IN THE HIGH COURT OF
(DAR ES
SALAAM DISTRICT REGISTRY)
AT DAR ES
SALAAM
CIVIL CASE
NO. 166 OF 2005
ASFS AZANIA SITES AND FIELDS SERVICES LIMITED…………PLAINTIFF
VERSUS
KAHAMA
MINING CORPORATION LIMITED..…………………..DEFENDANT
---------
JUDGMENT
KALEGEYA, J.
This is an exparte judgment. The Plaintiff, basing on evidence of PW1
(Xanfon Bitala) and four documentary Exhibits – Exhibit A, an agreement between
the parties; Exhibit B, an e-mail by one Reeves, the Defendant’s official;
Exhibit C, a demand note by the Plaintiff to the Defendant and Exhibit D, a
remittance advice by the Defendant sent to the Plaintiff showing amount already
paid for services as USD 35,340.15, prays for judgment and Decree against the
Defendant as follows:
“(a) A
declaration that the termination and/or suspension of the contract for
vegetation management services by the defendant on the 3rd day of
June, 2005 was premature and unlawful.
(b)
An order of specific
performance of the contract.
(c) Payment of the sum of USD
14,589.60 being an outstanding payments for the service rendered by the
Plaintiff.
(d)
An interest of 35% at (c).
(e)
Decretal sum of 12% at (c)
from the date of decree till full payment.
(f)
Refund of the sum of USD
6589.61 being VAT, Excise duty on fuel and Road tax on fuel and back charges
unlawfully deducted.
(g)
Payment of USD 300,000.00
being general damages for breach of the contract.
(h)
Costs of this suit be
borne by the defendant.
(i)
Any other relief(s) this
Honourable court may deem fit and or equitable to grant.”
Mr.
Masaka, Advocate, represented Plaintiff.
The
evidence given by the Plaintiff shows that parties had entered a “Contract for
Vegetation Management Services” for the period of 1/11/2003 to 31/12/2005. Among the terms of the contract (as per
Exhibit A) was the amount payable monthly, by the Defendant and which was US
5,002. The terms also provided that the
contract would terminate automatically at the end of the contractual term. Further to the above, the Defendant could
terminate the contract by giving Plaintiff a three months written notice
(clause 9.1). At the sametime under
clause 9(2) either party could terminate the contract by a written notice to
the other if there was any breach of the provisions of the Agreement or if a
receiver was appointed in respect of the other party’s property or has
voluntarily gone into Administrative-ship agreement or liquidation.
PW1 deposed that on 3/6/2005, the
Purchase Manager, one Reeves called him into his office, and in the presence of
the Senior Environmental Officer, one Juma Malunga, ordered him to hand over
all the Defendant’s equipment in his custody by 5.00pm and leave the mining
area adding a statement “the contract has stopped” and that he was not given
any reason and that his pleas to be given the same in writing proved furtile. He (PW1) deposed further that he had to act
hurriedly, handed over the equipment, called upon his workers to stay cool and
that the day following he could only collect his property from the offices he
was using under supervision of a security guard armed with a pistol. He subsequently reported to the police, and
sent out a demand notice for the outstanding amount for services already
rendered amounting to USD 56,817.83 out of which only USD 35,340.13 was paid as
per acknowledgement, Exhibit D, leaving a balance of USD 14.589.60.
Plaintiff also deposed that the
Defendant unlawfully deducted USD 6589.61 from his entitlement and that this
sum had already been deducted from earlier payments.
On the evidence available, I am
satisfied that indeed the termination of the Plaintiff’s services was against
the terms of the contract. The Defendant
could have acted under clause 9(1) of the Agreement by giving a three months’
notice or 9(2) by pointing out a breach committed. Its act(s) was not backed up by any.
I am also satisfied that indeed the
Plaintiff is entitled to USD 14,589.60 under-paid. In arriving at this, apart from the
Plaintiff’s oral testimony, I am guided by what transpired after termination of
service. The Defendant did not dispute
the sum claimed as per the demand notice dated 8/6/2005 (Exhibit C) but simply,
in terms of Exhibit D, a remittance advice dated 21/7/2005, made a
representation of what would be paid – USD 35,340.13. If the amount claimed as per Exhibit C was
incorrect or false, one would have expected Exhibit D to reflect that
element. It is silent.
However, I am not persuaded regarding
the claim of USD 6589.61 being VAT deductions, excise duty on fuel and Road tax
on fuel. The law is clear that even
where a party proves his claim exparte he must so prove on a balance of
probability. The Plaintiff fell below
that standard as no evidence was led to show that indeed that sum was
deducted. It is unsupported.
Regarding general damages assessed at
USD 300.000, while it is trite law that unlike special damages, general damages
ought not be specified by party in a pleading as it is within the discretion of
the Court, that figure is exaggerated.
Plaintiff supported that huge claim by
stating that the termination caused them to lose monthly income of USD 5000 as
per contract; USD 7000 which they were getting from a sister Company, Tunawaka
Company which stopped dealing with them; that they had invested in equipment
(though no value was displayed) and that the termination act caused his
employees to panic resulting into some of them being taken over by Defendant
while he retrenched others after paying them.
I appreciate the weight of the above
consequences but they do not come anywhere the sum of USD 300,000 claimed.
On the evidence and reasons discussed
above, I hereby enter judgment in favour of the Plaintiff in the sum of USD
14,589.60 being the unpaid balance for the services rendered and USD 5000 as general
damages. I also award interest at the
rate of 7% on USD 14,589.60 per annum from the date of filing the action till
judgment, and, the same rate on the decretal sum till payment in full with
costs.
DATED at DAR ES SALAAM this day of 2009
L. B. KALEGEYA
JUDGE
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