palm green ltd vs crje estate ltd johari rotana hotel 2022 tzhccomd 247 26 august 2022

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL CASE NO.31 OF 2022 PALM GREEN LIMITED................................................ PLAINTIFF VERSUS CRJE ESTATE LTD (JOHARI ROTANA HOTEL)............ DEFENDANT Date of Last Order: 3/8/2022 Date of Judgment: 26/8/2022 JUDGEMENT MAGOIGA, J. The plaintiff, PALM GREEN LIMITED by way of plaint instituted the instant suit against the above-named defendant praying for judgment and decree in the following orders, namely: - a) A declaratory order that the defendant is in breach of the contract; b) The defendant be ordered to perform the contract by paying Tanzanian Shillings Four Hundred and Seven Million Five Hundred Twenty-One Thousand Four Hundred Fifty-Six and Sixty-Two Cents, (Tshs.407, 521, 456.62) to the plaintiff as per the contract; c) The defendant to be ordered to pay the plaintiff Tanzanian shillings Fifty Million Only (Tshs.50, 000, 000/=) being general damages; i d) Costs of this suit to be paid by the defendant. Upon being served with the plaint, the defendant on 19thApril, 2022 filed written statement of defence disputing plaintiff's claims on the grounds that defendant has performed his obligation under transport contract and the amount claimed by the plaintiff are outrageous and unreasonable because does not tally with the invoices for transportation. On that note, the defendant invited the plaintiff into strict proof of her claims thereof and eventually prayed that the suit be dismissed with costs. The brief facts of this suit are imperative to be stated for better understanding the gist of this suit. According to the plaint, it is alleged that plaintiff entered into two agreements with the defendant, contract number 26 dated 28th November, 2018 and contract number 25 dated 27th November, 2019 for transportation services. According to the plaint, it was averred, among others, that parties agreed that the service provider would provide VOLO RIDES TAX PREMIUM and the beneficiary to pay in time the amount of all services supplied by the provider. It was further agreed that, in case the bill is not paid on maturity date, the beneficiary will incur penalties of 1% for each day of delay and in case the delay is more than 15 days after prior notifications of the beneficiary, the 2 provider may discontinue the delivery of the service and after the payments of owed money the service provider may continue with the service. Facts go that, the defendant failed to perform his obligation as agreed as a result, up to the time of filing this suit the unpaid amount by the defendant was to the tune of TZS. 407,521,456.62. Notwithstanding efforts by the plaintiff to remind the defendant to perform its obligations as per the agreements through various correspondences, defendant failed, neglected and ignored to perform its obligation, the act which constituted breach of contract under clause 5.2 of the service contract. It was against the above background, the plaintiff instituted the instant suit claiming for prayers as contained in the plaint, hence, this judgement. The plaintiff at all material has been enjoying the legal services of Mr. Allen Dickson Mchaki, learned advocate. On the other adversary part, the defendant equally at all material time has been enjoying the legal service of Ms. Catherine Oscar Mwingi, learned advocate. Before hearing started, the following issues were framed, recorded, adopted and agreed between the parties for determination of this suit, namely: - * 3 I 1. Whether there is a breach of contract by the defendant in clause 4.5 and 4.6 in contract No.25 and 26 respectively; 2. Whether the penalty interest of 1% per day from delay payment under clause 4.6 of contract No.26 and clause 4.5 of contract No.25 is reasonable and enforceable by the court; 3. Whether the plaintiff is entitled to claim a penalty amount exceeding the principal debt; 4. Whether the contract was fair for both parties; 5. What reliefs parties are entitled to. The plaintiff in proof of his case, called one witness, BOGDAN ANTOHE (to be referred in these proceedings as "PWl"). PWl under oath and through his witness statement adopted in these proceedings as his testimony in chief told the court that, he is a Managing director of plaintiff as such conversant with the facts of the suit. PWl went on to tell the court that, he knows the defendant's company because they were regular customer of the plaintiff. PWl further testimony was that, sometimes on November, 2018 defendant approached the plaintiff and by mutual agreement they entered into business arrangement for transportation service of defendant's client known as contract number 26.PW1 went on 4 further to tell the court that, at the request of the defendant, plaintiff entered into another business arrangement for transportation of defendant's employees known as contract No.25 dated 27th November, 2019 the said contracts by mutual agreement was signed by both parties. Testifying on the terms of the agreement, PWl told the court that, under clause 4.6 and 4.7 of the contract number 26 dated 28.11.2018 and clause 4.5 and 4.6 of the contract number 25 dated 27.11.2019, parties agreed among others that, in the event that the bill is not paid on maturity date, the beneficiary may incur penalties of 1% for each day of delay from the value owned amounts and penalties may exceed the value of the owned amount. PWl told the court that, it was further agreed that, in the event the payment is delayed for more than 15 days, after the prior notification of the beneficiary, the service provider may discontinue the delivery of the services included in the present contract and the provision of the services may be continued after the beneficiary has paid the owned amounts and the delayed penalties. According to PWl, the penalties requested by the plaintiff are in accordance with the above-mentioned clause and 1% of penalties does not contravene any laws in Tanzania, therefore, is reasonable under 5 commercial contract and the only determinant of the final amount is days delayed. Testifying further PWl told the court that, the calculation of delayed days was done properly as such it was confirmed by the defendant under CR2 the only difference is on days from the day of payments by Johari Rotana and the day of collection in the Palm Green Ltd bank account. It was the testimony of PWl that, the force majeure situation has been defined by Tanzania laws and the same was stipulated by the parties under paragraph (viii) of the service contract but PWl was quick to point out that it is not applicable in the situation on hand because defendant never notified plaintiff within three days and that the situation has not been confirmed by the Tanzanian authorities. PWl testified further that, upon the defendant failed to perform its obligations under the contract on due date, the plaintiff thoroughly made friendly follow ups of aforesaid dues by writing several demand notices including multiple invitations to the meeting, both formal and mformal requesting the plaintiff to settle the amount accrues but in vain. On the basis of above testimony, PWl prayed that this court be pleased to enter judgment and decree against defendant as prayed in the plaint. 6 In proof of the above facts, PWl tendered in evidence the following exhibits, namely: - i. Two contracts between parties dated 28/11/2018 and 27/11/2019 respectively as exhibit Pla-b; ii. Balance details for CRJE Estate Limited as exhibit P2; iii. Demand notice dated 15.10.2021as exhibit P3; iv. Letter for invitation of a meeting dated 8/11/2021 as exhibit P4. Under cross-examination by Ms. Mwingi advocate, PWl told the court that, they have Transport Company transporting tourists, business people and staffs of companies. PWl told the court that, according to contract, they offered online booking system in their reception whereby all points are determined from there. For the second contract they agreed to transport all defendant's employees all over in Dar es Salaam to their headquarters. PWl when cross examined told the court that, they were working under their instructions and vary according to the order given by defendant. PWl when pressed with questions told the court that they suspended operation and the last invoice was on 6/5/2020. PWl when pressed with more question told the court that, all services were rendered before notice of suspension of operation and notice of force 7 majeure but the notice was for suspension of operation. PWl when asked on the volume of work he was quick to point out that the volume of business decreased but the defendant never invoked force majeure clause. PWl when further questioned told the court that they sent several email, physical visit and written demands. PWl admitted that principal amount was paid in full but on penalties they only received promise which was not fulfilled at all. PWl when asked on payments told the court that they sent 5 invoices from March to May 2020 but the last payment was October, 2021. PWI when asked to read exhibit pla-b identified particularly paragraph 4.5 of 2019 and paragraph 4.5 of 2018 read it and told the court that, the clause says the plaintiff is entitled to 1% of the amount not paid in time. However, he pointed that their claim is on penalties. Under re-examination by Mr. Mchaki, learned advocate, PWl told the court that, they signed a contract after meeting the person concerned and clause 4.5 was not objected means that is what parties' agreed because there is no any invocation which was done on force majeure at all. According to PWl, the purpose of penalty in commercial contract is to protect the suppliers from non-performing party at the detriment of another party. 8 PWl when asked on tax told the court that VAT and corporate tax was paid but they were not paid back as they were looking for long fine relationship and not penalties. PWl when questioned further admitted that they were forced to behave as they did because defendant never paid penalties as agreed.PWl when pressed with questions told the court that, Covid-19 in Tanzania was different from other countries as a such government never closed any business. PWl when asked on penalties told the court that penalties were calculated based on number of days delayed from paying the principal sum. This marked the end of hearing of plaintiff case and same was marked closed. In defence, the defendant was defended by two witnesses, the first one was, MINGYING ZENG (to be referred in these proceedings as "DWl"). DWl under affirmation and through her witness statement adopted in these proceedings as her testimony in chief told the court that, she is the owner's representative of CRJE Estate Limited (Johari Rotana Hotel), hence aware of plaintiff's claims in the suit. DWl went on to tell the court that, as Investment Director her role, among others, is to act as a coordinator 9 between the owner of Johari Rotana and Johari team and her main role is to receive, review and sent proposals for funds. It was the testimony of DWl that, on 28th November, 2018 and 27th November, 2019 the defendant and plaintiff entered into contract number 26 and 25 respectively for the purpose of providing transport services to defendant's clients and luggage within the city of Dar es Salaam. It was further testimony of DWl that, Johari Rotana Hotel was in operational until the outbreak of the pandemic Covid-19, which forced the defendant to temporarily close the hotel for healthy and safety reasons and as a precaution to contain the pandemic. DWl went on testifying that the defendant on 3rd April, 2020 through the social media platform of Facebook, Twitter and Instagram made public announcement on closure of Johari Rotana Hotel. Not only that but also DWl went on to inform the court that several government authorities which regulate the operational of the hotels namely; Tanzania Revenue Authority, Tanzania Bureau of Standards, National Social Security Funds and Workers compensation Fund were equally notified. It was further testimony of DWl that, at the closure of the hotel, the unpaid invoice was from March to May 2020 of which the defendant to the 10 best of its ability ensured that all outstanding dues are partly paid although there was delay in payments but defendant was fulfilling its obligation. DWl went on telling the court that, despite of trying to make part of payments and settle the invoices, they were shocked that plaintiff was not satisfied by the pace they were taking to make payments as a such on 14th September,2021 they receiyed a demand notice demanding them to pay a balance of USD.21,308.58 within 14 days from the date of the notice and the same on 12th October, 2021 defendant managed to deposit TZS.49,009,916.00 in plaintiff account operated by Ecobank Tanzania Limited which was equivalent to USD 21,308.53, the amount plaintiff claimed in the demand notice. DWl went on to testify that, three days after payments of the outstanding, the plaintiff through their legal representative sent the defendant another demand notice demanding for payments of TZS.407,521,456.62 as penalties for delay of payments. It was further testimony of DWl that, throughout their communications with the plaintiff and all the demand notices received from the plaintiff's legal representatives, the plaintiff never raised the claims of the penalty or interest for the delay payments. DWl went on to tell the court that the claims made by the plaintiff were for the principal debt only and after they managed to finally settle it, the plaintiff saw it as an opportunity to claim an amount that is way beyond the principal debt and unreasonable. According to DWl, they honored the obligations in contract No.26 and out of good faith they communicated through their lawyer that they were willing to pay Tanzanian Shillings Ten Million (TZS 10,000,000) only to the plaintiff as compensation for the delayed payment, along with the guarantee of two years contract of service once the hotel resumes its operations, but the plaintiff through his lawyer refused his offer. On the foregoing reasons, DWl prayed and urged this court to dismiss the instant suit with costs. In disproof of the plaintiff claims, DWl tendered the following exhibits, namely: - i. 5 letters to Government authorities for close of defendant's business are collectively admitted as exhibit Dla-e; ii. Latter dated 20.10.2022 reply to demand notice is admitted as exhibit D2; iii. Final demand notice is admitted as exhibit D3. J 12 Under cross examination by Mr. Mchaki, DWl told the court that she joined the defendant in 2013 as the Director of Finance of CRJE Estate Limited (Johari Rotana Hotel) and it was not in her knowledge that there exist contract between parties until they received a demand notice. DWl when pressed with question went on telling the court that, the Hotel Manager and Finance Officer are the one who signed the contract as a such she is not aware with another contract. DWl when shown exhibit D3 identified it and admitted to be aware of the exhibit and also, he admitted is aware of the delayed days in exhibit D3.DW1 went on telling the court that, the final demand notice was claiming principal sum and not penalties, however, the delays days were mentioned. DWl when pressed into more questions told the court that, CRJE was the one who financed the operation and even the decision to pay the principal sum was from the CRJE. DWl when cross examined pointed out that there was force majeure event which made them^to close the hotel though they were not forced but the circumstances were of those effects because at that time Covid-19 was more serious. DWl when asked on force majeure he admitted that, it's true they did not invoke the force majeure clause but they explained to plaintiff that they were pushing to nowhere. According to DWl, in business 13 by then everyone got affected by Covid-19, therefore, the decision was necessary for circumstance they had. DWl when pressed with more question admitted that, they wanted to settle amicably because they were not ready to be asked for 4 million but they offered 1 Million and plaintiff refused the offer while at that time the money was not yet paid which was breach of the contract. Under re-examination by Ms. Mwingi, learned advocate, DWl when shown exhibit Pla-b identified it and told the court that, Hotel manager signed the contract and all defendant's clients were notified on the closure of the hotel. DWl when asked on the plaintiff claim, he admitted to have received demand notice demanding for payments of principal sum and they paid the remaining balance after receiving demand notice. DWl when asked further with questions she told the court that, they closed the hotel due to Covid- 19 and plaintiff was notified on the closure of the business. The second witness was one KRISHNANKUTTY MAVATH (to be referred in these proceedings as 'DW2"). DW2 under affirmation and through the witness statement adopted in these proceedings as his testimony m chief told the court that, he is testifying in the capacity as the Director of Finance of CRJE Estate Limited (Johari Rotana Hotel) and hence conversant 14 with the suit. DW2 went on telling the court that, being a director of finance, his role is to ensure that all revenues are collected in timely, all payments are done in timely basis, filling monthly and annual return, recording and maintaining books of accounts and approving all the payments on behalf of the defendant. It was the testimony of DW2 that, defendant lunched Johari in 20th November, 2019 by investing therein the total amount of USD. 150,000,000.00 hoping to gain its investment and generate more income. Further testimony of the DW2 was that, defendant's clients come from different places so there was the need to ensure transport services are covered for. Following the need of transportation services defendant entered into contract No 26 dated 28th November, 2018 for providing transport services to defendant's clients and luggage within the city of Dar es Salaam and contract No 25 for the purpose of transporting employees of the defendant within the city of Dar es salaam. DW2 testified that, at beginning the business relationship with the plaintiff was smooth and they tried their best to settle the bills or invoices issued by plaintiff for all the transport services consumed by their clients timely. DWl pointed that his work and Mr. Joerg Potreck, the General Manager of Johari । 15 Rotana Hotel was to approve transfer of fund to plaintiff bank account operated by Stanbic Bank Tanzania Limited. DW2 further testimony was that, the hotel continued to operate swiftly until the turn of events when the whole world was hit by the outbreak of Covid-19 pandemic. According to DW2, countries started to enforce mandatory lockdowns and social distancing acts which affected Rotana business and the same were forced to close the business for healthy and safety reasons not only that but also there was no tourist coming into the country due airspace closure across the world, and Tanzania, inclusive. Testifying further DW2 told the court that, following the outbreak of Covid 19 defendant on 3rd April, 2020 issued a public announcement of closure of the Hotel in defendant's social media platform on Facebook, Twitter and Instagram accounts more so he went further by notifying government authorities of temporary closure of their Hotel. DW2 further testimony was that, the defendant struggled to make payments to the remaining invoices issued by the plaintiff because the Hotel was not in operational and there was no income generated. DW2 told the court that despite the defendant's financial constraints, he managed to make part payments of the principal amount although the payments were delayed but the defendant insured 16 that it was fulfilling its obligation as per the Contract No. 25 and Contract No. 26 by making deposits. The rest of testimony of DW2 was more similar of that of DWl on demand notice for payments of principal amount of TZS.49,009,916.00, the claim for payments of penalties and the desire to settle the matter amicably.On the foregoing reasons, DWl prayed and urged this court to dismiss the instant suit with costs. In disproof of the plaintiff claims, DW2 tendered the following exhibits, namely: - i. An affidavit authenticating electronic communication and Rotana announcement on social media channels are admitted as exhibit D4(i)-(ii); ii. An affidavit authenticating Computer generated invoice and settlement details admitted as exhibit D5(i)-(ii); iii. An affidavit and payments done through the bank admitted as exhibit D6 (i)-(ii). Under cross examination by Mr. Mchaki, DW2 told the Court that, he a Director of Finance of Rotana Hotel. DW2 when shown exhibit P1 and P2 17 identified them and admitted to have the knowledge of exhibit P1 and P2 because he signed them and signed exhibit P2 alone. DW2 when pressed into questions told the court that, the contract was signed in hurry, however, he is aware of the terms and conditions as he read them before signing. DW2 when asked to read section 4 of exhibit P1 and exhibit P2 replied that he knew the penalties at 1% for each day of delay.DW2 into further cross examination told the court that it was agreed that the bills shall be paid within 30 working days after receipt of invoice. DW2 when pressed with more questions told the court that no proposal was made to change, we signed we were not forced to sign but it was an oversight on their part. DW2 when asked for reasons for closure of the hotel, DW2 told the court that, they were obstructed from force majeure of Covid-19 and they closed the hotel which is owned by CRJE Estate Ltd. DW2 went on telling the court that, the USD 150 Million was for opening and operation of the hotel, however, he was quick to point out that, it was from construction of hotel and operation for two months. DW2 went further to tell the court that transport services were part of operations and they received money from their clients but they did not pay the invoices accordingly. DW2 when 18 pressed with question admitted that, he was aware of penalty clause but failure to make payments it was not intentional. DW2 when shown exhibit D (i)-(ii) identified it and told the court that, penalty was calculated which is Tshs.407, 696, 540.429 and he admitted that it was calculated as per the contract. DW2 when asked on the days delayed, he was quick to point out that delays happened because they were forced to close the hotel due to Covid-19 because the hotel was supposed to pay operational costs and the decision not to pay was of the management when hotel closed. DW2 went on telling the court that, during operation they generated income but the outstanding bill were not paid because they had several suppliers and were equally not paid in full.DW2 when pressed with more questions admitted that they never got an order to close but it was a management decision due to Covid-19 and they informed the clients on the decisions but not through the letter as in the contract.DW2 went on to tell the court that defendant settled the principal, however, they received another demand notice while on October 2021 they cleared all the outstanding and there was no claim on penalties.DW2 when pressed with more questions told the court that they are not allowed to sell hotel 19 properties to pay debt.DWl insisted that the delay happened after the closure of the hotel. Under re-examination by Ms. Mwingi, DW2 when shown exhibit D5 (i)-(ii) identified it and told the court that, the exhibit shows the outstanding amount and payments made to clients. DW2 when asked for more questions told the court that, they communicated through emails and they stopped the operations and started to look for money for payments of the outstanding. DW2 insisted further that it was the management who decide to close the hotel due to Covid-19 and they paid principal claims, however, penalties were claimed later while before claim was for principal. DW2 when shown exhibit D3 identified it and told the court that, principal amount was claimed but interest was claimed later.DWl when asked on USD.150 Million told the court that it was for building and operate for two months. DW2 when pressed to more questions told the court that their customers were from outside that is why they decide to close the hotel because no tourists were coming. This marked the end of defence case and same was marked closed. The learned advocates for parties prayed under Rule 66(1) to file closing submissions, which prayer I granted. I have had time to go through the 20 rivalling submissions, and I commend them for their industrious input on the suit. I will not produce them in verbatim but I will consider them along while answering the issues framed and where necessary will refer to them and where I will not it suffices to say same are accorded the weight they deserve. Having summarized the evidence by both parties and having read the final submissions by the rivaling learned advocates for parties, the noble task of this court now is to determine the merits and demerits of the suit. However, it should be noted that, in this suit, there are some facts which are not in dispute between parties and which will assist this court to do justice. These are; One, there is no dispute that plaintiff and defendant entered into two contracts namely contract No. 26 for the purpose of providing transportation services to defendant's clients dated 28th November, 2018 and contract No. 25 for the purpose of providing service to defendant's employees dated 27th November, 2019. Two, there is no dispute as well that, that the defendant delayed in payments of the principal sum. Three, it is not disputed that the defendant hotel was closed due to the impact of Covid-19 pandemic. However, in the circumstances, what is in serious dispute between the parties here is the 21 breach of clause 4.6 of service contract No. 26 and clause 4.5 of service contract No. 25 for payment of penalties for late payment of principle sum. That being in mind, is high time to answer the issues now. The first issue was couched that "whether there is breach of contract by the defendant in clause 4.5 and clause 4.6 in contract No. 25 and No. 26 respectively"? The learned counsel for the defendant strongly submitted that the delay in performance of its obligation to pay pending claims was due to force majeure by the event of Covid-19 pandemic which affected defendant business worldwide. On the other hand, the learned counsel for plaintiff has submitted that, defendant has breached the service contract for delay in payments of the service performed in due date and therefore defendant cannot shelter on force majeure because they did not invoke and never notified the plaintiff within three days as per their agreement. It is settled legal position that breach of contract occurs when one party in a binding agreement fails to perform its obligations according to the terms and conditions of the contract unless otherwise excused by lawful cause.The provision of section 37 of the Law of Contract Act [Cap 345 R., E 2019] are up the point. For easy reference I produce it hereunder: 22 Section 37(1) the parties to a contract must perform their respective promises, unless such performance is dispensed with or excused under the provision of this Act or of anv other laws. (Emphasis mine). Guided by the above legal stance, the next question asked by this court is; was there any such failure on the part of the defendant and was there an excuse under the circumstances of this suit? Having gone through the pleadings, the respective testimonies of the parties and final closing submissions and traversed the exhibits tendered for and against, I am satisfied that in the circumstances of this suit, defendant breached the clause 4.5 and 4.6 of service contract respectively but for reason of force majeure advanced, in my view, was excused not to pay the penalties with all fairness. I am taking the above stance on the following reasons; One, the contents of exhibit Pl, Exhibit P2 and DW2 admission on the witness statement under paragraph 11 and during cross examination that the amount due was not paid within stipulated time frame the act which amount to breach of contract, as a matter of principle but the obligation to honour was as rightly testified by DWl and DW2 was excused and/or can be excused by the outbreak by covid-19 pandemic that hit the whole worid. It is unfortunate, that the plaintiff wanted notice of Covid-19 pandemic which was more than obvious and which she was aware with. Two, the defendant's conduct in this suit by paying the principal sum, a fact admitted by the plaintiff despite the economic hardship caused by Covid- 19, it will be unjust to order her to pay for penalties which were not caused by her negligence or bad motive but by reasons beyond her control which amount to force majeoure. Three, defendants did invoke the force majeure by notice which was put into their website and social media which was not disputed at all by the plaintiff. In the totality of the above, reasons I am to conclude that, despite there being breach of contract by the defendant in clause 4.5 and clause 4.6 in contract No. 25 and No. 26 respectively but same was excused by what befallen the world and no court of law cannot close its eyes and say the none of the parties was not aware of the pandemic. The world at large was at notice of the force majeure and no letter was required in the circumstances. In my considered opinion, the defendant did her best in the way she conducted herself. 24 The arguments of the plaintiff and their learned counsel is not supported by the reality and applying blindly the provisions of clauses 4.5 and 4.6 of the contract to the obvious of the existence of the pandemic will not carry a day on their part and cannot help them now. In the circumstances, they utterly failed to convince this court that the non-payment of interest was not attributed to the pandemic and their argument that no notice was given, who needed notice while the effect of the pandemic were by themselves a notice to the world at large, Tanzania inclusive. This takes me to second issue which was couched that 'whether the penalty interest of 1% per day for delayed payments of the invoices under dause 4.6 of the contract No. 26 and clause 4.5 of the contract No. 25 is reasonable and enforced by courts? The learned counsel for plaintiff submitted that penalties requested by the plaintiff are in accordance with clause 4.5 and 4.6 of the service contract respectively which may exceed the value of the service as such does not contravene Tanzania law. On the other hand, the learned counsel for defendant strongly submitted that, penalty of 1% each day of delay is 25 harsh, unfair and unreasonable and urged the court not to enforce for interest of justice to both parties. Given my findings in issue number one, on the same reasons, this issue becomes obsolete. Yes, the claim may be reasonable but unenforceable by reason of force majeure on the part of the defendant. What was on the ground by 2020, in my considered opinion, is not a lay excuse but was serious situation that everyone witnessed the down fall of business and close of operations and the defendant was equally a victim of Covid- 19 so excused from payment of the same. This takes me to the third issue which was couched thus, 'whether the plaintiff is entitled to claim a penalty amount, exceeding the principal debt?'This issue will not detain this court much based on reasons I gave when dealing with the issues No. 1 and 2 in this suit. Indeed allowing the plaintiff to benefit the clause interest in the given situation will be more harsh to the defendant than ordering otherwise. This takes me to the next issue which was couched that 'whether the contract was fair to both parties?' This issue will not detain me much because the contract was fair if the playing grounds remained the same when signed but once the circumstances changed fairness can be gauged in 26 those circumstances. In this case, in my own view, the contract was fair to both parties until when it was affected by the Covid -19 pandemic. The last issue is 'what relief parties are entitled to?' The plaintiff urged this court to allow this suit as prayed in the plaint with costs. On the other hand the defendant prayed that this suit be dismissed with costs. Given my findings in issues above, this suit cannot be allowed as prayed. However, on the other part, the defendant prayed this court be pleased to dismiss the suit with costs. I am constrained to dismiss this suit but with no order as to costs because both parties became victims of Covid-19 pandemic and were equally affected both in the contract and the consequences thereof. More so in the circumstances of this suit costs will not benefit any but denial to grant may give parties a second chance to think of going into new business relationship. It is so ordered. 27