tanzania telecommunication co ltd vs samba trading company another 2008 tzhc 219 28 august 2008

IN THE HIGH COURT OF TANZANAIA AT DODOMA CIVIL CASE NO. 10 OF 2001 TANZANIA TELECOMMUNICTION CO. L T D ........PLAINTIFF Versus 1. M/S N. SAMBA TRADING COMPANY 2. N.P. SAMBA .................................... RESPONDENTS 17.07.2008 & 28.08.2008 EXPARTE JUDGMENT MADAM, SHANGALI, 3. The plaintiff TANZANIA TELECOMMUNICATIONS CO. LTD. commonly known by its acronym TTCL has filed this suit against two defendants namely M/S N.N. SAMBA TRADING COMPANY LIMITED (1st defendant) and N.P. SAMBA ( 2nd defendant) who is the Director of the first defendant. The plaintiff is claiming from the defendants a total of TShs.23,431,475.80 being part of the principal sum of revenue collected by the defendants from the plaintiff's customers at Kongwa area which was not remitted to the plaintiff as stipulated in the Agency Agreement between them. Together with that principal sum the plaintiff is claiming interest from the date the cause of action arose till the date of judgment, interest on the decretal amount at the courts rate from the date of the judgement till was represented by Njulumi & Company, Advocates while the respondent was represented by Rweyongeza & Company, Advocates. On 3rd July, 2008 when the appeal was called for hearing, Mr. Kidumage, learned Advocate from Njulumi & Company, Advocates and Mr. Nyabiri learned Advocate from Rweyongeza & Company, Advocates requested this court to argue their appeal by way of written submissions. That request was duly granted and ,a scheduling order for filing the written submissions was agreed upon and issued by the court. Mr. Kidumage for the appellant was required to file his written submission on or before 18th July, 2008 while Mr. Nyabiri for the respondent was required to file his reptyto the written submission on or before 28th July, 2008. The advocate for the appellant was required to file his rejoinder, if any, on or before 5th August, 2008. Thereafter the appeal was fixed for mention on 7th August, 2008 for the verification of the parties compliance with the court order before fixing a date of judgement. ; It is sad that the advocate for the appellant de'cided to ignore that order of the court.. On-7th August, 2008 when th-e appeal was j called for mention, Mr.' Njulumi, learned advocate for the appellant i told this court that they failed to file their written submissidn:because • , * - • • • J ‘ they came to realize that there were efforts by their clients (appellant 0. and respondent) to settle the matter out of court. Then he went on j and prayed for extention of time to file his written submissions as if • Surprisingly, nothing was done by the defendants and their advocate until 03/07/2008 when Mr. Nyabiri, learned advocate for the plaintiff once again requested this court to allow the plaintiff to proceed exparte proof by affidavit because the defendants had failed or neglected to file their Written Statement of Defence. Mr. Kidumage, advocate for the defendants attempted to defend himself by claiming that he was not aware of this suit and that it was his first time to appear in this case. Such claims were vehemently opposed by Mr. Nyabiri who stated that Mr. Kidumage has been appearing for the defendants in several occasions including the date when the application to set aside ex-parte order was heard i.e. 30/03/2007. Indeed, Mr. Kidumage's claim were proved wrong in disgrace by the glaring court record of proceedings which indicate his divers appearances as an advocate from Njulumi & Company Advocates representing the defendants. It was due to that inordinate negligence and lack of interest on the part of the defendants and their advocates to defend their case that, this court allowed the plaintiff advocate to proceed exparte proof by affidavit - See the case of JOE RUGARABAMU vs; TANZANIA TEA BLENDERS (1990) T.L.R. - 24. Accordingly, the plaintiff has complied with the order of this court dated 03/07/2008 and filed hisTrffidavit for exparte .proof hence this judgment. 4 In the affidavit deponed by one MOHAMED HUSSEIN; the Regional Customer Services officer of the plaintiff company, it is ♦ stated that on 1st February, 1998 the plaintiff company entered into an Agency Agreement with the defendants. The second defendant is the managing Director and majority shareholder of the 1st defendant. That under the agreement the 1st defendant undertook to accept, transmit and deliver telegrams and issuing receipts to the plaintiffs customers in respect of payments for services and safe custody of cash collected and received on behalf of the plaintiff and further to bank the same in the plaintiff's bank account. The Agency Agreement covered the whole area of Kongwa. He further stated that upon banking the said cash, the defendants were required to submit relevant documents used in the process to the plaintiff for reconciliation, computation and payment of the defendants commission. Mr. Mohamed Hussein avers in his , affidavit that according to Exhibit TTCL - I (attached to the affidavit) the defendants were able to provide telecommunication services to several plaintiffs customers and collected a lot of money of which part of it was remitted to the plaintiff. However, in their first, reconciliation and auditing exercise the. plaintiff discovered a loss of TSh$.2,947,147.50 which T m ^ jfte d to the plaintiff. The shortage report Exhibit TTCL - 2 (attached to the affidavit) was admitted by the defendants. ' Mr. Mohamed Hussein, the Regional Customer Services Officer of the plaintiff deponed that having discovered that loss of which the defendant had no plausible explanation, the plaintiff decided to suspend the defendants from further execution of the Agency Agreement pending indepth investigations and auditing of the books as shown in letters Ref. No. DF 5610 dated 17th October, 2000 and DF.5610 dated 24th October, 2000 marked Exhibit TTCL - 3 (attached to the affidavit). He further stated that after thorough investigations and auditing it was established conclusively that there was a shortage of TShs.23,431,475.30 which was caused by the defendants and which was not banked nor remitted to the plaintiff as per the Agency Agreement. The report' showing the actual shortage was marked exhibit TTCL - 4 (attached to the affidavit). It was from that background of transactions and incidents that the plaintiff decided to file this suit for recovery of “TShs.23,431,475.30 against the defendants. * Having perused the plaint and keenly scrutinized the plaintiffs affidavit including the attached documents, I am comfortably satisfied that the plaintiff has established and proved their case on 6 the preponderance.of probabilities. The claims are genuine and straight forward. Judgment is therefore entered in favour of the plaintiff with costs as follows:- (a) The defendants are ordered to pay to the plaintiff the principal sum of TShs.23,431,475.80. (b) The defendants are ordered to pay the plaintiff interest at the bank rate from the date the cause of action arose till the dated of judgment. (c) ‘ The defendants are ordered to pay the plaintiff interest on the decretal amount at the courts rate from the date of this judgment till payment in full. (d) The defendants are ordered to pay the plaintiff the’ costs of the suit. Order accordingly. (M.i ) - JUDGE 28/ 08/2008 7 Judgement delivered todate 28th August, 2008 in the presence of Mrs. Munissi, learned advocate for the plaintiff and Mr. Kuwayawaya, learned advocate holding brief for Mr. Njulumi, Advocate for 28/ 08/2008