petrolube t limited vs tanzania international containers terminal services ltd 2021 tzhccomd 3420 23 november 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT DAR-ES-SALAAM COMMERCIAL CASE NO.24 OF 2020 PETROLUBE (T) LIMITED.................................... PLAINTIFF VERSUS TANZANIA INTERNATIONAL CONTAINERS^ TERMINAL SERVICES LTD................ o..... ./^DEFENDANT Last Order: 0&" Sept. 2021 Judgement: 2Sa Nov. 2021 JUDGEMENT NANGELA, J.: In his suit^he\P^intiffSsspraVing i decree againstkthe Dfefehdant'as7 follows: 1. A ideclaratlon that the Defendant . ^breached> the terms of the ^agreement between her and the / Plaintiff by failure to render ^services as agreed in the agreement. 2. An order that the Defendant pay the Plaintiff a total of USD ($) 45,033.00, being the outstanding principal amount. 3. An order that the Defendant pay interest at the contractual rate of Page 1 of 29 10.42% compounded monthly, together with VAT hereon, for the 16th day of September 2015 to the date of the judgement. 4. An order that the Defendant pay general damages. 5. An order that the Defendant pay interest on the decretal amount at the court rate of 12% per annum from the date of judgement teethe date of full satisfaction. 6. An order for costs. \\ 7. Interest on costs?fromxthe d te of XXXXX \\ judgment un^fulkpaymenfeX^ 8. Any ^other1 orde^x^r^lief as the Hondurable/C^urt may^ find just to grant To ap^FS^iate^the "gist-df the dispute between the parties“I^w^set^ou^ of this case as they may be gathered^i^\t^p|eadings, albeit briefly. Onx9*h August 2015, the Plaintiff, who is said to have been the^Befendant's I client at all material times did, placed an order and imported from the GS Cartex Corporation, a Company based in South Korea, Base OH KixxLUBO 15ON, numbering 350,636 litres in total and weighing 299.05 MTs. The supplier, GS Cartex Corporation, issued the Plaintiff with a Commercial Invoice No.201508090J, dated 9th August 2015 and, the cargo was Page 2 of 29 safely transported to the Dar-Es-Salaam Port without any damages whatsoever. Upon arrival of the cargo at Dar-es-Salaam Port, the Defendant cleared it from the Shipping line, Hanjin Shipping Co. Ltd. The Plaintiff alleges that, under an implied term of their agreement, all stripped containers were to be kept at the Defendant's warehouse. The Plaintiff alleges further, that, as a matterof commercial practice, and per the expressed termssandscondition, the cargo was to be offloaded fro^t^X^^PinS^^ and managed with the correct skills, efficienKydrkranship and \\ tools, and without negligenqe/so^s^to^pi^serve it in good condition without an^ddmages'wnatsoever. On 16th S^rtember<^l^wi§ Plaintiff was informed by one clearing agerit^S^MI/Agencies Ltd, that, one container beahngLNumber TRHU 3007409 on the Bill of Ladin^^L)\No?HJSCSEL585794400, was severely damaged, when the cargo was being offloaded by the <\ 11 H, DefendanKonyl4 September, 2015. As a result, the ^****'i4fc***»w*** Plaintiff alleges to have suffered loss as the cargo was of no commercial value anymore. Subsequently, the Plaintiff served the Defendant with a demand claiming to be paid a total of US$ 45,033.00. The demand was, nevertheless, not honoured. On 28th November 2019, the Plaintiff, through its attorneys, Hallmark Attorneys, issued the Defendant with a Page 3 of 29 final demand note asking to be paid a total of US$ 60,003.00 (being the value of the damaged cargo (US$ 45,033.00), collection fees paid thereof (US$ 5,000.00) and specific damages on account of loss of the Client's cargo (US$ 10,000.00). It was the Plaintiff's averments that, although the Defendant had asked for a thirty days' period, as the claim was being handled by its insurers, th^oeriod sought expired without amicable settlementpand, nence, this suit. On 20th April, 2020, the Defend^t^led^ay^itten Statement of Defence (WSD^as^req^rea^y the law. Initially there werW^aised'^pieHijvhary objections which were overruleckby thisXpurt\When this suit came I( ytX ''' for a final pre-trial \conference, on the 18th day of May \\ \\ 2021, it was^GheduledxorJhearing, and the following were matters agreed 'iby botlr parties as forming the issues in need^oFbrdof:'\\7^^> \\ G) Whether there was an agreement \\ \? XV between the parties and if so, what ""“were the terms and conditions of that agreement? (ii) Whether the alleged damage to the Plaintiff's cargo was caused by the acts or omission of the Defendant. (iii) What loss if any has been suffered by the Plaintiff in respect of the alleged damage to the cargo? Page 4 of 29 (iv) Whether the Plaintiff was insured for its alleged loss and, if so, the outcome of any insurance claim made by the Plaintiff for its loss. (v) toToprove/its (11) exhibits caseXSare the parties what reliefs) In his testimony, entitled. PW-l\testified that, sometimes on On 2015>.the^i?lairatiff-imported 9th August 14th July 2021, the hearing of this from Korea, case 350,636 of Ct Base Oil On' the material date, weighing 299.05 MT. The commenced. the Plaintiff enjoyed the services of<isafely.trahsported Cargo Mr Jovinson Kagirwa, Dar-es-Salaam while learne^advocate, to the Port. \V \\ XX the Defendant was Pw-rtanderedun represented Court an InvoiceMr Number Daudi andand Zacharia20150890J Ms Jasbir X k X Mankoo, learned its packirig^i|t>which Advocates. together Exhibits P.l and the formedAffithe^opening^of P.2 \\ X> the Plaintiff's case, respectively. He the tendered atvw^witnesses also Plainti^^led who Bill of Lading testified a Pw-1 and Pw^and^teni^yjn Court eleven NO.HJSCSEL5857944400 dated 09th Aug 2015. The same was admitted as Exh. P3. Pw-1 testified that, the Cargo was offloaded by the Defendant and it was express term and condition that the cargo was to be offloaded in good conditions without damages whatsoever. Pw-1 went on to state that, on 16th Page 5 of 29 September 2015, the Plaintiff was informed by her clearing and forwarding agent that one container Number TRHU 3007409 was damaged by the Defendant in the course of offloading it from the shipping line, causing leakage of oil from its flex tank, hence causing a total loss of USD ($) 45,033. He tendered in Court a picture of the damaged container as evidence and the same was received as Exh.P4. Pw-1 further testified that, the. facideqt and the loss/damages were communicated taxtihe^Defend^t on \X 29th September 2015. In hiSsiestimonw/however, Pw-1 acknowledged that, the^pai^es^haa^ra^direct written agreement but, assertea thatxtnesDefendant was liable based on the^jiature <pf\?busiQess operated by the Defendant.^Pw-1 testified,.that^ the relationship between the two parties) Jwas'regulated by the Defendant's Terms of Bu^fitss^ttiblis^dion 1st of July 2011. He tendered a copy'as Exh.PSk^^ IrbthaCregard, Pw-1 relied on Section D Clause 12 and 13, section B-Clause 13 and section 16- clause (a) and (d) of Exh.P5 to justify that the Defendant was in breach and, hence, liable to remedy the losses suffered. It was further testimony of Pw-1 that, despite asking for compensation from the Defendant for the losses suffered, the Defendant failed to act in line with what Exh.P5 provides. Pw-1 tendered in Court two demand letters which Page 6 of 29 were received as Exh.P-6 and P-7, as well as a letter from the Respondent in reply to the demand for payment of USD($) 43,033.00, which letter was admitted as Exh.P-8. Upon being cross-examined, Pw-1 stated that, the claim is a result of negligence and that the Plaintiff did not have a written contract with the Defendant but the Terms of Business regulated the conduct of the parties. Pw-1 was emphatic that the Terms of Business was'^e basis for the parties' agreement. He referred to Section D'Clause 12 and \\ /\ 13 of Exh.PS stating that, the terms of business^biria the parties and that, the Plaintiff-is.a consigneeZPvw admitted that there is limitation Qif liability^nder^Clause 16 of Exh.P5. xC\s^ For his part, Pw^^n^Mr^mirali Kara, testified to this Court^thatZtheX^laintiff)was insured by Alliance Insurance^CorporatiorNbtd at the time when an incident invoMrig^container NO.JRHU3007409 took place. \He stated tnat, it was sometime on September 2015 when he^vasJequested to visit the site to assess damage to the respective container which got accident at TICTS premises. Pw-2 testified further that, the insurer appointed Transeuropa Tanzania Ltd Insurance Surveyors and Loss Adjusters to investigate about the matter. Pw-2 tendered letter from Alliance Insurance Corporation Ltd, the Plaintiff's insurer regarding appointment. The letter was received in Court and was marked as Exh.P-9. Page 7 of 29 Besides, Pw-2 tendered a joint inspection report by Transeuropa Tanzania Ltd, involving the Defendant's officials, TRA, the C & F Agent as well as the Plaintiff, dated 21st September 2015, which was received as Exh.PlO. The exhibit PIO proved that the value of the goods assessed was USD ($) 14,324. Pw-2 stated that, the report had established a total leakage of the oils from the flex tank with nothing to salvage. Pw-2 testified further that, <onsthe\22nd day of February 2016, the insurer receive^a^letterNfrom the \\ XXZ/Ss" Plaintiff about the latter's action of\withdrawing the claim \\ from the insurer and,<\iQstea(^direGtly> claiming for compensation from thze^befendanb\Fhe letter was received as Exh. P. 11. Upon,beingi ci^ss^xg^iined, Pw-2 confirmed to the Court thatX^he^cpnsignee's representatives together with TICTS^TDefendaqt^officials) were present when the inspection ofXthe^damage to the container was being carried outJ^told this Court, while being cross-examined, that, although the Plaintiff did not state the reasons of withdrawal of the claim from the insurer, the Plaintiff was incurring a lot more expenses such as demurrage and storage fees than what was claimed as value of the goods, hence, the decision to withdraw the claims. So far, that is what may be summarised from the testimony of the Plaintiff's witness and the Plaintiff's case Page 8 of 29 came to a closure paving way for the defence case to open. As for the Defendant's case, the Defendant called one witness, Dw-1, (Mr Leonard Chiwango). Dw-1 tendered three exhibits (Exh.D-1 to D3). In his testimony in chief, he denied to have entered into a contract with the Plaintiff, be it oral or written. Dw-1 told this Court that, as a matter of practice, whenever an accident occurs leading to damage to a particular containeror cargo, and upon \vX XX /> notice by the C & F Agent or the.customer^the'Defendant will inform the Tanzania RevenueXAuthority (TRA) and jointly (TICTS, TRA and^th^^&^^Agent and/or the Customer) would verify theXmattei^on a fixed day and ascertain the damage, causd^during the offloading of the container and-albparties-sSign^a verification form having verified the extent of th&damages and or losses if any. \ V X> / .Dw^Extated that>in the absence of the verification of the coqtainer(s) damaged and the signing by all parties involved^the-customer cannot be entitled to any damages or be paid losses caused by TICTS. Dw-1 stated that, the Defendant (TICTS) had never taken part in any process of verification of Plaintiff's container involved in the 14th September 2015 incident, when the same was being offloaded. Dw-1 stated, however, that, the Plaintiff's containers were under the container yard to container yard, (CY/CY - Page 9 of 29 House to House) in which the Plaintiff's containers were insured from the premises to the seller or manufacturer to the customer point of destination. During cross-examination, Dw-1 told this Court that, he was well aware of the claims by the Plaintiff, the demand letters and, the fact that, on the month of September 2015 there was an accident involving one of the Defendant's machines and the Plaintiff^container. He stated, however, that, since he joined^the Defendant as an employee in the year 2016 the Plaintifbwa^silent^gyer the matter. \\ \ / Dw-1 stressed that^at the^bmetoKthe accident the Defendant would hayepaialhelPlaintiff for the losses if substantiated, but,\by npw^^thatj cannot be done. He maintained zthatthe 'Plaintiff failed to substantiate the claims and'cleclined to\have received Exh.P 10. However, he acknbwledgedtfiat> there have been incidents where the De^endantypaid> customers for similar incident as the one claim^cLby^the Plaintiff. Dw-1 stated further on cross-examination that, under Exh.P5 the Plaintiff is a consignee or client but the Defendant deals directly with the Shipping lines or the C & F Agents as per the terms under Exh.P5. He maintained that, the Terms of Business (Exh.P5) do not apply to the Plaintiff as the Defendant has no contract with the Plaintiff. He stated further that, where a customer's cargo is Page 10 of 29 damaged, the Defendant informs the Shipping line to inform the customer or client and establish the extent of the damage and, it is the customer who gets paid for the cargo damaged. Dw-1 acknowledged that, in this case there was a cargo which was damaged by the Defendant and, the Defendant notified the insurer. On further cross-examination by Mr Kagirwa, Dw-1 told this Court that, under Clause 16 (a) o~f\Exh.P5, there is a limit of liability on the part of the Defendant-end, further that, the Plaintiff is covered under th^tlause?\tater he, however, reiterated that the'-Rlaindf^was^not covered by the terms of business becai^the"PIajntiff nad no contract with the Defendant/as'the latter'ka^a contract with the C&F Agent and the Shippiijg^ineonly \\ Vi Dw-l/told the^oiMJurther that, in case of an accident, ashong as iris^roved that the Defendant caused y-—V and .damaged goods belonging to the client, the Defendant will beJiable to\pay-for the loss. He stated, however, that, the claim^byJhe Plaintiff was time-barred. When this Court sought clarification regarding the accident which affected the Plaintiff's goods, Dw-1 confirmed the following, that: • there was such accident, the damaged container belonged to the shipping line and the cargo belonged to the Plaintiff, Page 11 of 29 • the cargo was damaged, it was the Defendant's machines which caused the accident and the damage/loss, and, that, • the Plaintiff was not compensated for failure to substantiate the damage with documentation, . in particular a verification form. Dw-1 told this Court that, the requisite verification exercise could as well be done by the Defendant herself and the Defendant will pay on the basis oftine.damage so far assessed. On being re-examined byWr^acnana/Dw-1 stated that, the Plaintiff failed to substantiate the claim as she ought to have submitted^all^vita^oocuments proving their claim to the Defendantx^ies^were the verification form issued by <tte Defendantxwhich was to be signed by all parties lnvoly^,\^^welL^ documents regarding the value of the^c^go^^x^ infirme5?'hbwever, that, the Defendant had all e documents concerning the cargo they handled from the shippingxline/,lie further confirmed that, the Plaintiff brought a claim to the attention of the Defendant and that, under Clause 16(a) of Exh.P5; the Plaintiff could be paid but must substantiate the claims. He, however, qualified his statement further by stating that, the Defendant does not engage with the Client directly but through the Shipping line or the C& F Agent who in turn can deal with the Client. Page 12 of 29 As for the reasons why the Defendant notified the insurer about the incident, Dw-1 told this Court during re­ examination that, they did so as per Exh.P5 because, the insurer ought to have been informed within 24 hours of the incident, and that, the insurer was to appoint an assessor who should have been part of the inspection team, should the client elected that an inspection be carried out. When further asked by the Court regarding whether XX the Plaintiff was covered under Clause 16 of Exh.P5, X\ /> Dw-1 responded that, the Plaintiffwas^ndirectly^gjvered. However, he maintained that^if^t^^ppi^li^or the C& F Agents takes no action,Qhe Plaintiff^h^bt since she has no contract with tlie DefendantXHowever, Dw-1 did ( A\\\> acknowledge tfiat itywaszthe^ Defendant who was the handler oHhe^^o^o^the^shipping line to its storage area before^eC& F Agents comes in. ^DW^also^^ffirmed his admission that it was the Defendant whio caused the damage to the Plaintiff's contair^but^declined that the Defendant should shoulder the liability as she has no agreement with the Plaintiff. He also reaffirmed that, where the shipping line and the C& F are not interested to bring a claim, the Plaintiff could still bring it and, that; the verification form, which the Plaintiff was to submit to the Defendant, is issued by the Defendant. Page 13 of 29 However, upon being further asked by this Court, Dw-1 told the Court that, in this particular incident there was no verification form issued to the Plaintiff by the Defendant, no inspection team formed, and that, it was the Defendant who was to initiate meeting to compose the inspection team. That, in a nutshell, was the defence case. As both the Plaintiff's and the Defendant's cases came to the closure, the learned advocatesTor both parties prayed to file closing submissions, a prayer which I granted I zx party who alleges^as^to th^exfctence of a particular fact or facts. This evidential bbrdenZs embodied in our law of Evidence Act, Cap.6 R.E 2019, specifically under section 110 ^^^nd^(2).<^:firmly stated by the Court of Appeal in the ease of T^he Registered Trustees of Joy in the Harvest^JHamza K. Kasungura, Civil Appeal No. 149 of 2017, (unreported), that general concept is part of our jurisprudence. Concerning the standard of proof in civil cases, the applicable principle is that an alleged fact is to be proved on the balance of probability. The case of Manager, NBC Tarime vs. Enock M. Chacha [1993] TLR 228 is relevant and suffices to be cited here. Page 14 of 29 Moreover, under the law of contract it is a well acknowledged position that, parties to a contract are bound by its terms. See the case of Miriam Maro vs. Bank of Tanzania, Civil Appeal No.22/2017 (unreported), and the decision of this Court in the case of Yukos Enterprises E.A Ltd vs. Regional Administrative Secretary of Mwanza Region & Another (Revision No.06 of 2019) [2020] TZHC 162; (26 February 2020). In the present case at hand, the^laintilMias alleged that there was a contract between heXahd?thexDerendant and, that; the Defendant has~^re^hed\siich a> contract. The Defendant has denieQ^hat\fect<Fhe\fi^t issue agreed by all parties, therefore, 1s:x whether there was an agreement betwe^n-^e part/es'and if so, what were the terms and cenditons^tha£j^eement? Before^^direcdy^tackle the first issue, I find it apposfSzir^^x^w^that, a sound takeoff position would be to^respond\first?to the question: when would it be said that there'is.a‘>contract? As per the general principles of contract law, a contract will arise when one party makes an offer or proposal and the other party reciprocates that offer by an acceptance. Such acceptance strikes what in law is referred to as consensus ad idem and, section 10 of the Law of Contract, Act, Cap.345 R.E 2019, is all about that. It is also clear, according to section 7(a) and (b) of Cap.345 R.E Page 15 of 29 2019 that, acceptance must be an unequivocal acceptance. If an offeree adopts different mode of acceptance other than the one envisaged by the offeror, there will be no acceptance. See Hotel Travertine Ltd and 2 Others vs. National Bank of Commerce, [2006] TLR 133. The above scenario, however, is relevant for contracts which assume a bilateral nature as opposed to those which assumes unilateral nature. The latter type of contracts or agreements, are more onerous on. the part of W. Z> the offeror. Acceptance in such <Wnd ofxontracrmaybe in the nature of conduct of The^o/Tezee'dr^s by way of performing the terms o?^he^offet^An^example of a /whichZXmay Tie cited unilateral contract (( here is the celebrated English case of/Carrlill vs. Carbolic Smoke Ball (1892)zEWCAxGiy:l<where it was stated that, at some \\^----- ' time acceptancejcan be^by way of conduct. /piv^rtirigxt^he^suit hat hand and the first issue agreed by botmparties, it is worth noting, as I stated in my earlier ruling^on/the preliminary objection which was raised by the Defendant herein, that, if the Plaintiff is to succeed in her claim, proof regarding the existence of such a contract between the Plaintiff and the Defendant, and which the Plaintiff so far alleges to have been breached by the Defendant, must be provided. The question that follows, therefore, is whether the Plaintiff has been able to discharge that burden. Page 16 of 29 According to the testimony in chief of Pw-1 (Mr Yasin Bharadia), the parties had no direct written agreement. However, Pw-1 testified that, the business relations between the parties were regulated by the "Terms of Business" published by the Defendant, whose revised edition was of 1st July 2011. According to Pw-1, such Terms of Business were readily accessible from httDs://ticts.net/wDcontent/uDloads/2016Z03/TICTS terms of business. He tendered a copy of'such terms in Court, and the same was admitted without objectiQruas'Ex'h^PS. Ilk- • Upon being cross-examined by. the .learned counselI A \\ for the Defendant, Pw-1 didtecknowledgfethat, the Plaintiff does not have a /direct wri^kXagreement with the Defendant. However^the<^wMjelied on Section D, Clause 13 of Exh.p-5'Whic^rovid§s^iat: "Every contractual obligation entered ^td^itfrth^ Company shall, in so far as the'same are applicable, be governed by \ X> these Terms of Business and any —^ancillary conditions and provisions as in force for the time being. The Terms of Business set out herein are in force and applicable at the time of publication and the Company reserves the right without notice to alter such Terms from time to time and such amendment shall be immediately operative upon publication, which will be circulated to the Lines Page 17 of 29 and/or Operators by e-mail message, fax message or hand delivery" Pw-1 also referred on Clause 12 of D-Section of Exh.P5. That respective clause provides as here below, that: "The Company shall not be under any liability or responsibility whatsoever unless (but subject always to the other provisions of these Terms of Business and any Contract with the Company^Nt is established that the compandor its employees acting within the^scop^of' their duties, /have saGted \ with negligence." valuekof Exh.P5 irNas far as the business venture of the \\. \\ v Defendantjs^concerned vis-a-viz the Plaintiff as a Consignee ofthe container alleged to have been damaged by the Defendant? According to Exh.P5, the term "Company" refers to the Defendant (Tanzania International Container Terminal Services Limited)-, while a "Consignee" refers to any company or person(s) entitled to receive Container or Break-Bulk Cargo. A "Consignor" is referred to as any Page 18 of 29 company or person(s) who delivers Containers or Break- Bulk Cargo. Agreeably, even if the Plaintiff did not directly sign a contract with the Defendant, looking at Exh.P5 and the nature of the Defendant's business operations, and, taking into account the fact that under Exh.PS the Plaintiff is recognized as a consignee, I find that Exh.P5 is a central In essence, Exh.P5 is,,^n^m/-consid^red view, in the form of a unilateral contract. A's)kstated/earlier, under such kind of an agreement/one party, promises to perform (e.g., i_l jOk. ''O pay some money) after the occurrence of a specified act, XX \X XX and he is the only party with a contractual obligation. I hold that Exh.P^^^tha^ature because, much as there was no any-'bil.atera'k^reement signed by the parties, the Defendant d^Xbihd himself under Exh.P5 to perform certain obligations once certain conditions are fulfilled. In the case of Australian Woollen Mills Pty Ltd vs. The Commonwealth (1954) 92 CLR 424, the High Court of Australia held that, for a unilateral contract to arise, the promise must be made "in return for" the doing of the act. In this present suit, for instance, Clause 12 under section D {Conditions Applicable to AH Services Provided by Page 19 of 29 the Company of Exh.P.5, (cited herein above) creates a unilateral duty or obligation on the part of the Defendant to shoulder all liability or be responsible where it is established that, the Defendant or her employees acting within the scope of their duties, have acted with negligence. Once established that the Defendant acts were negligent acts then the Defendant cannot escape. In the course of his testimony and whjle under cross- examination, Dw-1 did admit, that,<^an^accident involving container Number TRHU 3007409Tx'(-Exh.P4)J/which belongs to the shipping line.did^octur, ancl^tha^he cargo it carried belonged to the^Haintiff Furthermore, Dvw told^tHs^^Court that, the cargo was damaged, and it'was^thevDefendant's machines which caused the^aceidenband^t^resultant damage/loss to the cargo. Dw-'i^W^pnflmi^ this Court that, the Plaintiff was not compensa^ed^r'tli'e loss. \Erom theytestimony of Dw-1, however, where a customerZs-cargo is damaged, the Defendant would inform the Shipping line to inform the customer about the damage and once the extent of the damage is established, it is the customer who gets paid for the cargo damaged. Dw-1 did not tell whether the Defendant ever took such steps. Instead, Dw-1 blamed the Plaintiff stating that, the reason why the Plaintiff was not paid was that, the Plaintiff was time-barred and, further, that did not substantiate his Page 20 of 29 claims. As I stated in my earlier ruling overruling the preliminary objections raised by the Defendant, the claims by the Plaintiff are not time barred as contended, but ever valid because they are not based on tort but on contract. It is also worth noting that, while under cross- examination, Dw-1, admitted that Clause 16 (d) of Section D of Exh.P5 covered the Plaintiff, albeit indirectly. He maintained, however, that, under that\Clause, if the shipping line or the C & F Agents-'takes noxaction, the Plaintiff cannot be paid for the k)ss\\sincexshe^nas no contract with the Defendant-Be tnabas it'may, as I stated here above, even if the PlBintiffxidicl'fipfcsign'.a contract, still Exh.P5 was sufficient/to be reli^dxi^on to establish that the Defendant had an oblfgatiorNtowards the Plaintiff the V) “ moment the—latter's '‘container got damaged and the 'xX —"S Plaintiff's cargo sufferedMoss. i ,During^cro^s-examination, Dw-1 did acknowledge that,wiere tfieXshipping line or the C& F are not interested to brin^^EU-cl^m, the Plaintiff could still bring one. He however stated that, the Plaintiff did not submit the requisite verification documents to substantiate her claims. Even so, when this Court asked Dw-1 regarding who should have issued such a verification form and compose the verification team, Dw-1 stated that, it was the Defendant. Page 21 of 29 In my view, if it was the Defendant and since Dw-1 acknowledged that, no verification form was issued to the Plaintiff by the Defendant, and since Dw-1 did also acknowledge that the Defendant had all necessary information regarding the Cargo, it does not enter into my mind why on earth should the Defendant heap all the blames on the Plaintiff. It means, therefore, the Defendant cannot refuse to discharge her obligation towards the Plaintiff on the ground that the latterfailed ^substantiate her claims. In fact, Exh.P 10 does-shows^^t^rewas a joint survey carried out on 18\\Sept\20’15^at the Defendant's premises regarding ^t^^nciderVand which involved the Defendant, one^D^sh^DIjahaJt (a Surveyor from Transeuropa-InsurancexSurveyors & loss adjusters), TRA, the C&F "Xge^lth^P^ntiff (Consignee), the Shipping agentAN^h^rexthe^Defendant disputed the evidence of Exh.RlO. \\ \> Immyj/iew, and taking into account Exh.P5 and what I have stated here above as gather from the testimonies of Pw-1, Pw-2 and Dw-1, I find, without a flicker of doubt, that, Exh.PS created a contractual obligation on the part of the Defendant towards the Plaintiff. In other words, Exh.P5 did create a unilateral contract and its applicable terms are in particular, Clauses 12, 13 and 16 (d) of Section D of Exh.P5. Page 22 of 29 Failure on the part of the Defendant to compensate the Plaintiff despite the fact that it was clearly known to the Defendant that the Plaintiff's container and cargo were damaged due to the Defendant's negligent handling of the same, amounted to breach of duty arising out of the obligations undertaken by the Defendant under Exh.P5. For such a reason, the first issue raised earlier here above is responded to in the affirmative. <\ Having disposed of the first issue, the\second issue As well examination, aneMaking whatxExh;P10 states, the damage to the Plaintiffisxcargo waszcaused by the Defendant. In fact, Exh.PlOXattests to^the fact that, the ship discharge tallyHiad^sh^eds^hat the container was discharged in apparently good condition, meaning that, the carrier had )J no handxin„its damaging but rather, the damage was sustained in the course of its handling by the Defendant. Moreover, there was also the evidence of Exh.P8, which was a letter from the Defendant to the lawyers representing the Plaintiff. In that letter, the Defendant acknowledged to have put her Insurers under instructions regarding the Plaintiff's claims and, for that matter, she requested for a 30 days extension of time within which her Page 23 of 29 Insurers were to report to her. As such, the second issue is responded to affirmatively as well. The third issue was: 'what loss if any has been suffered by the Plaintiff in respect of the alleged damage to the cargo?' There is no dispute that the Plaintiff suffered loss of the cargo. According to Exh.Pl and P2^he cargo was in total of 350,636 litres weighing 299.05\MT worth CFR USD ($) 217,211.50. However, from^^EkfeRlO/Sin^edb was only one container and its flexxank wljich'^got severely damaged and a leakage ensQd^th^arnobnt of oil leakage as per Exh.PIO was—a totaNof 19;920Kgs. Exh.P.10 reported a total lossmf bpth thexcontainer and its cargo. According to ExViiRW^ta^ed^n^the Invoice (Exh.Pl) the oil loss in <respect ohthgtontainer in question was valued \\ ) X\ at USDz($.) 14;468?69^(QFR Value) and an adjusted loss was (foundfo^be^D ($) 14,324.02. From the above, it is clear, tljiereforeJthat, the third issue is responded to in the affirmative?'—^ The fourth issue is: 'Whether the Plaintiff was insured for its alleged loss and, if so, the outcome of any insurance claim made by the Plaintiff for Its loss.' From the evidence of Pw-2 it was indeed true that as per Exh.P9 and Exh.PIO, the Plaintiff was insured. Page 24 of 29 However, according to Exh.Pll, the Plaintiff decided to withdraw the claim from her insurer and pursued the same directly with the Defendant. As such, there were no positive developments regarding the Plaintiff's loss. That fact disposes of the fourth issue as well. The final issue for determination as agreed by both parties is: "To what relief(s) are the parties entitled." From the four issues I have addressed here^above, it is clear that the Plaintiff^ has\been</able> on the preponderances of probabiliti^^o^di^harge. her burden of proving her case. ,As>sucn\the\Plaintiff and not the U \\ \\ Defendant, is entitled, to reliefs.n he issue now is what are <\ \\ the reliefs v^ic^th^laMffjs^e,ntitled to get? In HerPlaint, filed in“*this Court, the Plaintiff has prayedTor-theToIlbwing reliefs: xi'.\ A^'declaration that the Defendant j was in breach of the terms of the Agreement between her and the Plaintiff by failure to render services as agreed in the agreement. In my view, and as held herein above, the Defendant was indeed in breach of the obligation created under Exh.PS which would have entitled the Plaintiff to be compensated for the losses suffered owing to negligent act Page 25 of 29 of the Defendant in handling the Plaintiff's cargo when being offloaded from the Shipping line. I therefore grant that prayer though on a different reasoning other than the one held by the Plaintiff, which is based on there being a bilateral contract between the parties. 2. An order that the Defendant pay the Plaintiff the total of USD ($) 45,033.00, being the outstanding principal amount. \\ According to Pw-l's testimony^Qdithe^lai.nt, the amount of USD 45,033.00 S~lajmed\J^tte^Plaintiff constitute loss suffered as\^fe^c^rgo\vas substantially damaged and rendered^of'no^com^rcial) value. Pw-1 did compute such idsses zin^fii^Xestimony, including establishing the^^WtKeoilyhat leaked out of the flex tank followlngxhe accidentals such I would grant such NK ) L and make an>orderthat\the Defendant should pay to the /'/"XSA Plaintiff the daimed amount without failure. 3,j^n order that the Defendant pay 2^/interest at the contractual rate of 10.42% compounded monthly, together with VAT thereon, from the 16th September 2015 to the date of Judgement. Much as the Plaintiff has made such a prayer in the Plaint and Pw-1 reiterated it in his testimony, the Plaintiff Page 26 of 29 has not been able to provide any justification for this prayer. I thus decline the said prayer. 4. An order for payment of general damages. The position of the law concerning payment of general damages is that, such may be awarded for inconvenience caused by the Defendant and to be eligible for general damages the Plaintiff should have suffered loss or inconvenience to justify award of general-damages. In the cases of Saidi Kibwana^andxGeneral/Tyre E.A. Ltd vs Rose Jumbe [19931 iLRs/lT’S^as well as Tanzania-China FriendshipXTextile^Co. Ltd v Our Lady of Usambara^SiSt^\[2006]'TLK 70, it was held that a Plaintiff will ibe ^eptitledx^o a claim of general damages if he naSsdainjed ibih the pleadings and must leave it foRthe Court to^quantify it. /IrPthis pre^nbsut? it is true that the Plaintiff has (7 X\X\ pleaded for payment of general damages and has suffered loss, ^erej^i'io quantum of general damages pleaded and, that is appropriate given that, measurement of the quantum of damages is a matter for the discretion of the individual judge which of course has to be exercised judiciously (see the case of Tanzania-China Friendship Textile Co. Ltd (supra) and Southern Engineering Company Ltd Vs Muiia [1986-1989] EA 541]. Page 27 of 29 In this suit, the evidence on record does indicate that the Plaintiff clearly suffered loss and inconvenience as a result of the Defendant's conduct. It is also on record that, the loss suffered by the Plaintiff was never made good by the Defendant. On the basis of the available evidence, therefore, I am inclined to award the Plaintiff TZS 5,000,000 as general damages. 5. An order that the Defendantxpay interest on the decretal sum at trie court rate of 12% per annumjrorn the date of judgement to the date of full satisfaction^--^ \\ \\ On interest, as^jjhovtallere^oove,I consider an award of 12% p.a, from date of^idgrpent until payment in full appropriate^Lthus^grariPthat prayer. As regards Lthe 'prayer for costs, it is a common saying thatx'cosfs follow the event'. Accordingly, the \\ V\ Vs Plaintiff is entitled to the costs of the suit and, such are hereby awarded; In the upshot, having stated that the Plaintiff has succeeded to prove its case to the required standards, the same is entitled to the following reliefs/orders: 1. THAT, the Defendant is to pay the Plaintiff a total of USD ($) 45,033.00, being the outstanding principal amount. Page 28 of 29 2. THAT, the Defendant is to pay the Plaintiff TZS 5,000,000 as general damages. 3. THAT, the Defendant shall pay interest on the decretal sum at the court rate of 12% per annum from the date of judgement to the date of full satisfaction. 4. Costs follow the event. It is so ordered. Right of Appeal Explained. DATED at DAR-ES-SALAAM, this 23rd NOVEMBER 2021 » THS HON. DEO JOHN NANGELA JUDGE, /AL Page 29 of 29