yara tanzania limited vs bahati mwanjeza 2022 tzhccomd 103 29 april 2022

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL CASE NO 91 OF 2021 BETWEEN YARA TANZANIA LIMITED..... ...................................... PLAINTIFF VERSUS BAHATI MWANJEZA t/a B. MWANJEZA AGROVET ... DEFENDANT Date of last order: 27th April, 2022 Date of Judgment: 29th April, 2022 DEFAULT JUDGMENT: MKEHA, J: The plaintiff is a limited liability company registered under the Companies Act Chapter 212 to import, sell and distribute fertilizers. On the other hand, the defendant is a natural person trading as B. Mwanjeza Agrovet who deals with agricultural activities including sale of fertilizers. In terms of the plaint, the plaintiff's claims against the defendant are: - 11 P a g e (i) A declaration that the defendant is in breach of contract for supply of fertilizers with the plaintiff; (ii) An order for payment of TZS 296,345,650/= (Tanzania Shillings Two Hundred Ninety-Six Million Three Hundred Forty-Five Thousand Six Hundred Fifty Shillings only) being an outstanding purchase price for fertilizers supplied; (iii) Interest at the commercial rate of 25% from the date when the debt became due to the date of judgment; (iv) Interest on the decretal sum from the date of judgment to the date of full settlement of the debt; (v) General damages; (vi) Costs of this suit and (vii) Any other remedy that this Honourable Court deems fit to grant. In terms of the pleadings, in the year 2019 the panties entered into a fertilizers supply agreement in which the plaintiff was to supply fertilizers to the defendant on credit basis subject to orders which were to be placed by the defendant. The pleadings indicate further that, on diverse dates in 2 | P age 2019, the defendant through various purchase orders, ordered fertilizers from the plaintiff on credit basis payable subject to the plaintiff's conditions of sale. The pleadings go on to indicate that, in response, the plaintiff supplied the defendant with fertilizers amounting to TZS 753,579,000/= and issued several invoices out of which the total amount of TZS 296,345,650/= remained due but unpaid up to the date of institution of this suit. Upon institution of this suit, the court ordered that, the defendant be served with a summons to file defence. On 23/3/2022, Ms. Nyabige learned Advocate appeared in court with submissions that the defendant had been served. An affidavit evidencing service of plaint to the defendant was also filed in court. The same indicates that the defendant was personally served on the 16th day of October, 2021 at Laela - Sumbawanga in Rukwa Region. A copy of the served summons was also returned in court. Whereas service of summons to file written statement of defence appears to have been served to the defendant on 16/10/2021, up to 23/03/2022 the defendant had not filed his written statement of defence. In compliance with Rule 22 (1) of the High Court (Commercial Division) Rules, on 01/4/2022, the plaintiff filed an application for default judgment. 3 | P age Along with the said application, she also filed an affidavit regarding proof of her claim against the defendant. From the foregoing background there is no denial that, the defendant was served with a summons to file written statement of defence. There is also no denial that, five months after service of the summons to file defence, the defendant had not filed his defence. The plaintiff thereafter complied with the requirements of the law by filing an application for default judgment accompanied with an affidavit for proof of her claim against the defendant. The affidavit for proof of the claim indicates the way the parties entered into an agreement for supply of fertilizers on credit basis, the way the plaintiff indeed, supplied fertilizers amounting to TZS 753,579,000/=. The affidavit makes reference to unpaid invoices Nos. 003531, 003561, 003382, 003594, 003603, 003664, 003665, 003666, 003667, 003743, 003992, 003993 and 003994 totalling TZS 296,345,650/= which is the outstanding claim of the plaintiff against the defendant. The affidavit also makes reference to delivery notes relating to supply of fertilizers made by the plaintiff to the defendant. It also makes reference to purchase orders Nos. 0029, 0030, 0031, 0032, 0035, 0037, 0038, 0039 and 0041. The affidavit indicates that the original purchase orders and delivery notes were in possession of the defendant, whose failure to file defence necessitated 4 | Page failure of the plaintiff to ask him produce the original documents in court. See: Paragraphs 3 to 11 of the affidavit for proof of claim. Relying on the pleadings, documents relied upon by the plaintiff and the affidavit for proof of claim, I hold that, the conditions for granting a default judgment are in existence. For the foregoing reasons, default judgment is entered in favour of the plaintiff in the following terms: - a) A declaration is made that the defendant is in breach of contract for supply of fertilizers he entered with the plaintiff. b) The Defendant is ordered to pay TZS 296,345,650/= (Tanzania Shillings Two Hundred Ninety-Six Million Three Hundred and Forty-Five Thousand Six Hundred Fifty Shillings only) being an outstanding purchase price for fertilizers supplied but unpaid. c) The Defendant is ordered to pay to the plaintiff interest at the commercial rate of 25% from the date when the debt became due to the date of Judgment. d) The Defendant is ordered to pay to the plaintiff interest on decretal sum at a court rate of 7% from the date of judgment to the date of full settlement of the debt. ......... e). The. defendant. is.condemned. to. bear.costs.of the. suit..................... 5 | P age Dated at Dar es Salaam this 29th day of April, 2022. C. P. MKEHA, JUDGE 29/4/2022 Court: Execution of the decree in this case will be subject to compliance of the provisions of Rule 22(2) of the High Court Commercial Court Rules. It is so ordered. JUDGE 29/4/2022 Court: Judgment is delivered in the presence of Mr. Erick Denga for the plaintiff. C. P. MKEHA, JUDGE 29/4/2022 6 | P age