Zongii Vs

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB-REGISTRY OF MWANZA

AT MWANZA CIVIL CASE NO. 23268 OF 2024 ZONGII CONTRACTORS CO. LIMITED ……………….………..….…… PLAINTIFF

VERSUS POLY GOLD CO. LIMITED …………………………………….…………. DEFENDANT

JUDGMENT 5th & 22th November, 2024. CHUMA, J. This judgment is in respect of a breach of terms and conditions of the agreement that has been instituted by the plaintiff against the defendant, praying for several reliefs as follows: (i) A declaration that the defendant has defaulted and breached the terms and conditions of the agreement with the plaintiff. (ii) That, the defendant should pay the plaintiff the sum of Tanzania shillings Two Hundred Eleven Million Six Hundred Fifty Thousand only (TZS. 211,650,000/-) as an outstanding for the invoices issued and received by the defendant. (iii) The court orders the defendant to pay 80,000,000/- as compensation for the breach of the contract. (iv) That, the defendant should pay the plaintiff interest on the principal sum at the rate of 21% per annum from the date when the same was due to the date of payment. 1 (v) That, the defendant should pay the plaintiff interest on a decretal sum at the court rate of 21% per annum from the judgment up to the date of payment in full. (vi) That, the defendant should pay the plaintiff the cost of the suit. (vii) Any other relief (s) which may be just under the circumstances of this case. These reliefs emanate from what the plaintiff alleges to be a breach by the defendant of the agreement entered between them, in hiring a motor vehicle to wit 4 dump trucks, Model Howo. To appreciate the route that

the matter will take, it is apposite that facts of what bred the dispute be stated, albeit briefly. It rolls back to 31st March 2013 and 1st April 2024, the plaintiff and defendant executed a contract to hire Motor Vehicles 4 Dump Trucks Model Howo, and due to a good business relationship Dump Trucks hired increased up to eight (8) namely T481 DQZ, T482 DQZ, T553 DPS, T669 EEX, T996 EGS, T161 EGB, T986 EGS and T994 EGS with applied loading capacity with minimum 20 Tons up to 23 Tons for transporting ore and waste rock within mining sites/ the sites Ikungu (MMG Seka site). Subsequent the amount in which the plaintiff owned the defendant was in respect of the sum of TZS. 211,650,000/-. The contention by the plaintiff is that the defendant’s inability to honor the agreement, the defendant was kept informed through several 2 invoices from the plaintiff to pay his dues. After a prolonged default spell, the plaintiff issued a notice for the notification of the Iddle Trucks and payment dated 20.7.2024, a demand letter dated 22.7.2024, and withdrawal of three (3) Trucks Howo and one (1) Water Bowser dated 27.7.2024 but to no avail. This is the action that triggered the plaintiff’s fury, hence his decision to institute the instant proceedings. When this matter was placed for necessary orders on 29.10.2024 Mr. Kabago learned counsel appeared for the plaintiff while Mr. Madulu represented

the defendant, however, the written statement of defence was struck out from the court records for being filed out of prescribed time, which resulted to the ex-parte hearing of the suit under Order VIII Rule 14 (1) of Civil Procedure Code, Cap. 33 R.E 2019. At the commencement of the proceedings, three issues were drawn to guide the conduct of the proceedings. These were: 1. Whether there was a contract for the supply of dump tracks between the plaintiff and defendant.

2. Whether the defendant complied with the terms of the contract on the mode of consideration after the issuing of the invoice from the plaintiff.

3. To what relief (s) are the parties entitled? 3 I will tackle this matter following the order in which the issues were framed however the first and second issues will be argued in a combined fashion. These issues intend to ascertain if indeed there was a contract or an agreement to supply dump trucks and, if so, the same was breached. The sole witness, PW1, Elipidius Kagisa, testified that he is a Project Manager at the plaintiff’s office and the defendant ‘Poly Gold Co. Ltd’ is their customer who deals with gold mining and extraction at Seka Viilage Musoma District within Mara Region and used to hire vehicles for that activities. They entered into agreement for the hire of a vehicle dump track and water bowser in two phases, the first was for three months starting from the 13th of March to the 30th of June, 2024, and the second phase was supposed to start from the 1st day of July to December 2024, but the second phase was not signed because the defendant failed to meet condition agreed in the first contract. The vehicle has applied loading capacity with a minimum of 20 Tons up to 23 Tons and all vehicles used to park at the defendant site at Seka. The purpose of hiring the vehicle was to move the soil remains after panning the gold from Ikungi to Seka. Concerning the payment, the same had to be effected twice per month in which from 1 to 15 the payment had to be paid before

23 of the 4 very month and from 16 to 30 its payment had to be done before 8 on the next month. Normally they conduct reconciliation and issue the defendant an invoice via mail and WhatsApp. After issuing them via the mentioned mode than called them via phone informing the said invoices. All payment was done via Azania Bank in the account number of Zongii Constructors Ltd (the plaintiff) from MMG Co. Ltd because before being Poly Gold Co. Ltd it was known as MMG Co. Ltd, the invoices bear the name of the plaintiff’s company, and TIN dated 18th March 2024 with invoice Number ZCI-002, worth TZS. 7,500,000/- for water bowser, which was admitted and marked as exhibit PE1. He testified further that the leased truck appearing in the contract meant hiring of trucks that’s why the invoice reflects so. Another invoice of lease of dump trucks dated 1.4.2024 with invoice number ZCI-005 worth TZS. 10,800,000/- from MMG Co. Ltd to Zongii Constructors Ltd was admitted and marked as PE2. The business with the defendant continued and there was some reconciliation from Zongii Contractor Ltd to Poly Gold Co. Limited and proof of payment after conceding the reconciliation sent to them. The reconciliation printed from the company’s computer well maintained every three months was admitted and marked as exhibit PE3 and PE4 respectively. 5 That invoice and proof of payment dated 18.4.2024 worth

TZS. 40,350,000/-, however, the defendant paid only TZS. 20,000,000/- Millions as reflected in the proof of payment which was admitted and marked as PE5 and PE6 respectively. And because the contract still existed, the plaintiff proceeded to work with the defendant who promised to pay the outstanding before 8.5.2024 but he didn’t honor the said promise. The other invoices and reconciliation dated 6.6.2024, although the documents are not original because the original one is in the hand of the defendant and plaintiff issued them with notice to produce but failed to trace them as a result, tried to reach them via mail dated 1st November 2024 via Kabago G.@yahoo.com to mining.in.tz@gmail.com and the same was also copied to other emails and on 4th November 2024 another email was sent via the same email Madukwa2j@gmail.com. However, all those efforts proved futile. Notice to produce containing reconciliation dated 6th June and 20th June 2024, notice of non-renewal of motor vehicle lease agreement date 21st day of June 2024 and extension of cooperation with new agreement dated 5th July 2024 admitted and marked as exhibit PE7 under section 67(1)(a) (i) and (iii) and subsection 2 of the same 6 section together with section 68 of Tanzania Evidence Act, Cap 6 R.E 2019. He also, testified that the invoice and reconciliation dated 6.6.2024 worth TZS. 51,438,000/- as this amount is from the

billed amount that is from the submitted invoice worth TZS. 52,887,600/- was admitted and marked as exhibit PE8 and PE9 respectively. Regardless of the amount issued was not paid by the defendant but still plaintiff continued to do business with him and the plaintiff issued another invoice dated 20.6.2024 both documents i.e Invoice and reconciliation dated 17.6.2024 worth TZS. 78,765,000/- but a reconciliation of the agreed amount was TZS. 56,817,000/- and once again was not paid dated 20th June 2024 both admitted and marked as PE10 and PE11 respectively. The tendered invoices each carry its debt the two continued to communicate with one another and the defendant continued to issue non-adhering promises. In the course the plaintiff issued the defendant with invoice and reconciliation dated 17th June 2024, invoices and reconciliation dated 20th June 2024, and then reconciliation dated 19th June 2024 from the defendant are all admitted and marked as PE 12, PE13, and PE14 respectively. 7 On 21st June 2024, the plaintiff received a Notice of Non-renewal of the Motor vehicle lease agreement from the defendant. And the plaintiff reminded the defendant about the outstanding debt to the tune of TZS. 161,355,000/= covering all invoices remaining unpaid debt. Then the plaintiff once again issued the invoice date 1st July 2024. Notice of non- renewal of the motor vehicle lease agreement,

reminder letter, and invoice are all admitted and marked as PE15, PE16, and PE17 respectively. And at all that time the Motor vehicle remained within the project. Then an invoice to the defendant worth TZS. 52,215,000/- as hiring cost. The defendant failed to pay the debt after issuing them with PE17. The payment was calculated daily. PE 17 its charges are on the work done via the hired vehicles. PW1 further stated that on 5.7.2024 the defendant issued the plaintiff with a letter seeking an extension of cooperation with a new agreement. The letter bears the defendants’ logo, which was admitted and marked as exhibit PE 18. The first contract ended on 30th June 2024 and the defendant prayed to renew the contract with new terms. They promised to pay the outstanding debt of TZS. 140,295,000. They promised to deposit TZS. 60,000,000/- on 10.7.2024 and the remaining debt on 15.8.2024. At the same time, the defendant requested the 8 plaintiff to buy three used motor vehicles. The response to their letter was as in exhibit PE18. Via plaintiff letter dated 6th July, 2024. The letter bears the plaintiff Company’s’ Logo which was admitted and marked as PE19, that the plaintiff was ready to enter into a new contract subject to payment of the outstanding debt first. The plaintiff attached all invoices for unpaid debt. The differences in the outstanding debt are because of one vehicle water

bowser which proceeded to work hence the debt accrued thereat. The plaintiff issued another invoice dated 18.7.2024 worth TZS. 3,000,000/- bearing the name of the plaintiff’s company which was admitted and marked as PE.20. The initial debt does not include the amount in PE20. Therefore, the total amount due is TZS. 16,000,000/- Million. The three-dump truck never worked on the new contract for want of outstanding payment however, they remained under the defendant’s control. Then the plaintiff communicated with the defendant via letter dated 20th July, 2024. The same bears the plaintiffs’ company name and is signed by Zongii Constructor Ltd which was admitted and marked as PE21 The aim of PE21 was the reminder of the outstanding debt and notification on idle time of the vehicle which is subject to cost from the 9 defendant, and the plaintiff charged only one vehicle i.e water bowser while the dump truck was not charged because they were not part in the new contract as the defendant preferred to use water bowser the requested for advance payment for running purpose but they never paid. After that notification, the proceeded communication with the defendant was through a demand notice dated 22.7.2024 worth TSZ. 208,650,000/=, which bears the address and name of the defendant but he never responded nor paid the debt was admitted and marked as PE 22. The amount in it excluded the

amount stipulated in exhibit PE20 because it was waiting for the parties to reconcile, but once again it was in vain, it was then the plaintiff wrote a letter to remove the three vehicles from the defendant’s custody for his failure to pay the debt on the first contract. The letter bearing our company logo was admitted and marked as PE23. And still, exhibit PE23 was not replied to by the defendant. The said truck and water bowser were removed from the defendants’ control. Drivers of those vehicles were paid by the plaintiff. Each vehicle had one person. The plaintiff did not furnish/ tendered the first contract because in the alternative he tendered invoices that represent the same things as the outstanding debt in the invoices and not in the contract. He urged the court to allow the suit and all reliefs sought in the plaint. That marked the end of the plaintiff’s evidence. 10 It is cardinal law that, he who alleges must prove actori incumbit probatio or ei incumbit probation qui dicit and this burden of proof never shifts. It was the duty of the plaintiffs to prove the allegations as per sections 110 and 115 of the Evidence Act, Cap. 6 R.E. 2019, for ease reference I will reproduce as follows: - “110.- (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

115. In civil proceedings when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” The imperative requirement under the cited provision was given an impetus in Barelia Karangirangi Vs. Asteria Nyalwambwa, CAT-Civil Appeal No. 237 of 2017 (unreported); and Hemed Issa Vs. Mohamed Mbilu [1984] TLR 113, wherein it was held as follows: “It is similar that in civil proceedings, the party with Legal burden also bears the evidential burden and the Standard in each case is on a balance of probabilities.” 11 Also, the decisions of Anthony M. Masanga Vs. Penina (Mama Ngesi) & Another, Civil Appeal No. 118 of 2014 (Unreported), cited with approval the case of In Re B [2008] UKHL35, where Lord Hoffman in defining the term balance of probabilities states that: - ''If a legal rule requires a fact to be proved (a fact in issue), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates in a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, The doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it. A value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a

value of 1 is returned to and the fact is treated as having happened.” As it was submitted by PW1 and the evidence in exhibit PE1 which includes an invoice from the plaintiff and payment from the defendant, PE2 includes an invoice from the plaintiff and payment from the defendant, PE3 contained reconciliation letter from the plaintiff, PE4 payment from the defendant, PE5 includes invoice from the plaintiff, PE6 payment from the defendant, PE8 includes invoice from the plaintiff, PE9 confirmation for reconciliation amount from the defendant, PE10 invoice 12 from the plaintiff, PE11 conformation for reconciliation amount from the defendant, PE13 invoice form the plaintiff, PE14 confirmation for reconciliation on payment amount from the defendant, PE15 a letter expressed the defendant willingness to renew the contract and PE18 conformation on reconciliation on payment amount from the defendant. All clearly show that there was a contract relationship between the plaintiff and defendant especially PE1, PE2, PE4, and PE6 which shows the amount on which the defendant paid to the plaintiff’s account, and PE9, PE11, PE14, and PE18 which shows the willingness of the defendant to pay the plaintiff on certain amount as stated in the invoice sent to him. This court also reminded itself about the absence of the contract which features prominently in this case as it stipulated the agreed

terms and conditions, however, in the alternative, other documents in evidence show how parties are supposed to carry out those terms and conditions expressed in the contract. It is appropriate to discuss an aspect of breach of contract as it was held by the Supreme Court of India in the decision of Man Kaur (Dead) by Lrs Vs. Harar Singh Sangha [2010] 10 SCC 512: - “...There are two distinct issues. The first issue is the breach of the defendant-vendor which gives a cause of action to the plaintiff to file suit for specific 13 performance. The second issue relates to the personal bar to enforcement of a specific performance by a persons enumerated in section 16 of the Act. A person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him (other than the terms, the performance of which has been prevented or waived by the defendant) is barred from claiming specific performance. Therefore, even assuming that the defendant had committed a breach, if the plaintiff fails to aver in the plaint or prove that he was always ready and willing to perform the essential terms of the contract which are required to be performed by him (other than the terms the performance of which has been prevented or waived by the plaintiff), there is a bar to specific performance in his favour.

Therefore, the assumption of the respondent that readiness and willingness on the part of the plaintiff is something which need not be proved is liable to establish that the defendant refused to execute the sale deed and thereby committed breach is not correct” It was agreed that the plaintiff, a company specialized in hiring motor vehicles, would hire certain motor vehicles for transporting ore and waste rock within mining sites from Seka to Ikungu. A highlight on the evidence on records will shed some light as PW1 testified that they agreed 14 to a hire of vehicle dump track and water bowser in two phases, the first was for three months starting from the 13th of March to the 30th of June, 2024, and the payment had to be effected twice per month in which from 1st to 15th, before 23rd of the very month and that from 16th to 30th, before 8th on a next month and the second phase was supposed to start from 1st day of July to December, 2024, but till when the plaintiff decided to sue the defendant was not yet to pay his due owned by the plaintiff. So, there is no dispute that the defendant breached the contract which existed between him and the plaintiff. The decision Unilever Tanzania Ltd Vs. Benedict Mkasa T/A Bema Enterprises, Civil Appeal No. 41 of 2009 (Unreported) CAT stated as follows: - “a contract has, strictly speaking, under our laws, once parties have freely agreed on

their contractual clauses, it would not be open for the courts to change those clauses which the parties have agreed between themselves ...It is not the role of the courts to re-draft clauses in agreement but to enforce those clauses where parties are in dispute.” So, guided by the cited authorities the 1st and 2nd issues are answered in the affirmative because all key elements of the contract proved that there is no dispute that the contract existed between plaintiff and defendant, and it was the defendant who breached it. 15 Turning on the third issue what relief(s) are the parties entitled to. The law on general damages is that the same is awarded after consideration and deliberation on the evidence on record able to justify the award. In this matter, the Plaintiffs are claiming the total sum of Tanzania Shillings Two Billion (Tshs 80,000,000/=) as general damages. The powers vested to the Court confer the discretion in awarding general damages subject to reasons being assigned. See the decision of the Court of Appeal of Tanzania in the case of Antony Ngoo and Davis Antony Ngoo V.Kitinda Kimaro, Civil Appeal No. 25 of 2014, and that of Alfred Fundi Vs Geled Mango and Two Others Civil Appeal No. 49 of 2017. Again the Court of Appeal in the case of Peter Joseph Kilibika and CRDB Bank Public Company Ltd V.Patric Aloyce Mlingi, Civil Appeal No. 37 of 2009, held that; “…General

damages do not need to be specifically claimed or proved to have been sustained”. After consideration of the evidence on record and because the machines remained in operative as a result of the breach of contract and all circumstances surrounding the case, the Court is of the decided view that TZS 40,000,000/= (say Tanzania Shillings Forty Million) is reasonable and adequate to mitigate the Plaintiffs’ loss encountered. 16 In the upshot of all this, the suit is decided in favour of the plaintiff against the defendant as follows: - 1. I declare that the defendant has defaulted and breached the terms and conditions of the agreement with the plaintiff.

2. I order, the defendant to pay the plaintiff the sum of Tanzania shillings Two Hundred Eleven Million Six Hundred Fifty Thousand only (TZS. 211,650,000/=) as an outstanding for the invoices issued and received by the defendant.

3. I also order the defendant to pay the plaintiff Tsh 40,000,000/= as general damages for breach of contract.

4. The defendant shall pay interest in the decretal sum at the court rate of 7% from the date of delivery of this judgment until the same is fully paid.

5. The defendant is also condemned to pay the cost of the suit. It is so ordered. DATED at MWANZA this 22nd day of November 2024. W.M. CHUMA

JUDGE 17 The Judgment delivered in court before Mr. Kabago advocate for the plaintiff and in absence of the defendant this 22nd day of November, 2024. HON. C. KISONGO

DEPUTY REGISTRAR 18