mustafa ebrahim kassam and zulfikar ebrahim kasam ta rustam brothers vs mr jofery c mngano 2011 tzhccomd 2066 8 march 2011

IN THE HIGH COURT OF TANZANIA COMMERCIAL DIVISION AT DAR ES SALAAM COMMERCIAL CASE No 2 Of 2010 MUSTAFA EBRAHIM KASSAM AND ZULFIKAR EBRAHIM KASAM t/a RUSTAM & BROTHERS..................... PLAINTIFFS Vs MRJOFREYC. MNGANO.........DEFENDANT JUDGMENT. Mruma J. The plaintiffs who are businessmen and residents of Dar Es Salaam instituted a suit against the defendant also a businessman and resident of Dar Es Salaam claiming for payment of shillings 38, 092, 450/= being the price of goods taken by the defendant on credits from the plaintiffs' shops situated at Mikoroshin area in Temeke on various dates. The plaintiff is also claiming for general damages to be assessed by the court interests and costs. Upon being served with the plaint together with annexes thereto, the defendant filed a written statement of his defence and was issued with a receipt (vide exchequer receipt No 40545537 of 18th February, 2010. When the matter was called on for mention on that day, the defendant was present in person. Because he was already out of time he applied for extension of time up to that very date so that he could file his defence. The application was duly granted and, as said earlier the defendant filed his written statement of defence. The matter was listed for first pre-trial conference on 4th March, 2010. On that day it was called before the Registrar. The defendant was present in 1 person but the plaintiffs were absent. The 1st pre trial conference was rescheduled to 23rd March, 2010. On that later date, the plaintiffs were represented by Mr Byabato, learned counsel but the defendant was absent and unrepresented. Mr Byabato informed the court that in view of paragraph 3 of the defendant's written statement of defence, the defendant was partially admitting the claim. He proceeded to pray for judgment on admission as per Order X l l Rule 4 of the Civil Procedure Code. The prayer was dully granted and a Judgment to the extent admitted in paragraph 3 of the written statement of defence was entered against the defendant. It was ordered that 1st pre trial conference for the disputed amount be listed for 5th May, 2010. On that date both parties were absent. The . iL matter was rescheduled again for 1 pre trial conference on 6 May, 2010. On that day, Mr Abubakari represented the plaintiff and the defendant appeared in person. Mr Abubakari informed the court that the defendant was denying his name. Apparently this occurred outside the court room and probably when parties were preparing to come before me. I called upon the defendant who was present in court to clarify on the point. He told the court that his name is not Jofrey Mngano (the defendant herein), but he is Botot Mwita Marwa. He said that Jofrey Mngano (the defendant in this suit) is actually his uncle. He said that he received the summons and signed it and filed the written statement of defence because he does not know how to read and write in English, therefore he did not understand the contents therein. At that juncture I adjourned the matter to allow the plaintiffs' counsel to consult his clients to identify and clarify the person they did business with. After about 15 minutes court resumed. Mr Abubakari informed the court that according to the information and instruction he has from his clients, the person who was in court was actually Mr Jofrey Mngano, the defendant in this case. I once again invited that person to explain the episode. He (unconfidently) denied to be Jofrey Mngano (the defendant herein) and insisted that his name is Botot Mwita Marwa. 2 Because the defendant was duly served and had filed a written statement of defence which is dully signed by him as Jofrey Mngano, this court had no option but to proceed against the defendant Jofrey Mngano. In absence of the defendant, practically no pre trial conferences could be held. I therefore ordered the plaintiffs to prove his case in absentia of the defendant pursuant to the provisions of rule 12 read together with rule 6 (1) (a)(i) of Order IX of the Civil Procedure Code (old version) and here is my judgment on the matter. In their bid to prove their case, the plaintiffs called one witness Mr Charles Tibeke Buka (PW1), the Sales Manager of plaintiffs firm. He told the court that he is the sales manager of the plaintiffs' shop which is along Sandali Street in Temeke District. The shop according to this witness deals with whole sale of various goods. He said that he personally know the defendant Jofrey Mngano. He remembers that on 4th June, 2008 the defendant entered into a written agreement with the plaintiffs (exhibit Pl), under which the plaintiffs agreed to supply various goods on credit to the defendant. That pursuant to the said agreement the defendant was supplied with various goods on credit. Payments for the goods supplied and received were to be done within seven (7) days after the delivery thereof. In order to easy the performance of the terms of the agreement the defendant introduced to the plaintiffs three persons who would receive goods on his behalf. These three persons received on behalf of the defendant goods worth Tshs 34, 629, 120/= as at 21st October, 2008 (Exhibit P2). The defendant was notified about the outstanding amount in his account and he acknowledged and promised to start paying it by instalments (to be agreed upon) effectively from 30th August, 2009(Exhibit P3). According to PW1, the outstanding amount at the time he testified was Tshs 36, 360, 576. 00 (This amount however differs with the amount claimed in the suit and no explanation was offered) which included the principal amount and 10% for 'disturbance'. The plaintiff is also claiming for general damages, interests and costs. 3 As stated earlier, the defendant filed a written statement of defence. In his defence he admitted in paragraph 3 that he is indebted to the plaintiff. In that paragraph he says:- " That as regards to paragraph 5, the defendant vehemently denies that he is indebted to the plaintiffs to the tune of Tshs 38, 092, 450/=. The defendant states that as far as he is concerned, his debt to the plaintiff stands at Tshs 14, 629, 500/=only. The plaintiffs are put to very strict proof to the claim herein" [emphasize mine] Following this clear admission, judgment on admission was entered to the plaintiffs and against the defendant to the extent admitted forthwith. Now from the evidence adduced, there can be no dispute that the parties entered into a sale agreement under which the plaintiffs agreed to supply various goods to the defendant on credit. The supplied goods were to be paid for within a period of seven (7) days after supply [see paragraph 4 of the agreement- Exhibit Pl]. In his written statement of defence, the defendant does not dispute the contents of the terms of the agreement (Exhibit Pl). I therefore find as a matter of fact that the parties entered into a sale of goods agreement (Exhibit Pl) as alleged by the plaintiffs and conceded by the defendant. The next question is whether the plaintiffs supplied to the defendant goods worth Tshs 38, 092, 450/=. It would appear (from Exhibit P2) that on 2nd June, 2008 the defendant's debt account was Tshs 39, 629, 500/=. He paid Tshs 5000, 000/= which reduced the balance to Shillings 34, 629, 500/=. No other clear transaction took place thereafter because in the transaction of 25 August, 2008 there is remark that "hajachukua" which may mean that 'goods not collected'. I am therefore unable to appreciate how the amount of Shillings 38, 092, 450/= claimed in the plaint or shillings 36, 360, 576/= stated by PW1 in his evidence were arrived at. On the evidence available on record, the outstanding amount against the defendant is shillings 34, 629, 500/=. As judgment on admission was entered for the plaintiff to the tune of Shillings 14, 629, 500/=. I now enter judgment for the plaintiff on the disputed amount of ( 34, 629, 500/= Minus 14, 629, 500/=) shillings 20, 000, 000/= (say twenty million only). 4 The plaintiffs are also claiming for general damages. The general principal is that the purpose of an award of damages is to put the plaintiff in the position he would have been in had the breach not occurred and the contract been performed. It is also a trite law since Hadley Vs Baxendale (1854) All ER, that damages would only be awarded to compensate the claimant for and to the extent of losses that arise and flow naturally from the breach of contract which damages were or ought to have been within the contemplation of the party in default. In the present case it is the evidence of PW1 that their claims includes, interests and 10% for disturbance caused. In the signed agreement (Exhibit P2), it is clearly stated that in default of making payments for the goods supplied within the period of seven days agreed, the defendant will have to pay 5% on top of the value of the goods supplied. This, in my view is included in the plaintiffs' claim and I have already granted it. This was in the contemplation of the parties that is why it was agreed upon. Thus, basing on the principle laid down in Baxendale's case (supra), the plaintiff has been adequately compensated and put in a position he would have been had the agreement not breached. He is therefore, not entitled for general damages. As regards interest, I think this being a business transaction the practice is that the plaintiffs are entitled to interests for their monies withheld by the defendant. I therefore order the defendant to pay interest on the principal sum at the rate of 14% from the date of filing this suit to the date of judgment. Further interest at court's rate of 7% shall be charged from the date of this judgment till payment in full. In summary therefore I enter Judgment for the plaintiff for Shillings 20, 000,000/= plus Shillings 14, 629, 576/=(which was admitted and judgment in respect of which was entered forthwith) as explained above. The defendant is also condemned in costs. A. R. Mruma, Judge 5