WEIXING PLASTIC LTD

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CIVIL CASE NO 193 OF 2023 REF NO 20231002000530418 WENXING PLASTIC CEMENT INVESTMENT CO. LIMITED------------------------------------------PLAINTIFF VERSUS. TAWAKKAL COMPANY----------------------------------------------DEFENDANT JUDGEMENT: 18 Nov 2024 & 10th Feb, 2025. KIREKIANO, J: The plaintiff manufactures plastic products, non-woven fabrics, rubber tires, and tubes. The plaintiff's relationship with the defendant arose in 2021 when the defendant, under the oral arrangement, bought one set of machines from the plaintiff for USD 320,000.00/=. The payment of consideration was made by installment; After payment of part of the consideration it appears the payment schedule did not go as smoothly as expected. On 10th July 2022, both parties agreed to reduce their agreement to writing. They executed what they termed a Deed of Settlement for the remaining balance of USD 126,199.00/=. 1 According to the said agreement, both parties agreed on how to accomplish their sides of bargain. It was agreed that the plaintiff would send a technician to the defendant to assist in testing and service of the machine, with the condition that the defendant would bear all the costs. Soon after the machine resumes working, the defendant will pay the plaintiff USD 26,199.00, and the remaining USD 100,000.00 will be paid in three installments not later than 31st December 2022. It is the plaintiff claim that, after the machine was installed in Burundi as agreed, the defendant refused to pay the outstanding balance of USD 126,199.00, hence this suit. In this suit, therefore, the plaintiff claims against the defendants the following reliefs thus; 1. For payment of United States Dollars One Hundred Twenty-six thousand one hundred ninety-nine only (USD 126,199.00) being the purchase price of One Set of machine and non-woven fabrics, 2. For payment of USD 100,000.000 being the services fees, labour charges, air tickets, meals and accommodations, 3. Payment of USD 500,000.00 being the compensation for the loss of business and profit caused by the defendant since 2022 to date, 4. Payment by the defendant an interest on the principal 2 amount rate of 12% per month from the filling of the case to the full satisfaction of the whole amount, 5. Payment by the defendant of general damages to be assessed by this Honourable Court, 6. Payment of interest on the decretal sum at the Court’s rate of 21% per annum from the date of judgment to the date of payment in full, 7. Costs of this suit are awarded to the plaintiff and 8. Any other relief this Honourable Court may deem fit and to grant in favour of the plaintiff. The defendant disputes the plaintiff claims stating that the machine that was purchased was single, not double effect machine contrary to what was agreed, and that it had not been working from the first day it was installed and had never been working up to date. The defendant states further that the outstanding balance of USD 126,199.00 emanated from the non-woven rolls supplied by the Plaintiff to the defendant. He prayed the case to be dismissed with costs. On the other hand, the defendant filed a counterclaim against the plaintiff, claiming that acting on advice of the plaintiff, the defendant purchased, woven materials worth of USD 80,000.00 which were all wasted 3 during testing without producing any product to the required standard. In his counterclaim, the defendant and plaintiff in the courter claim the following reliefs; 1. USD 300,000.00 being the specific amount paid for the purchase of one set of machines. 2. General damages to the tune of USD 1,000,000.00 being the compensation for psychological torture, the loss of business and profit caused by the defendant since 2021 to date. 3. Payment of USD 100,000.00 being the interest for the loan borrowed from financial institutions and other people to purchase for the one set machine from the defendant. 4. Payment by the defendant an interest on the principal amount rate of 15% per month from date of filling the suit to the date of Judgment/Decree 5. Interest on item (d) above at commercial rate of 12% from the date of decree till the final payment. 6. Costs of the suit and 7. Any other reliefs this Honorable Court deems just and fit to grant. In deciding this case the following issues were framed for the determination of this case, 4 1. Whether the defendant /plaintiff in the courter claim was in breach of the sale agreement 10/7/2022 by failing to pay the outstanding purchase price of the purchased machine, 2. Whether the plaintiff/defendant in the counterclaim was in breach of the verbal contract of 2021 in respect of the sale of the machine. 3. To what reliefs the parties are entitled to? To make his case, the plaintiff had the service of Mr. Datius Faustine and Mr Edrick Ruimuka, and Mr. Bernard Steven learned advocates, and paraded three witnesses. The defendant had the service of Mr Adili Kiiza learned advocate who paraded two witnesses as well. In substance, the plaintiff's case was that; PW1 Yang Ji is the Managing Director of the plaintiff. In 2020, the plaintiff and defendant had an oral agreement with the defendant to sell a plastic bag processing machine at USD 300,000/=. The defendant made a part payment of USD 50,000/=. According to the plaintiff, it was agreed that the machine should not be taken before full payment of the purchased price, but the defendant took the machine before paying the outstanding amount of the purchased price. The defendant asked for assistance in installing the machine, and the plaintiff responded by sending his personnel to install the machine as 5 requested. The plaintiff went on to remind the defendant to pay the outstanding amount, but the defendant responded that there was a scarcity of USD currencies in Burundi. The plaintiff believed that the defendant was sincere. To be safe, in 2022, both parties decided to reduce their agreement into writing, and a deed of Settlement (Exhibit P1) was signed. During the signing of (Exhibit P1) USD 126,199.00 was the unpaid sum. It was agreed that the plaintiff would send the technician to the defendant to test the machine. Upon fulfilment, within 20 days after Tapeline resumed work, the defendant would pay USD 26,199 to the plaintiff. The remaining USD 100,000.00 would be paid in three instalments, of which the last instalment was to be paid no later than 31st Dec. 2022. According to this witness, there was an agreement that they provided materials for testing and commissioning on a refund basis amounting to USD 6,000. Still, the defendant did not refund the same. Responding to the counterclaim, he said the defendant did not discharge his part of the agreement and that the defendant, who is the plaintiff in the counterclaim, did not cooperate with the engineers. According to PW1, the machines are in the possession of the defendant’s 6 company, and the defendant has not paid USD 126,199 and other expenses, about 100,000 USD. He disputed the description of double effect machine. During cross-examination, he said the defendant inspected the machine before purchase, and it was a single machine. He also insisted that the plaintiff installed the machine following the defendant's failure; thus, the machine was working. PW2 Wang Sheng Hong was the plaintiff technician who went to Burundi to fix the machine. According to him, on 25/03/2022, he was instructed by PW1 to go to Burundi to fix the machine for three days. He left the machine working correctly. He went to Burundi again from 25/07/2022 to 10/08/2022 to fix and service the machine, where he learned that the power supply and the use of incompatible materials caused the problem with the functioning of machine. Mr. Muganyizi Derick Charles testified as PW3. According to him, he gained the skills of operating the machine and welding it from PW1. In 2021 he went to Burundi to fix the machine on the instruction of Said Haji, the defendant’s officer. He said that the complaint that the machine was not working correctly was due to the use of incompatible materials and that 7 the operators left in Burundi had no skills to operate the plant. On the part of the defence side, Mr. Lucas Charles testified as DW1. According to him, he is the defendant agent in Tanzania. He is the one who did business with PW1 to purchase the machine. He said PW1 informed them they had a machine for sale, so he introduced it to his boss, Mr. Niyongabo (DW2), who negotiated with PW1. According to this witness, the machine was a double machine with multiple functions. They agreed to purchase it at USD 300,000, which would be paid in instalments. He said, PW1 agreed to supply consignment of woven materiel so as to allow the defendant to make full payment. PW1 supplied the consignment worth USD 126,000 and the defendant managed to pay the full price of the machine. When cross examined, he replied that he was the one who paid PW1 on behalf of the defendant though he has no proof on that. The second witness was Niyongabo Said (DW2) the Director of the defendant. He travelled from Burundi to Dar es salaam to inspect the machine before purchasing it. They agreed to purchase it on USD 300,000 and he made down payment of USD 50,000. After that he asked PW1 to send him proforma invoice which was done (Exhibit D1). 8 According to DW2, he sent USD 90,000 to the plaintiff after having received a proforma invoice, then USD 84,000 and the last payment was done in 2022. He then said that PW1 requested the full payment of the amount. He decided to loan them the material worth 126,199 USD with the view of assisting them in payment of the machine. Later they entered into contract (deed of settlement Exhibit P1 / D2) on the modality of payment. According to him the plaintiff sent his engineers to Burundi to fix the machine but failed to do the work. Thus, the machines are not working till now. When cross-examined, DW2 said he inspected the machine before purchasing it as it was a double machine, but what was transported was a single-side machine. He told this Court that he did not return the machine. That being both parties evidence, before resolving the issues agreed upon, I wish to start by appreciating the vital principle of evidence that, “he who alleges must prove” this principle is provided under section 110 and 111 of Law of Evidence Act, [Cap 6 RE 2019] but also explained in number of decisions including; Barelia Karangirangi Versus Asteria Nyalwamba, Civil Appeal No.237 Of 2017, Cat (Unreported) and Wolfgang Dourado vs Tito Da Costa, ZNZ, Civil Appeal No. 102, CAT - (unreported). 9 The burden of proof in suits lies on that person who would fail if no evidence was given on either side. The burden shifts only when he discharges that duty for the other party to rebut also on balance of probabilities. This suit has been based on a contract, I also wish to quote what Sir P.C Mogha said in his book titled “The Principles of Pleadings India” (14th edition) at pg. 269 that: - “In a suit brought on a contract, the contract must first be alleged, and then its breach, and then the damages. The actual contract which was in force between the parties should alone be alleged. With that note, I will start with the first issue whether the defendant /plaintiff in the courter claim breached the sale agreement 10.7.2022 by failing to pay the outstanding purchase price of the purchased machine. Reading from the contract, which was relied on by both parties, that is, Exhibit P1/ D2, the outstanding amount remained at the sum of USD 126,199. As presented by PW1, the plaintiff's evidence maintained that the defendant could not pay the unpaid sum of USD 126,199. This is according to exhibit P1, signed by both parties, and evidence by PW1 YANG, who said they supplied the defendant with about 3 tones, costing 10 about USD 6000 material to test the machine, but the defendant had not paid the same giving several excuses including no availability of USD currency. On the defendant's part, the defendant stated that the payment agreed upon for purchasing the machine has already been paid in full. This is also quoted under paragraph 2 of the amended written Statement of defence that the claimed amount of USD 126,199 was for the non-woven fabric materials which the plaintiff supplied to the defendant. On the other angle of argument, stated in para 15 of the written statement of defence, the defendant said the technician sent by the Plaintiff failed to set up and test the machine, and as a result, the machine did not work at all, and it is still in the same situation to date. In his defence, when cross-examined, DW2 told this Court that he had not paid the outstanding sum of USD126,199.00. I have considered paragraph 15 of the defence but also DW2 testimony on admission that the outstanding amount had not been paid, as aid to resolve the question on payment or otherwise of the outstanding amount. This is in view of section 60 of the Evidence Act, Cap 6 R.E 2019 that: - 11 “No fact needs be proved in any civil proceeding which the parties thereto or their agents agree. Based on the above, on balance of probability, I find a fact that the outstanding amount has not been paid by the defendant. To resolve the issue of breach the question is whether the defendant was justified not to discharge their side of the bargain. Reading from the defendant pleading the plaintiff' had obligation to assist in installation of the machine before the outstanding balance that is USD 126, 199.00 were paid in full. To appreciate this, it is worth revisiting the term of the contract. Reading from this contract, the same at clause 1 shows; Party A will send its technician (s) to Party B for guidance and assistance to test /serve machines. Party A will pay service/ labor fees to Technician (s), and Party B will bear cost for Technician return tickets, food and accommodation. The plaintiff stated that they sent technicians to fix and service the machine in Burundi. This is according to the evidence by PW1 but also P2 who said he went to Burundi to fix he machine part of PW2 evidence reads. I was instructed by my boss to go to Burundi to fix the machine, on 25.3.2022 I went to Burundi and fixed the machine for 3 days. I did not know the owner, I was just instructed by my boss, (Pw1) after fixing the machine I came 12 back to Tanzania on April 1st 2022. I left the machine working normally. I went to Burundi again on 25.7.2022 until 10.8.2022 to fix the machine. This evidence was corroborated by PW3. Muganyinyizi Derick who also went to Burundi to fix the machine and left the same working. I have also considered the defendant evidence that that the machine is not operational to date. While I note that it was the plaintiff’s burden to prove that they assisted the defendant to fix and service machine, since the plaintiff did in fact send his personnel to fix the machine, as stated by PW1, PW2 and PW3. To rebut this fact, it was expected that the defendant would come up with more tangible evidence, showing dissatisfaction with the service. A mere denial did not suffice. Based on the above I find that the defendant was not justified to decline payment of the outstanding amount. The fist issue is answered in affirmative. The second issue is whether the plaintiff /defendant in the counterclaim was in breach of the verbal contract of 2021 regarding the sale of the machine. This issue arose from the defendant's counterclaim. It is common ground in both parties’ evidence that the plaintiff and the defendant had an existing business relationship. Out of this relationship, there was an oral 13 agreement between the plaintiff and the defendant on the sale of the machine. The defendant claims that upon scrutiny, they discovered that the machine was of single, not double, effects, contrary to what was agreed upon at the beginning of the negotiations. To be clear, I wish to highlight here that it is the stance of the law that parties must fulfil their obligations to the contract they willingly entered. The principle of sanctity of contract was discussed in the case of Abuaiy Alibhai Azizi v. Bhatia Brothers Ltd [2000] T.L.R 288 which held: "The principle of sanctity of contract is consistently reluctant to admit excuses for non-performance where there is no incapacity, no fraud (actual or constructive) or misrepresentation, and not the principle of a public policy prohibiting enforcement.” I have considered the evidence available on the sale of the machine. There is no dispute that there was this sale preceded by oral agreement. This is the plaintiff's case and not disputed by the defendant. As such, the parties’ difference in the execution of the sale agreement was hampered by non- payment of the instalment amount as agreed which then culminated in to reducing the agreement into writing (Exhibit P1 /D2). 14 Now, the defendant and plaintiff in the counterclaim, wants this court to go back to the oral agreement and consider the terms of the contract specifically on the description of goods. In his evidence, the defendant and plaintiff in the counterclaim, acknowledged receiving a proforma invoice dated 26/10/2021 which he tendered as (Exhibit D1). The same shows that the description of the goods was a single-side seam machine. This was then followed by execution of the written agreement (Exhibit P1 /D2). I hasten to say here that, had there been an issue on breach of the term on description of goods agreed in oral agreement, the same would have been reflected in the reduced written agreement Exhibit P1/ D2. In the absence of that, I am not swayed by the plaintiff's case in the counterclaim on this aspect because, once parties to a contract reduce their oral agreement into writing, the written agreement prevails. This is the principle under section 101 of the Tanzania Evidence Act, Cap 6 R.E 2019. This principle was restated by the Court of Appeal in Lulu Victor Kayombo v. Oceanic Bay Limited and Mchinga Bay Limited, Consolidated Civil Appeals No. 22 and 155 of 202 that: "Documentary evidence reflected repositories and memorial 15 of truth as agreed between the parties and retained the sanctity of their understanding' I have examined Exhibit P1/D2, relied on by both parties. This complaint is not supported by evidence. There is also the claim of USD 80,000.00, to the effect that the same was used to buy materials. It is alleged that the same was wasted during testing without producing any product to the required standard. Traversing the counterclaim, the defendant and plaintiff in the counterclaim stated that the same was purchased in 2021. It is noted that this claim of USD 80,000 is not expressed in the contract relied on by both parties, which was sealed in 2022. I have indicated above that when the oral agreement is reduced into writing, what is written is taken as the contract's most transparent and coherent terms. There was no evidence of such purchase of materials or whether they were wasted. In my assessment, had there been an issue with this, it would have been included in the written contract. The second issue is answered in the negative. Lastly, I proceed to discuss the issue of reliefs to the parties. The plaintiff prayed to this Court for payment of USD 126,199.00. Having 16 answered the first issue in the affirmative, this relief is equally granted. The plaintiff also prayed for payment of USD 100,000.00, which includes service fees, labour charges, air tickets, meals, and accommodations. Again, USD 500,000.00 is compensation for the loss of business and profit. Such claims being specific must be pleaded and proved, and the same was pleaded under paragraph 4 of the plaintiff’s plaint. These were specific damages; the principle on this was stated in the case of Zuberi Augustino Vs. Anicet Mugabe (1992) T.L.R 137 that specific damage has to be specifically pleaded and strictly proved. It was expected that the plaintiff would have tendered the record of the travel accommodation, payment of labour charges, and a record of the earnings to assess loss of earning. A mere statement from evidence from PW2 and PW3 would not suffice to award USD 100,000 and USD 500,000.00. The plaintiff also claims for interest on the principal amount at the rate of 12% from the date of filing the case to the satisfaction of the same. This interest is governed by Order XX Rule 21 (2) (c) of the Civil Procedure Code. This kind of interest is the discretion of the Court and is only awarded on special damages. As such does not extend to the period after the delivery of judgment. See Anthony Ngoo & Another vs Kitinda Kimaro, Civil 17 Appeal No. 25 of 2014 (Tanzlii), where it was held that: - “The rate of interest to be awarded for the period prior to the delivery of judgment is set at the discretion of the Court.” Now in this case in the absence of award of special damages, this relief fails. There are also claims of general damages. General damages are awarded at the discretion of the Court after consideration and deliberation of evidence on record able to justify the award. See the case of Swabaha Mohamed Shosi vs Saburia Mohamed Shosi, Civil Appeal No. 98 of 2018, Anthony Ngoo & Another (supra), in the latter case, it was observed that: - " The law is settled that general damages are awarded by the trial judge after consideration and deliberation on the evidence on record able to justify the award. The judge has discretion in the award of general damages. However, the judge must assign reasons." The plaintiff has been following up on his claims. Exhibit P1 is evidence that after the defendant defaulted on payment, they just reduced the oral agreement into writing in 2022 so that the outstanding amount could be paid. I have considered the substantive claim, time of delay but also noted 18 that the parties' engagement operated between Dar es Salaam, Tanzania, and Muyinga, Burundi. Based on those circumstances, I find that award of USD 4,000,000 as general damages will serve justice in this case. The plaintiff also prayed for interest on a decreed sum at the Court rate of 21% per annum from the date of judgment until payment was completed. Award of this interest is governed by Order XX Rule 21 of the CPC thus 21.-(1) The rate of interest on every judgment debt from the date of delivery of the judgment until satisfaction shall be seven per centum per annum or such other rate, not exceeding twelve per centum per annum, as the parties may expressly agree in writing before or after the delivery of the judgment or as may be adjudged by consent: In Fredrick Wanjara & M/S Akamba Public Road Service Limited A.K.A. Akamba Bus Service Vs Zawadi Juma Mruma the CAT at Arusha, Civil Appeal No. 80 Of 2009 held at Arusha. The way the provision is couched, especially the use of the term “shall” and the phrase “or such other rate, not exceeding twelve per centum per annum, as the parties may expressly agree in writing”, enjoins a court to impose a 7% interest unless the parties agree to a higher rate, but which 19 must not exceed 12%. Since this interest is statutory, I shall award interest on the decreed sum at 7% per annum from this judgment date until the decree is finally satisfied Regarding the reliefs in the counterclaim, the plaintiff claim having found that the claim was not proved the relief claimed can not be granted. Finally, all parties prayed for the cost of this suit; the principle in the award of costs is that costs follow the event, having granted the plaintiff claims and dismissed the defendant claims in the counter claim, the plaintiff shall have the costs. In the upshot, the party's dispute is adjudged; thus; 1. The defendant/plaintiff in the counterclaim has breached the sale agreement of 10/7/2022. The defendant shall pay the plaintiff USD 126,199.00, being the outstanding sum for the purchase price of one set of machines. 2. The defendant shall pay the plaintiff general damages of USD 4,000. 3. The decreed amount shall attract interest at Court rate of 7% from this date of judgment till the date of full payment. 4. The defendant/plaintiff suit in the counter claim is dismissed with costs. 5. The defendant shall pay costs of this suit. 20 A J. KIREKIANO JUDGE 10.2.2025 COURT Judgement delivered in presence Mr Datius Faustine and Mr Bernard steven the defendant Mr Adili Kiiza advocate for the defendant. A J. KIREKIANO JUDGE 10.2.2025 21