200706 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL CASE NO. 37 OF 2006 TANZINDIA ASSURANCE COMPANY LIMITED ............... PLAINTIFF VERSUS RABC9 TANZANIA LIMITED ......................................................DEFENDANT JUDGMENT MASSATI, J: In this case the Plaintiff's claim is for the sum of shs.144,524,000/= interest at commercial C rate, and at court rate and costs. The suit was filed by way of summary procedure. On 17/3/2006 the court granted leave to the Defendant to appear and defend the suit. In the plaint, the Plaintiff pleaded that these were monies which the Defendant collected as an agent of the Plaintiff but which were not remitted to them. In his defence, the Defendant denies to have failed to remit the said monies. From these pleadings the only issues framed for trial were: - (1) Whether there was any agreement to defer the payment before presenting the cheques? (2) To what reliefs are the parties entitled? PWl JEYACHANDRAN NADARAJAN testified for the Plaintiff and exhibited the post dated cheques as Exh.Pl, and a series of letters notifying the Defendant of the bounced cheques as Exh.P2 collectively. According to PWl the value of the bounced cheques issued by the Defendant is shs.144,524,000/=. On the other hand, DWl, ABDUL BARAKA, unequivocally admitted liability and that he issued the said cheques, but pleaded for 3 years in which to pay the admitted sum. From the pleadings and the evidence on record, I think there is no dispute that the Defendant issued the said cheques. There is also no dispute that the value of the cheques is u 3 Tshs.144,524,000/=. Really this is an admission. So I am compelled to enter judgment for that sum by admission. Which means that there is no need to resolve the first issue. In any case, it is the Defendant who pleaded the existence of the said agreement. It was therefore for him to prove it. There is no scintilla of such evidence on record. What has occupied the learned Counsel in their final submissions is whether the Defendant could be considered to pay the decretal sum by instalments. Mr. Semu, learned Counsel for the Defendant is of the view that since the Defendant has admitted liability and in view of what he explained as to why he failed to remit the premiums he deserves this court's leniency. On the other hand, Ms. Sheikh learned Counsel for the Plaintiff was of the firm view that the Defendant does not deserve the court's leniency because what the Defendant did has 4 very serious consequences to the Plaintiff the insurance industry and the public at large. There is no doubt that under o. XX rule 11 (1) of the Civil Procedure Code Act 1966, this court has powers to order payment of a decretal sum by instalments, but the judgment debtor must demonstrate sufficient reason for the court to do so. In the present case the Defendant has urged this court to consider that the Defendant has admitted liability and the circumstances in which the money was missing which is that, it was stolen by his staff. I am not satisfied with such reasons because, first, the Defendant has not pleaded so in his written statement of defence, and did not produce any evidence in this court to prove the alleged theft. It is therefore a mere after thought. Secondly this case was filed on 12/7/2006. If the Defendant was really intent on admitting liability to save the Plaintiff's costs 5 and time, he would have admitted it there and then. Instead, he brought further trouble and expense to the Plaintiff by seeking leave to appear and defend the suit. In my view, had the Defendant not delayed the suit this long, and if really there was any theft, the Defendant could have been considered for leniency at the earliest. It has taken almost one year for the Defendant to come to terms. In the circumstances, I find that no good reasons have been advanced by the Defendant for this court to order payment 'by instalments. On the other hand, I agree with Ms. Sheikh that what the Defendant did, was close to a criminal offence of theft by agent. Furthermore, if the courts were to be lenient in such cases it would certainly affect the insurance industry and economy of the country. By so doing the court would be going against public policy. And that is not accepted. 6 In fine therefore, I reject the Defendant's prayer to pay the decretal sum by instalments. I will enter judgment for the Plaintiff as prayed with costs. The principal sum shall attract commercial rate of 20% p_. a. and a further 7% p.a. court rate on the decretal sum from the date of judgment to that of payment in full. Order accordingly. SGD S.A. MASSATI JUDGE 29/6/2007 795 words ,,