20140228 TZHC Dar es Salaam

1

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CML CASE NO. 170 OF 2003 MOHAMED ENTERPRISES (T) LTD ............................ PLAINTIFF V NURDEEN ALLY (T/A AL YAMDA STORE .............. ~DEFENDANT

EXPARTE JUD_GMENT Date of last order ·.: __ . 13/1/2014 Date of Ju_dgment 28/2/2014 A.Shangwa, J This suit was presented for filing on 14 th August, 2003. The defendant did not file his written statement of .defence. Efforts to get him through normal services failed. He was notified by publicatio~ in the Majira News Paper of 25 th November, 2010. All the same, he did not appear on the date he was required to /appear. Thereafter, the court ' .~· . ' :. ,.;;' . -~:· ~ .....· I 2 decided to proceed exparte. Hearing started on 10th November, 2011 before Madame Munisi, J. Three issues · were recorded before hearing. They are as follows:- 1. Whether the defendant owes the plaintiff the sum of shillings 66 Million.

2. Whether the defendant has failed to pay the said sum.

3. To what reliefs are the parties entitled. Madame Munisi, J heard and recorded full testimony of · P.W.I Mehdi Remtulla arid part of the testimony of P.W. 2 Gulam Abbas. However, the suit was re- assigned to me ~n 1st June, 2013 due to transfer of Madame Munisi, J from Dar es ·salaam· Registry to Moshi Registry. After re- assignment, I continued to record the testimony in chief of P.W.2. During his testimony before me, P.W.2 produced a fire ·Report prepared by fire Brigande to prove that there was fire at his Godown located at Pugu, .. Nyerere Road, Dar- es Salaam which destroyed original documents to be \ . 3 ,, tendered in this case. After doing so, he produced a copy of the Agreement between Mohamed Enterprises (T) LTD and . 1 Nurdeen· Ally as representative of Al Yamda. Store in order to prove the plaintiffs claims against the defendant. The plaintiff's claims again~t the def~ndant are found at paragraph 3 of its plaint. The principal claim ·is for a sum of Tshs 66,000;000/= being the price.,of.·goqds sold and delivered by him to the, defendant. · Although, his principal claim is Tshs 66,000~000/= he is claiming. for a total sum of Tshs 101, 434, j54.

40. This sum includes interest of 24% pe~ annum . .,. At paragraph 5 of the plaint, the plaintiff States that after failing to pay the sum/ of Tshs 66,000,O00/=, the · defendant signed an acknowledgment of the debt· and • , , • I • ' deposited with -him motor . Jehicle -Registration cards of I ~. . . -..,.,, ,•:,.· .-~,l ;.( ,.,,; ••:i":,:-•; ., .. ,. ••~·-·: •, '··~··.~ • •· '~;;~\YL~\' ; :'?''·,_";.;:·:;_:::,'.: ·. -··-•. . . :r:.,>,::·{:_c.,-:_;);.:r·.·. _; ·_ .· ·.";> ... ··., >: '_.:.,. -: ::--'., .-__,;(,'. .. . . ,:.<:. ·»..,-_... , .- 4 three motor vehicles and undertook that if the debt is. not paid as agreed, he would transfer the said motor vehicles to himself. Payment of the debt was to be done-:: by installments. • ., .. ,.J', At paragraph 6 of the plaint, the plaintiff states that the defendant failed to pay .the debt and that when he failed to do so, he transferred the motor vehicles to himself · but failed to take possession of those vehicles· because they are nowhere to be seen. The issues that this Court is called upon to decide are simple indeed. On the first issue, the Court is called upon to decide as to whether or not the defendant owes the plaintiff the sum of Tshs 66 Million. On the evidence _of P.W.1 Mehdi Remtulla and P.W.2 Gulam Abbas who were . _the plaintiff company's Salesman and Chairman ...., I 5 respectively, I find that the defendant purchased

on credit goods from the plaintiff worth Tshs 66 Million and that he failed to pay the said amount. When he failed to do so, both the plaintiff and the defendant entered into a written Agreement in which the defendant undertook to pay the purchase · amount of the goods by installments. This Agreement was received in evidence and m·arked as exhibit P. l. In this Agreement, Particularly, in Article 2, the defendant acknowledged the debt of Tshs ·66 Million from the Plaintiff and undertook to repay it as· follows:- (a) That from December, 20,62 to March, 2003 he will pay Tshs 2,. 000,000/= every month to the plaintiff. (b) That from April 2003 to /°ctober, 2003 ~e ~11 pay T · shs 2, 500;000/= every month to the plaintiff. . - . .I _· (c) That from October, 20b'3:, he will pay Tslrs ·-4,000, 000/= to the plaintiff every month till full-and final· . satisfaction of the debt/ ·_._ .· r ' . ' I •• .·. •·, .. .: 6 ; The Agreement on how to satisfy the debt was made - ·- between the plaintiff and the defendant on 31 st December, 2002. It was signed by the parties on the same date. Under article 3 of this Agreement, it is stated that the defendant did submit three motor vehicles Registration cards as security for the debt. The· . _Registration Nos of those vehicles are indicated 1n the same article as TZP 3914, TZN 351 and TZQ 743'1. Article 4 of this Agreement provides inter- alia that

if the defendant fails to repay the money according to the terms of this Agreement, then the whole amount will be due, with interest at commercial rate. On the evidence adduced by. P.W.1 and P.W. 2 together with the Agreement entered. into between the parties for repayment o_f the debt owed by defendant. tn the plaintiff exhibit P. l, I find that the defendant owes 7 the plaintiff the sum of Tshs 66 Million. Thus, issue no 1 is answered in the positive. On the second issue, the court is called upon to decide - as to whether or not the defendant has failed to repay the debt. This issue is straightforward. I also answer it in the positive. The reason. is that had the defendant discharged his debt to the plaintiff, this suit would not have been filed against him. On t!J-e third issue, the court is called upon to decide as to what reliefs are the parties entitled. This issue is .also straightforward. What I can only Say on this issue is that the defendant is liable and the plaintiff is entitled to all the reliefs which he praf d for in paragraph 8 of his plaint. Thus, I enter judgment in his favour with costs. . .. • 8 ~ - A. Shangwa. J

JUDGE 28/2/2014 Delivered in the presence of Miss Assey for Dr Lamwai for plaintiff this 28 th day of February, 2014 • -'· • 4-• •