Azania Sites and Fields Service Limited v. Kahama Mining Corporation Limited civ no 166 of 2005

IN THE HIGH COURT OF TANZANIA

(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

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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 3^rd 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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