tanzania portland cement public limited company v techpack tanzania limited 2022 tzhccomd 52 18 march 2022

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM. COMMERCIAL CASE NO. 75 OF 2021 TANZANIA PORTLAND CEMENT PUBLIC LIMITED COMPANY............................................................PLAINTIFF VERSUS TECHPACK TANZANIA LIMITED.................................................. DEFENDANT Date of Last Order: 3/3/2022 Date of Judgement: 18/3/2020 DEFAULT JUDGEMENT MAGOIGA, J. This is a default judgement. The plaintiff, TANZANIA PORTLAND CEMENT PUBLIC LIMITED COMPANY by way of plaint instituted the instant suit against the above-named defendant praying for judgement and decree in the following orders, namely: (a) A declaration that the defendant is in breach of the terms and condition of the contract of supply of bags. (b) Payment of the sum of TZS. 1,069,729,000.00 being the money paid and received by the Defendant to supply the bags but which bags the defendant failed to supply. 1 (c) Payment of TZS. 236,585,621.51 being value of defective bags returned to the defendant. (d) Payment of interest on prayers (b) and (c) above at the rate of 21% from 17 May 2018 to the date of judgement. (e) Payment of general damages as per paragraph. (f) Payment of interest at the rate of 12% per annum from the date of judgement to the date of full judgement (g) Costs of this suit (h) Any other reliefs this Honourable Court may deem fit and just to grant. The brief facts giving rise to this suit are not complicated. It is stated that, on 1 January 2017, the plaintiff (as buyer) and the defendant (as supplier) entered into purchasing agreement for supply of 14,400,000 empty bags at a price of TZS. 370 per each bag, whose descriptions and other terms were detailed in the contract itself. Among others, it was agreed that, the quantities of bags to be supplied and delivered on monthly basis will depend on the plaintiff's demand and upon payment in advance the price of the bags to be supplied on particular month as per terms and conditions as contained in the agreement. Further facts were that, the tenure of the contract was for twelve months, but parties by conduct renewed the contract with more similar or less terms and subsequently on diverse dates between 24th January, 2018 and 2nd December, 2018 plaintiff made request for supply of 14,153,500 bags and effected advance payment thereof to the sum totalling TZS.5,147,160,000.00 but the defendant was able to supply bags worth TZS.4,077,431,000 out of agreed bags leaving unsupplied bags worth TZS 1,069,729,000.00. 2 It was further alleged that, in the course of performing the supply, the defendant supplied defective bags worth TZS.236,585,621.51 contrary to agreed quality which were returned to the defendant but to date defendant neither reimbursed the amount nor re-supplied the bags to the plaintiff despite constant follow ups. Eventually, the defendant neglected and refused to heed plaintiff's claims. It was against this background, the plaintiff instituted this suit claiming for reliefs as contained in the plaint, hence, this judgement. The effort by plaintiff to serve the defendant by normal means were in vain .The affidavit of process server filed in this court on 13/8/2021 made this court to order the defendant be served by way of substituted service in two local newspapers. On 19th October, 2021 through Mwananchi newspaper and through Daily newspaper the plaintiff served the defendant. When the suit called on for orders on 2nd December,2021, no defence has been filed nor application made for extension of time to filing one. In the circumstances, Mr.Rwekama Rwekiza, learned advocate for plaintiff prayed to be allowed to proceed under the provisions of Rule 22(1) of the High Court (Commercial Division) Procedure Rules, 2012 as amended by G.N.107 of 2019. I granted the prayer because time to file written statement of defence and time for filing extension of time to file written statement of defence had long elapsed. In the circumstances, I ordered the plaintiff to prove her case by filing Form number 1 accompanied with affidavit in proof of the claim as provided for under Rule 22 (1) as amended by G.N. 107 of 2019, paving way for this default judgement. 3 In proving the claim, the plaintiff on lS^day of December, 2021 filed in this Court, Form 1 accompanied by the affidavit of, one, PETER JAMES who is the principal officer of the plaintiff. Having carefully gone through the affidavit and the exhibits 1-3 annexed in proof of the claim, I am satisfied that the plaintiff has discharged his legal burden required in civil cases. In essence this suit revolves around breach of contract on the part of the defendant for non delivery of bags to the Plaintiff.This Court faced with similar situation in the cases of NITRO EXPLOSIVE (T) LIMITED v. TANZANITE ONE MINING LIMITED, COMMERCIAL CASE NO. 118 OF 2018 (HC) DSM (Unreported) AND A-ONE PRODUCTS AND BOTTLERS LIMITED v. TECHLONG PACKAGING MACHINERY LIMITED AND ANOTHER, COMMERCIAL CASE NO 105 OF 2017 (HC) DSM (Unreported) in the interpretation of Rule 22 (1) as amended, held that for the plaintiff to enjoy fruits of justice under Rule 22(1), the following cumulative ingredients must be proved, namely; (a) Proof of the service to the defendant but who has failed to file written statement of defence. (b) The plaintiff must make an application in the prescribed Form No. 1 to the First Schedule to the Rules. (c) That the said application in Form No.l must be accompanied by an affidavit in proof of the claim (Emphasis and underline mine). In the instant suit, there is no dispute that the plaintiff was served in accordance with the law. However, despite such proof of service, no written statement of 4 defence has been so far filed nor any application for extension of time to file one. Equally, it is not in dispute that the plaintiff has made an application in prescribed Form No. 1 and same was accompanied with the affidavit in proof of the claim. In the totality of the above, this Court having carefully gone through the affidavit and exhibits 1-3 thereto, I am satisfied that the plaintiff has been able to prove TZS. 1,069,729,000 being an amount for unsupplied bags the fact which defendant acknowledged in exhibit P2 and TZS.236,585,621.51 being a refund for defectives bags supplied. In the circumstances, I am inclined to enter a default judgment against the defendant and decree in favour of the plaintiff as follows; (i) I declare that the defendant is in breach of the purchase agreement dated 1st January,2017; (ii) That the defendant is equally ordered to pay to the plaintiff a sum of TZS. 1,069,729,000.00 being the money paid and received by the Defendant to supply the bags but which bags the defendant failed to supply; (iii) That defendant is ordered to pay to plaintiff a sum of TZS.236,585,621.51 being value of defective bags returned to the defendant; (iv) Payment of interest on prayers (ii) and (iii) above at the rate of 21% from 17th May, 2018 to the date of judgement; (v) Payment of general damages to the tune of 5,000,000.00; (vi) Payment of interest on the decretal sum at the rate of 12% per annum from the date of judgement to the date of full payment; । (vii) The defendant to pay costs of this suit. 5 In terms of Rule 22 (2) (a) of the Rules as amended by G.N. 107 of 2019, I further order that the decree in this suit shall not be executed unless the decree holder has, within a period of ten (10) days from the date of this judgement, publicize the decree in Daily Newspaper and Mwananchi Newspaper one copy each and a period of twenty one days (21) from the date of expiry of the said ten (10) days has elapsed. It is so ordered. 6