suit. According to the testimony of one Nadia Mohamed Dost (PW1), being a manager at the fuel station known as Ruvuma Oil Suppliers which is owned by her father, the business started since way back in 2004 their customers' ranges from private to government entities like the defendant. From 2010, the defendant used to send to the plaintiff the Local Purchase Order (LPO) for ordering fuel and payments were supposed to be made thereafter but between 2010 to 2013, PW1 4 alleges that there are LPO which the defendant and its departments have not paid for 80 LPO to the tune of Tshs. 173,819,812/=. The said 80 LPO were tendered and admitted collectively as Exhibit PI. • ’ • PW l went further by testifying that, since 2013 the defendant has stopped taking fuel from the plaintiff, as a result the plaintiff sent to the defendant a 30 days demand notice for the alleged amount of money to be paid. This demand notice was .tendered and admitted as Exhibit P2,. but the defendant has not paid the outstanding debt to date. Thus, the plaintiff has decided to sue the defendant claiming the above stated reliefs; hence this is the suit which proceeded ex parte for the reasons stated in the above. Thus at this juncture the issue is whether the plaintiff has proved his claim in balance of probabilities. Basically in order for the plaintiff to prove his suit, by virtue of section 110 (1) of the Evidence Act [Cap. 6 R.E 2002] requires that, he who alleges must prove his allegation. See; ABDUL-KARIM HAJI VERSUS RAYMOND AND JOSEPH SITA JOSEPH, CIVIL APPEAL NO. 99 OF 2004 (CAT-ZANZIBAR) (UNREPORTED). I have gone through the entire court records, which clearly reveal that, the » i plairytiff was a supplier of fuel to the defendant together with its departments like administration; Secondary Education; TASAF, Health; Agricultureetc by using LPO from 2010 to 2013 as far as Exhibit PI is concerned and the defendant has never paid for the fuel they took from i i • ♦ the plaintiff. More so, I find no good reason to rule against the plaintiff A 4 over the total amount of money the plaintiff claim because, had it been that the said outstanding debt is not in existence at all or it was not properly pleaded in the plaint, obviously I would have expected the defendant to do two things, One; to file the written statement of defence within prescribed time instead of filing its written statement of defence with no leave from the court as pointed earlier. Two; in line to the above, then again the defendant was supposed to appear in court so as to defend if the outstanding debt is exaggerated by the plaintiff or if it is not exaggerated, then whether the said debt-does not exist, and this could have been done in this court. Under those circumstances, in my view, I find that the defendant had the reasons best known to itself by not appearing in court as well as by not filing timely its written statement of defence, having considered that, by virtue of Exhibit P2 the defendant was duly served a 30 days demand notice by the plaintiff. » « From the above ^stated reasons, I find the plaintiff has proved his suit in the required balances of probabilities, in the event I find that, the defendant has defaulted repaying the outstanding debt and therefore entitled to the following reliefs from the defendants: « t 1. THAT, the plaintiff is entitled to be paid her outstanding debt of Tshs. 4 « 173,819,812/= by the defendant upon breaching of a contract. 2. THAT, the defendant to pay the plaintiff interest at the rate of 7% on the outstanding debt (Tshs. i73,819,812/=) for the period from the date of this judgement until when the debt will be settled. 3. THAT, the plaintiff to be paid Tshs. 5,000,000/= by the defendant as general damages. 4. Defendant to pay costs of this suit. It is so ordered. rCHIKQYO DM }v JUDGE 24/03/2016 Ex parte judgment delivered* in chambers in the presence of Mr. Wayilba Advocate for the plaintiff, Mr. Venance Aron for the defendant, and Mr. i Chris Court Clerk, this 24th day of March, 2016. COURT: Right of appeal explained. 8