tanzania breweries limited vs richard byemelwa another 2007 tzhc 432 4 september 2007

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL CASE NO. 85 OF 2005 BETWEEN TANZANIA BREWERIES L IM IT E D .................... PLAINTIFF VERSUS 1. RICHARD B Y EM ELW A ..................... 2. K.B. TRADE SERVICES LTD............. J DEFENDANTS JUDGMENT LUANDA, 3. The above named plaintiff has filed this suit against the defendants jointly and severally for the following reliefs:- (i) Recovery o f TSh. 73,510,608/= being an outstanding amount o f beers and empty containers supplied on credit (ii) Interest at the rate o f 25% per annum or at the commercial bank rate from 1st November, 1999 to the date o f judgm ent (Hi) Interest on the decretal amount at the rate o f 12% per annum or at any other applicable rate till payment in full. (iv) Costs. In this case Mr. Mbuya learned counsel represented the plaintiff; whereas Mr. Ogunde advocated for the defendants. The plaintiff side called one witness one Alex John Mtui (PW1) the national Credit Manager with the plaintiff since June, 2003. Prior to that he was working as Internal Auditor with the same company. The totality of his evidence is to this effect. On 1st September, 1996 (Exh. P2) the 2nd defendant through her officials one being the 1st defendant entered into an agreement with the plaintiff. The plaintiff who is one of the producers and distributors of beer in Tanzania undertook to supply the stuff to the 2nd defendant on credit. The 2nd defendant was to sell to other customers within Tabata Area, Dar es Salaam city. The 2nd defendant was supplied with beer. In short the 2nd defendant was to act as a Mini-Wholesaler. It is the version of PW1 that the 2nd defendant was supplied with beer. She managed to pay for the beer and containers she was supplied for the year 1997. From the year 1998 till the date this case was filed i.e. 16/9/2005 vide ERV 22362544 the defendant did not pay a total amount of money as indicated earlier. The breakdown is as follows:- 1. Order No. 06468 o f 26/6/1998 TSh. 6,452,000/= (Exht. P3) value o f beer not paid. 2. Order No. 44195 o f 26/6/1998 TSh. 2,026,000/= (Exht P4) value o f empty containers not paid. 3. Order No. 44196 o f 26/6/1998 (Exht. P5) TSh. 3,852,000/= value o f empty containers not paid. 4. Order No. 53411 o f 23/10/1998 (Exh.P7) TSh. 3,510,000/= value o f empty containers not paid. 5. Order No. 53412 o f23/10/1998 (Exht. P8) TSh. 3,432,000/= value o f empty containers not paid. 6. Order No.53913 (Exht. P9) TSh. 1,177,000/= value o f empty containers not paid. 7. Order No. 54335 o f 6/11/1998 (Exht. P10) TSh. 1,560,000/= value o f empty containers not paid. 8. Order No. 54336 o f 6/11/1998 (Exht. P ll) TSh. 3,120,000/= value o f empty containers not paid. 9. Order No. 54337 o f 6/11/1998 (Exht. P12) TSh. 3,120,000/= value o f empty containers not paid. 10. Order No. 54338 o f 13/11/1998 (Exht. P13) TSh. 3,510,000/= value o f empty containers not paid. 11. Order No. 65513 o f29/4/1999 (Exht. P14) TSh. 3,127,056/= value o f empty containers not paid. 12. Order No. 65514 o f29/4/1999 (Exht. P15) TSh. 8,841,180/= value o f beer and empty containers not paid. 13. Order No. 65515 o f29/4/1999 (Exht. P16) TSh. 5,324,700/= value o f beer and empty containers not paid. 14. Order No. 79328 o f3/12/1999 (Exht. P17) TSh. 6,779,950/= value o f beer and empty containers not paid. 15. Order No. 79383 o f3/12/1999 (Exht. P18) TSh. 9,040,800/= value o f beer and empty containers not paid. 16. Order No. 79467 o f 4/12/1999 (Exht. P19) TSh. 4,026,720/= value o f beer not paid. On 2/12/1999 the 2nd defendant issued a cheque (Exht. P21) in favour of the plaintiff.The cheque bounced. It was referred to drawer. So, the total outstanding amount the 2nd defendant is owed as shown in the account balance as at 3/5/2002 (Exht. P6) is TSh. 72,717,676.00. Basically that is the plaintiff's case. After the close of the plaintiff's case i.e on 3/5/2007 Mr. Ogunde asked for an adjournment so as to present the defendants' case by calling one witness. The prayer was granted. The case was adjourned till on 7/6/2007. On 7/6/2007 neither Mr. Ogunde nor his client turned up. Mr. Ogunde wrote a letter dated 6/6/2007 to the Registrar of this court to the effect that he was bereaved and so he "prayed" for an adjournment. His letter is couched, inter alia, in the following words, I quote:- 3 "In the premises, we pray for an adjournment and if it may piease his Lordship ie t the m atter be fixed for defence hearing on another date convenient to the court's diary." [Emphasis supplied]. The letter was copied to Mr. Mbuya who had no objection to the "application". The court reluctantly adjourned the case to 4/7/2007. On 4/7/2007 again neither Mr. Ogunde nor his client turned up. In terms of Order XVII, Rule 3 of the Civil Procedure Code Cap. 33 the court is empowered to proceed and decide the suit. The Rule reads:- 3. Where any party to a suit to whom time has been granted fails to produce evidence, or to cause the attendance o f his witnesses, or to perform any other act necessary to the further progress o f the suit, for which time has been allowed, the court may, notwithstanding such default, proceed to decide the suit forthwith. Mr. Ogunde is the one who wrote a letter seeking for an adjournment. And it was Mr. Ogunde who prayed the court to fix a hearing date convenient to the court's diary. That was done. The court fixed 4/7/2007 as the hearing date. But neither Mr. Ogunde nor his client appeared. I think under the above circumstances, the Court is entitled to invoke Order XVII, Rule 3 of the Civil Procedure Code which I hereby do and proceed to decide the suit. And since the case was coming for hearing the defendants' case, I take it that they have failed to produce evidence, hence this judgment. The crux of the matter in this case is whether the defendants jointly and severally are indebted to the tune of TSh. 73,510,608/= being a balance of beer and empty containers supplied by the plaintiff on credit. In the course of Cross-examination Mr. Ogunde appears to have raised the question as to the validity of the written contract (Exht. P2) as the one entered had already expired. Mr. Ogunde referred to para 9:1 of the said contract. Mr. Mtui (PW1) conceded that the written contract expired but he said they continued supplying the 2nd defendant with the stuff. Para 9:1 of the written contract (Exht. P2) reads:- This agreement shall be in existence for a period o f TWELVE months which may be renewed at the sole discretion o f TBL on terms and conditions' confirmed in this agreement or as otherwise agreed. [Emphasis Mine] From the above it is clear that the written contract (Exht. P2) expired on 1/9/1997. However, the evidence on record shows that the parties continued doing business. In actual fact the 2nd defendant through the 1st defendant signed a credit facilities letter dated 22/10/1999 (Exht. PI) acknowledging receipt of the same and naturally she accepted along with the new terms and condition spelt therein. The 2nd defendant was supplied with beers and she accepted. Not only that the 2nd defendant again through the 1st defendant also acknowledged receipt of old outstanding debt amounting to TSh. 46,352,092/= (Exht. P20) and issued a Cheque (Exht. P21) which was referred to drawer. And to crown it all she did not object the tendering of Exht. P3 - P19. which shows unpaid amount of beer and empty containers yet to be paid. In the light of the above explanation one may rightly argued that though there was no written agreement as that made previously, the parties agreed on the terms and conditions as specified in Exht. PI. It follows therefore that that falls under the phrase "or as otherwise agreed." The parties knew what they had agreed upon; the plaintiff to supply beer to the 2nd defendant on credit 5 meaning the latter to pay later. The plaintiff supplied beers but the 2nd defendant has yet to settle her account. And this is the basis of the claim. The defendants are indebted. Next is the question of quantum. In the plaint the plaintiff claims TSh. 73,510,608/=. But according to Exht. P6 the figure is TSh. 72,717,676.00. There is no explanation as to the difference. Furthermore, according to (Exht. P20) acknowledgment of Old Outstanding debt dated 1/11/1999 the amount outstanding as on that day was 46,352,092/=. This means, save the last three item in (Exht. P6) dated 3/12/1999 - 4/12/1999, the above figure stands for the period from June, 1998 to April, 1999. And for the three items mentioned above, the total outstanding amount is TSh. 20,447,040.00. If you add this figure with the old outstanding debt (20,447,040.00 + 46,352,092/=) you get 66,799,132.00. This is the correct figure. In fine since the 1st defendant is the one who actually signed the credit letter and received the stuff, judgment is entered against the defendants jointly and severally to the tune of TSh.66,799,132/= with costs. The amount will attract an interest of 12% from 1/11/1999 to the date of judgment and 7% from the date of decree till full payment. Order accordingly. B.M.Luanda JUDGE 4 /9 /2007. 1,540 words.