19981130 TZHC Dar es Salaam

IN TIE~ lIIGii COUUT Oi? TAN;:;1il'iIJ, (D,ill 3S SAL.ii.AM DISTRIC'I' . P.EGLSTRY) --~.~ AT DAR L,;s S/J..AAM Q_rvn;.1 CASE NO. 120 OF 129'.Z SUG/1.R DKvi~LOPM2N'I: CORPO:RA'I'ION 0000QOOOOO<lo0000QcG PLAINTIFF Versus :IASS;U'JI S:IJ.\.BilNI t/a TANGANYIKA CTI.i~AP STORB • • • • • DEFENDANT. RULING On 5th March, 1997, the plaintiff, :3u5cg.J?ey~~nt Corroration_, sued the defendant, J.lassani_~~~ Eas~§ni,_ t/a Tanganyik£:___Chea_,E S_t~, for Shs. 17,834,000/= being the baL-.nce of the price of [joods sold and delivered by the plaintiff to the defendant. In his written statement of do fence, th'::J defendar1t, in effect, admits liability, but he adds that he is unable to pay the debt because the remaining coods were gutted by fire and his insurers, the Ne. tional Insurance Corporation, (herein-after referred to as N.I.C.) are yet to ~. indemnify him. 1 ~ On 7th of November, 1997, the defendant filed an a})plication for leave to be granted to the defendant/applicant to present a third party notice ag8inst N.I.C. Durine; the hearing of the applic.J.tion, Mr. Mhango, learned cousel for the plaintiff/respondent, O)Jposed the application. In learned counsel I s submission, since the defendant admit1:; liability for the principal sum, and as there is no privity of contract between the plaintiff and . it:t • f. 1 lJ:~,~if~al Insur:mc-J Corporatio:n 4 r.'.nj furth~r 1 E£ ·t1.1e ckfend:mt -htJ.,S c,lre.:::id.y · ileet L!gainst N.I.C. ·in which the defendant I s claim includes the amount the defendant owes the plaintiff, there is no basis··for a third party notice in the circumstances. 2 In reply, Mro Rweikiza, learned counsel for the defendant/applicant said that had National Insurance Corporation inder:mified the defendant, the defendant would have paid. the plaintiff in this case, and that in any case, it was for National Insurance Cclrporation to resist be inf_!; joined as a party. Without labouring the pmint, it is beyond dispute that the defendant adrni ts liability as to the principal sum. i,Ji th regard to National Insurance Corporation~ I res}Jectfully agree with le,;1rned counsel for the plaintiff respondent that there is no privity of contract between the plaintiff and. National Insurance Corporation. The le[~al relationships between the plaintiff, respondent and the defendant/applicant on the one hand, and that between the defendant/applicant and National Insurance Corporation on the other hand, are totally different. It might have be,m a different matter, perhaps, if National Insurance Corporation had· t,"llaranteed payi:1ent for the goods at the tirne the contract for sale of the goo~s by the plaintiff to the defendant was made. In my view, the defendant has rightly filed a suit against National Im~urance Corporation in relation to a transaction between the two, which transaction has nothing to do with the plaintiff in the present suito , For these reasons, the application for leave to issue a third 1Jarty notice on National Insurance Corporation is hereby refused, and judgment is hereby entered for the plaintiff on admission in the sum of TShs. 17,834,000/=. The isf,ue as to costs a.'ld interest shall be resolved by wa:y of mediation or trial, as the ca,se may be • ./ [ . // --.----✓-···· BO DO ClIIFZTiL Ruling delivered in Char;1bers this 30th dny of November, 1998 in presence of Mr. Mhango, advocate for plaintiff/respondent, and holdine; Mr. Rweikiza's brief for applicants. B. Do CIIIPETA - JUDGE