moba trasnport company vs national oil t ltd 2003 tzhccomd 24 15 october 2003

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL CASE NO. 40 OF 2003 MOBA TRANSPORT COMPANY.............PLAINTIFF VERSUS NATIONAL OIL (TANZANIA) LIMITED....... DEFENDANT JUDGMENT KIMARO, J. The plaintiff, (MOBA TRANSPORT COMPANY) is claiming from the defendant (national oil (Tanzania) LTD) an amount of USD19,200, USD 10,000 as damages plus interest and costs. The case is fairly simple. The plaintiff is a transport company, carrying on business in Dar-es- Salaam and Congo. The undisputed evidence is that in the year 2002, between June and November, the parties did business together. The plaintiff used to purchase fuel from the defendant. The procedure which was used was that the plaintiff received the prices for the amount of fuel - X and deposited the amount required from the defendant in the defendant's bank Account held at the Exim Bank Tanzania Limited. The Pay in Slip was taken to the 2 defendant as evidence for payment so that the defendant supplied the consignment of fuel. The evidence shows that the parties moved on well at the beginning. A business transacted in November appears to have had problems. The problem will be revisited later. At the moment let me explain how a business transacted in February this year gave rise questions in respect of the November business transaction. The plaintiff who is represented by Mr. K. Mwita waissaka Learned Advocate pleads at paragraphs 3,4, 5 and 6 of the plaint that: " 3. That on the 11th day of February 2003 the Plaintiff did order a consignment of 74,000 Litres of petrol from the Defendant for which the Plaintiff paid a total amount US$ 19,2000 of which US$ 100 was handed over in cash and the remainder was deposited, in the Defendant's Bank Account i\io.0300346006. A copy of which is annexed as “ MOBA1". 4. That thereafter the Defendant refused to supply the fuel or refund the said cash until he received 3 evidence that a previous consignment purchased by the Plaintiff had transited out of Tanzania to the Democratic Republic of Congo. 5. That the Plaintiff did comply with the Defendant’s demand and furnished him with a copy of the Customs SBE No.DSMA/OL/68/11 and a copy of a letter from the Customs Department acknowledging the fact that the fuel was exported, copies of the said documents are hereby annexed collectively as Annexture "MOBA 2". 6. That despite constant demands including written and verbal communication, the Defendant has a adamantly refused to either hand over the fuel or refund the said cash. Meanwhile the defendant who is represented by Miss idrissu, Learned Advocate pleads at paragraphs 3,4,5 and 6 of the defence as follows: " 3. in response to paragraph 4 of the Plaint, the Defendant is not convinced that the consignment was booked for or transported to the Republic of Congo as claimed by the Plaintiff and that in fact the said consignment never left Tanzania. 4 The Defendant has requested the Plaintiff to furnish him with a copy of the Tazara consignment Note so that he can verify the actual destination of the wagon and to date the Plaintiff has refused/failed to furnish the same to the Defendant. The Tazara Consignment Note is the only document that can confirm that the consignment was actually transported to the Republic of Congo. The Defendant's concern and insistence of proof lies in the fact that he will be liable to pay duties and taxes which should have been paid by the Plaintiff amounting to Tshs 18,460,207/= if it is later found by the Tanzania Revenue authority (TRA) that the consignment was never transported to the Republic of Congo as appears on the Plaintiff’s papers. The calculations of duties and taxes are shown on the Bill of Entry Form marked annexure “MOBA 2" of the plaint. 4. in reply to paragraph 5 of the plaint, the Defendant states that the copy of the Customs SBE NO. DSM/VOL/68/11 and the copy of letter from the Customs Department marked Annexure “ MOBA2 are not sufficient proof that the consignment was indeed transited out 5 of Tanzania to the Republic of Congo as claimed by the Plaintiff. The Defendant believes that both documents were obtained by illegal means. 5. in reply to paragraph 6,7 and 8 of the Plaint, the Defendant denies the allegations and states that he never refused to handover the fuel or refund the money. He simply requested the Plaintiff to verify the destination of the wagon by producing the Tazara Consignment Note which would have shown the actual destination of the wagon but to date the Plaintiff has failed/refused to furnish the same, if the Plaintiff has suffered any financial loss then it is due to the Plaintiff's own failure to produce the proof of point destination as requested by the Defendant. The Plaintiff should not blame the Defendant for any delays. 6. in reply to paragraph 9 of the Plaint, the Defendant denies holding the money illegally as the same is being held as security against taxes/charges which the Defendant will become liable to pay when the authorities realise that the consignment was not exported out of the 6 Country. However, the Defendant agrees to deposit a cheque for the sum of $ 19,100 (The actual amount deposited) to Court to Pe refunded to the Plaintiff subject to producing the Tazara consignment Note showing the destination of the wagon to the Republic of Congo. As regards the $ 10,000 general damages claimed by the Plaintiff the Dependant denies being responsible for "loss of business" (if any) as it is the Plaintiff himself who has caused the delay in being refunded by refusing/failing to produce the said Consignment Note." From the pleadings, there is no dispute at all that the plaintiff paid the defendant the amount of USD 19,200 for the supply of a consignment of 74,000 litres of petrol, said Nasser, the only witness for the plaintiff, tendered into court a pay in Slip which shows that an amount of USD 19,100 was deposited into the defendant's bank Account at Exim Bank (Tanzania) Limited. The pay in slip was admitted as exhibit P1. His testimony was that another USD 100 was paid to the defendant in cash. That makes the total amount paid by the plaintiff USD 19,200. 7 Likewise, the defendant does not dispute that the consignment of petrol has not been supplied to the plaintiff. The defence raised by the defendant is that the plaintiff was given a condition precedent to the supply of the consignment and he failed to comply with that condition. The condition required the plaintiff to submit to the defendant the tazara consignment note for the November consignment so as to ascertain whether the consignment reached the Republic of Congo. I mentioned earlier that the business which was transacted by the parties in November appear to have had problems. What were the problems? From the evidence tendered during the trial the problem appears to have arisen from the mode of transportation of the consignment for November in terms of who among the parties had that responsibility. According to Said Nasser, (PW1) when payment was made for the February 2003 consignment, he was required to submit the waybill for the November transaction, in November he made an order for supply of fuel for transportation to the Democratic Republic of Congo which was supplied. He said the waybill was not in his possession because the defendant was the one 8 who did the transportation and so the waybill was supposed to be in its possession. His further testimony was that he was required to travel to Tunduma and make an inquiry as to whether the consignment crossed the border to Congo. According to PW1, he travelled to Tunduma and requested for the single Bill of Entry No. 68 of November. He was given a copy of a letter together with two copies of a single bill of entry sent to Dar-Es-Salaam Regional Revenue Officer (fuel). PW1 said although he submitted the documents to the defendant, the defendant refused to supply the consignment on the ground that the bond had not been cancelled. The defence evidence on the other hand was that the defendant did not deal with transportation. The evidence of Asantas Nickey Massawe, (DW1) the Marketing Manager of the defendant, was that the fuel was sold free on rail (FOR). The plaintiff was responsible for transportation. For the November transaction, the plaintiff booked tazara wagon jtw 023. The wagon was taken to the defendant and loaded with fuel and then the plaintiff took responsibility for transportation. According to the witness, the defendant has a bonded warehouse where it stocks commodities for which taxes have not been paid for. The witness said that the fuel 9 purchased by the plaintiff was for export and the defendant bonded it. The bond is returned to the defendant upon confirmation by the carrier that the consignment crossed the border to final destination. For the November consignment, the Customs Department refused to cancel the bond on the ground that the consignment did not cross the border. DW1 said even when tazara which was the carrier was approached for confirmation as to whether the consignment crossed the border to Congo, tazara was hostile and did not supply the documents. in cross-examination by the Advocate for the plaintiff, the witness denied sending PW1 to Tunduma to look for copies of the customs Entry. He also reiterated his earlier evidence that the fuel did not cross the border. The witness insisted that the documents were not returned to the Regional Revenue Officer in Dar-Es- Salaam for cancellation of the bond. There were two other witnesses for the defence. Mr. Francis Moses Kwilukilwa was DW2. He is the Corporation Secretary of tazara. His testimony was that he was requested to investigate the movement of the tazara wagon jtw 023 from Dar-Es-Salaam to the place of final destination and he did so. His investigation 10 showed that wagon No. JTW 023 was loaded with fuel (petrol) at Dar-Es-Salaam from Kurasini. The consignor was National Oil (the defendant). The fuel (petrol) was delivered to S.Nasser (consignee) at Mangula. Another witness was Charles Kamugisha DW3. This witness explained about customs procedure for exportation of fuel and bonded warehouse. An important element noted from his evidence is one concerned with the triplicate copy of the single Bill of Entry. The copy is sent to the Regional Customs Officer at the border region by the driver of wagon or motor vehicle or vessel carrying the cargo. If the Customs Regional Officer is satisfied that the consignment crossed the border, the copy is sent to the Regional Revenue Officer - Dar es Salaam (fuel) for a dual purpose. One, as evidence that the consignment moved out of the country, second, for cancellation of the bond. Briefly, that was the evidence which was tendered during the trial. On 12/06/2003, this court framed the following issues for determination: 11 " i) whether there was any contract between the parties. ii) What were the terms of the contract Hi) Whether the cancelled bond is valid iv) Whether the consignment note is necessary or central to the case v) What relief are the parties entitled to. After a thorough study of the pleadings and the evidence which was tendered in this case, I must admit that the court did not address itself properly when framing the issues. The issues framed do not assist the court in answering the important question which emerge in these proceedings. Consequently, I struck out the issues. The following issues will replace the issues struck out: " i) whether the November consignment reached the Democratic Republic of Congo. ii) Whether the documents relied by the plaintiff were sufficient for cancellation of the bond. Hi) To which relief are the parties entitled to." in their final submissions, the learned Advocates made short and clear submissions. 12 Miss idrussu submitted that the plaintiff failed to prove that the November consignment crossed the border to the Democratic Republic of Congo. The consignment note for the cargo was not produced in court to ascertain the final destination of the cargo. On the production of the document which the plaintiff claimed that he obtained at Tunduma Customs Office, that is the copy of the certified single bill of entry, the triplicate copy, Miss idrussu said it is not a genuine document and could have been obtained unlawfully. She cited Section 110 and 112 of the Evidence Act 1967, arguing that the burden of proof is on the plaintiff to prove the case on the standard required. Mr. Mwita waissaka on the other hand replied that the plaintiff discharged its duty of proving the case on the standard required. He said that the defendant's refusal to supply the fuel to the plaintiff is illegal and unethical. He submitted further that although the defendant is disputing exhibit P2 she failed to challenge the validity of the documents. Let me now move to the issues. The first issue is concerned with the destination of the November Consignment. That is whether the consignment crossed 13 the border to the Democratic Republic of Congo. It must be stated at the outset that the plaintiff is the one who filed the suit. The assertion that the consignment reached the final destination comes from the plaintiff Miss idrissu cited the relevant law concerned with the burden of proof correctly, section 110 of the Tanzania Law of Evidence Act is clear: Section 110 (1) “Who ever desires any court to give judgment as to any legal right or liability dependent on existence of facts which he asserts must prove that those facts exist." Section 110 (2) “when a person is bound to prove existence of any fact, it is said the burden of proof lies on that person." The plaintiff is the one who is saying that the consignment reached the Democratic Republic of Congo. He is the one who must prove that. DW1 testified that the transportation of the consignment was the responsibility of the plaintiff. This is evidence which was not disputed. The plaintiff claimed that it had no possession of the waybill because tazara was the carrier. Even if tazara was the carrier, the cargo belonged to the plaintiff. It was the purchaser of the consignment and supervised transportation. DW2 gave 14 evidence that the investigation conducted by TAZARA revealed that the consignment was delivered to S. Nasser at Mangula and not at the final destination in the DRC. Another important factor to be noted is that the plaintiff did not call the Customs Officer at Tunduma who gave him exhibit P2. verification of the exhibit P2 by the Official who is purported to have sent the document to the Regional Revenue Officer (fuel) in Dar- Es-Salaam, particularly after the document being disputed by the defendant was vital. Mr. waissaka said that it was the responsibility of the defendant. With respect, I disagree with him. That amounts to shifting the burden of proof which is the responsibility of the plaintiff. The defence evidence is clear that the defendant bonded the fuel which was supplied to the plaintiff. The only thing which was required from the plaintiff is evidence that the consignment crossed the border to the Democratic Republic of Congo so as to enable the Customs Department cancel the bond. Otherwise the defendant will be liable to pay taxes for the consignment. This could have been done by calling evidence from the Customs Department at the crossing region to confirm that the consignment crossed the Tunduma border to the Democratic Republic of Congo. This does not appear to be a problem if the plaintiff was 15 sure that the consignment reached the Democratic Republic of Congo. Failure to do so suggests that the consignment was not delivered to the final destination, which was Congo. My evaluation of the evidence which was tendered in court leads me to a conclusion that: i) "The answer to the first issue is negative. There is no proof that the November consignment reached the Democratic Republic of Congo. ii) The answer to the second issue is that the document relied upon by the plaintiff is not sufficient for the cancellation of the bond. The Officials of the Customs at Tunduma were not called to confirm that the triplicate copy of the Single Bill of Entry was received by them and that they were satisfied that the cargo crossed the border and that they sent the document to the Regional Revenue Officer (fuel) in Dar-Es- Salaam." Lastly is the relief to which the parties are entitled to - The plaintiff having failed to prove its case on the balance of probabilities, it is dismissed with costs. 16 N.P.KIMARO JUDGE 15/10/2003 17/10/2003 Coram: N.P. Kimaro, J. For the Plaintiff: Mr. waisaka For the Defendant: Ms. idrissu CC: Mr. Mtey Court: Judgment delivered today. Order: The Plaintiff's case is dismissed with costs. N.P. KIMARO JUDGE 17/10/2003 2,812 WORDS I Certify that this is a true and correct ©t the originaUflrjder Judgement Rolling , - ■J’'_______ V'Q.______________________ —■ R 'jittrar Commerftal Court Dsm. OaIe 3