solvochem east africa limited vs jielong holdings tanzania limited 2021 tzhccomd 2039 25 march 2021

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM. COMMERCIAL CASE NO. 65 OF 2020 SOLVOCHEM EAST AFRICA LIMITED................................ PLAINTIFF VERSUS JIELONG HOLDINGS TANZANIA LIMITED.................... DEFENDANT Date of Last Order:23/03/2021 Date of Judgement: 25/03/2021 JUDGEMENT ON ADMISSION. MAGOIGA, J. The plaintiff, SOLVOCHEM EAST AFRICA LIMITED by a plaint instituted the instant suit against the above named defendant praying for judgement and decree in the following orders, namely: i. For an order for immediate payment of United State Dollars Sixty Thousand Two Sixty Only (USD.60,260.00) being the purchasing price of 46,000.00 KGS of Hexan-1000 Bulk supplied to the defendant by the plaintiff. ii. For an order for an immediate payment of United State Dollars Twenty-Three Thousand Four Hundred Ninety-Six (USD 23,496.80) ^ i being the interest accrued from the date of maturity of the invoices raised against the defendant to May, 06, 2020. iii. For an order for an immediate payment of United State Dollars Sixteen Thousand Two Hundred Forty-Three Two cents (USD. 16,243.2) being specific damages for loss and costs incurred in the pursuit of recovering in favour of the defendant's account. iv. An order for payment of interest at 2% per month on the principal price of the goods from May, 06, 2020 to the date of the court's judgement. v. An order for payment of interest at 9% per annum on the decretal sum from the date of the court's judgement to the date of full satisfaction of the court's decretal sum. vi. For an order for payment of costs of this suit to the plaintiff and plaintiff's advocate. vii. Any other relief (s) that this court deems fit and just to grant. Upon being served with the plaint, the defendant filed written statement of defence disputing claims relating to interest and specific damages but in paragraph 8 of the written statement of defence the defendant admitted claim of USD.60,260.00 by stating that, "he has always been ready to 2 pay that amount as claimed in the invoices" however, the plaintiff wants to be paid amount which is higher than the invoiced sum without any legal basis. More admission was well stated in paragraphs 5,7 and 9 of the written statement of defence. This triggered the learned counsel for plaintiff to make formal application vide Misc. Commercial Application No. 157 of 2020 praying for this honourable court be pleased to award a judgement on admission in favour of the plaintiff to such extent of admission of facts as made by the defendant in her written statement of defence filed in court on 1st September, 2020 to wit: USD. 60,260.00. The brief facts of this suit as gathered from the pleadings are that, on diver dates between 27th July, 2018 and 23rd August 2018, the plaintiff in honour of defendant's order, supplied on credit the defendant with 46000 kgs of Hexan-1000 Bulk worthy USD.60,260.00 being purchase price to mature and be paid within 30 days from the date of invoice. The plaintiff raised invoices respectively which became matured on 26/08/2018 and 22/09/2019 respectively. Despite receiving the goods and invoices raised, the defendant has neglected, refused and declined to settle the invoices, hence, this suit among other claiming the reliefs as contained in the plaint. .. 3 It was against the above background, the learned advocate for the plaintiff Mr. Denice Tumaini upon served with the written statement of defence, on 12th October, 2020 filed a formal application vide Misc. Commerial Application No. 157 of 2020, subject of this judgement on admission., Mr. Denis Tumaini, learned advocate for plaintiff moved this Court under Order XII Rule 4, Order XLIII Rule 2 and section 95 all of the Civil Procedure Code, [Cap 33 R.E 2019] for judgement on admission of USD.60,260.00 which the defendant admits in his written statement of defence. The said prayer was countered by the defendant in her counter affidavit sworn by Mr. Kulwa Leonard Nshishi, learned advocate for the defendant and in oral submission by Ms. Gloria Mkulila, learned advocate for the plaintiff during hearing of the application. The provisions of Order XII Rules 4 which the learned counsel plaintiff moved this Court provides the following: Rule:4. Any party may at stage of a suit, where admission of any fact have been made either on pleading or otherwise apply to the Court for such judgement or order as upon such admission he may be entitled to, without waiting for determination of any other question between parties; and the Court may upon such an 4 application made such order, or give such judgement as the Court may think just. This court faced with similar situation in the case of NAS TYRE SERVICES LIMITED vs. ANTHONY SELEMAN KOMBE t/a MOSHI INVESTMENT, COMMERCIAL CASE NO 175 OF 2018 (HCCD) DSM (UNREPORTED) had this to say in interpretation of Order XII Rule 4 of the Civil Procedure Code, [Cap 33 R.E. 2019]: "the plain language of the above provisions of Rule 4 demonstrates that in order for rule 4 of Order XII to come into play, the admission must be in writing embodied in pleading or otherwise and must be an admission of truth as alleged in the plaint." (emphasis mine) Guided by the above position, and back to the instant suit, the defendant in her written statement of defence, in particular, paragraphs 5,7, 8 and 9 was very loud and clear that apart from disputing the claimed figure of USD. 100,000.00 but in plain language and at paragraph 8 admitted that the amount due in the following language"he has always been ready to pay that amount as claimed in the invoices" The amount claimed in the invoices are USD.60,260.00. 5 Therefore, there is no dispute that the defendant made an admission under paragraph 8 in writing. Equally important to note, the plaintiff through his learned advocate has made formal application to this Court to enter judgement on admission on the admitted amount. This Court having gone through the pleadings and the law cited is of the considered opinion that, this is a fit case for grant of the judgement on admission. It is on that note this Court hereby order judgement on admission on the admitted amount of USD.60,260.00 as prayed. Other remaining claims in the plaint are subject to proof in accordance to the laid down procedures. It is ordered. Dated at Dar es Salaam 25th this day of March, 2021. 6