Tata Africa Holdings

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SHINYANGA SUB REGISTRY AT SHINYANGA CIVIL CASE NO. 21 OF 2023 TATA AFRICA HOLDING (TANZANIA) LIMITED .............PLAINTIFF VERSUS EL- HILAL MINERAL ...................................................DEFENDANT EXPARTE - JUDGMENT 16th & 31st July 2024 F.H. MAHIMBALI, J This is an exparte judgement after the defendant having been dully served, defaulted to enter appearance before the court to answer the plaintiff’s claims. The plaintiff’s claims against the defendant is for a declaration that the defendant breached the terms and conditions of the sale of two motor vehicles’ agreement for failure to honour payment of the agreed purchase price contrary to the agreed payment terms, an order for this court to compel the defendant to pay the plaintiff the outstanding balance of the two motor vehicles’ purchase price, payment of general damages and costs of this suit. According to Mr. BEGUMISA EGBERT BINAMUNGU, the plaintiff’s sales manager (PW1), testified that the Tata Africa Holdings Tanzania 1 Limited, is a company engaged in making, distribution and sales of various Tata cars and its spares. The Tata Company sells its cars into two ways; by cash and credit. By cash sale, the client comes to the office, chooses the car model /type, and is given proforma invoice and pays all cash money before he is given the said car. By credit sale, PW1 stated that a customer/client first chooses his preference and makes down payment. The remaining sum is paid within the agreed time. That in the current matter, his testimony is on the sale deal done between TATA AFRICA HOLDINGS TANZANIA LIMITED and EL- HILAL MINERAL LIMITED. The plaintiff’s company, had sold him Tata LPK 2523 - two vehicles. One is registered as T. 120 DJJ and another T123 DJJ. It was on 4th November, 2016 when the said sale was done by credit. The agreed purchase price was 144,000 USD for both vehicles. He had to do down payment of 36,000 USD. The down payment of 36,000/= USD was dully paid. The remaining balance was 108,000/= USD. This remaining balance was to be paid in 12 monthly equal installments i.e 9000 USD per month. The first payment was supposed to be done on 30th November 2016 and should have ended on 30th October 2017. As per that sale, one 2 of the conditions was the original cards for both vehicles had to remain with the plaintiff company. Another thing they had agreed was on the registration of the said vehicles in which the Tata had to be title holder whereas the defendant El- Hilal Mineral Limited was to be the owner. Further, it was agreed that in the event of delay in effecting the installment, he was liable for 2% penalty of the sale price per every installment. In acknowledging all this, they had signed the agreement exhibiting all these terms. That on the 4th November 2016, the plaintiff and the defendant executed an agreement for sale of two (2) units of motor vehicles make Tata LPK 2523 Tipper registered as T.120 DJJ with chassis number MAT 479112D3R20365 and T. 123 DJJ with Chassis number MAT47911D3R2012 in consideration of the United States Dollar One Hundred Forty-Four Thousand (USD 144000) (exhibit P1). It was further mutually agreed that the advance payment of the purchase price be done by cash payment of an amount of USD 36,000/= and the balance of it i.e USD 108,000/= be paid in twelve monthly installments with effect from 30th November 2016 to 31st October 2017 at the amount of 9,000/= until settlement of the whole balance. 3 That further the parties agreed that in case of any default, or delay of the payment as per the schedule of the installments, the defendant would be liable to pay penal interests at the rate of two percentages of the due sum calculated on monthly basis from the due date to the date payment. That just after the said down payment of 36,000 USD, the defendant totally disappeared with the motor vehicles and continued to use them while he was in continuous breach until 30th October 2017 contrary to what had been agreed. That despite the fact that the plaintiff made excessive endurance in claim of the said balance, the same couldn’t yield any. As per exhibit P2 (statement sheet on penal interests’ computation), the defendant only did payments of two installments of 9000 USD @ = 18,000 USD. The unpaid balance remained 90,000/=USD. The penalty for the said default amounted to 82,116/= USD. Further, there is a debt collection charge amounted to 4500/= USD. Until when this case was filed, a total claim against the defendant stood at 176,616 USD. The cards of the said vehicles remained with the plaintiff because the client breached the contract for failure to pay all the purchase price as per contract (exhibit P3 for T. 120 DJJ and P4 for the other T. 123 DJJ). 4 Following their failure to honor the contract, the plaintiff made several follow-ups, but in vain. There was no any promise honored in consequence of his default and several demands. Apart from this suit, PW1 stated that they once filed these claims in 2021, but was withdrawn on the defendant’s request that she would have settled in a given time. Leave to withdraw the suit with leave to refile in six months’ time was issued. Apart from the said withdraw as requested to pave way for the settlement, nothing was effected by the defendant. Thus, this subsequent suit in which they humbly pray that this court to declare the defendant being in breach of the contract's terms and covenants and all that is prayed in this case be granted i.e all the claimed amount USD 176,000/=, compensation, costs of this suit, and any other relief as this court may deem fit and just to grant. In reaching the verdict of this matter, three issues were framed: 1. Whether there was a sale agreement between the plaintiff and the defendant 2. Whether there was a breach of the contract by the defendant. 3. To what reliefs are the parties entitled to 5 Mindful in civil cases, the burden of proof lies on the person who alleges anything in his favour. It is the established legal principle that the burden of proof envisaged above is on the balance of probabilities as stated in various decisions and the legal principle cherished in the case of Hemed Saidi V Mohamed Mbilu [1984] T.L.R 113 at page 116 that a person whose evidence is heavier than that of the other is the one who must win. This is also reflected in section 3(2)(b), 110 and 112 of the Tanzania Evidence Act, Cap 6 R.E 2022. Further, I am also of the stance that in measuring the weight of evidence, it is not a number of witnesses that matters but rather the quality of evidence. That being the position, the plaintiff has in balance of probability been able to establish the claims against the defendant who unfortunately defaulted to enter her defense as I have explained above while making reference to the testimony of PW1 and exhibits P.1, P2, P3 and P4. In a keenly digest to the evidence of PW1 for the plaintiff’s case, and indeed, reading together with exhibits P1- P4, in the absence of clear and cogent evidence by the defendant opposing or challenging the same, it is undaunted that the plaintiff’s claims on preponderance of probability has 6 been reasonably established that the defendant really purchased the said two vehicles on credit and on condition that the registration cards remained with the plaintiff until when the balance of purchase price is dully discharged. There has not been any grain of evidence that the said loan and its penal interests are fabricated or cooked ones unless the defendants had substantively resisted the claims. Thus, as per evidence in record, I am satisfied that there was a breach of the contract terms (exhibit P1 and P4). As per that proof of claim vide PW1 and exhibits P1- P4 in which I’m totally gripped with, I find the present claims as fully established. Since there has been sufficient proof that there was a binding contract between the parties and that the standard of proof in civil cases is proof on balance of probability, that task has been sufficiently discharged. Mindful of the trite law that parties are bound by the agreements they freely entered into, (see section 10 of the Law of Contract Act), the cardinal principle of the law of contract being the sanctity of the contract as expounded in numerous cases including Abualy Alibhai Azizi v. Bhatia Brothers Ltd [2000] T.L.R. 288 and Unilever Tanzania Ltd v. Benedict Mkasa t/a Bema Enterprises, Civil Appeal No. 41 of 2009 (unreported). It is also trite law that a party who enters into the contract 7 freely, is estopped from denying it as per section 123 of the Law of Evidence Act. See also the case of Trade Union Congress of Tanzania (TUCTA) vs Engineering System Consultants Ltd and 2 Others, Civil Appeal No. 51 of 2016 (unreported). That said, issues number 1 and 2 of the case are both answered in affirmative. As to the third issue on relief – to what reliefs are the parties entitled to, clause 9 of their contract is so explicit in paragraphs (a)-(g) as to the consequences of default. In Njombe Community Bank & Another vs. Jane Mganwa, DC. Civil Appeal No.3 of2015 atpage 17 it was stated that damages are: "That sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have 6 been if he has not sustained the wrong for which he is now getting compensation or reparation”. In my view, therefore, damages are intended to put the party in the same position, as far as money can do so, as if his rights had been observed. In this case, I think the issue of special damages should not detain me. 8 Principles governing this are, as alluded to above, are very clear and elaborative. The case of Njombe Community Bank & another vs. Jane Mganwa (supra) quoting the dictum of Mcnoughten in Bolag vs. Hutchson, (1950) AC 515 at page 525 promulgated the correct principle of law on specific damages which is universally accepted that special damages are: "such as the law will not infer from the nature of the act. They do not follow in the ordinary course. They are exceptional in their character and, therefore, they must be claimed specifically and proved strictly". In the case of Zuberi Augustino vs. Anicet Mugabe, [1992] TLR137, the Court of Appeal held that: "It is trite law, and we need not to cite any authority, that special damages must be specifically pleaded and proved". Thus, this Court after being satisfied with the established facts on the claims, issues the following orders: 1. The defendant is in breach of the contract terms and covenants of the sale agreement of the two motor vehicles. 9 2. The defendant to pay the plaintiff a specific damage an amount of USD 176,616/=. Its break down is: The total sum of the outstanding balance of the agreed motor vehicles purchase price (USD 90,000/=), the accrued penalties (USD 82,000), charges and recovery costs incurred by the plaintiff (USD 4500). 3. A general compensation to the tune of TZS: 10,000,000/= 4. Costs of this suit. To that end, the plaintiff’s claims succeed as stated above with costs. Right to appeal is explained. DATED at SHINYANGA this 31st day of July, 2024. F.H. Mahimbali Judge. 10