NA TZHC Dar es Salaam7 1

✓ IN Till: HIGH COURT OF TAi:foAN!A (DAR ES SAL.'.'J\.!'-'I DIS'fiUCT REGISTRY) AT vi1.R ~s SALlJ.\M . SI-L-1 '.'.,Ll ~NTlRPRIS~S LUiITiD ooeoQoooa•oooooooo• PL.UNTIFF V.~RSUS NATI ;NAL SHIPPING AG _;~JCI3,::; f.: 2 OTHi:::RS D.CFENDANTS RU.LING .. - 7D --------~ MSUMI · J .: This application has been preferred under sections ,.68 and 95 of th~ Civil Procedure Code. . The Chamber summons contains two spec:Lfic -prayers. In the first prayer the applicant.is requesting the· :ourt to order verification-of contents'of the containers and shifting of the containers to private warehouses pending determinati,<>lt ·•\' t1.e main suit.· Secondly, the a.pplica:.'1 t is requesting the court tt order· the first and seeond respondents release the _containers for transhipment on the applicant executing a provisional or concession bond. All respondents conc~eded to the first prayers as far a.s the verification of the containers is concerned. Hence· the court gave-~ order gr'?11ting this ·por'tion of the first prayer and thereby the said verification. was conducted, on 7/11/96 in the presence of the applicants and all respondents. 'rhe report of the verificatioi,. ' shows that there had b~en te.mporing with the seals of· some of the oonta~ and sundry gpo.d..e ~ miesi n.e; from therein. In other words . there _had been pilferage of some of the containars. 2 iach respondent filed a counter

affidavit in r2sponse to th~ affidavit of tho applicants. And without prejudice to the co~t2nts of th2ir counter affidavits, fir 9 t respondent filed a no·t.ice of preliminary objection in which it submitted that applicant has no 12_~~~~standi in the matter before the court and thereby lack0d any cs.use of action against the ,first respondent. In other words first respondent is arguing that applicants are not the • I exporters of the consigment in dispute. This argument has also been ado;rted by the second respondent. in reply to this preliminary objection Mr. Ismail, counsel ftr the npplicants produced to the court three copies of TEwX messages froli1 Avani and Bhairau _ii;xports Jetpur of Bombay India, and who are the consignors of the containers in dispute, confirming the app-.1.cants to be their agents for the purpose of this suit. This cormrmica.tion was broug_ht to the attention 'of the first r~spondent. And ,.cting on this communication it is apparent that applicants had some con+,:i.cts with the respondents in connection with these consigments. Thi:, means that by their conducts respondents have in fact accepted th~ ··:i.pplic. nts to be the ag~nts of tho cons'ignors. ']:heir belated att,i npt to challenge their 1.£_~~-~--.?-~~~i;_ in· this suit cannot be sust'.:l.ined. i\.:iother ground raised by all respondents in support of their -·~----=--o:.-- claim thc:lt

applicants have no locus stc1...YJ.di is that they are not aware that they are a.gents of the consign:ors. However, none of . them has challenged the auth-~ntici ty of th~ ~hrGe tele:at messages confirming th~ applicants to be the ag<:nts of the consignors of these goods and the fact that these messages were also communicated to the' first respondent thereby contradicting its assertion that it is unaware of the applicants being the agents of" the consignors. In any case the fact that respondents are unaware of the existence of ag-~ncy relationship between the applicants and the consignors is not sufficient to move the court to make a finding that applicants are li1-,... +-l'"',... __... + ...... _,,... ---------- 4 I am of res_fK➔ c.J::ful o~,inion t~1,d th; preliminary objection .cannot be sustain.;;d h'°nce it i.:.::: overruled o From th0 counter 2,.~·fidavi ts oi all reoj?on:::lents it is evident that their objection against the applicants 1 second prayer is based on non compliance by eithsr or both first and second responden of pre-requisite administrative process prior to th,:o release of tran goods. 'I'he exculpatory argument of the first respondent is eontaine in paragraphs 3 and 5 of its counter affidavit deponed by one Cassian Aitt2ry,Ng_'~anilo .suid for clarify's sake both paragraphs are hereby reproduced: 3. That the 1st Defendant forwarded forms C11 to the 2nd

Defendant upon receiving the request.from the Shippers. How,aver, the fir.st Defendant does not • have the power to approve transhipmeiJ.t. an f O?m Cj1-, '·' , 5. 'I'hd the 1st Defendant is ready and willing to tranship•the consignment whenever the Shippers comply with the l.:;gal raquirements." On the other hand the second respondent is blaming the first r::;spondent for 12,te ~Jresentation of the said C.11. It .is claiming ths.t at tl1,.:: tim,a of presenta.tion of the said form C.t1., first respondent had already ;c0lea.secl the goods to M/S TAN2.-:.A.RGO which it ,claims to be the ag,mts of the owners ~f the sa.id goods. T'nis claim is contained in paragraph 3 of the eounte?' affidavit of James Kuleiye· as reproduced hereby. . ,;3. That the 2nd defenda.vit could not have authorised the arn8ncln1ent of the ships report because at the time of presenting the C.11 form the 1st defendant had already disch2.rged his obligation to the Shi;:Jpe~s by relec,sing the goods to the owners agents M/.S TANlCARGO hence the marking the end of the contract b2breen shippej:s and ships Owne:r/agent.n It is strange that. the.. se.c.cnd resp.auden:t cppointed itself tlle advoJ