Gaspian Construction Ltd vs Mwananchi Engineering and Contracting Corporation (Civil Case No. 194 of 1996) [2000] TZHC 109 (23 August 2000)

• ..J • t IN THE HIGH COUi1'1' OF T/.N?.1.1\NL-\ .\T DATI ES SflL.AftM CIVIL CAGE tWo 194 01'' 1996 Ci'i.SPIAN CONSTi<UCTION LTD o ooooc,eo versus K\JAN.'.NCHI ENGIID.EIUNG & CONTil.\CTING CO:rtPOl"!ATION o o t.> o o o <: •e JUDGMENT -------·-----~ PLAINTIFF DEFJ.,NlhNT The Plaintiff filed a claim against the defendant for:

• shs.20,335,232/60 being the principal amount shs.67,401,696/50 be1ng interest at 10"/4 per month from 9/4/94 · ... Interest of the decretal amount from dF.1te of judgment to payment in full, and -·costs. The claim arose out of hire charges of a Cl,T D - 7 Bulldozer which was hired by the defendant at the rate of Tshs.30,000/= per hour. The hire agreement entered into between plaintiff and defendant was admitted in court as &ch. P1. It is to be observed that on the hearing date of this Gu.it the defendant defaulted appearance, and there-fore this court allowed the plaintiff to prove his claim exparte. Mr. Mjindo learned counsel representing the plaintiff led his witness Ahmed Oma.ri Farahani who appeared a.s P-1'1 • The witness Pv/1 in his affirmed evidence stated that he was employed with the plaintiff a.nd since 1/8/94 he acted a.s the plaintiff's accountant, His duties included debt collection a.nd that the of accounts was done but there was no aereement was reached. FW1 di.sputed some of the pa.yri:ents allegedly made by the defendant. DW 1 insisted that the defendants debt stood at Tshs.20.3 Million - Exh. P4. PW1 added that the defendants continued to pay in kind even,aft€:r the filing of this claim, but he was not sure of how much was paid in this method. • •••• /2

.. " .. : 2 This court then directed the witness to supply the court with the sta,tement of account in view of the continued supply of materials. The witness obliged and .supplied inforrwtion to the defend;mt was one of their debtors. He wcplained th-'3t an agreement was entered into between plaintiff and defenda.nt whereby the defendant ,agreed to hire the D - 8 Bull dozer for Tshs.35,000/m per hour. He also stated that the defendant had to -pay Tshs. Two Million as advance payment, and 100/4 interest per month on the amount that remained tmpa:l.d. He tendered the agreement as Exh. 1:1• He also sta.ted that the defendant continued to pay in small a.mounts a.nd that by 22/6/95 the defondc:.nt I s debt was Tshs.21,.8 Million. Exh. P2 is the defendants letter of r,onfir1m.tion. He testified that the defendant then opted to pay by way of materi-'3ls instead of cash pa.yment. Thus the debt was reduced to Tshs.12 Million and a reconciliation count showing that the balance due of the principal sum is now T.shs.5,420,000/= only. In the premiseo, judement is entered for the plaintiff against the defendant as follows: (i) Tshs.5,L120,ooo)'= as the princip2l sum (ii) Interest at 2296 on the above from date of filing to dc.te of judgment (iii) Interest at courts rate 7% frorn da_tc of judgment to payment in full and (v) Costs. Claim on interest on the balances of Tsho.67 Million being spacific damage fails as the plaintiff did. not testify on how this figure was arrived at. • A ,:· l' .,~ I •. )l L{(n :,.JJi/,..lL'-....', :t.Go Bubeshi JTfDGE 23/8/2000 Delivered in a.bsence of the plaintiff• , .v .) { }f · '.,1• 1 ·,,.;; •i j .,t. • l ., , ,__. , cl!· .• , ' ' AoGo Bubeshi JUDGE 23/8/2000