mustafa ibrahim kassam ts as rustam brothers and brothers vs maro mwita 2012 tzhccomd 42 7 may 2012

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION>. AT OAR ES SALAAM COMMERCIAL CASE NO 91 OF 2011 MUSTAFA IBRAHIM KASSAM tis AS RUSTAM AN DBROTH ERS PLAI NTI FF VERSUS MARO MWITA DEFENDANT EXPARTE JUDGMENT. Nyangarika, J. The plaintiff claims against the defendant for the payment of Tanzania Shillings 44,612,350.00 and 8,922,470.00 being outstanding debt of unpaid value of the goods taken from its shop and contractual interests, respectively. The story behind this suit goes that, the plaintiff and the defendant entered into a business deal whereby the former was the seller and the latter, the buyer on credit basis. Accordingly, a contract between them to that effect was concluded on 2/11/2010. The conditions and terms of the agreement were that the plaintiff was to supply goods to the defendant on credit basis and the latter was to pay within seven days time from the date of delivery, failure whereof, could attract a 20% interest accruable one month from the date of default. It is stated in the plaint that pursuant to this agreement, the defendant took various goods amounting to Tshs.44, 612,350/= but defaulted to pay as agreed, which has attracted a penal interest of 8,922,470/=. Having notified the defendant on the default without success, the plaintiff decided to institute this suit to seek for the following reliefs;- a) Payment of Tshs.44,612,350/= as the outstanding debt, b) Payment of Tshs. 8,922,470/= as penal interest, c) Defendant be condemned to pay 12% of the decretal sum from the day of delivery of judgment to the date of payment of the amount in full, d) Defendant be ordered to pay costs of this suit, e) Any other relief(s) as the Court shall deem fit so to grant. It is worthy to note here that this case proceeded exparte to the hearing, after the defendant had defaulted to file his written statement of defense within the 21 days prescribed period for doing so and the other 21 days within which he could seek an extension thereof. Before hearing could take off, a total of 3 issues were framed by this court for determination, namely: 1. Whether there was a trade Contract between the parties. 2. Whether there was any breach of the said contract by the defendant. 3. To what reliefs are the parties entitled to? To prove its case, the plaintiff called one Charles Tibekebuka as its sole witness (PW1). He kicked off by introducing himself as the General Manager of the plaintiff company since 1/1/2006 whose roles includes managing the affairs of the Company. It was his testimony that he knew the defendant as the plaintiff's customer. This witness continued to state that by virtue of the agreement (exhibit P1) entered between the plaintiff and the defendant on the 2/11/2010, the defendant was taking goods on credit from the plaintiff's shop ,where afterwards, he could pay for the goods within seven days from the date of delivery. He also said that it was a condition of the agreement that upon failure to remit the monies within the said seven days, an interest of 20% would be chargeable as disturbance allowance within a month from the default date. PW1 in his bid to prove that the defendant had been taking various goods from the plaintiff's shop, produced a bill of supply of goods (exhibit P2) which contained details on the name of the client, dates when the defendant signed, credit, debit and balance. He further produced a letter dated 4/812011 on the intention of the plaintiff to terminate the agreement (Exhibit P3) to prove that after the default, the plaintiff wrote to the defendant without success to pay the amount due. On his final lap, this witness prayed that the plaintiff should be paid Tshs. 44, 612,312/=, and Tshs 8,922,470.00 as 20% compensations, interest and costs as prayed in its plaint. On my cross examination, the witness told me that the defendant received the contract after its registration. Upon asking him on proof to that effect, he told me that there was a dispatch notebook in the plaintiff's office which indicates that the said contract was dispatched to the defendant. Regarding the description of the goods allegedly to have been taken by the defendant, it was his statements that they were "various" goods including cooking oil (without details as to quantity). On being asked for proof of this assertion, he said that they have delivery notes at their office. The same was his response as to the receipt of the demand note by the defendant, that, though they had no proof, they always gave him the letters and he received the same himself. The first issue is "whether there was a trade Contract between the parties". The PW1 In proof of this issue has tendered exhibit P1. Having scrutinized the same it appears to me that it is a document which represents the said contract for it contains terms and conditions of the agreement as asserted in the plaint and backed up by the witnesses' testimony. However, there are some spots in the testimony and the pleadings together with the document itself, which casts a hazy cloud on this issue. First is the timing of the signing of the said contract. Whereas the plaint backed up by PW1's testimony states that the business agreement was concluded on the 2/11/2010, the said agreement itself is dated 2/8/2010. For easy of reference, the part of the agreement indicating the date of its conclusion is quoted hereunder;- UUmetiwa sahihi lea tarehe 02 mwezi NANE 2010... " Literally translated, it means that it was signed on the 2nd day of August, 2010. The plaintiff did not bother to explain this contradiction in his testimony in court. That apart, the plaintiff has not been able, through evidence to demonstrate that indeed the defendant had received or had a copy of the said contract. This would suffice for me to entertain doubt on the existence of the said contract. The above notwithstanding, I find the document as such to render the existence of the said contract highly probable and as such it passes the standard of proof test which requires the balance of probabilities. It follows therefore that the first issue is answered in the affirmative. The second issue is whether there was any breach of the said contract by the defendant. The plaintiff has alleged vide the plaint at paragraph 6 that the defendant, by virtue of their agreement, took the said goods on credit and defaulted to make payment upon expiry of the said seven days and that the debt which had remained unpaid until the date of filing this suit stood at 44,612,350/=. I have scrutinized the evidence tendered (exhibit P.2) together with the testimony of PW1. I must confess here that despite this case being prosecuted exparte by the plaintiff, the evidence leaves some crucial notes untied. Firstly, exhibit P.2, does not indicate, what exactly was the particular goods taken and on what amount. My question to this detail met a dead end after the PW1 gave them general description of "various goods including cooking oil". Secondly, I have noted that the Exhibit P.2 contains details dating from the 24/6/2008. It was not explained in evidence as to whether the amount claimed included that from the said date or the date of the contract. The purported date of contract appears on the said document (Exhibit P.2) just as one the other dates for the transaction. As I have intimated, the witness was not led in evidence to substantiate the composition of the claim as to whether it is composed either from the 4/8/2010 as indicated on the second line at page 18 of the said exhibit P.2. In fact, even the corresponding signature purporting to be that of the defendant is dated 2/7/2010 well before the start of the contract. In an exparte proof case, a plaintiff must play his cards well. The plaintiff did not put that the agreement was supposed to run retrospectively so as to fit into the said transactional record. Thirdly, much as there is only the said bill, apart from the corresponding signatures, there is no scintilla of credible and ostensible evidence, say delivery notes or receipts, to the said transactions to associate the same to the defendant. Further to this, some of the entries are collectively signed to cover more than one transaction. This was neither explained in evidence. Fourthly, the plaintiff has not put forward the evidence to prove delivery of the said goods and in what quantity. The mere allegation by PW1 that the delivery notes were at the plaintiff's office, in my considered view, cannot suffice. Had it been true, I am sure, the same could have been tendered in court as evidence. That apart, the last page of the bill which contains the outstanding amount does not contain corresponding purported signature just like the previous pages. If at all, the defendant was signing other pages, why then was the last page not signed? The Law of Evidence Act Cap.S R.E 20002(5.1121 puts the onus proof on the plaintiff. The standard of proof in such circumstance was recently well espoused by Lord Hoffman sitting in the appellate committee in the case of In re 8 (Children) (FC) [2008] UKHL 35. His lordship had this to say; If a legal rule requires a fact to be proved (a "fact in issue'?, a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened ... Every such fact is to be treated as a fact in issue. His Lordship went on to observe that the majority of the House rejected the analogy with facts which merely form part of the material from which a fact in issue may be inferred, which each need be proved to have happened. He stated further that the tribunal must be satisfied that the occurrence of the fact in question was more likely than not. I hold the above view of his Lordship as highly persuasive and I will let myself be accordingly guided. In the instant case, given the flouts found in the evidence tendered, cannot affirm the plaintiff's allegation regarding nonpayment and or the actual monies owed by the defendant. PW1 has not sufficiently discharged the burden and as such, the evidence adduced and the testimony, when put on a sieve, what comes out, is the value of zero (0), and hence, the fact in issue- that of breach of the contract is to be held in the negative. That being the case therefore, the issue of reliefs as prayed cannot be sustained. The plaintiff has failed to discharge its onus of proof of breach so as to entitle it to the reliefs prayed for. Accordingly this suit fails in its entirety and it is dismissed. Order accordingly. K.M Nyangarika, Judge. ih day of May,2012.