remy mutamba ngoie and another vs timothy francis mwandiko and 4 others 2021 tzhccomd 3429 26 november 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT DAR-ES-SALAAM COMMERCIAL CASE NO.12 OF 2021 REMY MUTAMBA NGOIE............................. 1st PLAINTIFF CHRISTIAN LUSAMESO VINDU.................... 2nd PLAINTIFF VERSUS TIMOTHY FRANCIS MWANDIKO....... ^DEFENDANT GOLDEN PAUL MWANDIKO............. .W^.ND DEFENDANT AUGUSTINO MWANDIKO GWANGWALA^;..3)d^).EFE'NDANT EILENICHI ELIDAIMA MASA^E...?^....^$aT5'EFENDANT MWANDIKO MINING AGE^CY^Li;^..^ DEFENDANT Last Order: Odh OCTOBER 2021 Judgement: 2$h NOVE^BE^OE \DEFAULTJUDGEMENT NANGELA/WJs^ Mln thisXsuit^the Plaintiffs sued the jointly and severally Defen'dants praying for judgement and decree as follows, thafe^ 1. The Defendants be compelled to refund Tanzanian Shillings 40,321,000/= and USD ($) 91,186.68. 2. The Defendants be compelled to return semi refined gold weighing Page 1 of 12 (gross weight) of 12.40kg or value equivalent to it in USD ($). 3. The Defendants be ordered to pay specific damages for breach of agreement, loss of use and profit to the tune of TZS 40,321,000 and USD 91,186.68. 4. The Defendants be ordered to pay interest over the decretal sum at a commercial rate of 30% per mont^ from the first transacticS^date onx 30th November 2019<To thebdate>of judgment. 5. The Defendants beX^rdered^to^pay generaIj'JJda mages^asx^may be assessed by this^Honouraolb Court. 6. The^Defendants Bex ordered to pay ^r^teresbrat CourfXrate of 12% from \\theMate ofxjudgement to the date of of the decretal sum 7. xCostsTncidental to this suit. S^Ahy other reliefs) as this Honouralbe Court may deem fit and just to grant in favour of the Plaintiffs. On the 3rd of March 2021, this suit was called on for mention before me for the first time. On the material date, Mr Philemon Msegu, learned advocate, appeared in Court representing the Plaintiffs. The Defendant were absent Page 2 of 12 although it was submitted that since 3rd of February 2021, the Plaintiffs has served the 1st Defendant with the Plaint though Proxima-Attorneys. A prayer was made, thus, and I which I readily allowed, to have the rest served by way of substituted service He aprayedjthus^c mode. । proceed The suit ex-parte fixed wasthe against 2nd for a mention to in chambers on 15thprayed 5|‘fS^^dahS?Fle^§lso April 2021. for a date within which On the the Court material for wilbconvene date, i.e., pre-trial the first 15/4/2021, Mr Simon conference and Shao, learned advocate, scheduling^prders. appeared This Court holding granted both brief for and prayers Mr Msegu, set the 8th of Junefor Advocate the at 2021, 9:30 am, asSnao^did Plaintiffs.zW the date as forwell the held the brief of Mr Bais, learned a^ocate for/ffte 1st Defendant. The 2nd to S^Defendants^were^absent in XK \\ Court. Mr Shao informed^the^Cpurt^tl^tlie order issued on the 'day 3rd of l^iarth 2021xwas^complied with and a substituted service ‘mpde-fw^s^en^Ioyed to effect service in respect of-tfie 2\^t^5^rfen'dants. first pre-trial conference (PTC). However, on 8th June 2021, the Plaintiffs' advocate, Mr Msegu appeared -for the first PTC. The 1st Defendant was absent and the case against the rest of the Defendants was to be proceeded ex-parte. Mr Msegu informed the Court that the 1st Defendant was absent and Page 3 of 12 that his advocate has withdrawn from representing him. He prayed to proceed with the matter under Rule 31(1) (b) of the High Court (Commercial Division) Procedure Rues, 2012, GN 250 of 2012 (as amended 2019). However, noting that the advocate for the 1st Defendant had withdrawn his services, and since this Court was not aware regarding whether the learned advocate earlier representing the l^TJefendant had informed him about that, the suit shgyld odtradjourned to another date. The 13th of Julv 202-^aK9.0Q^^ was appointed, thus, a date fixedTor ne><t menjidh oFthe suit. On the 13th day of^u^W^^M^Shao appeared in Court holding brief/fopMrMsegu^the advocate for the Plaintiff. The l^Defeijidant^as absent. Mr Shao submitted that, since thejnatter Was scheduled for necessary orders, the PlaintiffS-swere reiterating the prayers made on the 8th ^e also\orayed for another date and undertook to inform tn^4$<©efendant either to come before the Court or choose to be represented by another advocate of his choice. This Court made the following orders: 1. Summons to issue to the 1st Defendant to appear in person or through an advocate of his own choice. Page 4 of 12 2. The Plaintiff to inform the 1st Defendant about his ? order to appear as per the undertaking made. 3. Mention for orders on 17th August 2021 at 9:30 am. On the 17th August 2021, Mr Philemon Msegu appeared in Court for the Plaintiffs. He informed the Court that the whereabouts of the 1st DefendanKhas not been located and the case against the Sv^tQ 5tl^Defendants prayed the summons be sefvbdr>Qn<the m Defendant by way of substitute^gervi^j. I^grantedJ)the prayer and fixed the suit for mention on the 1September 2021 at 1.30 pm. ik vs On Ujj^appointed oatepMr Msegu appeared in Court M % for tlie^la^rrtit^^fTd^^ftmed the Court that, the orders of this wurtfeked^oo the 17th day of August 2021 was duly implem^gdj^ce 22nd day of August 2021. He submitted that, up t&'tfie day he was appearing in Court, i.e., 14th day of September 2021, nothing was served upon him as the WSD of the Defendant. He submitted further, that, since the case against the 2nd to 5th Defendants was as well proceeding ex-parte, the Plaintiffs opt for a default judgment against all Defendants. As such he prayed to file Form No.l, under Rule 22(a) of the High Court (Commercial Division) Page 5 of 12 Procedure Rules, 2012 (GN. 250 of 2012 (as amended by GN. No. 107 of 2019)). Upon such prayers, this Court issued the following orders: 1. That, the prayer to file Form No.l is hereby granted. The same be filed on or before 17th September 2021. 2. Mention on 6th October 2(/2k at 9.00 am. Of October, he informed this Court 'that tlfezPlalhtiffs have complied with the Or^s^o^thi^^oEiFt dated 14th September 2021. I tfidrefore^^today (26th of November 2021, as the date fonssue^e^default judgment. I have^cione ' ' Form No. 1 which was filed ThW^s'lCourf^together with an affidavit of one Rem^j^ra^^a^NgoteStogether with its various annexure (whose original\copies were as well availed to the Court). As it wasvstated’ by this Court in the case of Habib Africa Bank vs. ZamZam Oil Co. Ltd and 5 Others, Commercial Case No. 147 of 2019 (unreported), in essence: "the filing of Form No. 1, seeking for a Default Judgment in favour of Plaintiff, is a matter of exercise of statutory right, open to the Plaintiff Page 6 of 12 in a case where the Defendant(s) has declined to defend his case." Such particular right is provided for under rule 22 (1) of the High Court (Commercial Division) procedure Rules, 2012 (as amended, 2019). The said rule 22 (1) provides as follows: ‘Where any party required to file to do so within the specified period or where such periodWas^been extended accordance with sufe rule (2) of fflfe^Of^JthihUhe period of slfeh e^nsi^wescburt may,xupon proofrof service and on application Jwthe^plaintiff in form Nibl set,xout irMhe Schedule to <^^t^ese^^ij§s^atwrnpanied by an XXzaffidavit Ink proof of claim, enter R judgmeh? in favour of the plaintiff." "As it waslnarfated here above, all Defendants failed \x J?) to appeSkg^^ourt and none of them filed a written statement of defence to contest the allegations raised by the Plaintiff in the Plaint. There has as well been sufficient proof that the Defendants were served by way of substituted service. The 1st Defendant even entered appearance through an advocate but later he absconded. Efforts to serve summons to him was futile including substituted service mode as he never appeared in Court. Page 7 of 12 In any case, I am satisfied that the Plaintiffs were entitled to file Form No.l given that all Defendants have failed to file their respective statements of defence. That being said, I have gone through Form No.l and the affidavit which was filed to prove the claims. In my view, taking into account the various documents annexed as forming part of the requisite proof, I am satisfied that the Plaintiffs have partially discharged VS f3 Cai aridj^^xinsure (T) Ltd vs. Mohamed Said Kiaratu, Civil Appeal No.87 of 2020, are quite illustrative on that. In the case of Zuberi Augustino Mugabe (supra) the Court of Appeal was of the view that: "It is trite law, and we need not cite any authority, that special damages must be specifically pleaded and proved." Page 8 of 12 It is also a settled legal position as stated by the Court of Appeal in the case of Stanbic Bank Tanzania Ltd vs. Abercrombie & Kente (T) Limited, Civil Appeal No.21 of 2001 (CAT) (unreported), that, a claim for specific or special damages must not only be pleaded but also its particulars must be specifically stated and strictly proved. In view of that, the Plaintiffs failure plead, particularise and prove the claim for <sqecific damage, makes their prayer number (iii) fqr^paymenj: of specific damages to the tune of TZS £0,321^000/ irtfFUSD ($) 91,186.68 to be rejected, It suffices to state2>thetefdre&That,\isave form the claim on payment o.f<s^cificsdamages, since this Court is IM zx satisfied that tl^re'||as l^ei^corQpliance with Rule 22(1) 2012 (as amended, W9), and given that the evidence adduced'^estatOishest^he claim for refund of TZS t %% 40,32|l,000/s and USD ($) 91,186.68, nothing will stop from entering a default- judgement in favour of the Plaintiffs. On the other hand, the Plaintiffs have as preyed to be awarded general damages. Looking at the evidence available generally, there is no dispute that the Plaintiffs have suffered general damages and inconvenience resulting from the breach of the agreement. Legally speaking, unlike specific damages which need to be Page 9 of 12 pleaded, particularized and proved, general damages are not proved. Generally, however, to be eligible for general damages the Plaintiff should have suffered loss or inconvenience to justify the award. See the Ugandan case of UCB vs. Kigozi [2002] EA 305. In the case of Southern Engineering Company Ltd vs. Mulia [1986- 1989] EA 541] it was as well made clear as a trite law, that, the measurement of the quantum oAdamages is a matter for the discretion of theJndividuallgudgeWfaich of course has to be exerciseOjdiciouslyOurnihg back to this suit, I am indeed satisfS^bas0dKO0> the available evidence submitted/to^the Court,Nshat, the Plaintiffs have suffered under Jzhev'handsW the Defendants, and are entitled to .be^pdTd general Jaamages, which I hereby assess to Ge amounting>to TZS 20,000,000/-. X...X J' ^Pihally^®^ wSitlji noting that, in terms of Rule 22 (2) '(a) andvsfbp High Court (Commercial Division) Proce^e^yjes, 2012 (as amended, 2019), any decree emanating from a default judgement cannot be executed until after the decree holder has, within a period of ten (10) days from the date of the default judgment, publish a copy of it (the decree) in at least two (2) widely circulated newspapers in the country and after a period of twenty one days (21), from the date of expiry of the said ten (10) days, has elapsed. Page 10 of 12 In view of the above, this Court hereby enters a default judgement and decree in favour of the Plaintiffs and makes the following orders, that: 1. The Defendants are hereby ordered to refund Tanzanian Shillings 40,321,000/= and USD ($) 91,186.68 to the Plaintiffs. 2. The Defendants are hereby ordered to XX return semi refined gold weighing ............... .... XX above at/a^cbmmeteiaPrate of 17% per annum fromSMje mrst transaction dateXn SO1-,. November 2019 to the VX. /J X ..S. /Xdate^of jOd^ent&£X t0 Pay the fif xTZS^20,0()6|000 as general damages. v4 X \ XX Ik 5. Thei Defendants are hereby ordered to X;X ri " x5^Z*intereSt at C°Urt rate °f frOm the date of judgement to the date of full payment of the decretal sum. 6. The Defendants are to pay all costs incidental to this suit. Further orders: 7. That, in terms of Rule 22 (2) (a) and (b) High Court (Commercial Division) Procedure Rules, 2012 (as amended, Page 11 of 12 2019), the Court makes further orders that the decree emanating from this suit shall not be executed unless the decree holder has, within a period of ten (10) days from the date of this default judgment, publish a copy of it (the decree) in at least two (2) widely circulated newspapers in the country and after a period of twenty one days (21), from the date of expiry of the said ten (10) days, has elapsed. It is so Ordered DATED at DAR-ES-SALAAM, this 26th Day of November, 2021 THE Page 12 of 12