Oceanair Freight Limited vs Union Transport NV/SA (Commercial Case No. 6 of 2000) [2000] TZHC 75 (31 July 2000)

IN THE HIGH COURT OF TANZANIA (COMMERCIAL COURT DIVISION) AT DAR ES SALAAM COMMERCIAL CASE NO. 6 OF 2000 OCEANAIR FREIGHT LIMITED ................. PLAINTIFF VERSUS UNION TRANSPORT NV/SA ..................... DEFENDANT ( KALEGEYA, J: JUDGEMENT This is an exparte judgement. The Defendants were duly served. Neither did they appear nor file a written statement of Defence. The plaintiffs were accordingly granted leave to prove their claims exparte. The Plaintiffs' claims against Defendants are: "(a) That the Defendant be ordered to pay the Plaintiff US$. 103,670 or its equivalent in Tanzania shillings ................. . (b) That the Defendant be ordered to pay interest at the commercial rate of 12% per annum from the date the principle became due to the date a/judgment .............. . (c) Interest on the decretal sum at the court's rate of 12% per annum from the date a/judgment to the date of final satisfaction of the decree. ( d) Costs of this suit. (e) Any other relief this Honourable Court may deem necessary to grant in the interests of justice. "

2 In support of their case, the plaintiffs produced one witness and tendered two documentary exhibits -A and B. The sole witness, Abzal Rejani, testified that he is the plaintiffs' Internal Auditor; that the parties had business dealings since 1996; that their business involved clearing and forwarding activities by which the plaintiffs cleared and forwarded containers in transit and through the port of Dar es Salaam on behalf of the Defendants. The witness deposed further that between 1997 and 1998 the plaintiffs cleared and forwarded 500 Containers on Defendants order for which they (Plaintiffs) were supposed to be paid US $.487,000; that however only US $.384,000 was paid leaving a balance of US $.103,670 which is now being claimed. In support of his testimony the witness produce a list of the Containers transported and 98 copies of invoices. He also tendered copies of letters which, he maintained, reflects the plaintiffs' demands on the Defendant regarding the balance. Exh. B is composed of two letters written by plaintiff and addressed to Defendants - one dated 13 th September, 1999 and another dated ih October, 1999. In the former, the plaintiffs indicate that by 31 st March 1999 the outstanding amount due to them from Defendants was US $. 70,905/=. The letter is in a form of a demand note and notifies Defendants that failure to pay would lead to commencement of a suit. The latter letter seems to be a follow up of the unsettled balance though it does not specify the amount. It also reveals that Defendants were resisting payment allegedly because a sum of US $.53,207 had already been paid. Plaintiffs clarify that that sum paid by Defendant to T.R.A as Duty and Sales Tax was deducted by Defendants from their freight charges 1 ~ Account. As to Exh. A, entitled "Union Transport Account as at 31/12/98" we have the following. The list containing containers cleared is three paged. On page 2 we are shown that the work done was worth US $.302,264.88 out of which US $.238,594.70 was paid leaving a balance of US $.63,670.18 while on page 3 it is indicated that the whole sum of US dollars 185,382.40 for other containers indicated thereon is still outstanding. According to this list therefore the work performed by plaintiffs is worth US $.487,647.28 out of which only US $.238,594.70 was paid leaving a balance of US

3 $.249.052.58 (185,382.40 + 63,670.18). I should hurriedly add that the 98 invoices attached total up US $.463,0()5.80. With the above, can we say that the plaintiffs have proved their claims of US $.103,670.40? On their face value, the figures as presented lead one into confusion. It is because of this that the Court sought for a detailed clarification from the sole witness, Mr. Rejani, who testified on this matter, as follows. The figure of US $.302,264.88 out of which US $.238,594.70 was settled appearing on Page two of Exh. A does not contain a figure of US $.140,382.40 whose invoices had not yet been dispatched to Defendants. As regards the balance of US $.63,670.18 reflected on page 2, the same, after reconciliation, was rounded off to US $.45,000 thus making the outstanding balance as per page three, US $.185,382.40. He clarified further that out of that sum, US $.50,000 was paid on 16/6/99, US $.25,738 on 15/7/99, while due to theft of certain articles Defendants were given a credit note of US $.5,934 leaving a balance of US $.103,670.40 which is now being claimed. Regarding the disparity between this sum and US $.70,905 reflected in the plaintiffs' demand letter dated 13 th September 1999, Mr. Rejani said that they had decided to give Defendants a credit note of US $.32,765 if they settled the difference by 30 th June, 1999 but that they have claimed the whole sum because they (Defendants) defaulted. iY- ') Having carefully considered the pleadings, the oral testimony of Mr. Rejani and the documentary Exhibits tendered I am satisfied that between December 1997 and 1998 the parties were engaged in clearing and forwarding business transaction; that by 30 th October 1998 a total of US $.185,382.40 was still due to the plaintiff from the Defendants and that between June and September 1999 the Defendants made some payments in reduction of the outstanding debt. On the same evidence however I am not convinced that the balance outstanding is US $.103,670.40 because the letter, part ofExh. B, dated 13 th September 1999, tendered by the same witness, contradicts the oral testimony regarding the sum due. The witness tries to explain the disparity by saying that they had

• 4 decided to extend a credit note worth US $.32,765 to Defendants which was withdrawn as the condition attached thereto (to pay by the end of June) was not met, but in my considered view, if this was true, the demand letter dated 13/9/99 (over 2 112 months after the deadline) would have reflected, obviously, the figure of US $.103,670.40 and not US $.70,905. The omission cannot be explained on any other ground than that in one way or another, by then, the difference had already been settled in a manner and style known only to the parties. On the evidence adduced I am satisfied that the plaintiffs have proved, to the standard legally required, ofa claim of US $.70,905 as against the Defendant, for whichjudgement is hereby entered accordingly. The plaintiff shall also have their prayers for 12% interest per annum on the principal sum from the date when it was due to the date of judgement, and also 12% interest per annum on decretal sum from date of judgement to final satisfaction of the decree. Costs are also awarded in favour of plaintiff. L.B. KALEGEY A JUDGE ,r- I Certify that this is a tro.! an i Correct of the ori:1,na,1 ,.. ... e.- e.,, Co.umerciai Court Dar es Salaam