njake enterprises oil transport company ltd vs merey ally salehe 2 others 2022 tzhccomd 181 8 july 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF

TANZANIA (COMMERCIAL DIVISION) AT DAR-ES-SALAAM COMMERCIAL CASE NO.27 OF 2016 NJAKE ENTERPRISES & OIL TRANSPORT COMPANY LTD........................................ PLAINTIFF

VERSUS MEREY ALLY SALEHE.............................................................. 1stDEFENDANT ISLAM ALI SALEHE................................................................ 2ndDEFENDANT DAR-ES-SALAAM CEMENT CO.LIMITED..... .......3rd DEFENDANT Last order: 19/05/2022 Judgment: 08/07/2022 z ' ..

JUDGEMENT NANGELA, J.: This is an ex-parte judgment. It is one of those cases which seem to have overstayed in this Court since it was filed in this Court on the 7th day of March 2016. The delay to have it disposed of resulted from the fact that the Defendants had preferred an appeal in the Court of Appeal against a ruling of this Court, (Mruma J) issued on the 12th October 2016. That appeal, however, ended up being struck out from the Court of Appeal on 28th June 2021, hence, making it possible to proceed with the hearing of this matter. Page 1 of 10 In this suit, the Plaintiff has sued the Defendants and prays for judgment and decree against them jointly and severally as follows: 1. Payment of the principal sum of United States Dollar Four Hundred Thousands only ($ 400,000.00).

2. Interest on the decretal sum from 29th September 2007 at the rate of 25% till judgement and at ' s interest at Court's rate, to wit . 12% on the whole decretal amount from the date of judgement till payment in full.

3. General damages .

4. Costs of this suit, and 5. Any other reliefs) as the Court , , may deem just to grant in the ' circumstances. /When the.suit was called on for orders on the 17th day of March 2022, and upon being informed by Mr. Frederick Massawe, who was holding brief for Mr Boniface Joseph, the learned counsel for the Plaintiff, that, the pending appeal before the Court of Appeal was struck out from the Court of Appeal sometimes in June 2021, this Court made an order that summons be issued to the Defendants to appear in Court so as to proceed with the suit. The suit was set for orders on the 30th day of March 2022. Page 2 of 10 On the material date, Mr Stephen Mayombo, learned counsel for the Plaintiff appeared in Court. The Defendants were absent. This Court made an order that a re-service be made to the Defendants' office. I set the matter for orders on the 5th of April 2022. On the day set for mention, the Defendants were absent. This Court was informed by Mr Mayombo that the Defendants' whereabouts could not be traced. He prayed for a substituted mode of service to be used. I granted the prayer and a substituted service was effected. On 27th April 2022, a date when this matter was fixed for orders, the learned counsel for the Plaintiff appeared in Court. Since the Defendants were absent,* he prayed to proceed ex- parte and file proposed issues for determination as well as witness statements. On the 18th May 2022, the Plaintiff filed a list of issues for determination. The following were the agreed issues: _ y 1. Whether the Defendants discharged their obligations • under the Contract and, if not, whether there was a breach of contract.

2. To what reliefs are the parties entitled. Having recorded the above issues, this Court set the 27th of June 2022 as the date for the ex-parte hearing of this case. On the date of its hearing, the Plaintiff enjoyed the services of Page 3 of 10 Mr Cleophas James, learned advocate. The Plaintiff called one witness, Mr Japhet Lema who apart from filing a witness statement in Court as per the requirements of Rule 49 (2) of the High Court (Commercial Division) Procedure Rules, testified as well as Pw-1 and tendered in Court a total of 5 exhibits to prove the Plaintiff's case. In his testimony in chief, Pw-1 told this Court that he is a businessman and the Managing Director of the Plaintiff. He testified that, sometimes in June 2007, the Plaintiff ,entered into . X^ // an arrangement with the 3 Defendant under the Directorship of the 1 and 2 Defendants for provision of services on credit basis. The Plaintiff rendered services to the Defendants as per their arrangements and it was agreed that a sum of TZS 500,000,000 were .to be paicUtb the Plaintiff on 29th September 2007. In Court, tfie?PI a intiff tendered an agreement evidencing the parties' arrangement for. the provision of various services on credit basis. This was admitted as Exh.Pl. i Pw-1 further told this Court that, on 10th September 2007, the 1st andDefendants issue the Plaintiff a cheque Numberx0'75il^for TZS

500,000,000/-. Upon presentation to the bankers, the cheque was dishonoured. The dishonoured cheque for TZS 500,000,000/= was tendered in Court and admitted as Exh.P2. Pw-1 told this Court further that, in October 2007, the Defendants made part payments to the Plaintiff in the sum of TZS 100,000,000 Leaving out TZS 400,000,000 as outstanding Page 4 of 10 amount. Pw-1 tendered in Court a payment slip evidencing the said payment made by the Defendants and this was admitted as Exh.P3. Further still, Pw-1 told this Court that, on the 15th July 2009, through the services of debts collector, the Plaintiff wrote to the Defendant a Demand Notice claiming for the outstanding amount. The demand notice was tendered in Court and admitted as Exh.P4. Pw-1 told this Court that, sometimes in November 2013, an arrangement was made between the Parties herein whereby, it was orally agreed that the. remaining balance of TZS 400,000,000/= was to be paid in USD amount equal to USD 400,000/= in order to cater for devaluation of shilling and the delay to pay. , He told this Court that, in the course of fulfilling that arrangement, on the 7th October 2013 and on the 7th November 2013, the 1st Defendant issued the Plaintiff with two cheques. These were Cheque No. 032822 for TZS 100,000,000.00 and No.032823 for TZS 60,000,000.00 respectively. He told the Court that,, at the time, the exchange rate was

1USD= TZS 1600. However, upon presentation, the two cheques could not be encashed owing to insufficient funds in the drawer's account. The two cheques were tendered as Exh.P5 collectively. Pw-1 testified further that, despite several demands and follow-ups, the Defendants failed, refused or neglected to pay Page 5 of 10 the outstanding amount, hence the institution of this suit for recovery of the same. He urged this Court to grant the Plaintiff's prayers. At the closure of the Plaintiff's case, the Plaintiff's counsel prayed for time to file his closing submissions which he duly filed in Court. I have gone through the pleadings. It is on record that, on the 20th April 2016 the Defendants filed their written statement of defence. In their written statement of defence they admitted to have issued the two cheques (Exh.P5) but denied that the parties had agreed to convert the .debt into USD ($). Otherwise, the Defendants all^ged^to have paid the Plaintiff in full. : z Unfortunately, the Defendants never appeared in Court to formally defend, th^ir castor lead,'evidence to that effect. The call for the fief^ndants to appear in Court was made twice in the newspapers (substituted service) following the inability to serve the Defendants through the normal process due to thei^ non-availability or traceability. The notice of appearance in Court was published in both the Mwananchi

Newspaper dated th ' x J/ 6 April 2022. at page 25, and the Daily News Newspaper dated 6th April 2022 at page 3. Despite all those efforts, the Defendants failed to appear in Court to defend their case. In the case of Amos Shani & Peter Kirua vs. Jumanne Juma, Crim. Appeal No. 168 of 2013, the Court of Appeal of Tanzania had the following to say in respect of a notice of appearance published on a newspaper: Page 6 of 10 ".. we have noted that, the order of substituted service by way of publication issued by this Court on 18th September 2013 was complied with by publishing in the "Mwananchi" newspaper dated 18th May 2015 by notice which informed the parties to enter appearance on 10th June 2O15.We are of the opinion that, such a notice suffices to make the parties to appear in the hearing.,." (Emphasis added). From the above excerpt by the Court of Appeal, it means, even in this case, that; the notices which were published by the Plaintiff herein ' were sufficient to notify the Defendants wherever they were, that, the case was set for hearing and their presence was necessary. In their absence, therefore, the Plaintiff proceeded, ex-parte. In law, it is a basic principle that, he who alleges must prove. Sections 110, 111 and 112 of the Evidence Act, Cap.6 R.E 2019 and the cases of The Registered Trustees of Joy in the Harvest vs. Hamza K. Kasungura, Civil Appeal No. 149 of 2017

and the case of Manager, NBC Tarime vs. Enock M. Chacha [1993] TLR 228 attest to that principle. The Plaintiff in this case, thus, bears the duty of proving her case to the requisite standards, and, this being a civil case, proof Page 7 of 10 should be on the balance of probabilities. See the case of Silayo vs. CRDB (1996) Ltd [2002] 1 EA 288 (CAT) and Catherine Merema vs. Wathigo Chacha, Civ. Appeal No.319 of 2017 (unreported). In this case, two issues were raised: The first issue was: Whether the Defendants discharged their obligations under the Contract and, if not, whether there was a breach of contract. ' As per the testimony and evidence tenderedJn Court by Pw-1, there is no doubt that the Parties had a commercial relationship governed by Exh;Pl and that at some point they had entered into services provision agreement as per Exh.P2. By virtue of Exh.P3,/ Exh.P4 and Exh.P5, it is clear to me that, the Defendant's failed to discharge their obligations to pay ^~x\ W SA. V'-> * for the services and^ence,. they" remained to be liable to the Plaintiff. . Moreover, in-the absence of evidence to counter the testimony of the Plaintiff regarding the oral agreement that the v remaining balance was to be settled in USD to cover for inflation due to the delayed payments, it follows that, the Court takes the testimony of the Plaintiff as the correct position of the parties at the

time. In the upshot of the above, it follows, therefore, that, the 1st issue is responded to affirmatively and the Defendants failed to discharge their obligation to fully pay the Plaintiff the remaining balance, hence liable to pay. Page 8 of 10 The second issue is in respect of the reliefs to which the parties are entitled. In principle, if the Plaintiff has ably established her case to the required standard she will be entitled to reliefs sought. In this case, this Court is satisfied that the Plaintiff has ably established and discharged her burden of proving her case within the requisite standards and is entitled to the reliefs sought. In this case the Plaintiff has prayed for. general damages \\ as well. In law, general damages need not be proved. They are awarded at the discretion of the Court. Taking into account that, it is now almost fifteen (15) years since past the day when the transactions between the parties ensued, I find that the Plaintiff has suffered a lot. In view of that, an award of TZS 10,000,000/= as general damages is warranted. In the upshot, .this Court awards judgment and Decree in favour of/sthe Plaintiff against the Defendants, jointly and severally, and, makes the following orders: ' 1. That, the Defendants are hereby ordered to pay to the Plaintiff the principal outstanding sum of United States Dollar Four Hundred Thousands only ($ 400,000.00).

2. That, the Defendants are hereby ordered to pay to the Plaintiff Interest on the decretal sum from 29th September 2007 at the rate of 15% till judgement and at Page 9 of 10 interest at Court's rate, to wit 7% on the whole decretal amount from the date of judgement till payment in full.

3. That, the Defendants are hereby ordered to pay to the Plaintiff TZS 10,000,000/- as general damages 4. That, the Defendants are hereby ordered to pay to the Plaintiff ^ costs incurred in prosecuting this suit \ '* J' y) It is so ordered \v DATED AT DAR-S-SALAAM, THIS 08™ DAY OF

JUDGE Right of Appeal Explained. Page 10 of 10