top max logistic ltd vs regional logistic and another 2021 tzhccomd 3443 25 august 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION)

AT DAR ES SALAAM COMMERCIAL CASE No. Ill OF 2019

BETWEEN TOPMAX LOGISTICS LTD............................ PLAINTIFF

VERSUS 1. REGIONAL LOGISTICS........................1st DEFENDANT 2. REGIONAL LOGISTICS (ZAMBIA).... 2nd DEFENDANT JUDGMENT (EX-PARTE) MRU MA, J. The Plaintiff is described as a Multi Services Limited Liability Company engaged in the business of clearing and forwarding agency, shipping brokerage, Commission Agency, Freighters, Haulers, Customs Bonded Warehouses, Go-down Keeper, Cargo and Superintendent, Parkers, Civil Transport Contractors and transporters by any other means of conveyance of goods in Tanzania and neighboring countries. The first Defendant is described as a registered company in Tanzania under the Companies Act Cap 2012 R.E. 2019 and the second Defendant is a company registered in Zambia. i The Plaintiff brings this suit against the Defendants jointly and severally for recovery of USD 38,461.44 being demurrage charges by 17th September, 2019, but which is subject to increase at the rate of USD 240 per day delayed; general damages for breach of contract, an order for return of six (6) empty containers, interest and costs of the suit. The basic facts alleged in the plaint are that between 20th and 21st May, 2019, Mr. Peter Kitiwa the Chief Executive Officer and Director of the 1st and 2nd Defendants respectively negotiated a deal with the Plaintiff to transport eight (8) containers loads and the Plaintiff agreed to give the Defendants the work to transport the

said container loads Lusaka Zambia and Kigali Rwanda at the price of USD 30,200.00. Six (6) containers were to be transported to Lusaka Zambia at the cost of USD 24,000.00 while the remaining two were to be taken to Kigali Rwanda at the cost of USD 6200.00. According to the Plaintiff the containers belong to shipping companies and it is the plaintiff who has agreements with the shipping lines to take them and ensure that they are safe, intact and timely returned to the said shipping lines without accumulating any demurrage charges. The containers were to be returned after 40 days from the date of loading into the Defendants' trucks and that any delay of returning empty containers would attract demurrage charges accrued on daily basis. It is further contention of the Plaintiff’s that it paid the agreed advances of USD 22000.00 to the Defendants soon after they had agree on terms by entering into carriage of goods by road to convey the containerized cargo to Lusaka Zambia and Kigali Rwanda. 2 The Plaintiff avers that despite taking the agreed advances, the Defendants jointly and severally deliberately neglected and failed to honour their obligations under the agreement to convey the containerized cargo within time in order to satisfy the Plaintiff in order to satisfy the Plaintiff's customers and prevent them from pulling out their business or holding the Plaintiff's balance

payments. The Plaintiff alleges that the Defendants' diverted the monies paid advance to other activities and consequently forcing the Plaintiff to inject extra amounts to rescue the situations by directly buying fuel and spares and paying drivers' allowances on behalf of the Defendants. The Plaintiff alleges further that the Defendants returned two containers and had refused to return the remaining six containers without any good reason while they had only a balance of USD 8,000 due after returning the empty containers. The Plaintiff avers that the shipping lines whose containers are withheld by the Defendants are charging demurrages per days delayed on the account of the Plaintiff and that up to September 2019 the total demurrage charges the plaintiff is demanded to pay is USD 46,461.44 which keeps accumulating as days goes on and the containers are not returned. The Plaintiff alleges that it has started to suffer rejection as shipping lines whose containers are held by the Defendants have started to refuse to work with the Plaintiff as a result of which it has suffered huge financial loss and business credibility. 3 The Plaintiff alleges that the Defendants jointly and severally are liable to compensate it for huge financial loss and for the ruin of its long built business credibility to the shipping line companies. The Plaintiffs case is that the refusal of the first

Defendant or the neglect of the first Defendant to return the containers amount to breach of contract for which it claims bot special and general damages. This matter was presented for filing on 25th September, 2019. And it was called before judge for the first time on 26th September 2019. An order for service on Defendants was duly made. The Defendants were duly served and they filed a joint written statement of defence which was presented for filing on 6th November 2019. They were being represented by advocate Stephen Mosha, learned Advocate who later on withdrew from the conduct of the matter. After the withdrawal of Mr. Mosha, efforts to serve the Defendants so that they could either engage another advocate or proceed on their own proved futile. I have considered the publication service published in Daily News newspaper of 7th August 2020 and I am satisfied that the Defendants were properly served. Accordingly the case proceeded ex parte for formal proof and the Plaintiff produced one witness Mr. Henry Otieno Owor, a Director of the Plaintiff's company. The gist of the written testimony of the Director of the Plaintiff is that the Plaintiff did on 20th and 21st May, 2019 enter into a contract with the Defendants to transport 8 containers for the agreed transport costs of USD 30,000.00. Six containers were destined to Lusaka Zambia and two to Kigali Rwanda. The Plaintiff

paid to the Defendant an 4 advance of USD 22,000.00. The witness stated that generally the Plaintiff is not liable to pay demurrage unless she causes the accrual of the same. He said that its company had a bilateral agreement with shipping line companies under which the obligation to pay demurrages automatically shifts to a party whose action or omission causes the same to accrue. He said that despite paying to the Defendants advance of transport charges, extra monies for spares and drivers' allowances and fuel, the Defendants didn't return the containers in time as a result of which shipping lines wrote demands letters to the Plaintiff and threatened to stop working with it. According to the witness the Defendants acts have caused irreparable loss to it and have tarnished its good image in the market. He said that up to September 2019, the Plaintiff was supposed to pay USD 46,461.44 for the containers seized and abandoned by the Defendants. The defendants filed a joint Written Statement of Defence denying the Plaintiff's allegations and claims. They contended that all agreements were between the Plaintiff and the first Defendant and that all payments alleged to be paid were paid to the first Defendant and not the second Defendant. 5 Regarding return of containers, they stated that the delay in returning containers was caused by mechanical problems of different trucks which

were out of the 1st Defendant's control. They said that the first Defendant had foreseen the escalation of demurrage and insisted to the Plaintiff to receive the containers with an idea to calculate the demurrage and see the possibility of paying the Plaintiff but the Plaintiff refused to corporate. The Plaintiffs contention is that the Defendants breached the promise to return the containers with the agreed time. Secondly the breach caused the Plaintiff to suffer threats of paying demurrage charges which is chargeable by shipping lie companies. The breach also led to unwarranted inconveniences in that the Plaintiff's long established business reputations with shipping lines had been tarnished. The Plaintiff's director testified that he communicated to the first and second Defendants and requested them to return the containers so as to fulfill their obligations but in vain. PW1 testified that it was their business and normal practice that they enter into agreements with shipping line companies to take the containers and ensure their safety, intactness and timely returning of empties. The summary of the pleadings, and evidence adduced by the Plaintiff addresses the following issues: 6 1. Whether the Defendants breached the promise to return empty containers within the agreed time 2. Whether the Plaintiff is entitled to the remedies sought in the plaint? Issue No. 1: On whether

the Defendants breached the promise to return empty containers within the agreed time The Plaintiff's Director's evidence as summarized above addressed that issue. The Defendants in their joint written statement of Defence admitted that they didn't return empty containers as agreed by they said that it was because of reasons which were beyond their control. Breach of a promise just like breach of a contract occurs when one or both parties fail to fulfill the obligations imposed by the terms of the promise or contract. The Defendants failed to return the containers within the agreed time and is in breach of the contract terms were in breach of their obligations thereunder. Issue No. 2: On whether the Plaintiff is entitled to the remedies sought in the plaint? The Plaintiff's counsel prayed for the payment of USD 38,461.00 being demurrages charges payable as at 17 September, 2019 subject to increase at the rate of USD 240 per day interest at the rate of 25% per annum the decretal sum, another interest at the rate of 12% per annum from judgment to date of final payment, general damages for injured feelings and loss of business, credibility and trust to the Shipping lines and an order for return of 6 containers. 7 I have carefully considered the pleadings of the Plaintiff as well as the evidence adduced. This suit proceeded ex-parte against all Defendants. It had been fixed for

formal proof after the suit was heard on 27th May, 2021 whereupon the Plaintiff called one witness, the Director of the Plaintiff who relied on a written testimony that was admitted in evidence on oath. From the evidence the Plaintiff has established as far as the first issue is concerned that the Defendants are in default of its promise obligations as indicated in the documents adduced in evidence. These documents are the e-mail communications (exhibit Pl). The second documents are payment receipts indicating payments the Defendant made to the 1st Defendant. The third set of document is a list of containers which were delayed to be returned from Zambia (Exhibit P4) and correspondences between the Defendant and the Plaintiff (Exhibit P5). A conclusion of this issue is that I agree with the Plaintiffs counsel that the Plaintiff is entitled to the claim of USD 38,461.44 Claimed in the Plaint being demurrage charges. The Plaintiff is claiming for general damages. General damages are generally awarded only in claims brought by individuals when they have suffered personal injury following the tort of negligence by the Defendant or the tort of defamation. In Civil Appeal No. 21 of 2001 Between Stanbic Bank Tanzania Ltd Versus Abercombie & Kent (T) Ltd, the Court of Appeal held inter alia that: "Genera! damages are such as the taw will presume to be the direct natural or probable

consequences of action complained of and it is the sum of money which 8 will put the party who gas suffered or has been injured in the same position as he would have been if he has not sustained the wrong for which he is now getting compensation or reparation." In the case at hand there is evidence of PW1 Henry Otieno and correspondences (Exhibit P6), to the effect that the Plaintiff's clients were bitter about the delays to return containers and they had threatened to stop doing business with the Plaintiff. I hold this to be consequences of injuries caused by the Defendants in her business reputation which must be atoned. I therefore find and hold that the Plaintiff is entitled to get general damages. Regarding how much can place his reputation in the position it were before the delay in returning containers, although the Plaintiff did not lead evidence to show the magnitude of its business before and after the injuries, taking into consideration the size of the business it did with the shipping lines mentioned in this case, I would assess general damages payable in this case at USD 8,000.00. With respect to interests, the Plaintiff is claiming interests at the rate of 25% per annum from the date of filing the suit to the date of Judgment and at 12% per annum from the date of judgment to the date of payment in full, I note that the currency involved in this suit is United

States of America Dollars. US Dollars is among the strongest currency in the world economy. 9 Charging an interest rate of 25% per annum is being unrealistic. I would therefore order an interest of 5% per annum and 2% per annum respectively. In summary therefore, judgment is hereby entered for the Plaintiff and against the Defendant as follows: 1. The Defendant shall pay to the Plaintiff USD 38,461.44 being demurrage charges of the unreturned containers up to May, 2021 and further USD 240.00 per day per container until they are returned to the Plaintiff; 2. That the Defendant shall pay to the Plaintiff USD 8,000.00 being general damages for the delayed containers; 3. That the decreed amount in (1) shall attract interest at the rate of 5% per annum from the date of filing the suit to the date of Judgment and further interest at court's rate of 2% per annum from the date of judgment to the date of full settlement of the decreed sum.

4. The plaintiff will have costs of the suit. A. R. Mruma,

JUDGE 25/8/2021 io 25/8/2021 Coram: Hon. A. R. Mruma, J. For the Plaintiff: Ms. Gema Mrina Adv. For the Defendant: Absent CC: Mwangoka Ms. Gema Mrina: It is for judgment and we are ready to receive it. Court: Judgment delivered this 25th day of August, 2021 in the presence of Ms. Gema Mrina, Advocate for the Plaintiff but in absence of Defendant. li