xcmg tanzania ltd vs sure freight tanzania ltd others 2019 tzhc 168 10 december 2019

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT) AT DAR ES SALAAM CIVIL CASE No. 203 OF 2016 XCMG TANZANIA LTD...................................................... PLAINTIFF Versus 1. SURE FREIGHT TANZANIA LTD 2. VERITY MACHINERY CO. LTD v. .DEFFENDANTS 3. TAHERMUCCADAM & CO. LTD - JUDGMENT 1/ 12/ - 10/ 12/2019 J. A. DE-MELLO The crux of this suit is the purchase and, importation and, ultimate ownership of ten (10) units of Hydraulic Excavators Model XE265C from Xuzhou Economic Construction Machinery Group Import & Export Company Ltd from China by the Plaintiff. Pending registration, the consignment reached Dar Es Salaam Port of destination, with the Plaintiff employing the first Defendant, a fellow Chinese and, based in Dar Es Salaam, to clear the consignment and, process its registration. With no hesitation, the 1st Defendant cleared the cargo and handled those 10 units excavators to the Plaintiff but without^registration cards. To his i surprise and shock, sometime on the 10th October, 2016 the Plaintiff was informed of the claim of TShs. 2,105,000.00/= as outstanding payment for rental of the ten (10) units excavators, and upon further inquiry came to learn that, the undelivered registration cards had been transferred to the 2nd and, 3rd Defendants with neither his knowledge nor consent. On the 27th day of August2019, the matter took off in full gear with the Plaintiff lining up two (2) witnesses whereas the Defendant had four (4) and, represented by Counsels Edna Mndeme and Rutabingwa, respectively. The following issues were agreed by both and, adopted by the Court as hereunder; 1. Who is the lawful owner of the Excavators in dispute? 2. If the answer in one is affirmative, whether the transfer of the same from the Plaintiff to the 2nd and 3rd Defendants was lawful? 3. What are the reliefs to parties if any? The following exhibits were tendered and admitted to form pary of the oral as well as final closing submissions; 1. Exhibit PI - Board Resolution 2. Exhibit P2 - Cargo Transportation Insurance Policy 3. Exhibit P3- Packing List 4. Exhibit P4 - Counter Affidavit Civil Case No. 893 of 2016 5. Exhibit P5 - Online Official Custojn.Search 2 The Defence had three as hereunder; 1. Exhibit D1 - Resident Permit Class B 2. Exhibit D2 - Certificate of Incorporation XCMG Exhibit D3 3. Online Official Custom Search In their evidence, PW1, PW2 testified how the excavators were imported arrived and, delivered at the site. Regarding the first issue, the Plaintiff has testified that, he purchased the said ten 10 units of hydraulic excavators model XE265C from Xuzhou Economic Construction Machinery Group Imp. & Exp. Co. Ltd. from China. Invoice No. XCGM1311-132, and exhibit XCGM 1A a transfer of fund request form were tendered to prove the transaction done by the Plaintiff. PW1 explained how this fellow Chinese host Zhou Jian Jun, got into picture and, the request he made to him with a view of assisting in clearing and registering considering yet to register his company. On their part, DWI, DW2, DW3 had a different version as to how the excavators came into their possession. The 1st and 2nd Defendant disputed ownership of the Plaintiff over the excavators claiming that, it is Zhou Jian Jun who owned the company named Verity Machinery Company Ltd. the 2nd Defendant one paid the Plaintiff money for importation of the said excavators. In their final closing submission the Plaintiff's Counsel states while emphasizing, the second defendant to be the lawful and, rightful owner of the ten (10) units of Hydraulic Excavators Model XE265C that where personally imported from Construction^Mfcchinery Group Imp. & 3 Export Co. Ltd. and, arrived in Tanzania in January, 2014. It is further submitted that, the Plaintiff sought the intervention of the 1st Defendant Zhou Jian to clear but, without registration cards, they landed into the Plaintiff's yard, reasons being the process takes a while. That, while in the waiting and quite comfortable the Excavators already in his site, surprisingly on the 10th October, 2016, a Demand Note by the 2nd Defendant came claiming against China Pipeline Bureau-CCP payment of USD$ 2,105,00.00 as outstanding rental amount whereas the Plaintiff was also put to notice, a fact duly conceded by the Defendants as averred under paragraphs 12 of their Joint Defence. This then shed light to the Plaintiff's that, some of the excavators have been transferred to the 2nd and 3rd Defendant, illegally. In proving their case, and based on the two witnesses, PW1 Liu Guohui the owner himself and, PW2 Dr. Alfred Nguma it is Counsels submissions that, they both alluded to being part of ownership and, manager respectively, for the said excavators and as to how the Zhou Jian Jun came into handling them at inception when requested to clear. PW1 categorically denied to have transferred the same to the 1st Defendant. Further that, the allegation by the 1st Defendant to have received the same from PW1 as gift is even unimaginable considering the costs and intended business aligned. The illegal transfer and conversion by the Defendants has caused immense suffering to the Plaintiff which calls for awarding damages as the Court declares the Plaintiff the lawful owner of the said excavators. PW2, the Plaintiff's Manager tendered exhibit PI, the Company Resolution for instituting the case, exhibit P2, Cargo Insurance Pojicy^fqr proof of abiding to law by the consignee non other than the Plaintiff himself. Exhibit P3 proof for consignment that has been shipped which forms a very crucial document for preparing Bill of Lading, yet another important shipping document, not negotiable. In quest of proving ownership, PW2 similarly tendered exhibit P4 an Affirmed Counter Affidavit by Zhou Jian Jun filed in Court on the 28th of June 2017 in Misc. Appl. No. 893 of 2019 in which the deponent confirms PW1 to be the majority shareholder of the Plaintiff but transferred the same to the 2nd Defendant, Verity Company Ltd., a fraudulent allegation. Conclusively, it was exhibit P5 for Invoices which the 1st Defendant Company had handled and, worked upon, as instructed by the Plaintiff for ensuring the Cargo is cleared and registered. This, Counsel concludes, in answering the 1st issue in affirmative having proved ownership as required by law in Civil suits for "Balance of Probability" based on the exhibits tendered and admitted. The Defendants whose evidence as alleged by Counsel for the Plaintiff had largely corroborated as seen in paragraphs 2,&,3 of the Defendants joint defense, confirming who the consignee was. In as far as shipping and importation reflects, tendered unopposed, exhibits P2 & P3 and admitted both by Court as well as paragraph 7 of the amended Plaint. In DW l's testimony it was unopposed of the instructions given by PW1 to clear and register the excavators, and the more reasons that, all the original documents still bears the Plaintiffs name and, possession. To the contrary, Counsel defines the Defendants evidence as contradictory, evasive with the introduction of new issues that have not been pleaded. This, he further observes, is as seen from paragraphs 11 & 12 of the^mended Plaint in which the 3rd 5 Defendant claimed from CCP an outstanding sum of USD$ 2,105,000/=. Failing to address these serious allegations, the Defendant in their evidence alleged the Notice to be genuine but in their testimonies, claim that they were stolen, not withstanding the knowledge that they belonged to the Plaintiff. Another contradiction aroused from where the excavators were, with DW2 claiming to be lying at Mbezi while DW3 at Ikwiriri. The denial to know the Plaintiff is even controverted under paragraph 2 of the Defendants defence for their possession. In line with Order VI Rule 7 of Cap. 33 and, considering the Defendants evasion above, the Reliefs sought have no basis, not found from the pleadings. The case of The Registered Trustees of the Roman Catholic Archdiocese of Dar Es Salaam vs. Spohia Kamani, Civil Appeal No. 158 of 2015 for parties bound by pleadings was cited. That said for the 1st issue, the 2nd issue with regard to transfer, Counsel and, based on paragraph 2 of the joint defence by the Defendants claiming all the excavators to be in the 3rd Defendant's name contradicting the testimonies during hearing that, only seven (7) have been registered and, worse even, not prayed as a Relief for a declaration in that endeavor, which raises eyebrows. This not enough, no proof whatsoever has been evidenced by the Defendants for that transfer, if true. That, the incoherence in evidence as well as that from pleadings ,is all what makes the defence highly evasive and, fraudulent, more so when GN No. 5 of 2016 indicates voluntary winding up of GKZ Building Material Ltd appointing the 3rd Defendant as Administrator. Strangely, it is this same Administrator who on the 10th October, 2016 sent a demand notice to China Petroleum Pipeline Bureau (CPP) for 6 the alleged claim of outstanding rental charge of USD$ 2,105, 000/=, the very time the Plaintiff was harassed by the Police. The case of Scan- Tan Tours Ltd vs. The Registered Trustees of Catholic Diocese of Mbuiu, Civil Appeal No. 78 of 2012 was referred to on abiding to issues framed. Finally is the prayers that the Reliefs have portrayed in the Plaint. Submitting in the final closing, the Defendants Counsel and, in answering the 1st issue as to Ownership, shared what section 110 (1) & (2) as well as section 111 of Cap. 6, of that duty one which lies with the Plaintiff and him alone for proof of his case. Counsel challenged the genuiness of exhibits P2 & P3 unclear of what the Plaintiff possess by. Counsel relied on allegation made by the Plaintiff as to how he paid for the excavators which he alleged to have done so by depositing USD$ 1,265,000.00/= in cash and into CRDB Bank and with no proof. In such absence it does not register how such huge sum of cash entered the country and, deposited, which is against the law. It is Counsel's further version that, if it was not for the 1st Defendant, a Company which employed PW1 vide work permit class B No. RPB 1070019 exhibit D l, for him to be able to raise such money, as he alleges. He even raised concerns over exhibit P3 coupled with controversies over the dates, name of consignee, ultimately making purchase if any as alleged to be on the 1th of December 2013 and, not in November 22nd. Alternatively, there was a temporary registration in January 2014 in the name of the Plaintiff following clearance by DW1, notwithstanding the fact that, the Plaintiff was registered already. Counsel wondered how PW2 purported a Manager of the Plaintiff, being credible, considering his joining of the company sometimes late in 2016, injunction inapplicable and hence possession of the excavators into their ownership. The Plaintiff claims has no merit, not proved as required by law in Civil suit and, justifies a dismissal, Counsel concluded. Now, the contentious issue here is who is the lawful owner of the 10 units of hydraulic excavators model XE265C? It is evident that, the Plaintiffs evidence weighs more than that against the Defendants. I am saying so observing that, apart from the 2nd Defendant alleging the excavators to be his, no evidence has been solidly adduced whatsoever to prove the assertion. I am aware this not being his duty but the one moving the Court. Vivid and, quite apparent, all the documents relating to Shipping Consignment, including Commercial Invoice (exhibit XCGMlb), transfer of fund request form (ECGM la) and, Certificate of Insurance (P2),collectively, bears the name of Plaintiff, XCMG. It is my further observation that, title of a consignment is a document from consignor to consignee evidencing shipment and addressed to the Plaintiff proving him to be the owner of the 10 units of hydraulic excavators model XE265C. It is even a plain truth that, the Plaintiff did sought the service of 1st Defendant for clearing and, registration, in as far as exhibit P5 tendered by PW2 , wherefore, despite actual delivery of the same, the 1st Defendant could not deliver registration cards as expected and which the Plaintiff on trust believed the reason for delay as advanced by DW3. The averment by the Defendants (DW1) denying exhibit P5 that, it is not genuine without tendering the original one counter cannot be acted upon by this Court. This being a Criminal allegation in a Civil claim has a different approach altogether and which calls for a, Vst^ctier standards' for proof. 9 See the case of Omari Yusuf vs. Rahma Ahmed Abdulkadir [1987] TLR 169. Mere aversive statement and, not substantiated are speculative and highly fabrication. The law under section 110 of the Law of Evidence Act Cap. 6 shifts the burden of proof to the Defendants if at all, for this Court to believe their side of the story. From this, the first issue has been answered in affirmative, ownership belongs to the Plaintiff. Coming to the second issue, it is clear from the evidence that, PW1 is the majority share holder of the Plaintiff, the company, XCMG itself. Nowhere has it been shown any document evidencing sale agreement or any other of the like, that, PW1 had at any point sold or transferred the ten (10( excavator to the 2nd Defendant. It must be noted that the physical delivery of goods by the 1st Defendant did not mandate him to transferring ownership at any standard. The simple translation for this and if true, is day light robbery. Section 11(1) & (2) of The Law of Contract Act provides for persons privy competent to contract, which in this case, the Plaintiff is one competent to transfer the 10 units excavator is Plaintiff alone. He had a good Title, reference to the Affidavit affirmed by Zhou Jian Jun, (exhibit P4) that, PW1 bought the 10 excavator for Verity Machinery Ltd, before its incorporation, is a pure lie. Another lie is the allegation that XCGM transferred the units to Verity Machinery Ltd, whose proof was wanting from the ones alleging Lets say for argument purpose, how transfer if at all, could be effective, considering XCGM Ltd was yet to accomplish registration but still the owner of the 10 excavator? There is no evidence whatsoever of purported transfer tendered before his Court to that end. In this vein and, fnot k transeferee himself, the 2nd 10 Defendant could not transfer to the 3rd Defendant what, he could not own. As Lord Denning in Bishop gate Motor Finance Corporation Ltd vs. Transport Brakes Ltd [1949] KB 332 stated; "In the development of our law, two principles have striven for mastery: no one can give a better title than he himself possesses...". This principle expresses the needs to protect the proprietary right of the original owner since he had better title to the goods than anyone else. Nothing was transferred to the 3rd Defendant since the 2nd Defendant had no good title to transfer, I repeat. The same position was taken in a case where one bought a car from a thief and sell to another person, in Rowland vs. Divall, [1923]2KB 500. "The Defendant did not have the right to sell the goods as he did not obtain good title from the thief. Ownership remained with the original owner" In our jurisprudence on the same is the case of Farah Mohamed vs. Fatuma Abdallah [1983] TLR establishing the principle of "Nemodat Quod Nan" amongst many others.... For the reason, I satisfy that, the transfer of the excavator from 2nd to the 3rd Defendant is not legally accommodated. Now as for the Relief to Parties, it is my findings that, the 2nd Defendant unjustifiably enriched himself and, fraudulently so, out of the property he never owned at all. As it was held in Rowland vs. Divall, (supra) the Plaintiff remains with the ownership of the ten (10) units of Hydraulic Excavators Model XE265C under the law of restitution. The 3rd Defendant knowingly or otherwise, got trapped into this, at hia own) oeril. Having said so, the ii Plaintiff in paragraph 13 of the Amended Plaint, pleaded damages both general and, punitive damages. It is my observation that the entire circumstance surrounding this case created disturbance, injury and, pecuniary loss to the Plaintiff. For the reason this Court order General Damages to a tune of USD $ 10,000.00., considering he is already in possession of the nine excavators while the other last unit lying at the Police Kawe. I am awarding the above guided by the case of Admiralty Commissioner vs. SS. Susqehanna (1950) 1 ALL ER 392 and Davies vs. Powel (1942) ALL ER 657, on General damages principles. As for punitive... In the whole and for the reasons explained above, it is hereby held that the Plaintiff has succeeded in his suit and, all his prayers are hereby granted as prayed. Defendants to bear costs of the suit. It is accordingly ordered. J. A. DE-MELLO JUDGE 10/12/2019. 12