Wananchi Marine Product (T) Ltd vs Owners of Motor Vessels (Civil Case 12) [2000] TZHC 161 (1 November 2000)

;--·· p_f , ... , ... , 11 IN T.dE HIGH counT OF T /i.NZJ\l'IA DATI ES SALAAM DISTRICT REGISTRY AT DAR ES S,\Ll:AM. ------ ...... -----;---·-,--·-~ ... - CTVIl, Ci".;'~ NO •• ., • " " o • " • " o o " " " " 123 of 1996 W:i.Nfi.NCI-II MLRINE PRODUCT (T) LTD. o o •• o o" APPLICANT VERf3US OWNERS OF MOTOR VESSELS •• " •• ec. o ... .,. oe o RESroNDENT This suit, has a somewhat cequered background, having been filed on the 8th day of May 1996~ the 18th day of Julyj 2000, saw it come' for mediation, when the defendants, though;served made no appearance. Procedurally the defendrmt•s AdVoate, failing to appear for the medi8tion, the Court may enter a defa1:1-lt judgment, against the defendants. Hovever, in view of the facti that large sums of money are prayed fori this Court, with . ! the aoncurrence of the plaintiffts counsel r1r-. El Maamry, stood · i I over such judgment, subject to oral proof of the claim; In the dutiful attempt, by the plaintiffs to prove the claim, we have oral evidence, by TUNG WU KONG, a Mombasa based resident, there running fv'iwananchi Marine -Products Kenya Ltd., as Chairman and Shareholder, showing tht in this Country, (Tanzania), equally established, is the Mwananchi Marine Products (T) Ltd., herein to be called the plaintiffs. It is patently clear, on the evidence 1 that the plaintiffs, struck a Chart r Party, or Charter ,'\greement 1 with Tanzania Fisheries Corpor8tion 1 the 'owners', and hence to be called the defendants, whereby such owners, were to charter and the plaintiffs to hire, their two vehicl.es Christioned, -l- rvr.r.w~ T/.FICO, and -2- stD!.I'•.TI, to the plaintiffs, at the rate of US D.250 per day, per vessel, for a period of twenty four months. Accordingly therefore in the absence of chllenge, I hereby make a fiding to that effect, It is apparently defying challenge also, that the period of twent,Y four months were to, and did commence from 1/6/1993, and ended on 31/5/1995, (~aras ,l.1-,.s, a1!,.).},f~~--.:lgr<:_n.!.Jl~~~e )3iKI), and this attracting no controversy, there is no escape routed, from finding• the same as a fact, which I hereby doe It cannot be denied eit!lery ..

• 2 and the Agreement is unquivocal, in the dirction, that the defendants contractually undertook_ to obtain, the l,ishing Licences., for the two abmre mentioned vessels, from the Licen•ing Authorities, •. for and on behalf of the plaintiffs. Thus, the said Charter Party Agreement, would be subject to the defendants obtaining fishing licences, or be terminated in the event of the defendnts failing, or neglecting to obtain, or to renew licence, for the durati9n of the Agreement, in which case, the defe!1d,:mts would be liable to 3ompensate the plaintiffs, for- loss of income, for period of the Charter Agreement together, the licences were unobtained, with a lump sum compensation of USD 200 7 000 to cover all expenses in current by the plaintiffs in servicing the contract - ~q§__l.,h,_l · 19.3 of __ h i'.reemnto That appears as clear as· day light, and too obvious to be disputed, and I conclude the same, as an undeniable fact., The :plc1intiff 1 s claim, that the defendants refused, or neglected to renew, or obtain fishing licencos for period from -1- l/12/1995 to 31/5/1997, and hence their anxiety to invoke parns 19.l, l9.2 ,;. and 19.3 of the Agreement, demanding an order for ompensation -1- USD 200,000s ... 2- Loss of income and profits 1 from 1st day of December 1 1995 to 31st day of May; 1997 at $ 20\000 per month ~ $ 20,000 x 18 months= USD 360,000, -3- USD 540 1 000 being expenditure, at the r8.te of USD 30,000 per month x 18 months. -4- Interest etc. Thus vie. the s"1id Chm-ter Agreement the parties so agreed, but they are now asunder, a&.:::ording to their pleadings, and hence this expnrte proof, upon the defendants failure, to enter appe::1rance on a date fixed for medi3 tion. In our sense, proof is proof.by evidence, which would induce a reasonable man, reasonably applying his good sense, and prudence to come to the _conclusion, that certain fact or circumstances of the case . . our case f f xt · d exist; in proo of breach o· contract after e ention nn hence plaintiffs entitlement to the reliefs sought by the plaintiffs,. It does not however meon proof to mathmatical cert2inty, na:'. should it be :pedantically arithmetical. ,'.nd it is trite learning that the burden is that, whoeve:e wnnts the Court to give him judgment as of right, on.the existence of the fact he asserts, he must prove those facts. Therefore, the fact that, this it is an exparte proof, is no reason why, the Court should accept anything uttered, or: tendered, untested, es automatic. gospel truth, and therefore ipso facto entitle the laintiffs to judgment. , ..,,l....J :

.... As I look at the reement signed by the parties, as juxt$posed . . - ~ with the claims, I am without doubts, as to its interpretative snags, as to duration of contract or extension thereof' renewal:; or obtaining fishing licences, nor do I think 1 that the parties, were in any doubts about it. Coming into the aren3, it does seem, that the claim in prayer (B) of the Plaint (8/5/1996), covers period divisible into two parts, - the first one covering part of the first twenty months:,

• suspposed to commence _by 1/6/1996 and 31/5/1995, covering 1st December, 1994 to 31/5/1995 i.e. six months.·. It appears, to be an unchallenged. position, that for this period of six months before the end of the first two years term, the defendants never renewed the fishing licences. I have not the slightest doubt, that such a position • happening, during the chnrter period of twenty four months, does obviously yield to the general invocation of the Agreement Paras 19.2 and 19.3., entitling the plaintiffs to -1- US $ 200,000, and -2- Loss of income for the ur3tion of the 41hc:rter period for our :purposes here, the period being dix months. What then, would the loss of incom be? According to prayer (B) in the plr.:int, the monthly inc6me would be US$ 20,000 th0.t for our purposes, a period of six months, would amount to US l20,000. Mr. TUNG WU KONG testiried, as coming to such figure by compn.risons of previous yeer 1 s returns. '!;/hen all is considered in the desir2.ble perspective, it does seem persuasive to treat vageries of fishing industry, as pcrtaing fishing incomes, as steady as like production, on formulae basis. But as the figure stond, and rernoin undisputed even though the vageries of weather would make fish yields fluctuate from time to time, I am tempted to uphold and therefore gre.nt the same, which I hereby do, and consequently allow and award US$ 320,000 to the plaintiffs. I shall now come, to the sec::md period, thr1t cover 1st June, 1995 to 31st May, 1997 which ;ims, should have been covered, by the extension clause s~hem8 see Para 22.l which runs as follows: n The Charterers have option of extending the period of hiring, for. a further two ( 2) years, which option the Chc:irterers, may exercise, by giving the Ovmers 1 not less th:,n three months, prior to the expirAtion of the hire-term, hereby created,•written notice of its

-4- intention to renew the hire-term. The OWNERS upon receipt of the said notice,· shall notify the Cm rters in writing, not less than thri ty days, of its acceptence, to renew the hire period." The above Agreement clause does, not in my view demrmd extra interpretative energies at all. In my humble view, reasonably looked at, it, stands unquestioned, and actually defying challenge, that the plaintiffs :vide the Agreement gave the plaintiffs option, for extention of hiring term, for a further two years, provided, -1- the plintiffs gave written notice to the defendants, three months prior the expiration of the first hiring term -2- of intention to renew the hire-term, ad -3- being notified in writing by the defend3nts, not less than thirty days, of accepting to renew proposed hire period. o me, it appears, that in classicl terminology, the nbove, np;;::ears to need, that the parties for an extended period of duration, would not be bound by Agreementt until they are in agreement, which requires an offer for extention of time by the pleintiffs, and acceptance by the defendnnts, as per terms above, all in writing within specified period of time. And a part:from showing the meetinr; of the minds, on the subject matter of the contract, the rules of offer and acceptijllcc are used as a mechanism, for determining when the contractual obligations would arise - see HISPAl'IKJi. de PETROLBOS Sf~ VS• VENEDOR;. OCE!'.NICA .,..-------------- .. --- . ~~-----=a NO;/ 4 · purposefully ask, was th:0re such extension? I pose this question becrrnse both Mr o El MactiTirY and Mr..; TUNG WU ICONG gave me an obvious impression, that such extension of charter agreement there he.d been. In the obvious arena of this case;. I get an undoubted impression from the plr.dntiffs,: thnt; there was, such contrcictu.::l extension of the second two y0nrs term 1,Jas there such exercise of option, as per para 22.1 of the Charter Agreement,. I. ask? Was there an offer on the one hand by plaintiffs, and acceptance on the other handj: by the defendants? Now our posi tivc retreat, has target to see, whether there over was, an ext0nsion in terms of Parn 22.1, the breach of which would attach, contractual liability, of course as deductable from the evidence 1 given pn bchnlf of plaintiffs? 1'f{. KUNG, was e there was such extension., I would not, have cultive.ted the antiipnt ion,. to doubt his credibility• The plaint para 3 asse±ts.t: the plaintiffs exereised th0 option of renewal., after expir2tion J

• 5- .. of period -J/6/1993 to May t 31st 1995 via 1 VBAIIT a of Charter Party Agreement. The defendants, deny such renewal in their Written Statement of Defence. But with respect, the so called BAKI is a Charter Agreement dated 15/5/1993, and the extension would have started at about on 31-st 't-fay, 1995 and end on 31st May, 1997• So that with respect, although BAKI, provided for option for extension the procedural mechanism for the same, is provided by Para 22.lo We are, with respect, therefore searching, how compliance therewith, if at all, was done, 'MR. TUNG WU KONG could, be said to have conveniently avoided touching the same, and yet it is a nagging pain, in the case. The search therefore continues, it cannot be abandoned unsatisfied, because the proof is exparte. But, if the offer was made, by the plaintiffs, as it foes from the record appear was actually made 90 the answer thereto, . would seem to relevantly read, as follows:- TAF/3/5/9/Vol.II/51 The Man&ging Director, Wananchi Marine Products (T) Lj;d, P.O. Box 63252, DAR ES SALAAM.

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Dear Sir, 29/5/1995 RE: EXTENSION OF THE CHARrER AGREEME1".1T .. _ &= ·-------· ~-- ,...,... - Reference is made to your letter dated 16/1/1995 and our letter Ref. TAF/3/5/9/260 dated 6th Febrm ry, 1995 in respect of the above mentioned subjecto The issue of extention of the Charter Agreement for a further term of two (2) years, had been submitted to the Board of Directors, at its meeting held on 25th May, l995o The Board of Directors after a thorough consideration of the issue, had resolved as follows:- (a) That the request by WMP to extend the Charter Agreement for a period of two (2) years be 1 ahd is hereby accepted, on condition that WMP shall adhere and abide to the terms, and conditions of the Charter Agreement, which will be in force, during the whole extended period.

--'- (b) That the extended period, may be determined by either party, terminating the same under the procedure bid down by the Charter Agreement, or by Government Police (Privatisation). · (c) That breaches to the terms and conditions of the Charter Agreement, which 1,<rere 9ommitted by WMP during the two years period expir1ng on 31/5/1995 such as:- (i) Failure to insure the Vessels (ii) Failure to pay Charter Fees when it is due, etc. A draft, of a proposed addendum to existing qiarter Agreement, will be sent to you for your perusal. We hope you will cooperate with us, in the finalisation of this matter, for the interests of both parties, and for the extension of our good business relatin 8 • Yours faithfully, TANZANIA FISHERIBS CORPORATION , Sign: for Aa Go DIRECTOR GENERAL With respect, I am prepared to vouch, that the plaintiffs made the offer, and so, in good time. But the above letter from the defendants, does instil worr.ies, whether there was unqualified acceptance of the offer. In my humble view, there is no way, we can start pholosophizing a new, about the rules of acceptance, in contract formation, - it is trite learning I think• that an acceptance, is an unqualified expression of assent to all the terms of an offer, and the same~ nm.st appear to have been communicated to the Offernr, in the manner presented, or contemplated by the offerer in offer,considering the correspondences, and negotiatinons, between the parties as a whole, and their cpnduct .::J in that regard See on 4 a.9~'L2..:t:,J;h!:, Contr~ Ordinance C'!E• 4~3. But here we have an acceptance subject to conditions attached being fulfilled, and when they were fulfilled, if at all, is shouting for the answer, which is not easily at hand. With respect, MR 0 TUNG WU KONG, did not disclose how his Principals Offer, was accepted by the defendants, in view of the above letter .. What I see, with rrry naked eye, is a kin to a counter - offer, whose legal effects is well known, ...

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-7- nor is it suggested, that the acceptance of extension, was done orally. But, if human flailty was not failing us, if our memories unfortunately were not betraying us, we would also easily .ti. recall, a letter dated 1st April, 1996 Ref. Noo TAF/3/5/9/VolII/112, to Mr. Saidi Ho El Ma 8 mry, that is as follows: Saidi EJ El Maamry, Advocate, . Pamba Road, P.Oo Box 5201, DAR ES SALA.AM RE: .ADDENDUM rro THE CHARTER AGREEMENT ..--==------·- -,..-.-...c:---=-==:== ==-= REFERENCE is made to your letter Ref. No. SHE/95/15 WMP dated 27/3/19960 The extension of the Charter Period for a further period of two years had, been accepted on condition that all clauses to the Agreement, which is one way or another hinder the smooth execution of the Agreement, had to be amended, and replaced by better terms by way of an Addendum effective from 1st June, 1995i Thi position was put clear to your clients in our letter Ref~ No. TAF/3/5/9/vola!I/51 of 29/5/19951 On the above stated grounds efforts to negotiate, and amend the Charter Agreement, .st;:irted since August; 1995, although your Cleints have all along been reluctant to nefotiate. eoooooo-0000000000000000000 The grounds, for the failure to obtain the fishing licence, are the unfavourable terms, and conditions of the Charter Agreement, as we discussed on the 8th of March, 1996, at your office, as well as the breach of fishing Rules, by your clients. •00000000000000000•0000000 Awaiting for your good response. sgd. GENERAL MANAGER • ooo ot;/ •

.. -8 This letter opens our eyes wide, it is all telling, without capacity for caprice, nor conspiracy, showing th.et the extension of the Charter Agreement, even three weeks before the insitution of the suit, had never been agreed upon, by the parties. Then, when was it after that? · It was nelf-er at allo From the above, it is my confident view, that the claim based on an allegedly extension of Charter 11.grement from 1/6/1995 to 31./12/1997, has not been established, and the claim, is therefore disallowed, and in the same period by extension for the same reason disallowed, is prayer (c) of the plaint i.e.$ 540,000. / In summary therefore, 1<he plaintiffs shall bo entitled to -l- , US $ 200 1 000 as per para 19,3 ..:2- Loss of income for period of six months US$ 120,000, and hence US$ 320tOOO; -3- Interest on decretal amount from dat,0 of filing suit till judgment, and till payment, but otherwise p8rtly dismissed~ with costs., Delivered this ............ ~•oooa•••" day of November, 2000, JUDGE .. .._