Wananchi Marine Product (T) Ltd vs Owners oof Motor Vessels (Civil Case No. 123 of 1996) [2000] TZHC 78 (1 November 2000)

IN THT~ HIGH COUTIT OF T /.!'J~?.ANIA DAH ·S SALAAM DI STIU CT REGIBTRY fi.T DA S S,' I.J;..\M · -·- ,,..., .... ·----·--·-.- CIVIL c;.;"!i; NO ••••• o • • • • • • • • • • • 123 of 1996 lr!!.NANCHI WRINE PRODUCT (T) LTD.•• ••• •• f,PPLI(;;Nr VERSUS OWNERS 0-P M'.)'f.'OR .SSEl.'3 •••••••• • ••••••• P..ESFONDENT K,",'i'ITI J.2.. This suit, has a somwhat chequered background, having been filed on the 8th day of May; 1996; the 18th day of July, 2000, saw it come for mediation, when the defendants, though,served made no appearr:mce. · Procedurally the defend:mt' s ii.dvo:ite ,1 failins to :1ppecJr for the; mediE'tion, the Court mny enter a default judgment, c1g,.1inst the defend,mts. !-fo1'/ever, in view of the fact¼ that 1-'."J'gG sums of money are prayed for; this Court T with the concurrence of the plaintiffts counsel itr-. El Maamry stood over such judsment, ffilbjc;ct to oral proof of the claim! In the dutiful attempt, by the plaintiffs to prove the claim, we have orc.11 ,:vidence, by TUNG WU KONG, a Mombasa based resident, there runnins Mwan.<:mchi M.1rin8 Products Kenyc1. Ltd., as Chairman and Shard10lcer, showing .thnt in this Country, (Tanzi,nia), equally cst-3blished, is the Mwen-'¼nchi r-1.:.rrine Products (T) Ltd., herein to be cz:dled the plaintiffs. It is patently clear, on the evidence, that the plaintiffs, struck a Ch,irt r Party, or Chc:.rter .1.greement, with Tanzenia Fisherios Corpor,:,tion, the '01,mers', and h,mcc to be called the defendants, whereby such owners, were to charter and thr. plaintiffs to hire 1 their b,o vehic1es Christion0d, -1- W.M! .. Ti,FICO, and -2- S/;D:.NI, to the plaintiffs, at the rte of US D.250 per day, per vessel, for a period of twenty four months. Accordingly therefore in the absence of chllengc, I hereby make a finding to thnt effect~ It is apparently defying chAllenge also, that the period of twenty four months were to, and did commence f:rom 1/6/1993 1 and ended on 31/5/1995, (P~~.l,,s.,-2?..,c!.). __ o_t_lJ;.remt ;i1E:.~~\l!'_.B,\KI), and this attracting no controv,:>rsy, there is no escape routed, from finding· the same as a fact, which I hereby do. It cannot be denied oit':le,ri

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• 2 and the /,greement is unquivocDl, in th(~ dir_ection, th(;!t the defendants contractually undertook to obtain, the fishing Licences, for the two above mentioned vessels, from the Licemling ,\uthorities, for and on behalf of the plaintiffs. Thus, the said Chorter Party Agreement, would be subject to the defencl.?nts obtaiJ:ling fishing licences, or be terminated in the event of the defendants failing, or neglecting to obtain, or to renew lic0nce, for the duratin of the Ae;reement, in which caGe, the defe!1d, 0 ,nts wciuld be liable to qompens:cite the plaintiffs, for loss of income, for period of the v Chart,,r !,greoment together, the licences were unobt:;ined, with e. lump sum compensr:,tion of USD 200,000 to cover all expense,s in current by the plaintiffs in s,rvicine the contract - -1:..•-..19.•2, 19.3 of the :gent. That appears as clear as d<Y li 0 ht, and too obvious to be disputed, and I conclude the snme, as an undeniahle fact,. The pl2intiff 1 G claim, thnt the dofendr:mts refused, or n0glected to renew, or obt,'."lin fishing licencGs for period. from -1- J./12/1995 to 31/5/1997, nnd hence their anxiety to invoke p.:ircs 19.1, 19.2 ;. and 19.3 of the Agreement, demanding an order for 1-ompensntion -l- U3D 200,000, -2- Less of income e.nd profits 1 from 1st d:::;y of !.)ecember, 1995 to 31st day of May, 1997 at$ 20000 per month ~ $ 20,000 x 18 months= USD 360,000 -3- USD 540,000 bein~ expenditure, at the r0t0 of USD 30 1 000 per month x 18 months. -4- Interest etc. Thus vi.s the sDid Chnrter ,'.greement tho parties so agreed, but they are now asunder, 2.&.::ordinr; to their ple,:1dings, and hence this expnrte proof, upon th,} defendants f8ilure, to enter app&-:rence on a d:3.te fixed for medi:1 tion. In our sense, proof is proof by evid.encc, which would induce a reason:iblo man, reo.son.7bly npplyin:; his sooci sense, c1nd prudence to come to the conclusion, th::it certain fact~ or circumstances of the case . t . our case ~ d exis; in proo1 of brer.ich of contrclct after extention an hence pl.;dntiffs enti tlcment tc the reliefs sought by the plaintiffs., It docs not how0v,~r me'.:ln proof to mathJn0tical cert?inty, nd'.'. should it be l)od"intico lly ::iri thmetical. f'Jld it is tri to lccirning that the burden is that, whoeve:e w.:mts tho C:ourt to giv-1 him judgment <.lS of right, on ,the existence of the fact he asserts, he must prove those fr.Jets. Th.crnfore, the f9ct that, this it is nn exparte proof, is no ruason why, thG Court should accept nnything uttered, or tendered, untested, es automatic. '?'Ospel truth, and therefore ipso f,1cto e:iti tle the "?laintiffs to judGment 1

As I look at the reement signed by the parties, as juxtaposed with the claims, I am without doubts; as to its interpr<.:t,::iti ve snnes, as to dur::1tion of contrnct or extension thGreof, renewal, or obtninin fishing licences, nor do I think, th2.t the p~rties, were in any doubts about it. Coming into the aren'.l,· it does seem,- thot the claim in proyer (B) of the Plaint (8/5/1996) 1 covers period divisible into two parts, - the first one covering part of the first twenty months,

• suspposed to commence by J/6/1996 and 31/5/1995, coverins 1st December, 1994 to 31/5/1995 i.e. six months.' It appears, to be an unchallenged_ position, tht for this period of six months before the end of th.e first b,o yenrs term, the dcf8ndants never renewed the fishi"ng licences. ·. I have not th.a sli.htest doubt, thnt such a) position .. hc.ppr:ming, during the ch.,rter ptoriod of twenty four months, does obviously yi::ild to the gen0rol invocation of the' {,greement Pnrs 19.2 and 19.3-, entitlini; th,:; plnintiffs o 1} \ . . ~ - US l 200,000, and -.-2- Los,5 of income for the:, c!ur::;tion of the I ch_rter p•.)riod for our purposes here, the period being dix months. Wh:}t then, would the loss of incom~ be? According to pri'lyer (B) in the plr.:int, the montnly income would be US $ 20,000 th,?.t for our purposes, a pcrj_or! of six months, woulcl. amount to US 120,000. Mr. TUNG WU I(ON!} testiried 1 as coming to such figure by compri.risons of previous y,,cr 1 s returns. -/hen 311 is considered in the desirDble perspective, it does seem persuAaive to trent vcerios of fishinr; inct 1 .. u;tr;sr, ~-'3 p•--rt.::iing fishinc; incomes, as steady ,:is liki:! production, on formulne be1sis. But as the firr.ure st,md I and r0rnc.1in undisputed even though the vr,Gcries of we,sther would !l1r.lke fish yields fluctunte from time to time, I am tempted to upholct and thercfori, grrsnt the s,:ime 1 which I hereby do, nnd consequently ~llow ~na· award US l 320,000 to the plaintiffs. I shr.ill no1-1 come, tc tho sec::md period, thnt cover 1st June, 1995 to 31st M'3y 1 1997 whj ch ·U.ma, should h3ve been covered, by the extension clc::use .s.:;herr.c: see a 22.1 which runs ·"s follows: 11 The Ch.•u-tcrers h:.lve option of extending the period of hiring, for. a further two ( 2) yea.rs, which option the Chnrterers, m:'ly exercise, by givine the Owners, not less t:"1'1n thr0e months, prior to the expirtion of the hire-term, hereby created,-written notice of its

·- 4 - intention to renew the hire-term. The Oh.rNERS upon receipt of the sGid notice, shall notify the ClF rters in \•,riting, not less th.:in thri ty d8ys, of its acceptence, to renew the hire period.;·, The above hE-,Teement clause do•Js, not in my view dem:md extra interpret.:itive energies ,;1t e.11. In my humble view, r3asonr.lbly looked at, it, st1mds unquestioned, Dnd actually defyine chollengc 1 th,:1t the pl,sintiffs victe the i'.greement gsive the ph1intiffs option, for extention of hirinr:; t.:;rm, for a further two ycc1rs, provided, -1- thc pl0intiffs g0V8 written notice to tho defend3nts, three months prior the exp~.sition of the first hirinr-; tern -2- of intention to renew the hire-term, c.1nd -3- being notified in writing by the defend::-ints, nat less than thirty ds":ys, of accepting to renew proposed hir,, pc1riod. To me, it nppcars, tkit in classic::il terminology, th2 nbove. <!p~ct:1rs to need 1 th:3t the pnrtics for on extended period of dur:;ition, would not be bound by A17eement, until they are i_n agreement, which requires an offer for .~xtention of time by the pl~intiffs, and ncc.ept,mce by the defend,-,nts·, ns per terms ab9vG 1 ,.,JJ: in ,.~r_ii:~nG 1-,ithin specified period of time. f t.nd n pnrt from sho\-:in[; the m•:.,etini of the.minds,·on the··sub-ject _ _, matter of the contrGct, the rules of offer ;:md accept~cc are 'J.Sed as a mech:::nism, for dct.-:-rminin;:; when tho contrncttwl obligEJtion~ '.' ·would arise' - sec HI,3PJ~N1{,', de PBTDOL?:O.S .s;. VS. VENBIX)R/. OC:8!,NIC:', ', ----·- ""·'--·, ....... -,,., .. _.-.. ._., ___________ .... __ .. ~-· Now ,; · purposefully :.i.!31,, was th.:,r,c, such extension? I pose this qu<:stion bec:1use both Mr. El Mat-imry :md Mr.; TUNG WU KONG gave me v.n obviou:::; impression, thi.Jt such extension of charter agreement th0:.:·e h-?.d been. In the obvious .'.lren1:1. of this case,. I Get an undoubt,:d impression from the plc:dntiffs, thnt t there we.s, such contr::ictu'.}l cxt,::-nsion of th<' second two y0:1rs term. 1 •/ar; there such exerciRi~ of o:rition, as per porE! 22~1 of the Chcrter !,g:r<:?ement ,- I ;c,sk? l;/:J8 th_;re !:'In offer on thr; one hc1n<l by pl,:iintiffs, ::md acccot;;mce ::>n the, other hr.ind,. by the dcfcnd.:ints? Now our posi ti vc retrent ,- has t:=1re;ct to se<) ,· whether thure over was, an ext(msion in ti:)ri!ls of P::.\r, 22.1, the breach of w!1ich 1.vould atbch, contr-'.:lctunl libility, of course as deductble from the evidencc,given pn bd1nlf of pl::iintiffs? M~. KUNG, vms e thre wns snch exten.sion., I would not, hve cul ti Vc'.tcd the Rntiip:~tion,, to ctoubt his credibility. The plnint pera 3 asse:tts,, the plaintiffs exercised th0 option of rcnewaJ., f!fter expiri:tion

of period 1/6/1993 to May, 31st 1995 via 1 VBAKI:r of Charter Party Agreement. The defendants, deny such renewal in their written Statement. of Def,,!nce. But ,,fith respect, the so called BAKI is a Charter Agreement dated 15/5/1993, and the extension would have started at about on 31.st by, 1995 and end on 31st May, 199?. So that with respect, althouzh BAKI, provided for option for extension the I>rocedural mechanism for the same, is provided by Para 22.1. We are, with respect, th8refore searching, how cc;mpliance 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 wns actually made the answer thereto, . would seem to relevantly read, as follows:- TAF/3/5/9/Vol.II/51 The ManE.ging Director, Wananchi Marine Products (T) Ljd, P.O. Box 63252, J?AR ES SA~~AM. Dear S:ir, 29/5/1995 RE: }?XTENSION OF THE . Q!f_{:Rl'ER AGREEMENT Reference is made to your letter dated 16/1/1995 and our letter Ref. TAF/3/5/9/260 dated 6th Febrmry, 1995 in respect of the above mentioned subject. The issue of extention of the Charter Agreement for a further term of two (2) years, had been submitted to the Board of Directors, c1t its meeting held on 25th May, 1995• The Board of Directors after n thorough consideration of the issue, had resolved as follows:- (a) That the request by WMP to extend the Char§er Agreement for a period of two (2) years be, ahd is hereby accepted, on condition that WMP shall adhere and abide to the terms, and conditions of the ChDrter Agreement, which will be in force, during the whole extended period • ••••• 6/.

-6 Cb) That the extended period, may be determined by either party, terminating the same under the procedure laid down by the Charter Agreement, or by Government Police (Privatisation). (c) That breaches to the terms and condj_tions of the Charter Agreement, which were ommitted by WMP during the two years period expiring 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 existin Charter 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 th0 extension of our good business relatin§• Yours faithfully, TANZANIA FISIIBRDGS CORPO:R.I\TION Sign: for Ao G. DIRECTOR GEN.AL With respect, I am prepared to vouch, that the pl1dntiffs made the offer, and so, in good time. But the above letter from the defendants, does instil worI'.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, o1nd the same., must appear to h.?.ve been communicc1ted to the Offer.er, in the manner presented, or contemplated;. by the offeror in offer, considering th8 correspondences, 'and negotiatinons, between the parties as a whole, 'nnd their cpnduct ... r--.... ,:., n that regard - See 07;; 4 E:...--?...'2.:f. ~ Contr Ord~?;,S,e_9~. 43~. 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. TUNG WU KONG, did not disclose how his Principals Offer, was accepted by the defendants, in view of the above letter. Wh~t I see, with my naked eye, is a kin to a counter - offer, whose legal effects is well known,

. ' nor is it suggested, that the acceptance of extension, was done orally. But, if human flailty was not failing us, if our memories unfortun.3tely were not betrayinr; us, we would also easily recall, a letter dated 1st April, 1996 Ref. No. TAF/3/5/9/Vol.II/112, to Mr. Saidi H. El Ma 8 mry, that is as follows: Saidi E• El Maar.iry, Advocate, Pamba Road, P.O. Box 5201, DAR ES SALAAM -- ......... --~ REFERENCE is made to your letter Ref• No. SHE/95/15 WMP clc:ited Z?/3/1996. The extension of the Chi:1rter 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 tho smooth execution of the Agreement, had to be amended, and replaced by better terms by way of an Addendum effective from 1st June, 1995• Thi~ position was put clear to your clients in our letter Ref• Noo TAF/3/5/9/'Jom&II/51 of 29/5/19951 On the above stated grounds efforts to negotiate, and amend the Charter Anreement, c::trirted since Aup:ust, 1995, although your Cleints have all along been reluctant to nefotiate. •00000011>00000;,0oo•oooooo~• The grounds, for the filure to obtain the fishins 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. eo•• 0 oooooocooooooeooooooo i.wc1iting for your good response. sgd • GENER.,;Ji MANAGER

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• 8 - This letter opens our eyes uide, it is all telling, without capacity for caprice, ncr conspirc?cy, showing th£- t the extension of the Charter Agree:Tient, even three weeks befor0 the insitution of the suit, had never been agreecl upon, by the parti•:?G• Then, wh,.m was it .:?lfter that? It was ne:!.>-er at All. From t!1e :JbO'l-: 1 it is my confident view, that the claim bPsed on en allegedly extension of Ch:::rter J\greement from 1/6/1995 to 31/12/1997 1 hns not been ostd,li,shed, and t'.,e clriim, is therefore di.sRllowed 1 anrJ in th::- same period by extension for the same rec1son disallowed, is prsyer ( c) of the plc,int i.a. $ 540,000. In summary therefore, i;he pli:dnti:t;fs sh;Jll bo entitled to -1- US $ 200 1 000 as per pra 1913~ ..:2- Loss of income for period of six months US$ 120 1 000 1 and hence US$ 320tOOO, -3- Interest on decrete.l amount from dat:: of filin;::; suit till judgment, and till payment, but otherwise p£,rtly dismissed, wi +', costE;. Deli vcrcd this • • • • • • • • • • • • • • • • • • d~y of Nov,:mbcr, 2000, JtTDGE