SHABBIR MOOSA VS INCHCAPE s COMM CASE NO

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION)

AT PAR ES SALAAM COMMERCIAL CASE NO. 110 OF 2012 SHABBIR MOOSA ................................................................. PLAINTIFF

VERSUS

INCHCAPE SHIPPING SERVICES TANZANIA INTERNATIONALCONTAINERl ...................... DEFENDANTS

TERMINAL SERVICES 14th January & 26th May, 2016

JUDGMENT MWAMBEGELE, J.: The plaintiff Shabbir Moosa is a natural person and businessman dealing in importation and exportation of goods in Dar es Salaam and Gitega; the Republic of Burundi. The first and second defendants - Inchcape Shipping Services and Tanzania International Container Terminal Services (TICTS) - are both legal persons. Whereas the former carries on the business of shipping services, the.latter carries on the business of shipping services and cargo expedition. The crux of the suit, as can be gleaned from the pleadings, is the defendants' failure to facilitate the clearance of the plaintiff's cargo. The story around the 1 claim can be briefly told thus: in August, 2009, the plaintiff had imported consignment of motor vehicle tyres in container No. MOTU 0539255/MOCAE 08455/CA4 from Dubai, United Arab Emirates (UAE). The same was entrusted to a carrier named Mitsui O.S.K Lines Ltd by a shipper called Orlando House Trading LLC vide Bill of Lading number MOLU 109677343. It is stated that the first defendant who was the shipper's agent was supposed to release the cargo to the plaintiff's clearing agent - M/S Energy Forwarders Limited - upon presentation of the original Bill of Lading but instead said defendant failed to notify the said clearing agent. It is stated further that despite the said plaintiff's clearing agent contracting both defendants to facilitate

clearance of the cargo, it discovered that another company namely Strategic Business Undertaking Limited had processed for clearing the cargo fraudulently through paying port charges vide TANSAD MT 28266 and TICTS Tax invoice No. TB 8062210. It is stated that, thereafter, the plaintiff wrote to the Tanzania Revenue Authority (TRA) explaining the whole issue where after the latter cancelled the said TANSAD and subsequently acknowledged that both defendants had issued stop orders to block removal of the said container from their custody. The plaint states further that due to such conduct, the plaintiff has yet to receive his goods, reason whereof he filed the present suit and prayed for: 1. Payment of USD 40,357.00 being value of the consignment and principal; 2. Full restoration of the container and merchandise therein; 2 3. General damages for loss of business, loss of profits, breach of contract, mental torture and psychological suffering as the Honourable Court may grant; 4. Interest on the said amounts at commercial court rate from August 2009 to the date of final decision; 5. Interest at court rate from the date of judgment to the date of final satisfaction; and 6. Costs. Each defendant entered its own defence. For the 1st defendant, the claim is disputed totally, putting that it acted as a mere agent of Mitsui O.S.K Lines Limited. It is also stated that it discharged its

duty by discharging the container cargo to the 2nd defendant as bailees under the contract of carriage per the Bill of Lading and further that its principal had discharged its contractual duty upon discharging the container from carrier vessel and placing it to the terminal operation (the 2nd defendant) with all seals intact ready for transport to Burundi. It is averred further that the plaintiff did not present to her the original Bill of Lading upon which she could have issued a delivery order to enable him clear his consignment and that the said consignment is still lying at the port after discharge and afforded storage at the 2nd defendant's verification yard. It is also stated that the 1st defendant's instruction to the TRA was on ground that the plaintiff had intended to illegally remove the said container from the 2nd defendant yard and further that the damages complained of are too remote. 3 The 2nd defendant equally denies the claim by stating that it is not a shipping agency and that the plaintiff maintains no cause of action against her. The defence further avers that it had never colluded nor participated in fraudulent transaction and further that it had never issued invoice No. TB 8062210, never been involved in issuing TANSAD No. MT 28266 and that the said TB 8062210 never existed because its invoices have six digits while the one mentioned by plaintiff has seven

digits. The 2nd defendant's statement of defence is also to the effect that the 2nd defendant had no authority to halt removal of the container, that the plaintiff failed to clear his goods; the container overstayed and on 02.08.2010 the 2nd defendant handed over the said container to TRA as per regulations whereby the latter commissioned Majembe Auction Mart to auction the said goods to recover government taxes. It is the 2nd defendant's prayer that the suit be dismissed. Upon completion of pleadings, mediation was attempted but ended up being unsuccessful. Issues had to be drawn for determination of the matter at full trial. These issues are: 1) Whether the plaintiff was supposed, and did present to the 1st Defendant the Original Bill of lading for clearance of the goods; 2) Depending on the outcome or answer to the first issue whether the plaintiff has a claim against the defendant; and 3) To what reliefs, if any, are the parties entitled. 4 The testimony-in-chief for both plaintiff and defendants were given through statements as required by rule 49 (1) of the High Court (Commercial Division) Procedure Rules, 2012 - GN No. 250 of 2012 (hereinafter "the Rules"). However, noteworthy is the fact or rather an anomaly which is evident in the plaintiff's first witness's testimony-in-chief. This was presented as an affidavit and, as I note from the record, it was admitted and

marked as PWS1 and cross-examination was done through the very same document. Looking at it, it is obvious that the same does not qualify as a witness statement and would have not qualified to enter the record in relation to this suit because it (the suit) was commenced by way of plaint and not by originating summons. I think, this ailment bypassed the agile eye of this court as well as the learned counsel's in conduct of the matter. I am of this opinion because, following the filing of the very document as an affidavit in respect of the second witness for the plaintiff, an objection was raised by the learned counsel for the defendants though at a stage of admission of a document which was not referred therein as the Rules require. This court (Nyangarika, J.) through a Ruling handed down on 17.12.2014 frowned upon the anomaly and finally ordered the plaintiff to have it rectified and re-filed in court within 7 days from the date of the Ruling. Let me perhaps say that the ailment did not result in any injustice on the part of the defendants. I will therefore leave it at that with a note that litigants as well as their legal counsel should always strive to conduct themselves in line with the law in order to ensure harmony and ease in the administration of justice. 5 That said, and before I delve into the issues, I will canvass through the testimonies as well as evidence tendered

in court for each party. Suffice here to commend both learned counsel for the parties for dutifully and timely filing their closing submissions in respect of their cases. I have noted with respect the brevity in the said submissions particularly for the second defendant, though it is rather a replica of the testimony and defence. The same rhymes with the 1st defendant's who, in brief, concludes that the plaintiff has failed to discharge his burden of proof in terms of section 110 (1) of the Law of Evidence Act, Cap. 6 of the Revised Edition, 2002. As for the plaintiff's closing submissions, I shall keep my observations thereon at bay until at a further stage of this judgment and after I take full mastery of the whole episode in this suit. To testify for the plaintiff, the first witness was One Said Suud Said PW1 who introduced himself as a duly appointed representative of the Plaintiff. His statement in lieu of his testimony-in-chief was admitted and marked as PWS1. It was his averment that the plaintiff having ordered a consignment of tyres from Orlando Dubai, they were issued a Bill of Lading number MOTU 109677343 for the container No. MOTU 0539255/MOLAE 08453/CA4, which they gave to their Clearing Agent named Energy Forwarders Ltd. He testified further that the 2nd defendant, upon being approached by the said clearing agent for release of the container, he did not do so,

despite having been paid all fees to her.and the said 2nd defendant having issued the invoice to the said agent. He stated further that both defendants failed to hand over the container and the clearing agent discovered that the defendants had attempted to release the container to another company known as Strategic 6 Business Undertaking Limited, an attempt which was blocked by the police and TRA cancelling the release order. It is PW'l further testimony on oath that both defendants issued stop orders blocking the container which remained at large until it was sold by TRA. That due to the defendant's collusion, negligence and breaches of duty and contract, the plaintiff suffered grave monetary loss, which continues. As for documentary evidence, the plaintiff, through PW1 tendered a total of three documents namely a Power of Attorney which is written in French (Exh. PE 1 (a) and its translation in English (Exh. PEI (b), a Proforma Invoice (Exh. PE2) and the original Bill of Lading (Exh. PE3). On cross examination, PW1 stated that he had procedure an original Bill of Lading, that the second defendant did not cooperate to enable them to clear the cargo, that he had approached the 2nd defendant himself, that though he did submit the said Bill of Lading to the 2nd defendant he was sure it was submitted because he had sent the invoice and report made by the 1st defendant. He also

stated that he was not sure the exact amount of loss of money but the plaintiff was supposed to be compensated at least USD 150,000 due to loss of business. Regarding the 2nd defendant's blocking the clearance of the container, he said that upon approaching the 2nddefendant, they were shown a letter from TRA to the effect that the cargo was not supposed to be cleared. That though the investigation report did not indicate that the 2nddefendant was involved in the conspiracy to illegally clear the container, circumstantially, the 2nddefendant 7 was involved. He went on to state that upon approaching TRA they were told that there was a stop order from both the 1st and 2nd defendant and further that on his understanding the cargo may be auctioned by TRA for failure to pay the taxes. On being re-examined, it was his testimony that they had yet to receive the cargo from the defendants and further that he was not aware of the container being auctioned. As for the second witness one Mwinshehe Kitwana Mohamded PW2, his statement was admitted in lieu of his evidence-in-chief marked PWS2. He introduced himself through his statement as an employee of Energy Forwarder; the plaintiff's agent. His testimony is to the effect that having been instructed by the plaintiff to clear a container of tyres, their company was availed among other documents, a Bill of Lading, invoices and consignee's

passport to facilitate such clearance. He stated further that upon accessing the Customs Department ASYCUDA ++ he discovered that the said system had already been accessed. On further inquiry from the customs office, stated PW2, he was informed that it was the said Strategic Business Undertaking Limited and that they had obtained copies of Bill of Lading and invoice from the shipper Orlando Trading LLC of Dubai. He went on to state that the plaintiff thereafter denied to have issued any document to the said Business Strategic Limited and further that later it was 8 discovered that the invoice sent to the consignee were different from that issued to the said Strategic Business Undertaking Company. On further inquiry to the shipper Orlando Trading Company, said PW2, they denied to have issued the said invoice to the said Business Strategic Undertaking Limited and pointed out that it was the 1st defendant who had supplied them with the Bill of Lading and an invoice was forged. It is his testimony that, thereafter, he made inquiry from the 1st defendant only to be told that no one had gone there for release of the cargo and upon approaching the 2nd defendant, he was told by the in-charge of the billing office that they had issued a tax invoice for payment to the said Strategic Business Undertaking. He said that he protested against such act, upon which protest he was assured by the

said 2nd defendant's officer that the 2nd defendant would block the release of the container and put it under special watch after ascertaining intactness of all seals thereunto. His averments were also that he went back, informed one Mr. Dickense Junior who was the 1st Defendant's Line Manager, and also wrote to the Commissioner for Customs who immediately suspended the said Strategic Business undertaking. He finally stated that he reported the matter to Kilwa Road Police Station who thereafter wrote to the Commissioner for Customs. Through the second witness, a total of five documents were tendered; namely, two letters from TRA to Energy Forwarders dated 16.11.209 (Exh. PE4) and 18.02.2010 (Exh. PE5), customer declaration from (Exh. PE6) as well as a letter dated 06.02.2010 (Exh. P7). 9 On being asked through cross-examination to elaborate on the clearing procedure, he said that clearing of a consignment starts by surrendering original documents namely Bill of Lading and invoice to the relevant authorities which are the shipping line. It was his averment that they remained with an original Bill of Lading because, upon logging into the TRA system they discovered that someone else had accessed the said system with a copy of the number of the Bill of Lading and that the shipping line had released the consignment to another company known as Strategic Business Undertaking. He went

on to say that upon discovery that theft was about to occur they reported the matter to the police. He told this court further that there was forgery of the documents such as Bill of Lading as well as invoice and further that a consignment cannot be cleared without an original Bill of Lading. His further statement was that TICTS (the 2nd defendant) was not to blame because it only receives documents from Commissioner for Customs and the shipping line. On re-examination, it was his testimony that the plaintiff could not surrender the original Bill of Lading to the sipping line because they could not lodge in customs systems to get the Customs Declaration Form (Exh. P6) which had been given to Strategic Business Undertaking and further that no person was arrested for having interfered with the transaction. For the 1st defendant, one witness namely Mussa Hassan Tusengile DW1 appeared to testify. His testimony-in-chief was his statement which was 10 admitted in court and marked as DWS1. Therein, he introduced himself as Acting Line Manager of the 1st defendant charged with overseeing documentation, sales, customer services and operations on behalf of the shipping Line; Mistui O.S.K Line. He went on to state that during the month of August 2009, the first defendant as an agent of the said Shipping Line had handled the carriage and off-loading the said container said to contain

motor vehicle tyres from Dubai to Dar es Salaam under the Bill of Lading No. MOLU 109677343. He averred further that the first defendant had never acted for the plaintiff but rather as a bailee of the said goods and that the duty of its principal under the contract of carriage ended after the discharge of the said container and its delivery to the 2nd defendant at the port of Dar es Salaam. Finally, he stated that the seals to the container remained intact for transit to Burundi and that the plaintiff failed to present to the 1st defendant the Original Bill of Lading to facilitate issuance of a Delivery Order whereby the said container remained at the 2nd defendant's verification yard. To corroborate his testimony he tendered a total of two exhibits; namely, a list of containers aboard MV CMA-CGM Serengeti (Exh. DI) and a Condition Survey Report dated 24.06.2010 (Exh. D2). On cross-examination, he testified that he was neither aware of the plaintiff's access to ASYCUDA system nor his complaints to the Customs Commissioner of the defendant's issuance of delivery order to the said Strategic Business Undertaking. His were also statements to the effect that the 2nd defendant never issued any stop order nor any delivery order and that they were instructed by the loading port in Dubai to check on the status of the container after there were some complaints about it though he was not

aware who the complainant was. 11 On re-examination, DW1 elaborated on the clearance procedure that the process is commenced by presenting a Cargo manifesto (issued by the loading port) to the 1st defendant. Thereafter, the 1st defendant loads the same into the Customs system (and copy to the 2nd defendant as well as ICDs) so that clearing agents can access the same. That in order to access the same an agent is required to pay relevant taxes thereafter it will be issued with a Custom Release Form. Then the agent will proceed to the 1st defendant with first, an original Bill of Lading endorsed by the consignee allowing the agent to clear the consignment as well as the agent rubber stamp, secondly, a consignee's letter stating that he has allowed the agent to clear the consignment for him, thirdly, a Container Guarantee Form and fourthly, a copy of the agent's Identity Card. He went on to say that thereafter the agent is issued with a Delivery Order in triplicate whereby the original is issued to the agent in exchange for the Original Bill of Lading, the second copy issued to the 2nd defendant and the third copy remains with the 1st defendant with the documents issued to them by the agent. He went on to say that thereafter the agent will take the said delivery order to the 2nd defendant who upon comparing the copy of Delivery order sent to them by the 1st defendant with the Cargo

Manifesto and satisfying itself that everything is in order they will hand over the container to the agent. It was his averment that that is a generally accepted procedure and that it was not followed in this case and further that the said container was safe at the date of conducting a status survey on the 24.06.2010 as they never released the container. 12 To testify for the 2nd defendant was one Allan James DW2. His statement was admitted and marked to DWS2. He stated in effect that he is an employee of the 2nd defendant and an Insurer by profession, that the 2nd defendant deals with loading, discharge and keeping of containerized cargo until customs and shipping clearance procedures are completed for delivery. DW2 went on to state that per their records, the container No. MOTU 0539255 was discharged on 21.08.2010 and was handled over to TRA as an overstayed cargo in compliance with tax management regulations on 16.10.2010 through WES NO. UB/232/2010, that on 25.03.2011 the latter appointed M/S Majembe Auction Mart to publicly auction the goods in the container to recover government taxes and port charges per regulations, that the 2nd defendant has never issued invoice No. TB 8062210 or TANSAD NO. MT 28266 as the same never existed because its invoice number has six digits whereas the said TB Invoice has seven digits and that neither had the 2nd defendant been involved in any

collusion nor fraudulent transaction with anybody or had any correspondence with the plaintiff as alleged. In backing up his testimony DW2 tendered a total of two documentary evidence; namely, Want of Entry Slip (Exh. D3) and TRA's letter dated 25.03.2011 (Exh. D4). Having canvassed through the respective testimonies and documentary evidence tendered the witnesses for both the plaintiff and defendants, I will now revert to the issues. The first issue is whether the plaintiff was supposed, and did present the Original Bill of Lading to the 1st defendant for the purpose of clearing the consignment. 13 On the basis of the pleadings, testimonies and exhibits tendered, the following facts are clearly undisputed: 1. That the plaintiff had entered into a Contract of Carriage with M/s Mistui O.S.K Limited to transport a container cargo with tyres from Dubai to Dar es Salaam; 2. That the said container was shipped by M/S Orlando House Trading Limited aboard her MV CGM Serengeti vide a Bill of Lading No. MOLU 109677343; 3. That the said Container was transported and actually offloaded and delivered at the port of Dar es Salaam and kept at the 2nd defendant's custody; 4. That in order to clear the said consignment, presentation of the original Bill of Lading thereof to the 1st defendant was of essence; 5. That the said consignment was neither cleared nor delivered to the consignee; the

plaintiff; and 6. That the contents in the said container were auctioned TRA and therefore as at the date of this judgment it does not exist. The point in controversy here pertains to the delivery of the said container to its consignee; the plaintiff. Thus, whereas the plaintiff claims that the defendants were duty bound to ensure that the container is released and delivered to him, the defendants deny responsibility charging mainly that the plaintiff failed to take delivery of the same. Out of the clearance procedure, the first issue which relates to responsibility/duty of the plaintiff in clearance of the said container was framed, that is, whether he was supposed, and did 14 present an original Bill of Lading to the 1st defendant for clearing the said consignment. From the pleadings, testimonies and exhibits and in particular the uncontroverted testimony of DW1, it is apparent that indeed presentation of the Original Bill of Lading to the 1st defendant was and is of essence in the whole process of clearing of consignment. Apparently, without an original Bill of Lading being presented to the said 1st defendant, no clearing agent can be allowed to clear the consignment. Accordingly, in order to peg liability of failure or neglect or refusal to release the consignment, it is pertinent to establish the actual presentation of the original Bill of Lading to the 1st defendant. The

testimony as well as exhibits tendered in respect of this question by the plaintiff's witness oughtrightly negates it. Thus as for PW1, apart from tendering the said original Bill of Lading in evidence as Exh. P3, he could not tell when asked during cross­ examination as to why the plaintiff did not present the original Bill of Lading to the extent that they still had it in their possession/custody. Strangely, their learned counsel in his closing submissions makes confusing statements, certainly out of either want of comprehension of the testimonies as well as exhibits tendered, or intent to obstruct course of justice. This s true of his approach for he could not conclude that the issue must be answered in the affirmative without first explaining how the said original Bill of Lading reverted to the plaintiff's custody so that it could tender the same in evidence. To explain such anomaly, PW2 stated that they could not present the said Original Bill of Lading to the 1st defendant because upon logging into the TRA 15 system they discovered that someone else had accessed the said system with a copy of the Bill of Lading and the shipping line had cleared the container to another company namely Strategic Business Undertaking. To that extent, in my considered view, the first question can be partly affirmed and partly negated in that, indeed, in terms of customs procedure and on basis

of undisputed fact No. 4 hereinabove, the plaintiff was supposed to present the original Bill of Lading to the 1st defendant but instead he did not do so. For the sake of completeness and avoidance of doubt in my conclusion, the immediate question that begs for an answer would be, whether such non­ presentation of the original Bill of Lading, was in the circumstances, justified to warrant the defendant's liability for the loss or injury therefrom sustained by the plaintiff. With absolute certainty, my answer thereto is in the negative. From the very testimonies and pleadings as well as exhibits tendered in court, it is unmistakable that there was an attempt to have the said container illegally cleared by another agent namely Strategic Business undertaking. Evident is also a fact that there was a timely intervention by the plaintiff's clearing agent namely Energy Forwarders through her Kitwana Mwinshehe PW2. This PW2 testified under, oath to have, upon discovery of such foul plot, informed the Customs Billing officer by complaining and obtained an assurance that the plot would be halted and the container put under close watch by the said Customs office. He went further to say that the plaintiff was required to pay a USD 10 cancellation fee of the said illegal clearing process which the 16 plaintiff complied by paying the same and that that notwithstanding the container was not

released. Unfortunately, neither the testimony nor the exhibits tells as to what happened thereafter or why then was the said Bill of Lading not properly presented to the 1st defendant for clearance of the consignment after the move to clear it illegally was aborted. All what is alleged is that the plaintiff failed to take delivery of the consignment because the defendants had issued a stop order in relation to the said container. The learned counsel for the defendants, in his closing submission cements this allegation by stating that there was no evidence to show that the said orders were cancelled. That notwithstanding, and crucial as it was in establishing the plaintiff's case against the defendant, nothing concrete in the nature of such order was tendered in court and neither was there any material proof to show that indeed the said clearing agent attempted, through presentation of the original Bill of Lading to the 1st defendant and failed to take delivery of the cargo. The plaintiff's allegations of fraud have not been proved to the required standard; above the preponderance of probabilities. It is the law that the burden of proof of fraud in civil cases is heavier than a balance of probabilities ordinarily applied in civil matters. That this is the law was stated in Ratilal Gordhanbhai Patel Vs Laiji Makanji [1957] E.A 314 at 316; the decision to the erstwhile Court of

Appeal of East Africa in an appeal originating from Tanzania (then Tanganyika), thus: "Allegations of fraud must be strictly proved. Although the standard of proof may not be as 17 heavy as beyond reasonable doubt, something more than a mere balance of probability is required". The principle was reiterated by the Court of Appeal of Tanzania (without referring to the Patel case above) in Omari Yusuph Vs Rahma Ahmed Abdulkadr [1987] TLR 169, at 174 as follows: "... it is now established that when the question whether someone has committed a crime is raised in civil proceedings that allegation need be established on a higher degree of probability than that which is required in ordinary civil cases ..." The court of Appeal went on to state the rationale behind this otherwise stringent principle as follows: "... the logic and rationality of that rule being that the stigma that attaches to an affirmative finding of fraud justifies the imposition of a strict standard of proof, though as Rupert Cross cautions and illustrates in his text-book on Evidence at page 124 the application of that rule is not always commodious ..." In the instant case, the plaintiff specifically pleaded fraud by the defendants' "either by design, accident or collusion" in the following words at para 7: 18 "That meanwhile the plaintiffs Agent did make a diligent follow up using his efforts did contact both the

first and second defendants to facilitate clearance of the cargo to no avail, meanwhile he discovered that either by design, accident, or collusion, another company known as STRATEGIC UNDERTAKING LMITED had been processing customs documents to clear the cargo fraudulently to the extent of paying port charges thereon through the TANSAD No. MT 28266 dated 27/8/2009 and TICTS TAX INVOIVE No. TB 8062210 dated 2/9/2009. Further that the said TNSAD No. MT 28266 dated 27/8/2009 having been issued by the Tanzania Revenue Authority and TICTS TAX INVOICE NO. TB 8062210 having bee issued by the second defendant makes them liable for payment of damages to the plaintiff..." The way the plaintiff pleaded fraud is, it seems, based on suspicion. I say suspicion because of the use of the words "either by design, accident or collusion". I have no problem if the alleged fraud was by design or collusion. But if it was by accident, then how does he implicate the defendants? In my view, this kind of pleading cannot be said to be specific. As was said in a persuasive authority of Musoke Vs Mayanja [1995-1998] 2 EA 205, at 217, by the Supreme Court of Uganda: 19 "... allegation of fraud ... [must be] sufficient enough to specifically plead fraud as expected under Order 6, rule 2, giving full particulars of fraud and dates where they are relevant." In the instant case the plaintiff has not sufficiently

pleaded the allegation of fraud because his is just a suspicion that the defendants must have colluded to commit the alleged fraud. Even if we could take the same to be sufficient, proof thereof in evidence, in my view, fell short of the required standard. I demonstrate further. A letter from TRA dated 18.02.2010 to Energy Forwarders was tendered and admitted in evidence as Exh. P5. This is perhaps the only, albeit dim, indication of there being such a stop order. I say a dim indication because, from the way it is couched, it cannot be said with certainty that the alleged stop order or the one mentioned therein was the reason that prevented the plaintiff from taking delivery of the consignment. To this end, I will let the relevant part thereof speak for itself here: "... We wish to respond that our preliminary investigation has revealed that there was a plot to remove the container from TICTS unproceduraly, and that's why the shipping line intervened by issuing a stop order to block the move. At the moment that the matter is still under the hands of the shipping line together with the 20 goods, your client is advised to liaise with them to find a workable solution on how to finalize the matter. Once the goods are released by the shipping line he may contact us for other processes as part of facilitation as far as Customs is concerned". Apparently, contrary to the allegation

that the 1st defendant had refused to release the container to the plaintiff's clearing agent, the 1st defendant as the shipping line, had blocked the same from being illegally and or unprocedurally cleared, following an alarm raised by the said agent, and hence a subsequent cancellation of the process by the Customs Office. It is vivid therefore, and my conscience is certain on this, that alleging that the defendants refused to release the container is but a serious contradiction in the plaintiff's case, else one may be inclined to conclude that its own agent was involved in the attempted scam to unprocedurally clear the consignment. That is so because the plaintiff did not point out to this court either through the pleadings, exhibits or testimony as to how it reacted and or complied with the letter from TRA (Exh. P5). It is not even demonstrated as to how he did or why he did not liaise with the 1st defendant; shipping line in order to see to it that a workable solution was obtained to have the goods released as advised by TRA. Instead, the defendants charged, and truly so in the circumstances, that the plaintiff failed to take delivery of the said container and as a result of its overstay at the 2nd defendant's container terminal, the 21 contents therein were auctioned by TRA to recover the customs revenue in terms of the Customs Regulations. The cumulative effect of the

foregoing goes to answer the second issue in the negative as well, that the plaintiff maintains no valid claim against the defendants neither jointly nor severally; not even jointly and severally. Thus, an answer to the 3rd issue as per the discussion above is as clear as daylight that the plaintiff is not entitled to any reliefs prayed for but the defendants who, in all fairness must recoup the costs for this suit. In the upshot, as elaborated hereinabove, the suit is wanting in merit and, therefore, I enter judgment for the defendants jointly and severally and decree that: 1. The suit is hereby dismissed in its entirety for want of merit; and 2. The Plaintiff shall pay the first and second defendants costs of this suit. Order accordingly. DATED at DAR ES SALAAM this 26th day of May, 2016. J. C. M. MWAMBEGELE

JUDGE 22