20160218 TZHC Dar es Salaam

IN THE HIGH COURTOF TANZANIA' . (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL CASE -NO. 5 OF 2013 .. YARA TANZANIA LIMITED .... ·........ ;...... ~ .. -. ..........• ~ .•......... PLAINTIFF. · . . VERSUS· CHARLES ALOYCE MSEMWA t/a MSEMWA JUNIOR AGROVE KASIMU SHODO MAZAGAZA ; ) .I• ~ BARTON MWAITUKA MWALEMBE : '. ,, . ~ 13th October 2015 & 18th February, 2016 JUDGMENT MWAMBEGELE, l.: . ·This suit filed by the plaintiff on 04.01.2013 is seeking for the following reliefs · against the defendants jointly and severally: 1. A declaration that the defendants, jointly and severally, are in brepch of : the contract of sale between the parties therein; ii. An order for payment of Tanzania Shillings One Hundred Twenty Million• Eight Hun.dred Thirty Thol!sand (Tshs. 130,820,00Q/=) as purchase · price/vall:Je of the fertilisers; iii. Interest on (ii) above at the commercial rate of 25% per annum; 1 1v. Payment of Tanzania Shillings Thirty Million (Tshs. 30,000,000/=) aS= general damages; •.; · !' v. ·. Payment of interest on (ii), (iii) and (iv) at court rate from the date of · · judgment to the date of satisfaction of the decree; · vi; ;Costs of the suit; and .· ·. ·vii.·· · Any other orders and reliefs this Honourable court deem .fit and just to. grant. The suit is based on two agreements of sale for the supply of fertilisers executed by the parties· oh 30.lt:.2010 and 23.01.2011. The· two agreements; each titled '~Supply: Cum loan Agreement" were for the supply of·. fertilisers by the plaintiff to the. first. respondent. . The second and third defendants acted as guaiant6rs to the agreements. As per the terms of the~. agreements, the purch,is"i:~·r.fri'ce ·was to be paid within thirty days from the · date of supply;· .. .:,.· · · ··, The plainti·ff avers that pursuant to the agreements, it supplied the defendant · · fertilisers worth Tanzania Shillings One Hundred Twenty Million Eight Hundred. Thirty Thousand (Tshs. 120,830,000/:=) : as purchase price/value of th~ •fertilisers as exhibited in invoices and delivery. notes which were tendered and. admitted in evidence and marked Exh. PS .. · The plaintiff· avers that thi~ amount has remained unpaid to date. The defendants, luckily, do not deny the above· averments by the plaintiff,_ save for payment of the purchase price. What the defendants aver is. that the · plaintiff has been paid in full the purchase value of the fertilisers supplied. 2 r Before the testimony of witnesses; during the -final pre-trial conference,. _to b<;= _ e exact,the following issues were framed: t, .. ;- l. Whether the defendants are in breach of the fertiliser supply contract; ! . and 2. What reliefs are the parties entitled. The plaintiff fielded only one witness and the defendants fielded three; the· .- · - .,_ .. , ... .• .. . . .. . I defendants themselves'.-· It is ·in the testimony of Eveline Mungumsaidie wh0'.<- 0 . _ testified for the 'plaintiff,.a:s PW1 'th~t u·pon the· plaintiff and first defe~dant·_. ;._-': _ .: , · · . . ·. . ,•·_, :--·, :'-.., :. -·, .-·. _- - , .. _ . I . executing two agreeme'rits, which were guaranteed by the ·second and third_ -·. - . ti;_·:• r••~ ,• ;• ,:;• .•·~•· •: •~ ·•.,. ~• '• . • I defendants, the first defendant was supplied with fertili?ers worth Tshs. _.... 350,820,000/~= but paid only Tshs. 220,000,000/= and was .owing Tshs.;'<.:_,:; . \ :· · ,:; . \ ' ~ ' 130,820,000/== as at 22.05,.201.2 . . . . when a demand letter was written to :him. >: .- _:,.:. ' ' . . . ' ' ·-' PWJ. went on to testify that the first defendant wrnte the . plaintiff. .-: : acknowledging that he was indebted to the:plaihtiffand that he was ready td: ·:~ ·: .. ·., -· pay. This letter was tendered in evidence and marked Exh. Pll. . ;, .. "• .... ' . . . • t After the demand letter, PW-1 vvent on, the first defendant effected OnEf · -: • . ... · ' - · -.. ' , - . I I: payment on 17.09.2012 at the tune ·of-Tshs:· 10,000,000;= th_ereby reducing _ ... , , . ,. his liability to Tshs. 120,820,000/=. · To verify what she testified and tq,. disprove the first defen:dant whb· avefred -iri pleadings :that he collected·_ .. · fertilisers worth Tshs. 150,000,0'00/=' oii1y; the first defendant's statement of-. I . account was tendered and aclmlt:ted iil ··evidence as Exh·. P14. I The first defendant who testifiedas DWf does not deny to have executed the· two agreements to which .th·e··second and third defendants were guarantors - 3 and that one of the terms was that he would take the fertilisers on credit and · pay within thirty da·ys. The first defendant states that he collected fertiliser from the plaintiff worth Tshs. 192,420,000/= and that he paid the amount in full but could only retrieve depositslips worth Tshs. 150,000,000/= .. .The first defendant testified that he did not locate documents of some of the payments made because, as a managing director of the first defendant; he used· to , move in several regions for marketing activities. The· first defendant urges the plaintiff to check its record and that a proper scrutrny would certainly reveal that he is not indebted to it and that he actually overpaid them by .. - Tshs. 37,000,000/=. The second· and third defendants - Kassi mu Shodo Mazagaza and Burton . · Mwaituka Mwalembe - who testified as DW2 and DW3 respectively, do not . deny to have stood as guarantors to the two agreements. The- both testified .• . that DWl had told them he had -satisfied the purchase value in fulL · - The first issue for· considerations is whether the defendants are in breach of the fertiliser supply · contract they executed. Luckily, · in this suit the ~~ defendants do not dispute that they indeed executed the two contracts. They ··'.~~ ~~ also admit·th~ terms and conditions therein. The only dispute between the · ·!~~-Z~ .... ~ 7 .. , parties arises when it comes· to the fertilisers supplied and the amount paid • .f~~~~' and owed. As seen in the· summary of evidence above, the plaintiff testifies that the defendants, jointly and severally, owe it Tshs. ·130,820,000/= as_ amount· · outstanding for the fertilisers supplied; Ori the other hand, the first defendant 4 testifies ·that he· does· not owe the plaintiff ~nythil')g as he paid the pu~chase value in fu.11. and in excess.·.· Having· subjected the oral as-· well. as. documentary evidence to serious . scrutiny, I have reached a conclusion _that the evidence so far show on a.. · preponderance of probabilities ·.that the defendants· owe' the plaintiff th~-. ·. . · ,_ amount stated. · .I have been fortified by this conclusion by the evidence of:•· PWl as well as the documentary evi.dence tendered. I sha.11 demonstrate. The first defendant's statement of· atcountwas tendered ·and admitted in : · evidence as Exh. P14; . -~his• statement shows the listing of the first defendant's account. It shows-the deposits .and credit sales and th_e balance . which the first. defendant. owes•theiplaintiff·. The deposits: are shown. ~o. t?e · Tshs. 230,000,000/= deposited in.·six instalments; Tshs. 40,0_00,000/=, Tshs .. · 50,000,000/=, Tshs. 50.,00.0;00Q/=:; Tshs; 30,/0QO,OOO/=·, _Tshs. 5.0,000,000/~. -. '. ••>,. :' · : .. · and Tshs. 10,000,000/:--=. The balance :is·.sho.wh to be Tshs.120, 820,000/=. . 1-i"" . ,,< ',. The first defendant produced four pay--in slips showing that he paid t~e .. plaintiff Tshs. 10,000;000/= _· on 19.01:2011, · Tshs. •50,000,000/=:= - on 12.02.2011, Tshs., 50,000,-000/= on 22;02:L011 and Tshs., 10,000,000/=:= on · 17.09.2012. These fou·r paymerits alsb._feature in Exh: P14. . I• He could not. ' produce other pay-in slips. under the-pretext that he did not. locate docum~nts.• _. of some of the payments .made because·. as a managing director of the first defendant he used to move in-.several regions for marketing activities. / With unfeigned respect, I find this cohtention by' DWl too cheap to buy. The fact_ that he (DWl) used to move in several· regions for marketing activities o.f the . 5 first defendant cannot be an excuse for not producing relevant documents to · prove a certain fact. Failure to do so is but to the defendants' own peril. In the same token, I am not convinced by DWl's allegation that he ·actually overpaid the plaintiff by Tshs. 37,580,000/=. I s9y so because DWl did not plead so in the joint written statement ;of defence. The assertion just- ·. surfaced in the witness statement; that is _in the examination-in-chief. as the witness statement was admitted in. lieu of examination in chief as dictated by the provisions of rule 49 _(1) · of the High Court (Commercial Division) Procedure Rules~ 2012 .- GN No. 250 of 2012. It is a cardinal principle of law of civil procedure founded upon prudence that parties .are bound by their. pleadings. On this point, I find it irresistible to .associate myself with the - decision of :the Supreme Court of Nigeria: in Mojeed Suara _Yusuf Vs Madam Idiatu Adegof!e SC.15/2002 (sourced through http://www;nigeria:· .. law.org/Moieed%20Suara-%20Yusuf%20v%20Madam%20Idiatu%20Adegoke·.: %20&0/o20Anr.h.tm) in which, speaking through Pius Olayiwola Aderemi, JSC,_·: · : : · it stated: " ... it is now a very trite principle of law that.~,.~ p9 rties are. bound by their pleadings and that any : :" . ··- evidence led by any. of the parties which does not;·~-: support the averments iri the pleadings, or put in another way, which is at variance with the · averments of the pleadings goes to no issue and must be disregarded by the court". 6 If I .may be required to: add .another persuasive autt:lority from. Nigeria, I _ would add Adetoun Ol~d~jl (Nig} Ltd Vs Nigeria Breweries Pie (2007),, . LPELR-SC. 91/2002 (sourced . through http://nigeria-: · law;org/Adetoun%20OIadejio/o20°/o28Nig%29%20Ltd%20v0/o'20Nigerian%20B . . reweries%20Plc.htm); also c;ited as Adetoun 0/adeji (Nig.J Ltd. Vs:. N_.EJ,._ .. · Pie (2007) 5 -NWLR (Pt.1027} ·'.415] ·in_ wh,ich it_ was . also, categorically stated . that it is settled law that parties_. are bound by their pleadings and that no :; 1 party is allowed to present a ~ase .contrary to its pleading$ .. , That is the position of the law in. Nigeria.as' well as in thisjurisdiction ·1 ' - .see .. :_ .· Peter f(aranti and 48 others Vs Attorney General and 3 °"thers, Civil>_: . -·. - Appeal of No. 3 ·of 198_8 _(Arusha_.uoreported.) and James funke Ngwagifo .. Vs Attorney Genera/[2Q04]-TLR-161 the qeci~iOJ'1S of ti,e court of . appeal,:. ' . :. ·.· " ' ' ~ and· Mohamed R. Shomari Vs Principal Secretary, MinisJry of Defence,- ,· <- r .~ (. ,; ," ·' . ·. ·. · And Ni!tionaJ Sen(fCe & 2 (Jr$; Ovil_:-Case No 37 qf,2009 '(unreported); the.-.:,:; '', .:.·, .. •.' '·: · decisions ,ef this court .. In the case at hand, tbe_.._first def~ndant, through DW.1, did: not plead that he . · paid in excess of what he-was supposed to-pay. The-statement arose in the· course of ·giving evidence. It is most lJnlikely that ~he ~ai9 money. was overpaid, otherwise DW1 could have stated so.in the,ple_adings .. And to clinch it all, no counter-claim has been raisec:I to that effect. A$ a business person, it is most unlikely that he would· have over.paid the plaintiff and yet not claim the same. It is not stated either why did he overpay. Form-t~e,look of things and evidence, he seems to tell- the court; that he was very p()or in keeping the I records because he used to travel here and there in search for-markets of the 7 first defendant. This_is not humanly possible.. I am not ready to accept thit assertion as I find it wanting in plausibility. In view of the foregoing, I am satisfied that ,the defendants did not pay the purchase value of the fertilisers supplied to them; That was in breach of the - - agreement executed between them and the plaintiff. This answers the first issue that the defendants, jointly and severally, are in breach of the fertiliser_ SLJpply contract. The second issue is ancillary; it is about reliefs. · This will be clear shortly in the final part of this judgment. Let me, at this stage, tackle the question of-. - general damages pleaded by the plaintiff. The plaintiff has pleaded .general damages and quantified at .the tune of Tshs. ~30,000,000/=. It should .be:_ stated at ·this juncture that general damages are never quantified; they are-• paid at _the discretion of t_he col.Jrt ai:1d, on-that score, it is . the court whic~. · decides which· arnounr_·to· award .- see_· Tanzania . - China ·Friendship·: •- Textile Cog Ltd~ Vs . Our Lady of the Usamban, Sisters [2006] TLR 7Q·,_, ; _ and Ad111iralty Comrnissioners Vs Susqueh-Hanna [1926] AC 655. In · - the Admiralty case it was stated: "If the damage be general; _then it must . be averred tha.t such damage has been suffered, out·· the · quantification of such damage is a - jury question [in our-jurisdiction the court]". [Quoted in Kibwana ;JndAnother l(sJumbe[1990~1994l1 :EA 223]. In _the Our Lady of the Usambara Sisters case (supra) it was held: 8 "They [the Plaintiffs] were also claiming for. general· damages which they quantified to the tune of.. TZS. 15000000. But. since general . · damages are awarded at the· discretion of the Court, ·it is the Court which deci~es .. , which amount . to :award. In· that -respect,· normally claims of general damages are not quantified". [Emphasis.supplied], It was therefore improper for the plaintfff to quantify general .damages.: The. question which comes to: the fore at this juncture is-whether. the plaintiff. ... :·.•· •.·.·. suffered·. damages· as to be- entitles· to the. award ·of genera-I :damag!=S;,_. :. ~-- •. Accordlng to Black's taw Dictionary (Abridged ·. th Edition). by .Bryan A.-'>' ._. · ." . Garner; Editor- in Ch'ief, the term "damages" is defined at page 320 as: .· 1 . .• f ' ~ . , •• : '.' : ·• I "Money ·claimed· by,: or order~d to be paid :to. A - person as compensation for loss or injury'\. , And the term "general damages" is defined by the same legal work at page 321 as: "Damages that the law presumes follow frori: the -· fype of wrong:· complained of. · ·General damages do not need to be specifically claimed or proved to have been sustained". 9 This position is reiterate6bythe court in the Kibwana case [supra] in which it was held that: "The court, in granting damages will determine an amount which• 'will· give ·. the ·. injured party reparation for the wrongfu·I act and for all the direct and ·unnatural·- consequences - of ·the wrongful'\· In the instant case; the plaintiff being a business legal person, it is certain that it has suffered damages as a result of the defendants' wrongful act of • breaching the contract. .: For·. tbaf reason, is- must be· entitled to general • damages. · Giveh ··the circumstances· of <this· case/ I assess the general- - · · · damages at Tshs. 10,000,000/=; · ·As ·for. interest at commercial rate claimed · ' by the plaintif(at' the rate. of25% per annum;·:i am afraid, the plaintiff-is not- ' entitled to this type of interest-because interest is a matter of substantive law ... and must be specifically pleaded - see National Insurance Corporation {T) Ltd & another vs· Chiria Engineering Construction Cor;poration, · -- ~ civil appeal No. 119 of2004 and Nestoty Omar Diwani t/a Diwani Cargo . ~ • • • f and Motor Vehicles Delivery Services Vs Bo/lore Africa ·Logistics Tanzania Ltd, Commercial Case No. 99'bf 2014; unreported decisions to the':. Court of Appeal and this court (Khamis, J.) respectively. In the case at hand, the plaintiff pleaded but did ~ot lead any evidence to show that he is entitled to interest prior to- filing of the suit. 10 'I :I I In sum total, I enter judgment in fatour of the plartiff against the !I I defendants jointly and severally_ and _p~oceed to. c:ledare and . decree a$, , I follows: 'I!, I 1. The defendants,,jc;,intly . . and• .•severally, .. • !I are in breach IoLthe . contract of sale executed between them and thJ plaintiff;. . , . ·. · •· •• • • 1 1 , • I · 2. The defendants, jointly and severaUr, should pay the plaintiff Tanzania . 1 Shillings One Hundred_Twenty Milli1n. Eight Hu~dred ;ryventy Thousand (Tshs. 120,820,000/=) as the amount outstanding out of the purchase . . . .. I~ I . ' value of the fertilisers ~upplied; . . i i · . 3. The defendants, jo'intly and severallr, should pay the lpl~in!iff Tanzania Shillings Ten Millic>n (Tshs.10~000,p f.O/=) as gen~:al ~:ar,n~ges;. 1 4. The defendants; jointly and s~veraily, should. pay t~~ pla:_intiff. int~rest. on the decrf;tal surn a.t court rate, of Z.9/o per annum1· .from. • . . . . '. . the dqte of .. ·. . " - . . ·11 · ..... . . • . judgment . ·., to the date.of ..... fulLsatisfacbpr1;. _· .· .................. •· 1'·•-·... . .. ··•_,.,I .· . . . . :•' • . _,. '. 5. Th~ .defendants, jointly and seven;3:r1y, should pay th ~ plaintiff co~~s.' o_t_ . '···._: ', '. 1 the suit. , .. :-',.' . '. ' 1 1, • __ , • • .I 1 . :: ·-.~: . ···1 Order accordingly. . . ' 11 . ' . ' 1· . . ' th DATED at DA~ ES $AIJ\AMthis ~$ d_ay of Februjry, 2016. I :I .... ~ . I J. C._M·. . . MWAMB.EGELE ' •i JUDGE !I '.,i 11 . I I 1.-