20191029 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA ,,.. DAR ES SALAAM DISTRICT REGSTRY AT DAR ES SALAAM CIVIL CASE NO 156 OF 2014 MOHAMED ENTERPRISES (T) LIMITED ....................... PLAINTIFF. VERSUS /'•,. "- ·,, JIEFANG MOTORS (T) LIMITED ......................... ~ •. / .... DEFENDANT. ....... · ' . .,, J ..,,. ...... '· _ ', ............ -- Date of Last Order:06/09/2019 \ \~.,;_ ....:'-- . ,.... ~, ,,,.---, ...., ...... .... ' > --... -. /_,., ·-_,:• . \~ ·- ........ ',.,__ _ ·..... ~... / ,.-· Date of Judgement: 29/10/2019. \ \ ·- , ·----~.__ · ,,_/ · JUDG~-~ENT. \ >~/·---,:~:, \ ~ MAGOIGA, l. .•·~ . ':,~- · .:·>~\'-_\\ This is a pre-emptive suit. :rhe parties herein olame; each other for non- _./.. .,, - r -........._ " . ._ -. ·,_; ~ ~ IJ • '· . .... • performance of the fundamental terms ·of-the ·contracts. The institution of · •✓ ' • " ........ .... ( ·, .... ·, -., ) · / this suit, obviously, wa~ prdmpted· by th_~·demand notice from ENSafrica law . .... '~~ ,!/ - . ·".....____ -- ·,_ -. ~ . . ....-: ,•· firm dated ih·.,. '-Jul/ 2014 ·for aUeging that the plaintiff is in default of . . ' "'. . . . payment 0Cou~~t~c;1ndtng an:,ount as per agreements dated 2008 and 2011. ' i Therefore, on that ·~ate, the ~: plaintiff, MOHAMED ENTERPRISES (T) LIMITED , by a plaint filed in this Court on 28 th July 2014, and which was subsequently .· .·• amended on 19th September, 2017, instituted this pre-emptive suit against the above named defendant praying for judgement and decree in the following orders, namely: 1 a. A declaration that the defendant is entitled to being paid only the principal sum under the agreement the subject matter of this suit which amounts to United State Dollars 3,326,665.00; b. An order of injunction restraining the defendant, her agents, servants, assigns, or whomever will be claiming rights ~Qder the agreements -....._ "-._ ' ·, '· '· the subject matter of this suit from real.izi:Q_g the "s~cyrity offered by \- ··t -~?-----, -...,, "··-..., the plaintiff on ground of default ir:tthe ~t~,~nt"",of ~lle~):l~)raised '<>~ '\:'\ >t:>,, . ',__:,/ by the defendant; r~~,~ ,,"'~·'·,. \fft/ "~) .-,. · , ·,.,·~<>:~:>-.,. _'~-----<··. " \ \ c. Payment of USD.3,052,264.Q0,_ byt._h~ aef~nq~nt to_.lhe plaintiff as per /✓..-,·~::·::.i -~~~-" ,, -t·.:- . "'""<:::~~ ) para.6 herein above/ f· <~"A -~. t-.·-_~,. •. 1(i \ I./~----~ "''<•.:._:;;,-.. ~. .,~~) d. The defendant<~Rts 't,~~-- cos'!_s·bt~Q~'intjdental to the suit. '·.,. "--~-"--~ \""-~ . ,~ ) ) e. Any ot~~-r;~~l_i~~-~s}~t~-q~:tb~~hoDodrable Court may deem fit. '-,· ..., -....___ ·, . ""'. ·,. \ 1 ~- _."'-,.__ Upon b,,elQg.,?erVed"'Jttttth~ pi°af~t, the defendant filed a written statement t__i" .>c;.•,L<l'>··~. 'Z.."·X•,,._ "-.,<ib, " of de,fence in \,v~i~h'--sJ?~ prayed for the dismissal of the suit with costs. \_ \\, \\~'\ ·<) Simulta·n~0,µsly, th~ :defendant filed a counter claim praying for judgement ·. -t:,>~>e:-__,.../ ... and decree irfthe ~f6llowing orders, namely: 0 a. Payment of a total sum of the United State Dollars Three Million, Three Hundred Twenty-Six Thousand Six Hundred and Sixty-Five (USD.3,326,665.00) being payment of the purchase price outstanding 2 under the terms of the agreement and the supplement agreement; and b. For payment of the sum of United State Dollars Three Hundred and Thirteen and Eighteen cents only (USD. 361,113.18) being interest on g. For any other relief(s) the Court may deem fit to grant. It should be noted, the instant suit went through several judges and lastly was reassigned to me under Order XVIII rule 10 (1) for its determination to its finality. 3 The facts of this case as gathered from the pleadings are not complicated. The parties herein above on 1ih day of April 2008 entered into written agreement for purchase of motor vehicles, whereby the defendant was to supply 282 various makes of motor vehicles to the plaintiff worth USD.6,578,000.00, which included costs, insurance ~Q~ freight (C.I.F. Dar es Salaam).The facts go that the initial paym~At _of USD.).)372,838.80 was '··,_ ""' \_ \ ·,·-~>-..-- '· "-~-- "'" /', ,,-. /) paid by the plaintiff and acknowledged by the .,defendant. Further:/ it was . . •._ . / \\ \, ·, '"·-.." , / / . \.._ ........ ,/ / --....~ ...,. ·... --. agreed that the remaining balance/of..USD:4;923,464.20 were to be paid '.'-... . :. :.:-~---- "> ·. ··. . . . . . - - . . . _ _ \.~. '\ within 36 months on equal inst~ll_m~nt~,~~ubJ~ct';'t9\accrue interest and "'-.·.'. "' ···-,_ '--.._,. '·,. ··,__ ,, ......"'-__~-- - "\ _/~ . '," "·, . . - penalties. It is further alle~ed-lhat the"plai11trff,,on diver dates paid further i ·,, ·,__ -~-'-. amount of USD.1,596,7~Q-?O tcf<t~~---,.~~;~Q~a~~- The facts go that the ·,. ~- - ' "~-.. . ·,_ -. ; -.... plaintiff upon /receivin?l- some'_··--0f_ _ the,, said vehicles discovered several (/ .. . . \.,_ ...... "-.,., ·---- ........... _ ·~-- _,/ '·. ·-.. . -• ,, -...... ·. ....,_ __ problems with·,~h~_ gefen8anf~performance of the contract, including but /,/- ~~-.....-- . '··-~ _:·. < . ,,. --.. '·--.•, "-.,__ . : not litnifed-to,-cfefective \ ......... -,. '··jots·;::~cracks in the chassis for the skeleton trailers, ·• __ ___ . \ ....... \. ·-... - . \\ .\ -,_ ._ -. \ -._ _ '> absence_of pumpe~_s, costs for making pumpers, delay in delivery of trucks, ·,. """ '--- ... ·.·,, .,' /: . . short supply-.rjf1_3) 9re parts, short supply of tyres, turbo charges and short supply of one 5 tone vehicle, difference of high fuel costs, which totaled to the tune of USD.3,052,264.00. It was further alleged by the plaintiff that upon discovery of these problems, the plaintiff entered into negotiation with the defendant and subsequently entered into a supplementary agreement 4 whereby the terms of payment were modified subject to the defendant also compensating the plaintiff for loss it has suffered. Other matters agreed in the supplementary agreement was that the plaintiff would only pay the principal sum due after waiving the other terms as to payment and the lih April 2008 and supplementary agreement dated 29 th May 2011 claims several reliefs as contained in the counter claim. 5 ,.. In other words, parties' claims against each other for breach of the terms of the agreements and further subsequent arrangements between parties. Before trial started the following issues were framed for determination of the suit and for the counter claim respectively, to wit: whereas the defendant at all material time was enjoying the legal services of Mr. Zahran Sinare assisted by Ms. Jackline Kapinga, learned advocates. I must say at the outset that am very grateful and frankly commend both learned counsel for parties for demonstration of seriousness and their 6 devoted valuable input in prosecuting the interest of their clients and for assisting this Court to be able to accomplish this long pending case in Dar es Salaam registry. Truly I must say five years down the road for a suit to be determined is not healthy in administration of justice and in a contemporary business world. means of transport of their goods and services was road transport by using motor vehicles owned by the plaintiff. According to PWl, the period he was Operations Manager in 2008 they bought motor vehicles from JIEFANG 7 . MOTORS (T) LIMITED of various types ranging from 7 tonnes, 2 tonnes, and pickups. PW1 told the Court that the Chairman of the plaintiff, Mr. Gullam Dewji is the one who ordered the said motor vehicles from the defendant. PW1 told the Court that himself, as the Chief Executive Officer of transport was involved in the whole transactiofl....._ and was given the ·" ·,,.....__,_,_ contract to enable him plan the future use of(th~,__saief'~rt?r vehicles. To \, '~>--- ">-"~ -"~ -'·, /-:,,.\ illustrate his point, PW1 tendered a sale(a,~reern~itd~-~~f!"ixtt✓~prii 2008 ...... , .'"·.. '\ C""" :"\_ _.,.-_ - • ·,~ • -......~ >· . _ \__ \. ,,/'' / / ·;_ '- -. . .,_ ... >··--. between parties herein and was aEfo.,itted,,in_ evidence and-- marked as ·. '-<_"":;:~-~--~-----.,::·,. _ _ \\\\ exhibit Pl. According to exhibilPl, the<numb~rs·::i?frnot0r vehicles ordered _,c--},, '"<<)~., '""~>,, ~<,~::::_--~) and received by PW1 wenf?82;~ '<~>" '~\" t·: '._ /;:>,,,_ "~i?, •· ""': ;; PW1 further said thal---the\Ji·otor<1~h;i~ies ;~~~ived were found with defects --- - ·, .. ?'"-,___ \ ', >·•, ).· :· ranging fronJ;/4evefal \_ -.,.\ rnecb_9-nical3\pfoblems ..:;_··~ ', .'__ - during assembling and the •'_ - exercis~--~L,_9~~~r:t11?1iMg~~wa_s·-,11)ervised by Mr. David from the plaintiff's / .. . .. ~-<.·:----.,, -~-< ·- . <.,__ ---, <~:~;) ._ com p,a r)y. Aftei<cfs~em~li(lg was done and the said motor vehicles were put \~\\ \,)\ ·,-<_') to road\j(l:"prder td: transport goods, several mechanical defects developed "·- >>"-e-cc-~: ;i that were not"'easy-to do business with. These, according to PW1, were jost defects, cracks, lack of spares to rectify the problem, pumpers, using too much fuel as opposed to specifications. PW1 said the defects were all detected during the guarantee period and same were reported to the defendant but who did nothing to remedy the situation. PW1 said himself 8 and David were fully involved in finding a solution by informing the defendant through emails and orally but nothing was done. PW1 went on tell the Court that parties held several meetings and emails were sent but still the defendant never acted. at all, despite repeated promises to take action. The said defects were deJe~ted within 2 to 6 ' ' '" ·-. months after using them and were within the ~r[.'3Qo/ period~-, \ ·~ -, . ",._'-" "'<","' \ . ·-.,"'/""· - . . - -. '•- - // PW1 further testimony was that after ela~e of ti"rrl'e ,, '," \ \ ~Jth'ci_ut,a--ny·fesponse / --...__"-,, /_ ·" ., \_✓ / x..;,,' /. -~-.,_ ",,. ........ \~ - - //' and in order to avoid further loss,\,~hEf__plai_[lbff'qecide,d to carry out the ·-·•.. . -~, ·-~--- '··-, "'- \ \ ', ', /"·---,. ' ··"'-. _ ··-.,, '·,. ---._ -,., ., -'- - ·--... '--~ -~~ -....- "- ""-, \,,/ maintenance. PWl tender~d- e~hib~t~ p2.,t~ PB---without objection from ·. ._ - - - I . ··-,-',._ ', ~ :..... defence which were debit$ notes vy.hich 'w~r~ showing the amount of money .: ' ,._ ' ', "' ,,. .. ·-....... '..,_ /' '• \ (' --- "-, ---._ they incurred in m~·i11tainfh~•,_th~/ v~hi~les ··during warranty period. Other .,,,.. -. '.,,__ ........ ,_ ' ',. ·-....,-.... _.... _ .... / / / . , .. .,,,.,____ ..... ,,__ " - , -----, ~----✓ _/ exhibits tend¢red ·. . by.PW! Were . -.. exhibits P9 scanned copy of motor vehicle ·-."-,._ ·-.......... _ model/no:· ~A,.~ t6i./~nd:c:9~19so; exhibit PlO the fuel used consumption / - /" .....__ ' ... ,._"-:-- .....,.... ··s. '··,._·...... ', ---- ...... - .... , -~) of FAW from ~~nuary:·-,2008 to December 2011 with its supporting \ \\ ,, -, ' / '· \~ \ ' ·- ~ documentsf',!!xhi~_it: Pll which is summary of fuel used consumption of ---.... -,_ ....__ ,,,.-· ! FAW from January 2009 to December 2011 with supporting documents, exhibit P12 which is an email dated 28/03/2010 containing a list of the claims to the tune of Tshs.1,786,778,022.00. But according to PWl, the whole amount incurred is at the tune of Tshs.5,018,945,556.00 which when 9 converted to then existing exchange rate of USD. 1340 you get the plaintiff claims from the defendant USD. 3,052,264.00 PWl was also recalled under section 147 (4) of the Tanzania Evidence Act, [Cap 6 R.E.2002] for examination in chief and cross examination. Under affirmation PWl told the Court that in exhibit Pl0 thE(~qntents in respect of "" "-.., motor vehicle T431 AXD had 11 pages but twowere i~aa~er:tently omitted \ \··, ' ~ ·-.... /""' '-., \ \ ',,_ ·. "--.. "· "'-,✓ / which are pages 10-11 and prayed tha~~e\~:,:~~~Q,.,,Court as ~<' ,';,:~'::::_:':;:-<\\<> - •, '- ' . -~/ evidence. The said exhibit was admitted--as exhibit P10a as part of exhibit Pl 0 already tendered. __.,,,,-- - , ""~ ·,.,___ '-"' --.,-< / I / / . . , -•' "·· ", '-._, '-. ·-.'-.. _··, ' "- PWl was shown exhibit P~. and anpthe(·a~cµrrie~t specification of model CA (- , __ \ \ / ',( ',, ·-, <.} 1320 and same was 'admitted.,as exhibif'-9a and he explained to the Court ,.,, ;_"•, S'\ ',LL<'•--,...__ / that is a hor~_ "power: of n:tbtor··vehicle, 380 contrary to its specifications . ' ~ '·-,,-_-"---- .,, ------ /.· -,, that f~en::o·nsu,mpt{OQ is-3~ litres per l00kms. -,, '> .:I --.._. '-. ',, --,, ___ -, . -,, ·, __ -,_'-...__ ,, . PW+\further te~timcihV'was that in the plaint he prayed for payment of \, '- \ '--, '-, USO. ·3,Q52c2_64,000.00 by the defendant and paragraph 6 lists all ......L ,, defects which are to that tune. So, the amount of USD.3,052,264,000.00, was the total amount that they incurred in maintaining the vehicles while under guarantee at an exchange rate of 1350 and if was to be claimed now at the current exchange rate is at the tune of Tshs. 7 billion. 10 Therefore, it was the conclusion of PWl that the money they claimed is higher than the money defendant claims by USD.200,000.00 or 300,000.00. According to PWl, the defendant supplied defects motor vehicles as such that amounts to breach of contract. On that note, therefore, the defendant is not entitled to be/ paid the outstanding ',, ', "' '.... balance for causing the plaintiff to incur a )ot._9f u~~p~cted loss. PWl stated that the defendant is not entitled to ~,i1~;~;;f:1nte~~~~:be~e had / '· ·-.......,___ ' ·"-.,_" \ \, \ ... '',. /' - '·> "·,,, ..,_, '-...,,.... ...-·/ ...... ·,.,./ __ - the defendant supplied the vehicl,es c1ccortH.ng to the contract there could :........'-. ,_ . -~--•-, ·--~--..,_ -.... ..._ '·-, \.\ \ \ be no problem for paying of ill1ere'st,~~~-t~~~Xc,.~'a[lge difference they claim, according to Pv)/l1is)like \illb~ing,:someone to benefit from his _.,..---..., "'~ "' "·· ----- / r r ",, ·, -< '· ', ' / ' ·,, "'·· "\_ ' own wrongs. Ev~ntually,,PWVprayeq "'·. ",. ""· "·- for'•dismissal ·.,_,, of the counter claim ..._ \ ............ ' ''\ ........ ·, -......., ..... , '· .'\, ·• I with costs and-be ordered to_retui:.n.,the security to the plaintiff. ,./ / .- ' '··\ '• .. ' '"----. . ..-·_/ ' ' \ '· " ! ' ' .. Und~rcross 'exam'ination_ by,f'.'1r. Sinare, learned advocate for defendant, / .--~•- "-,_ ----._ ~ ..... ____ ,.,-' ........... I / ·-., '-"- '"'"" • < .) PW1:, told tlie~~q_urt~h~t he' tendered exhibit P7 to show there was delay \, \,, \_\, ·\ - \. ' '~··' '. of delJvery of the vehicles which were delivered on 10/10/2008 more ··-. '·-. , - , . . ,,____ ,,I J than 23i'•day;-after the Local Purchasing Order dated 21/02/2018 plus 90 days for importing such vehicles. When PWl was shown exhibit Pl and the LPO it was his reply that the LPO was the starting point and the contract-exhibit Pl was accomplishing the deal. PWl urged the Court to take both the LPO and the exhibit Pl in interpreting the contract. When 11 PWl was pressed with questions he admitted that the issue of 90 days is nowhere in the documents but six months as shown in exhibit Pl. PWl when shown exhibits PlO and Pl 1 together and said they show fuel consumptions of the motor vehicles and data are fed by his department claims. PWl said that the plaintiff is entitled to set off of the amount from what they claim and the balance can be paid by the plaintiff. 12 Further cross examined by Ms. Jackline Kapinga, learned advocate for defendant, PWl told the Court that the contract price was USD. 6,578,000.00. According to PWl, delivery was not done within six months. PWl admitted they have not paid in full purchase price, but pointed out that they have paid substantial amo1Jnt out of it. PWl told '-..... "-.,, ·",_, ·';__ ·,,:. ·-.., the Court that the seller performed part of ,hi~"'-obligati~n~ and was paid '\ c;:--:::::>>"- ',·,<:··.>" ,,:A:> by post-dated cheques that were given to t,henL_-Fu__rthe(··wa,s.,. PWl's \;',., \ ( \ ; / ::::~~'<.;~,/ testimony that David who was working ~.. . ',u11der .'- P\,Vl/was---informing ,_-( ( the ", \ ~-. ~~~~~?-~~ '·~~"'• \ \>~ defendant what was going oit-:-~Y w~i::·ot=:.~~alls"'v:Jt}ich was the mode _ ,,:,'.,.,·'. ·,, '·,,,,;'>,, ·,,.,,_}}-,_ -~----<_ ~'"") acceptable for commt./h1ea'tion betyJ~en<J,h~ parties.PW! insisted the !,_ r .,cc, •-..., ~ "-,,_<'"'") repair was withinrtb,e vJ~r~ant •¢'9v~c:of tJ:}9·;ye;rs. ~'~ ,~~ ,.~ . Re-exami[)etCbY'.:D~::;;y,'~~;~wJa:d that exhibit P4 was a claim of ~'<.: ', '\ :· · ·., \~· \. -~-~ delay-ot,gelive~l'¾/bf-:-Mot_or vehicle computed after 90 days of both LPO f: _)" --<:'\--,_ '•·,_,_ \<-.:, ~- ...,;_=ti) '·" an1e:,exhibit ·P-t'vyhk:~::QOCUments are related. PWl told the Court that the \ \\ •,\}\ ··--.,:() dela}~,w~s up td year. Further, PWl explained that data in exhibit Pl0 1 ~--_ ·,..•~·'"''-):._ , .. ·,.· --- ~- .,./ -, ~ are entereci~when the motor vehicle is back from safari. As to exhibits P2 and P3 are for good received note and payment done as he was the one who authorized payment. PWl admitted that the defendant performed some of their obligations in the contract but some were not performed. He said the plaintiff is not in breach but is entitled to set off for doing 13 what was supposed to be done by the defendant. According to PWl, the warrant period was in the contract and everything was communicated but they failed to respond. spares of motor vehicles. PW2 said he knows the plaintiff as he did business with him by selling the plaintiff several spare parts for trailers, scania, FAW,OWO and Jiefang in between 2009 and 2010. 14 According to PW2, the plaintiff used to place orders by phone and during supply the spares were supplied accompanied with invoices and delivery notes. PW2 said if he sees the invoices and delivery notice he will recognize them as they are from TEJA ENTERPRISES. PW2 was shown 18/11/2009, no. 6052 dated 04/01/2010, no. 5852 dated 14/09/2009. PW2 confirmed the story of PWl that during that period they sold the spares as exhibited in exhibit PS, P8 and P2 and they were paid in cash. 15 Under cross examination by Mr. Sinare, learned advocate for defendant, PW2 told the Court that in their business they deal with trucks and trailers parts. As to invoice no 5921, PW2 told the Court that it was for turbo charger though it does not show the motor vehicle number and \ __ ,/ ,,. :,___ ...... ·-.,, When Re-examined PW2 said the:s-pare$ vve~eJor':li~fang pa~rts. (~-', '<::>,'·. _: : : _;-.: ~:~~---,,\ :~) The third witness for p!aintiff'·-vya~ MUF~AZAL.AMIRAL ESSAJEE-PW3. ,:" ~-">...... ......, ·. . . , l ./ ,,·:'" ... "~ -'~ Under affirmation PW3told th~Ge>urt:~~that ·he:-is a business man dealing ("-. ' ·. (>·· .·,. ·-'-----. with trailers since 200.7. PW3 went bi:,to tell the Court that he knows the ..... , • ! ~,F ... _ /J . / /, ,.- ·-.......... ',, ·. --. . / _,'' plaintiff betquse ·h,e\ has ·be~n Working with them for quite long by selling ··.:., ____ "'---'-. ) ; --...,, __ ..... ,,,__ ··---...... -..... _____ _// - - .. _. '- '-., '- .... them"tfaile(s an·d service.their trailers. PW3 testified that in 2009 they /' // . ------'"'--.._ __......- ......... ,__ ·.,__·- ......___ ----.......___ --...__, ~-~-) ____ did a lot of ~b'rks. ~hich was done through invoices with our logo. PW3 '\ \ ..._ -\,,_ \ .......... ,.: " told the C:ourt/\hat his company is AM TRAILERS MANUFACTURERS .... . - ..._ . '"~- LIMITED anffhe is the managing director. PW3 when shown exhibit P3 he identified it as their invoice no.0356 dated 20/07/2009 issued to the plaintiff for replacement of goose neck which had defects. PW3 read the contents of exhibit P3 and said all the 16 ~ works were done and paid for. According to PW3 another invoice he dealt with was invoice no 0411 dated 02/09/2009 which was for 29. trailers, invoice no. 0419 dated 06/11/2009. PW3 when shown exhibit P4 said is another invoice their company issued to the plaintiff and the same was paid for. "'·..._·- '-..... ··..,_,. -, ·,,,·'" Under cross examination by Mr. Sinare, PW'J~tf~~~s~'-~)railers 0 · invoices and when cross examined ~'to ch\ ~sis;r1LJirlbE::?£',~:gc1 bill of ~--: ·-,.,~':,. \ \/ :c/' '"'·< ) lading said they differ from the bill-~p(l~din_g<b},the'\:t'~fendant. <:~:',,. '<. .:.)::;·•.:,=~:=t':::.{:··"""\) Re-examined, PW3 told(~~~-=c:o~rt:t~-~,~-"d,~}~!s ~rWbers are copied from r~-r} ~"~--",,. ·--~~-~-t~'\ the trailers and not froq,"\~ill ot,_Icfq;i9~.""~~>" "<J 'Q):", \{~,,_ ·,<f '-~~-:;>~1 '-) Dr. Lamwa~p,rar7~. to.:~,1,~~e·l~;e._plgirltjff case and his prayer was granted (:_./;~-- ~,{~ \'"\ '--...,,,/"---..,,., -..:..., __:_ ________ - _ / . without obfectionJM__r. Sin·are~Jook the turn to lead evidence for defence i/: ~~=-_>>,, · - ..:_ _;::/~:~i~~~l::>~----{> . and /tounter·,.clairh.. But;-_;"-'-before hand the learned counsel for the \:.\ ';·,<···,\, '····<~>-,., deferi'dant praye.dJhaftheir ....... \ ... ~- _'.., witness are from China and as such will need .. _____ .>.._ J an inte;p;~ter-::J(ohl English to Chinise and vice versa at their own costs. -...-;_;,_··-~·::-' The prayer was granted and Mr. WIL HUANG was dully affirmed as an interpreter as prayed. The first witness for defence was WEI JIEFU - DWl under affirmation told the Court that he is currently working with FAW as Sales Manager. 17 DWl said formerly he was working with Jiefang Motors Tanzania Limited i.• from 2008 up to 2009. According to DWl, FAW started in 1953 and is the first automobile company in China and currently the largest. Not only that but also DWl said the company is listed as 57 out of 500 International companies. exhibit Pl as the contract that was signed between the two companies. DWl said in that contract he signed on behalf of the defendant and prayed that the exhibit be part of their defence and counter claim. According to exhibit Pl, the defendant was to import motor vehicles to 18 Tanzania for the plaintiff through CIF Dar es Salaam, which means the seller has to deliver the vehicles to the port in China and the time frame for doing that was six months from April 2008. In proving that the vehicles were delivered within six months, DWl DWl whe~·-.sho~n exhibit Pl, said according to exhibit Pl the payment was subject to delivery and was to be made within 24 months after the delivery and in 24 equal instalments. DWl told the Court that the plaintiff paid more than USD.1,000,000.00. DWl went on tell the Court that he 19 left Jiefang Motors Limited in May, 2009. Another key term of the contract was warranty period of 2 years or 40000kms whichever comes first. Others were the correct assembly of the vehicles by accredited agent of Jiefang Motors Limited. 2009 som~vehicles were complete and partially vehicles were shipped to Dar es Salaam. Pressed with questions, DWl said that according to exhibit Pl delivery was to be on complete vehicles. In the bill of lading with no. 56159797 the importer was China Faw Group Import and Export 20 Corporation and the consignee was Jiefang Motors Limited. In exhibit D2 the consignee was Maesk and shipper was China Faw Group Import and Export Corporation. So are all other bill of lading exhibits P3, P4 and PS are showing a different consignee and nowhere shown they were According to DW1, they had 6 bills of lading namely; JMS for 21 st century, JM8 for Jiefang Motors Limited, JM14 for Jiefang Motors Limited, JM1 for Jiefang Motors Limited as consignee. One is A-one Bottlers and last one was to Jiefang Motors Limited. DW1 admitted under cross 21 examination that under the circumstances the plaintiff became the clearing agent. DW1 went on to tell the Court that he was in constant communication with David from the plaintiff's company. DW1 told the Court that according to exhibit Pl all vehicles were to be registered in shown a copy of the amended plaint, he categorically stated that the plaintiff is indebted to the defendant at the tune of USD. 3,326,665.00, being principal claim. But when added with interest and currency 22 exchange loss, OW2 said, the total amount due is USO. 4,516,376.63. According to OW2, the exchange loss was USO. 828,598.45, and the interest amount was USO. 361,113.18, which figures are result of the supplementary agreement signed between parties in 2011. The much has been paid to date. When OW2 was shown exhibit P9 and P9a he said they belonged to Jiefang Motors (T) Limited. 23 DW2 like DW1 was thoroughly cross examined by Dr. Lamwai, learned counsel. DW2 said he worked for Jiefang Motors (T) Limited as General Manager since July 2009 to November 2011. DW2 told the Court that he knows someone WEI JEIF as they worked together in China and that he delivered to the plaintiff. DW2 pressed further with cross examination, he said he don't know where the original cards are but know that they were part of the security. Basically, DW2 testimony was that he was dully involved during the supplementary agreement and went on to say that 24 the relationship between the two companies was good and some of the matters were not followed to the letter. DW2 insisted the vehicles were delivered and their concern is payment of money. Asked as to the meaning of clause 7 to exhibit D6, DW2 said the vehicles were to be effective date~~of exhibit D6 is 29/05/2011. DW2 insisted he was not involved when exhibit Pl was signed. Exhibit D6 do not say anything to do with the vehicles but just title deed. 25 Asked by the Court to make some clarification on clause 9, DW2 told the Court that the interest accrued prior signing and it refers to the entire agreement. As to the amount due, DW2 said the amount due is slightly more than USD. 4.5 million, and after the supplementary agreement he parties on 29/05/2011 intended to supplement the performance of the original contract between parties in this suit entered on 17/04/2008. As opposed to the original contract, exhibit P6 introduced several terms not in the original contract namely: mode of payment of the outstanding balance, payment period was extended to 36 months and 26 interest at the rate of 8% was to be charged on any further delay in payment, the payment was to be done on each month based on basic exchange rate and exchange rate differential was as well introduced and emphasized, the enhancement of security was re-emphasized and of interest,in this contract was ',~ "' ' clause 8 and 9. In clause 8 the vendor"relinquijshed all claims \ ,, ··-. "· "-..._,' ~ /. against the buyer for this contr~ct. '1~<-cl~se '9,,th~/~ntire <.._, ''·, ·, ·-... ' \ \ \ / ) ", .· '• . ·• .. "-../ interest on delay payment w~s-waive~·Qff by'the ven.dor against ,,,. '"-' <. "·:· ~-'.- .· . <> · ·,. '\\ \ the buyer and the buyer~~ we~" agr:~~s.:t~ 'Waive off all the ~--~ ',~ "-,~ '<-, . ·) claims against the v~ndor' for th~-(?rdet,, ,.... \ ·.. \ / /'," / ' ·, ·,, "' ·, " . '··, .., ·.. ' V It is upon this backgrou,:,d of·daus~_s.,8 and 9 that Dr. Lamwai, learned '· '-...,., '•s., ·,,_ ..... ........ '-,.. ·,... / advocate ?ubmitted ~, that trere)s~he'~ted - . ( argument on the interpretation '•,..._, '··,. ' of the~two pa~graph~~---t:tis thrust of argument was that if exhibit D6 was : '· '·. '"' ~ , . / i . _./ , ,· '. ·-......___ ~.,__·~. "·· ·• ..,__ -~ . ...,, ( ··•.,-.._ ·,.. ....._..,._~ - ~-► '· _/ valid \' no any<c:lainhcan ,, -._,, be' laid against the plaintiff as the defendant is .\ ' -., ___ ; doing)1ow. Further concern is paragraph 9 which waived all interests and "-- '•,, ·,,.... ' "- __./ / . claim by the-plaintiff and therefore according to paragraph 9 there is mutual abandonment of claims by parties. According to Dr. Lamwai, if we go by exhibit D6 indeed parties are not supposed to be here and concluded that the said exhibit is VOID as provided under section 29 of 27 the Law of Contract Act, [Cap 345 R.E 200] and prayed that this Court be pleased to find and hold that exhibit P6 is void on its face value. I have taken my time to read the contents of both exhibit Pl and D6 and what the parties intended to achieve and found out that indeed exhibit ,..... D6 is conspicuously uncertain and self-contradictdrylifl the circumstances ' ."\., '·, _. -,_"- _ - of this case. The uncertainty of a contrac(tao_ be){~~rned in many \\>-~~:.:>C-·~ "{-,;~ /) ways, namely; one if the language e?(pJessecf'i? -~vaglJ<;L_o}~ifi¢omplete; ·--.:._____::~--\.., \\\✓( / <..~;:::> ~- two, where the contractual intenfi~>rl.J? expr~sse9 iin a such imprecise /', ~'?:;:,·- -'-=t>~-2·-{·:~--, \ \\ terms that no clear meaning cao"---be giv~o lb tt:;~ttir~·e; where no price is /-:::_-;), "-<,)~,_ "'\'(,," "'~-j not precisely stated in fli~'contract)ro·qr,g o(t,~rs. c,,. _ \r\ <{~.:·,··. . -.-<~~::,,·;, '· ,' Of course, one ectnf}qt fail'-to grasp<.th.at in exhibit D6 what is given by _£/···--:>,.. '•<::--.."- ·,·-<t:';-.___.,.J:?" the right g~_nd ·,s~\simulta·n_~ously-- taken away by the left hand and one '- ,._ ····... t. -. ,. ",, - ·-.--. J ~- ·-.: __ =-,.. wop_q~~~-~i~Ftt~-s~fheb_:<;~·-,be enforceable. This makes enforceability of ( ' ···-\ t:-;_.,,_ -.._··,.: '·-, ..___,_..- exbib it D6 nexftp frnpo_ssible and as such uncertainty in its face value. \:·\>"'-- \\\_-. "<:__i DW2 -~h~n--~~rgs§fd examined vainly tried to explain and harmonize the '·--.:-' ·:. ~-.. . . :>; paragraphs but his explanation could not surpass the principal of interpretation that the document has to speak itself as provided under sections 100, 101 and 103 of the Tanzania Evidence Act, [Cap 6 R.E. 28 2002] in particular when language used as in exhibit D6 is plain languag.e. It is on that note, this Court is of the considered opinion that exhibit D6 is without much ado is void for uncertainty and same will not be considered at all in this judgement. assist this Court in a way to reach a just and fair decision at the end. One, there is no dispute that the plaintiff entered into written sale agreement dated 27th April 2008 for purchase of 282 specified sorted size and tonnage motor vehicles from defendant at price of USD, 29 6,578,000.00 which was including Costs, Insurance and Freight (CIF- DAR ES SALAAM) and the exchange rate of that consideration was USDl.00= RMB7.10 with a variety of terms as evidenced in exhibit Pl.Two, there is no dispute that at the time of the institution of this suit the principal sum unpaid by the plaintiff to the defendant according to "' ~.... ' '> the consideration agreed was USD. 3,326,695..00. Th.is):an be evidenced \\ \:~-----._,__ ',·<>··-., /", from the parties' pleadings; howe~~t, the-<c:{ispi:t~e,_ is'-...~hether the '-. ·, ",.....,,__ ',"-_ .'\_\ \,\ // ) / ~- -~-----._ ...... -................... . ,/ '·~ defendant/counterclaimant is entitleg to''it:,,JhreE(/ there·•·is no dispute ( ·-•.". ..._-......_ -- -- ,_,_ ·~, ....... "'·"~,. .............. \ \ \ .\~ that all the motor vehicles 6r:~~r~d :~~~e··:cj_~~~~re"'~f<to the plaintiff but ..-~,'· ......-- "' ·,:·., ~ ··,.. -... '.,·,..., ·•... ..._~~·,.. '· what is disputed is w~·e'ther' were<th~y 'deHyered in time as agreed in ' '..., ",.... ........,____ -·•..,_ /c-'._ . ·-. . • exhibit Pl. FourrJhe·re\ ,_ ·•,..... '\_ is \,"\ nq-· di$pute-)nat performance of the said . ·,,,"'-.._ ·-• contract betweenp~hies, / ·-, " di~{notgo ·-.. tin .· well hence this suit each claiming . ·•. ·. .. . ✓ -~. - •• '- -. ,,_ ·,._ \ .... against each 'other.· F_ive,'tt,e_ learned advocates for parties', are at no //~~-~-, .. /' --.·-~::··· ·--,, '-,.) ' --~,.·: is~ue thafth~-~hoJe _controversy between parties is centered on exhibit "·. ·, '-. Pl\and , exhihii'o6.the above undisputed facts will assist this Court in ..... -.......... ·_; ·•... ·. ·............ /' making a:·1·u_~t-~"hd fair decision inter-parties in this suit. Therefore, the issue framed by my learned predecessor judge as agreed inter parties were to cover both the claim in the plaint and the counter claim at the same time. The first issue therefore is whether the defendant is entitled to be paid an amount of USD. 3,326,655.00 in 30 respect of the sale agreement dated 17/04/2008. Based on what I have hold above in respect of exhibit D6 our issue number one now will not incorporate that part of exhibit D6 in this issue and as such same is accordingly amended by leaving the last part of it. Based on parties' paragraph 7 and 8 in this agreement. I find apposite to reproduce the said paragraph hereunder for easy of reference: 4. That if there is any default regarding the payment then a thirty (30) days legal notice will be given for the default in 31 payment and if the default continues further, the Vendor shall be entitled to re-possess and take over the possession the securities provided in paragraph 7 and 8 of this agreement. And whereas the said two paragraphs provides as follows: 7. that the Purchaser shall give the original ~~i~tration cards of the said vehicles to the Vendor. Then/~~an ,b~~int name on \ \ ·-. ~- --~/ / __ - the registration cards of the said(rnoto/'~~~i~l~'s~ ··,. ~.\_,,,,,·.,,- ~--. in wh~h case -......................... ("•-·----..... ' "··--.,'\., -.___ \ ... \_ // ,~- _} the Card Holder shall bear r-, the-.. , _~ames····of . JIEf~NG MOTORS (T) ----- -... ·- - ·--- - ,-,_ -..__ \ \, ',,-'--..... '-..., --,...., ......... ' ·- --. '· ' ·,..,__-.... --......:~. ..........,_ - \ .... ' LTD and MOHAMED _.,,-ENTER~RISES ,- ,, (Tl--~ LIMITED shall be \ j / ,~ .,- __ --- "'- " ''\._ __ '.....,_ ' "··' " " - registered owners. ;In case,,.-of default>--the Vendor shall be at /~"' -.......... __ ""-,, /' . \ . _,/ ·-.,__ ...,._ ': liberty to reposses~ th~- sa.id vehicles from the purchaser at any --· --,, •, '---.; -.. " •-..._, '·, ·-, --.__ -· / ,< / I reasonab,e_' time\ aftet -..,expiry --of thirty (30) days' notice in -,, -, ---, -, ' "--- ,''-....,_ ___ __ - _- - ' wrjtit!tfha_s ·bee'n sent-b_y 'tile Vendor to the Purchaser informing I _/ -.'-,_ '-,., -,, '-. "--.. "\ ! ./ '--.__' - . ' • · . -, . ,-'\", .._ ··--......_ / the\ Purchaser-of \ \ such ---.. default. \ ) \ \, , \ \ \_ __ -_/ ' '-·-- - 8. In ·"aclditi9nal ·, to the registration cards the Purchaser shall give the Vendor a title deed of any of his immovable property as security, worth USD. 2 million (USD. 2,000,000.00) and that the same shall be registered by signing of a transfer documents at the time when both parties signing this sale agreement. The 32 said Title deed shall be retained by the vendor, as security which the Vendor will be at liberty to sell and recover its balance money, if any, in case of default on the part of the Purchaser at any reasonable time after a thirty {30) days' notice in writing has been sent by the vendor, . to the purchaser '· .,,.-.... ·,_ '\..,_~-. \\ '/ . -.......... ~: claim of interest on unpaid amount...... of .USD;.J;~26,6.65.00 -... .. ' \. "\ to the tune of ' . "· , t"· ·. ·. · •. . ··.,, ·-. -··. ~ ·····~ - ..~, ·., ~ ·. \ USD.361, 113.18 claimed in this 'suit was claimed<out,of' context and same '-,,, ••••, 'c • /- .---- \ ·· .... ,,,_ '•......., ·, ....,·•,,....._ stand to fail. The sanctity of the paiti~s to· ~or:1tract does not allow this [ - _/1r"'-,. '-,'- ...,_.., ..,. ,/ ', ' / ,. Court to go outside'', what parties .ag:r~ed>'Therefore, the defendant, if I _.- - '. . . -- /· -- wanted to enforce the contract. he- was due bound to the terms of the :' " '- contrac:Jand nototherwise. ,_ , . "-, . ~ '·->...., -._ ":.. Anothe't \: claim of-Jhe \. \ ··.. defendant/counter ·..,,, ; claimant is the claim of USD. 828, __ 598.45 being excha~ge rate difference between the basic exchange rate ·- agreed by the parties as in exhibit Pl.The claim of exchange rate of USD. 828,598.45 in this suit had to fail for the obvious reasons. One, in the agreement between parties dated 17/04/2008 the said exchange rate was to be valued to each instalment at the current RMB with USD. No single 33 witness of the defendant/counterclaimant ever testified how this amount . was arrived and what was the rate of RMB that was used to calculate against the USD. Two, in clause 3 of the 2008 agreement the parties agreed as follows: 3. That, the Purchaser shall pay the considefation amount to the Vendor within 24 equal monthly instc(fments fr6)n, the date of \\ \. :--~----.. '""'>·,, //) getting the possession of the first:~hJ,pme~~ ofJh~. ~~-icf/vehicles. " " ......... '.. \ \ ' -,_. / / / ...... ', - '·~,/ The Purchaser shall issue 24 ,postd_ated·'chetn.1es in favour of the / ·- ·•,., ·: ~·- ·•. ~-, .>,, \ ' Vendor against the paym~ht-,9f the~sale:~oilsideration amount. / ~--· :_ ' '·,,:~:-.-" ·,,<>- ' "<; ) The payment amount of each' /,,--...__, ¢h~qiHf.shall ,, .. . be valued at the •, ./'/ _,., ...... _ .........., '-. ........, current RMB ex'.chc1nge'rate wit~:"4SD) '~ '· . . ·, /, _ -•. •. --.. ·c ·-- __ __,.i i In the absence: of clear. mention -,,·~ ufthe rate to be applied under the above ...... \ ...._ ,' '·, . ·: -- ' ' ' '·., provision~"ryla~~ '•tqe :·entite•:--Prbvision in this contract void for want of ./ . . ·----<'-,_ '··,<_-,, ', certainty and uh~nforc~aple in the circumstances. In the case of NITIN --, \·~- ·. \ \,. . COFFEE...,ESTATES ·, ·._ \ LIMITED AND 4 OTHERS v. UNITED ENGINEERING , '~.... , ..._. ...-_,.. .' WORKS LIMTEb [1988] TLR 203 (CAT) it was held that as the price was not agreed and there was no means of ascertaining such price in a sale of individual shares, as such there was no agreement due to uncertainty. In 34 terms of paragraph 12 of the 2008 agreement this Court declare clause 3 void and hence unenforceable. Now the only dispute is in respect of the remaining claim of USD. 3,326,665.00 being principal sum which basically is not in dispute between parties, save that plaintiff claim a set off of the am012mt for problems with ··•."_ ;:. the defendant's performance of the contract w[ffilq;,b inclu ~Sr defective jot~, "' "' -_>_·,·,,: cracks in the chassis for the skeleton trailer, a~~f~,~~~:;ITfl'b,u,m · 0 ·-.. • ···., _,,,_ ••• - , · . · . · ], making the bumpers, delayed deli\[>· hart supply of the spare parts, short supply of the • . .o~"tlta"qglmi and short supply of - -~-0~;- one 5 tonne vehicle 3,052,262.00. 2 The plaintiff 4 ,;;/ ro5Fd'g t~~.;~S'e~ 0 , e~aered exhibits which were within the 1 warra1Jtij~~f;i~p in · c.f~008!Jl~f; .ment, as follows: flll defective jots in 50 semitrailer trucks woths Tshs. 52,500,000.00. (b) exhibit P3 together with its relevant annexures justifying he claim which was in respect of cracks in chassis of skeleton tailer worth Tshs. 465,500,000.00. 35 ,,· JI (c) exhibit P4 together with its relevant annexures justifying the claim '· ~- which was in respect of defective bumpers worth Tshs. 7,500,000.00. (d) exhibit PS together with its relevant annexures justifying the claim which was in respect of spare· parts and turbo chargers worth Tshs. 7,926,000.00. ( e) exhibit P6 together with its annexures · · worth Tshs. 233, 765,000.00. (f) exhibit P7 together with i · , "e claim which was in respect of loss worth_ Tshs; ... 722, -· 423,000.00. (g) . res justifying the claim which was of spare parts during importation worth (i) Exhibit PlO together with its annexures justifying fuel consumption from 2008-2011 worth Tshs. 1,992,069.894.00 36 (j) Exhibit Pl 1 together with its relevant annexures justifying the claim which is in respect of abnormal fuel consumption in FAW from 2009 - 2011 worth Tshs. 1, 504,100,662.00 From the above exhibit the total amount of Tanzania shillings the plaintiff incurred is Tshs. 5,018,954,556.00. Therefore, accofcfirig '· .. to exhibit 1, the ,, · ·, - "-, ~ Vendor guaranteed the vehicles for period ,6f·--two years .._ and the said \ \,. "-.. , ~ "'' -·- /S·-. \.\ \ \ \ --........,. -.,._ ........... , ........ ,........., .·-._ ;..., ; /.,;' ) mechanical defects developed within (the pedod>·<fhe., defe_cts were "'"-, ' '- . \\· \\. / / r ~ · - , ") , - ' -· communicated to the defendant but'11e,_yer_~,made.,pn~\rEfpair. The defendant ~ · ·-. . . . ·. . ~-:.-· . . -:'.7-.. .~,._-..,._............, .. ·-~ \. did not produce evidence to co'udter thi.S'•breacb~~Thii';.indeed caused the / - ~- -_ . .. '-:..__, '-, ' , ' ...~. '~--- ' ·-...._, __j plaintiff to suffer costs thatwere to be~incurreck_by the defendant and loss t !_ //'---,____ "-i_____ ----------- ·· ... j of business as claimed. Ui~ the (co-~sidered----~pinion of this court that upon 1 "'·,\,_~-"?-,,__ -..,~. ·. ·. . _¾,__ "':; ~', taken into accou~tthe ~Vide,::i2e~bf tendered, the plaintiff is entitled to a set I / ~ ·. '-,\, ·-"-, -- - ·---, . - ' . '· off frorn,.the_ clain:r-oft,h'=·d.efendant/ counter claimant of all defects as dully i/ .>·- -\. . ' '·:, . . . --. -:~:-; .. · com~unicated ·at,d, not_/~paired by the defendant and loss of business. This \, \,,_ ...\~. \\. -~..., ...._-) ', - \ \ ' brings th,e-,..__amount: to the tune of Tshs. 1,637,774,000.00, which amount 1 ·"-..,_ '·, __ "'-.,."- --- _,..,,,/ .. was not cou'ntered/ by the defendant in his testimony as evidenced in exhibits P2, P3, P4, PS, P6, P7 and PB. The plaintiff claimed the exchange rate was USD. 1340 per Tanzania shilling, which again was not disputed by the defendant, hence making total of Tshs. 1,637,774,000.00*1340 makes USD.1,222,219.40. This has to be deducted from the undisputed claimed 37 dR1l . amount of USD. 3,326,665.00. This bring down the principal claim to USD. 2,104,445.60. The claim of fuel consumption was not among of the agreed terms in exhibit Pl._ Equally, the contents of exhibit P9 and P9a were not part of the exhibit Pl as well. I have endeavoured to go through exhibit Pl In the totality of the above reasons, and consideration of evidence on record and final oral submissions of the learned counsel for parties' issue number one is answered in that the defendant is entitled to paid 38 USD.3,326,665.00 minus a set off of USD.2,104,445.60 leaving a balance of USD.1,104,445.60 w This takes me to issue number two that whether the there was a misrepresentation on the part of the defendant in relation with the ·,. ' remain unsh~k~n-a/i?.,as';uch ho~_~is(~presentation was proved. Mr. Sinare '•.,·-,, ·, '-,. ' . ~ -. pointed out!hat,accorcHng_Jo exh,ibit Pl the defendant performed their part // : •-----'-<::, ',, '-, •'• •, ' <' •~•, -~ ',, C as agreed and,. delivered all vehicles as exhibited in exhibit D1 to D5 \,_ \' "...... _ ....\_ '- .........,,, ',,\ \ '\. \ \. "· ' inclush1e>·, \ \ ',, '"' '"·... '""-,__ 1' - f '~, -~- -- - ~-~/ _// On the other hand, Dr. Lamwai learned counsel urged this Court to find and , hold that misrepresentation was proved by supplying motor vehicles which were defective as opposed to terms of clauses 5 and 6 which provides as follows: 39 5. That the purchaser shall make sure that all the said vehicles are in good merchantable running condition and in working order. The Vendor can inspect the said vehicles which will be stationed at the J.V workshop of the purchaser but the years' warrant or 40,000 kms whichever prevails first. Therefore, it is the considered opinion of this Court by the contents of exhibits pg and P9a there was no misrepresentation at all. The defects found after use cannot be a misrepresentation and that is why the defendant gave a warranty of 40 two years, if any, defects develop that cannot be regarded as -.c I misrepresentation. This warranted, to the considered opinion of the Court, for the defendant to carry out the repair, same cannot to be considered misrepresentation. In the upshot and for the reasons stated above, issue number 2 is to be answered in the negative for wantce>( evidence. 's;c··•.,. ··," ... ·>. ·"-..__ . ', The answering of issue number two in (ne,"".negativ);., automatically extinguishes issue number 3 which its Q~t~rm~~;;;~le;~~ed on ·,_,· ''-... \ \ / ~ ~ ·,~<· -~ \ ~/: ~--·_/ ·./-·•,_. ~--✓ answering issue number 2 in the affi{m&1tix_~. '<0, '\ < <i>~ · . ·. :~::-~--:~t::::i~~:A\<) This trickles down to the u/~_uaL.,last,,is~ue·-~?"to whaLreliefs parties, if any, /:/~,-- '-....._,_:··" ··,,,..::.;0;..,,_ are entitled to. Each party praye~th~tt~·t,respective suit and counter suit (', \ .\ ( )/ '-¼;},,.,_ "~) respectively against ·e~(SQ ot.re_r be dis?1·Jssed with costs. The plaintiff has . ,/.,,.-"'t-=~-:-· .'-. "-.,,-~"- ·,, . '------~ __ ..,,.../ ·:,. been able tocptove·set offto-the·extent explained above. The defendant as ·--..~. . ,. :..--,, )~: _:· '"•<<_"-:--.:-:-,'-, well has·~t1~(8..~-~t:i:t~:~,t;~:r3:r~~{·~ame of her prayers as held above. The (":,· ''-i, •'.,, ·•.'s, ··,,. '".__j defen~a\nt further·"Rray~_~;:for general damages for breach of contract and \,:,\,, \, \ V interest '·on"·ctecretqf sum from the date of judgement till satisfaction in full '··<:*~":; :f~,,-~-· of the entire decretal sum. These limbs of prayers on the part of the defendant/counterclaimant will not be granted because each party had a share of breach against each other. The non-payment of the decretal amount was because of the breach on her part. 41 In the upshot, the plaintiff suit succeeds to the extent explained above and r the counter claim as well succeeds to the extent above. The plaintiff, therefore, is hereby ordered to pay the principal sum of USD.1,104,445.60 to the defendant within a period of 4 months from the date of this judgement. In case of failure pay same within tQat ,, period, same shall ', ----- '- JUDGE. 29/10/2019 42