the master and owners of marine vessels 3 others vs dsm marine services ltd 2005 tzhccomd 17 2 september 2005

IN THE HIGH COURT OF TANZANIA COMMERCIAL DIVISION AT OAR ES SALAAM THE MASTERS AND OWNERS OF MARINE VESSELS MV. PRIVATEER; MV FISH EAGLE; MV. BUZZARD; MV. BUSTARD, MV. SWISCO NATUNA; ... PLAINTIFFS AND BARGES SONGOSONGO, FAN JOVE AND POE 1821 VERSUS Mr. Kesaria for plaintiffs Mr. D. Ngalo for defendant Date of Final Submissions: 24 June, 2005 Date of Judgment: 2 September, 2005 Dr. BWANA, J: Coast. The defendant is a limited liability company incorporated in Tanzania under Cap. 212 of the laws. It deals in offering marine services to ships at the ports of Oar es Salaam, Tanga and Mtwara. The subject matter of this case however, concerns ships that called at the Oar es Salaam port. 2. The plaintiffs' claim basically is for a declaratory order to the effect that the defendant was not an agent of the plaintiffs. Consequently the former is not . entitled to charge or recover, a sum of US $ 123,000 which it claims from the latter as agency fees. 3.1 Whether or not there is any legal relationship, express or implied between the parties in relation to shipping agencies services for the plaintiffs' marine vessels calling at Oar es Salaam port. Both parties called two witnesses in support of their respective cases. 4. The following matters seem not to be in dispute. First, is that there was no agency agreement between the plaintiffs and the defendant. Both parties admit that fact and therefore, it should not take much of our time. What is claimed by the defendant is that the plaintiffs fraudulently used the former's name and seal to obtain services at the Oar es Salaam port. I will discuss this issue later herein. Second, although the plaintiffs aver that the defendant intends to arrest some of its ships w~en they call at Oar es Salaam port, the said claim is un substantiqted. The defendant's witnesses deny the existence of such a move. The plaintiffs' failure to substantiate the claim leads to this court to ignore the claim for lack of proof, the contents of the paragraph 8 of the plaint, notwithstanding. Third, it is also uncontroverted that the plaintiffs, through COMACO, a Kenya based company owning and servicing the marine vessels belonging to the plaintiffs, had paid all the relevant port fees. The . said port fees are those that were erroneously billed to the defendant even though the said defendant had not serviced the plaintiffs marine vessels. Payment was effected following negotiations between the defendant and representatives of COMACO at which the latter - so it is said - admitted liability and paid the necessary port fees. Only the issue of agency fees - US $123,000/- remained controverted. 5. Is the defendant entitled to the payment of the said sum of US$ 123,OOO/-.? Or, have the plaintiffs' fraudulently obtained services using the defendant's name and seal? I would have preferred to consider this matter conclusively First, such claims for payment of U.S $ 123,000/- are not before the Court. The instant defendant has not sued for the same either by way of plaint or counterclaim. No relevant documents have been filed. Therefore I consider . it . influenced by gullibity. Several decisions of this court (inter alia: Isabela John vs. Silvester Magembe and others; Commercial Case No. 49 of 2003; NBC vs. B & E Investments and another, Commercial Case No. 14 of 2002; Stanbic Bank Ltd vs. Raymond Mushi and Another Commercial Case No. 306 of 2002; CRDB Bank vs. D. J. Mallya, Commercial Case No. 63 of 2000) together with the case of Omari Yusufu vs. Rahma Abulkadr (1987) TLR 169, are relevant on this point. Such proof has, however, not been provided in 2/9/2005 Coram: Dr. S. J. Bwana, Judge Mr. Byamungu for the Plaintiff Mr. D. s. Ngalo for the Defendant CC: Msuba Dr. S. ,r fi-WMl J/DGE f79/2005