IN THE HIGH COURT OF TANZANIA

(DAR ES SALAAM SUB-REGISTRY)

AT DAR ES SALAAM

CIVIL CASE NO. 112 OF 2022

ALISTAIR JAMES COMPANY (TZ) LIMITED………………………………PLAINTIFF

VERSUS

CJ SC LOGISTICS (T) LIMITED……………..……………………….…….DEFENDANT

JUDGMENT

6th December, 2023 & 16th February, 2024

MWANGA, J.

The plaintiff, ALISTAIR JAMES COMPANY (T) LIMITED claims

against the defendant the sum of USD 64,135.00 being the principal sum

due to the plaintiff as unpaid balance after the plaintiff transported the

defendant's goods from Dar e Salaam Port to Likasi, Lubumbashi, Katanga

province, in the Democratic Republic of Congo in the year 2018. Also,

claims of USD 275, 781.00 which is the late payment charges on the

principal sum at 10% per month from January 2019 to July 2022 as

allegedly agreed in clause 5 of Part A of the General terms. Other claims

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are interest on the decretal sum at the court's rate from the date of the

judgment to the date of the execution, general damages, and cost of the

suit.

The case of the plaintiff from the facts is that in October 2018 the

defendant engaged the service of the plaintiff to transport two shipments

of goods (the bulk of sulfur) involving 66 trucks from Dar es Salaam Port,

Tanzania to Likasi, Lubumbashi, Katanga province in the Democratic

Republic of Congo. The first shipment was confirmed by the defendant on

11 October 2018. Whereas, the defendant confirmed the second shipment

on 20 October 2018. Under the agreement, the first shipment was for the

carriage of 29 trucks.

I would say that some of the terms of the agreement were somehow

general. Because no specific time was fixed for the completion of the job

by the plaintiff. Be that as it may, as per the existing job confirmation

accepted by the defendant in exhibit PE(b), the terms were that the

defendant had to pay 70% of the total transport cost after loading, and the

balance was to be paid within fifteen days after the submission of the proof

of delivery (POD). More so, the second shipment involved the

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transportation of 37 trucks with similar terms and conditions as in the first

shipment.

The plaintiff managed to transport all 29 trucks of sulfur in the first

shipment to the destination after the defendant paid 70% advance

payment before the loading. The remaining 30% were not paid. In the

second shipment, the plaintiff transported 26 out of 37 trucks, hence

leaving 11 trucks hanging at the port. The plaintiff alleged that such failure

was due to political instability in the Democratic Republic of Congo

including the province of Katanga where the two shipments were to be

delivered. The other reason was that there was slow clearance of the

goods by the defendant at Dar es Salaam Port.

The late payment charges claimed by the plaintiff are pegged under

Clause 5 of Part A of the general terms and conditions. That, the plaintiff

reserves the right to charge late payment charges to be calculated at the

rate of 10% per each month of delay on any account that remains unpaid

for 30 days or more from the date of invoice.

It is based on those facts, that the plaintiff invoiced the defendant

USD 64,135.00 unpaid balance for the first shipment on 14th December

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2018 and USD 275,781.00 as late payment charges for the second

shipment on 17th January 2019; but contends that, despite such demands,

the defendant refused to make any payment and denying any outstanding.

The plaintiff has, thus, instituted this suit seeking the assistance of the

court to compel the defendant to settle the claimed amounts.

In contrast, the defendant filed a written statement of defense

denying the claims. The defendant asserted that all that was due was paid

to the plaintiff. The defendant maintains that there is no email received to

show that the defendant agreed to the plaintiff's terms and conditions for

the late payment charges enclosed in Clause 5 of part A of the general

terms and conditions of the job confirmation.

Conversely, the defendant also averred that it was the plaintiff who

breached the contract as was unable to provide 11 flatbed trucks out of the

agreed 66 flatbed trucks to transport 11x40 containers of sulfur.

Henceforth, the delay caused considerable port and demurrage charges on

the part of the defendant.

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 Ultimately, following the plaintiff's failure to provide 11 flatbed trucks,

the defendant secured a railway wagon to transport the remaining 11flt

bed containers.

In an attempt to escape liability, the defendant emphasized that the

customs clearance process for the 37 trucks was completed, transport

documents were handled earlier to the plaintiff and, importantly, there was

no political instability in DRC as the plaintiff was not notified so.

As a result of the above assertions, the defendant raised a

counterclaim asking this court to declare that it was the plaintiff who

breached the agreement. Therefore, be ordered to pay the plaintiff the

following remedies;

i. Payment of Tshs. 315,000,000/= as a specific cost incurred by the

plaintiff.

ii. Payment of general damages to the tune of Tshs. 100,000,000/=

resulted in the loss of customers and trust as well as business from

the consignee.

iii. Interest on the decretal sum at the court's rate from the date of

the judgment to the date of full payment.

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 iv. Cost of the suit

v. Any other reliefs that this court may deem fit to grant.

In so far as the contentions of the plaintiff and defendant regarding this

case, two sets of issues were framed. The first set of issues framed were

for the plaintiff’s case, which are as follows;

1. Whether the payment of the first consignment was paid in full by

the defendant.

2. Whether the plaintiff is entitled to late payment charges.

3. To what reliefs are parties entitled to?

The second set of issues framed for the Defendant’s /plaintiff’s case in the

counterclaim case are as follows:-

1. Whether the defendant in the counterclaim breached the contract.

2. Whether the plaintiff in the counterclaim is entitled to claim for

damages for breach of contract

3. To what reliefs are parties entitled to?

At the hearing, the plaintiff was represented by Ms. Clara Mramba assisted

by Mr. Toba Mohammed, both learned counsels. The defendant enjoyed

the service of Mr. Japhet Mmuru, also learned counsel. The plaintiff

presented one witness (PW1-Neema Chamy) and two exhibits. Exhibit

PE1 is an affidavit as to data accuracy sworn by PW1 and Exhibit PE2(a)-

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(r) are email correspondences between the plaintiff and the defendant

about their agreement. The defendant produced one witness (DW1-Fred

Abdallah) and three exhibits. Exhibit DE 1 is an Affidavit as to Data

Accuracy signed by PW1. Exhibit DE 2 is demurrage receipts by Seven

Seas Shipping Agencies and Exhibit DE 3A – 3L is storage invoices from

TICTS.

Apart from the evidence presented during the hearing, the learned

counsels filed final submissions I shall not reproduce in my judgment but

rather consider where necessary in the course of determining the issues at

hand.

Now, the first issue raised in the plaintiff's case is whether the

payment of the first consignment was paid in full by the

defendant. In answering this issue, the plaintiff will have to prove that

they made certain proposals and that the proposal was accepted, and the

defendant paid only 70% upfront and refused to pay the remaining balance

of 30% within 15 days after submission of the invoice.

Needless to say, there is no dispute over the existence of an

agreement between the plaintiff and the defendant for the transportation

of the first shipment of goods (the bulk of sulfur) involving 29 trucks from

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Dar es Salaam Port, Tanzania to Likasi, Lubumbashi, Katanga province in

the Democratic Republic of Congo. There is also no doubt that the first

phase was entered on 11th October 2018 through job quotation number -

AGQ-6865 and job confirmation No. AG-JC-180 which was admitted in

court as Exhibit PE 2(a) and Exhibit PE 2(b) respectively. That was for the

transport of 29 trucks of bulk Sulphur at the agreed rate of USD 6,900 for

each truck which makes a total of USD 200,100. DW1 in his witness

statement said this in paragraph 22, and I quote;

“That, as I said in the 1st shipment, the defendant paid the plaintiff upfront

advance of USD 140,070 as 70% of total transport cost where USD 60,030

which is 30% remained unpaid”.

During the hearing, DW1 also testified that the failure of the

defendant to pay the 30% balance in the first shipment was caused by the

plaintiff's lack of submission of the proof of delivery as agreed. It is a trite

law under section 37(1) of the Law of Contract Act, Cap 345 that parties to

the contract are obliged to fulfil their promises. The relevant section

provides, thus;

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 “The parties to a contract must perform their respective promises

unless such performance is dispensed with or excused under the

provisions of this Act or any other law”

The above position was re-affirmed in Abually Alibhai Azizi vs Bhata

Brothers Ltd [2000] TLR on page 288 and Philipo Joseph Lukonde vs

Faraji Ally Said [2020] 1 TLR on page 556. It was emphasized that,

“Once parties have entered into a contract, they must honor their

obligations under their contract. Neither this court nor any other court

in Tanzania for that matter should allow a deliberate breach of the

sanctity of contract.”

Admittedly, both parties acknowledge that the proof of delivery was

one of the fundamental elements of the agreement. So, for the defendant

to effect payment of unpaid 30% depended on the submission of proof of

delivery by the plaintiff. The plaintiff orally told the court that the POD was

submitted to the defendant. However, on cross-examination, the plaintiff’s

witness (PW1) failed to produce any proof of submission of delivery to the

defendant before demanding payment from the defendant. As the law put

it right, failure to cross-examine the court is deemed to hold that the

parties have accepted the existence of certain facts. Seet the case of

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Nyerere Nyague v R, Crim. Appeal No. 67 OF 2010, [CAT-unreported)

where it was held that;

“Unfortunately, the appellant did not cross-examine PW1 on this to shake her

credibility. As a matter of principle, a party who fails to cross-examine a

witness on a certain matter is deemed to have accepted that matter

and will be estopped from asking the trial court to disbelieve what the

witness said. (See Cyprian A. Kibogoyo v R Criminal Appeal No. 88 of 1992, 18

Paul Yusuf Nchia v National Executive Secretary, Chama Cha Mapinduzi and

Another, Civil Appeal No. 85 of 2005 (both unreported)”. (emphasis is mine).

For the avoidance of doubt, in my view, the plaintiff's failure to submit

proof of delivery amounted to a failure to perform such core terms of the

agreement which was aware of. In that regard, the defendant was, in law,

justifiable to withhold the payment of the remaining 30%. The plaintiff’s

counsel seems to take the position that since the defendant agreed that

the sad 29 trucks were delivered, lack of proof of delivery does not have

any effect on the circumstance. The view, to me, does not sound legal.

Parties must strictly adhere to the terms and conditions agreed upon,

otherwise, there will be no need to set the terms and conditions in the

agreement. In Real Estate Developers LTD vs Serengeti Breweries

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Ltd, Commercial Case No. 3 of 2020 (HCT – Unreported) my brother

Nangela, J. had this to say;

“Essentially a breach of contract is wrong, a failure to comply with

legal obligations arising from the Contract for which the innocent party

has bargained for and provided consideration. Where a party to a

contract repudiates or fails to perform one or more of his obligations

under that contract that repudiation or failure is what constitutes

breach of contract”

Be it as it may, even though there was no submission of proof of

delivery as agreed, still the plaintiff is entitled to unpaid 30% from the

defendant upon fulfilling the conditions.

In view of the above, therefore, the first issue is answered in the

negative that the payment of the first consignment was not paid in full by

the defendant, though there was a valid reason for doing so, that is the

plaintiff failed to submit the proof of delivery.

Moving to the second issue, that is, whether the plaintiff is

entitled to late payment charges. The genesis of this issue is an

attachment in exhibit PE2(b) where the plaintiff alleges that when the

email dated 3rd October 2018 was sent, DW1 was informed about the

attached terms and conditions on late payment charges. For this issue to
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sail through, the plaintiff must satisfy the court that this was one of the

terms and conditions of the agreement and in fact, there was late

payment.

The defendant though DW1 testified that he had never accepted or

confirmed the plaintiff’s quotation in AGQ-6950 and AGQ-6865 in the

plaintiff’s witness statement annexures AJC 7 and AJC2 dated 15th October

2018 and 3rd October 2018 respectively. According to him, the defendant

and the plaintiff had no term of contract which imposed a monthly 10%

interest rate for the delayed payment of the remaining 30% after

expiration of 15 days from the date when the plaintiff submitted to the

defendant proof of delivery.

The plaintiff on the other hand through PW1 produced exhibits

PE2(a) and PE2(b) which are the email correspondences basically between

PW1 and DW1 concerning information on loading, offloading location,

contacts, and clearing agent (PE2(a). This email was referring to quotation

AGQ-6865-CJ Smart which the defendant (DW1) denies to have come to

his attention. Exhibit PE2 (b) refers to quotation AGQ-6865 drawing

attention to DW1 about the 1st shipment involving the transportation of 29

trucks with the value of USD 200,100. Besides the description of the cargo,

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DW1 is informed that full terms and conditions are attached. Subsequently,

the plaintiff (PW1) wrote to the defendant (DW1) informing him that once

he has accepted the terms and conditions, they will begin to allocate

resources for the job. Then, DW1 accepted job confirmation AG-JC-180

quoted ID Reference AGQ-6865.

Given the above, in my considered view, there can never be

acceptance of job confirmation AG-JC-180 by the defendant without

accepting the quoted ID Reference AGQ-6865 inserted in the said job

confirmation. Further to that, the basis of confirming AG-JC-180 quoted ID

Reference AGQ-6865 is the quotation AGQ-6865 in which the defendant

was informed that terms and conditions are attached. That being said and

done, in the absence of evidence to the contrary, the defendant (DW1)

cannot be heard saying that he does not know that delayed payment

attracted additional charges as enclosed in part A of the general terms,

clause 5 of the Terms and conditions were not put to his attention. My take

is that, Exhibit PE2(a) (b) and (c) ought to be read together as documents

forming part of one transaction. For ease of reference, the protested

Clause 5 on delayed payments charges provides;

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 “In cases where credit terms have been agreed the company reserves

the right to charge late payment charges on any account which

remains unpaid 30 days or more such interest to be calculated by the

Company at 10% per month.”

Despite my holding in the above position, the above terms and conditions

as it stands would have been relied upon by the plaintiff in this case, if the

delayed charges had occurred after the plaintiff had fulfilled all the terms

and conditions of the agreement including submission of proof of

delivery to the defendant. In other words, the time for delayed charges

should have started running from the date of the submission of proof of

delivery and the defendant defaults thereafter. Failure of the plaintiff to

provide proof of delivery to the defendant stopped the running of time to

justifiably claim for late payment charges. If this court orders payment of

late charges, it would amount to benefit the plaintiff out of her wrongs.

See the case of Haji Hassan Chimbo Vs. Mshibe Iddi Ramadhani

[1995]

In furtherance to the above, the plaintiff should be mindful that the

burden of proof never shifts to the adverse party until the party on whom

the onus lies discharges his and that the burden of proof is not diluted on

account of the weakness of the opposite party's case. See the case of
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Paulina Samson Ndawavya versus Theresia Thomasi Madaha, Civil

Appeal No. 45 Of 2017 (CAT-Unreported).

For the foregoing, the second issue is answered in the negative, that

Plaintiff is not entitled to late payment charges.

The third and last issue is what reliefs are parties entitled to.

PW1 prayed for the payment of USD 64,135.00 as the unpaid

transportation cost, USD 275,781.00 being charged for the late payment

and general damages to be assessed by the court.

The plaintiff asserts that the Defendant never fulfilled her contractual

obligation for failure to pay the remaining 30% for the 1st shipment, a fact

that the defendant admits and this court has resolved in favor. The plaintiff

also contends that the defendant failed to pay the late payment charges

thereto.

The resolution of the first issue has the answer to the third issue,

that the plaintiff is entitled to specific damages only. It is a trite law that

specific damages must be pleaded and strictly proved. See the case of

Bamprass Star Service Station Limited vs. Mrs. Fatuma Mwale,

[2000] T.L.R 390 where Rutakangwa J, had this to say;

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 “It is trite law that special damages being "exceptional in their

character" and which may consist of "off-pocket expenses and ioss of

earnings incurred down to the date of trial must not only be claimed

specifically but also "strictly proved".

In the present case, the plaintiff’s claim against the defendant is USD

64,135 as specific damages. However, having examined the evidence on

record, the plaintiff has managed to prove the specific damages to the tune

of USD 60,030 for the 1st shipment and USD 705 for the second shipment,

making a total of USD 60,735. This is because, as acknowledged by both

parties, in the 1st shipment, the defendant paid the plaintiff an upfront

advance of USD 140,070 as 70% of the total transport cost whereas USD

60,030 which is 30% remained unpaid. And that, in the 2nd shipment the

plaintiff paid an upfront advance of 182,595 as 70% for which USD 78,255

as 30% remained unpaid. More or so, the defendant paid an upfront

advance of USD 182,595 in the 2nd shipment while the plaintiff made full

delivery of 26 containers making a total of USD 183,000 which when

subtracted from the already paid advance of USD 182,595 makes a total of

USD 705 unpaid for the 2nd shipment. And that, adding up to the unpaid 1st

shipment of USD 60,030 to the 2nd shipment, the total unpaid for two

shipments becomes USD 60,735.

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 As to the general damages, the law is settled in our jurisdiction that

general damages are awarded by the trial judge or magistrate after

consideration and deliberation on the evidence on record able to justify the

award. The judge or magistrate has the discretion in awarding general

damages although he has to assign reasons for awarding the same. The

position was discussed in the case of P.M Jonathan vs. Athumani

Khalfan [1980] TLR 175, Lugakingira, J, as he then stated that;

“The position as it is therefore emerges to me is that general damages are

compensatory in character. They are intended to take care of the plaintiff's

loss of reputation, as well as to act as a solarium for mental pain and

sufferings.” (emphasis is mine).

In our case, the court should have considered awarding the general

damages which in our jurisdiction falls under the discretion of the court and

in consideration of the circumstances of a particular case. However, since

the Plaintiff is the source of the breach by not submitting proof of delivery

is not entitled to any of the general damages.

After concluding with the plaintiff's case, let me revert to the

defendant's case in the counterclaim. For easy reference in the

counterclaim, the plaintiff and defendant in the main case shall be

17
regarded as the defendant and the plaintiff respectively. As I have noted

earlier, the first issue is whether the defendant in the counterclaim

breached the contract.

The case of the plaintiff in the counterclaim is that the defendant,

Alistair James Company Limited agreed to transport from Dar es

Salaam port to Likas Katanga DRC in 37 flatbed trucks of 40 feet containers

at a consideration of USD 7,050 each truck making a total of USD 260,850.

Out of 37 flatbed trucks which the plaintiff agreed, the defendant was able

to provide 26 flatbed trucks only, leaving behind 11 containers lying at the

port. According to the plaintiff, such delay caused additional charges of

Tshs. 315,000,000/= being the costs of demurrage and storage charges.

The defendant, on the other hand, refused the contention of the plaintiff

providing reasons for her failure to source the 11 trucks. One is the

plaintiff’s failure to timely pay an upfront payment of 70% of credit terms.

Two, the plaintiff’s failure to clear the consignment at the port in time.

Third, due to political instability in the DRC involving Katanga province.

I have carefully gone through the pleadings and examined evidence

on record and submissions of the learned counsels. The agreement

between parties in the second shipment is exhibited in the job confirmation

18
in exhibit P2E- G. According to the said exhibit, the plaintiff was to pay an

advance payment of 70% after the loading of the consignment and the

remaining 30% was to be paid within 15 working days after the submission

of the PoD.

Given the above terms, I do not agree with the defendant that the

plaintiff failed to pay the 70% upfront in time. Because as per the credit

terms, the defendant was supposed to pay 70% after the loading. Given

this, therefore, the plaintiff’s action was contrary to the agreed credit

terms. Further to that, I have refused the contention of the defendant that

the failure to transport the 11 trucks-containers of sulfur was due to

political instability in the DRC-Katanga province. Much as we agree that

when there is political stability in the country that can disrupt the daily life

of the citizens in the areas of economy social as well as political, the

existence of such instability must come from the relevant and recognised

authority. As pointed out by the plaintiff, there is no notification or report

from the recognized authority on the occurrence of political instability in

DRC. Hence, having election violence within the country alone with

unstated magnitude is not sufficient to call off a contract.

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 We all know DRC has experienced armed conflict for decades,

however, since then trading has been taking place without disruption. In

my view, if there had been serious political instability as the defendant

wanted this court to believe the same would have been communicated by

the recognized and trusted source of authority. Section 110(1) of the

Evidence Act, Cap. 6 [R.E 2022] provides that whoever desires any court to

give judgment on legal rights or liability dependent on the existence of

facts which he asserts must prove that those facts exist. This is also

emphasized in Sarkar's Law of Evidence, 18th Edition M.C. Sarkar, S.

C., published by Lexis Nexis and quoted the following words: -

"the burden of proving a fact rests on the party who substantially

asserts the affirmative of the issue and not upon the party who denies

it; for negative is usually incapable of proof. It is an ancient rule

founded on the consideration of good sense and should not be

departed from without strong reason.... Until such burden is discharged

the other party is not required to be called upon to prove his case. The

Court has to examine whether the person upon whom the burden lies

has been able to discharge his burden. Until he arrives at such a

conclusion, he cannot proceed based on the weakness of the other

party..."

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In light of the above, it becomes evident that the assertion presented

regarding the existence of political instability is not only perplexing but also

unsupported. It is, therefore, the uncontroverted fact that the defendant

breached the contract for failing to provide the 11 trucks to the plaintiff's

respective destination. See what it entails in the case of Real Estate

Developers LTD vs Serengeti Breweries Ltd(supra).

Notwithstanding, the contention raised by the defendant that the

plaintiff failed to clear the consignee at the port in time needs also to be

looked at by this court. It can be recalled that the parties confirmed the

second shipment on 20th October 2018, and on 25th October 2018, the

cargo was released from customs. However, it was not ready for collection

at the port as the plaintiff was dealing with port charges. This is evidenced

in an email from the defendant dated 29th, October 2018 when PW1 wrote

to the DW1 as to when they could start loading. In the said email, the

defendant also informed the plaintiff that the already allocated trucks

would be pulled out to avoid further standing charges and loss of revenue

to the defendant. On the same day, DW1 emailed PW1 that, they would

start loading from 30th October 2018 because they were still processing

some port charges. Eventually, the loading started on 7th November

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2018 to 22nd November 2018 presumably that it started after the

completion of the payment of port charges by the plaintiff.

Because of that, although the plaintiff delayed the clearance of the

consignment at the port, such a failure, notwithstanding, had no impact on

the accrued storage and port charges. The plain fact is that on 7th

November 2018, the consignment was ready for collection at the port, and

by 22nd November 2018 the defendant managed to load 20 trucks. And

later loaded and transported 6 trucks. By 27th November 2018 parties had

a meeting about sourcing the remaining 11 trucks. Nothing in their

correspondences or meetings showed that there was political instability.

Ultimately, the 11 trucks were transported by the plaintiff through wagon.

This alone, tells that the issue was not political stability or late clearance

but rather the defendant’s failure to source the remaining 11 trucks. The

email dated 3rd December 2018 PW1 informed the DW1 that they are

experiencing challenges in sourcing the trucks to uplift the balance

shipment. In this situation, therefore, the first issue in the counterclaim is

answered in the affirmative that the defendant had breached the contract.

The second issue is whether the plaintiff in the counterclaim is

entitled to claim damages for breach of contract. The law is settled. Where

22
there is a breach of contract a party who suffered is entitled to damages.

Section 73(1) of the Law of Contract Act cap. 345 [RE 2022] provides;

“Where a contract has been broken, the party who suffers by such

breach is entitled to receive, from the party who has broken the

contract, compensation for any loss or damage caused to him thereby,

which naturally arose in the usual course of things from such breach,

or which the parties knew, when they made the contract, to be likely to

result from the breach of it”.

This Court has amplified the rule in section 73 (1) of the Act in the case of

Amandus Ziky Masinde Versus Nyamsera Marumba, Civil Appeal

No.88 Of 2016[HCT], where Mkaramba, J. held that;

“On the strength of section 73(1) of the Law of Contract Act, a party

who suffers from a breach of contract is entitled to receive

compensation for any loss which naturally arose in the usual course of

things from such breach or which the parties knew, when they made

the contract, to be likely to result from the breach of it”.

In this case, the Plaintiff testified that, since the 11 trucks were not

transported, made him incurred additional costs of demurrage and storage

charges as reflected and acknowledged by the defendant in exhibit PE2-O

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and PE2-P. The plaintiff claimed Tshs. 315,000,000/= being the amount of

charges as evidenced in exhibit DE 1 and DE3 A to L.

Per contra, the defendant contends that the additional charges were

caused by the Plaintiff for his late clearance of the consignments at the

port. He added that Plaintiff failed to pay the upfront payment of 70% and

further to that, the storage and demurrage invoices have no proof of

payment and the invoices have no proof that they relate with the Job

quotation No. 2.

Having considered the testimonies and final submissions of both

learned counsels, I hasten to state that the obverse of the principle of

freedom of contract is the doctrine of pacta sunt servanda: a fundamental

principle of law that requires the provisions of agreements concluded

properly must be observed. This means that once parties have exercised

their freedom to enter into a contract, they have the legal rights and

obligations they have agreed to and are entitled to, and if either of the

parties has suffered loss as a result of the breach is entitled to the

damages. The plaintiff tendered exhibit receipts of demurrage charges and

storage invoice issues by port, TICS. The demurrage charge is USD 12,240

whereas the storage charge is Tshs. 91,849,859,7=.

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 Having said that, the argument of the defendant that the additional

charges were caused by Plaintiff for his late clearance of the consignments

at the port and that Plaintiff failed to pay the upfront payment of 70% does

not hold water. This, as explained above, the upfront payment of 70% was

to be paid after the loading and not before. But the plaintiff insisted

payment before contrary to the agreement. Again, clearance was

completed before the charges started to accrue, and further to that, the

storage and demurrage invoices are related to invoices in exhibit DE2 and

DE3(a)-(L) reflects the bill of leading reference Nos. which was issued by

the shipping line. Therefore, the 2nd issue is answered in the affirmative

that the plaintiff is entitled to specific damages. The demurrage charge is

USD 12,240 and the storage charge is Tshs. 91,849,859,7=.

As to the third issue, what reliefs are parties entitled to? I wish

to state that, the Plaintiff has claimed several reliefs as enumerated in the

counterclaim. Under this issue, the defendant under item 7 of his

Counterclaim sought Tshs. 315,000,000/= being demurrage charges and

storage charges of USD 12,240 that occurred due to the defendant’s

breach of contract.

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 There is no dispute that the claims of demurrage and storage

charges are specific in nature and were to be specifically pleaded and

proved. This amount was pleaded in paragraph 7 of the Counterclaim. It is

apparent that, under the provisions of section 110 of the Tanzania

Evidence Act, [Cap 6 R.E. 2019] is very clear that he who alleges has a

legal burden to prove what he alleges before a court can decide in her

favor. Further guidance can be gathered from the case of Zuberi

Augostino vs. Vicent Mugabe [1992] TLR 137 in which the apex court

in the land categorically held that it is a trite law in our jurisdiction that,

specific claims must be strictly pleaded and strictly proved for the claimant

to be given.

Guided by the evidence adduced in Exhibit DE3 A to L and DE2 the

total amount of loss suffered by the plaintiff is USD 12,240 (DE2) as

Demurrage Charges and Tshs. 91, 849,859.7 (DE3 A to L) as storage

charges. This is the amount that has been proved by the Plaintiff. Having

noted that the Plaintiff is entitled to the specific damages of USD 12,240

and Tshs. 91,849.859.

Also, Plaintiff in item (ii) of the counterclaim prayed for the general

damages and in paragraph 8 claimed that the failure of the defendant to

26
provide 11 tracks to the destination, has caused him the loss of future

business, image, and trust. And from the meaning of the general damage

they are awarded at the discretion of the court after determination and

quantification of the damages suffered by the party. Only what the

claimant is supposed to do in this category of damages is just to plead in

the plaint. This position is clearly stated in the case of Peter Joseph

Kilibika vs Partic Aloyce Mlingi, Civil Appeal no. 30 of 2009 [CAT -

Unreported] when the court quoted with approval the words of Lord

Dunedin as stated in the case of Admiralty Commissioners vs. SS

Susquehanna [1950] 1 ALL ER 392 on the award of general damages

held that;

"If the damage be general then it must be averred that such

damage has been suffered, but the quantification of such

damage is a jury question”.

In so far as the law does not require the Plaintiff to prove the claimed

general damage, I have taken into consideration the fact that the

defendant failed to discharge his duty as per the contract, and further

enough the defendant insisted in terms of the contract not agreed on,

hence this court after taking into account all the relevant factors of this

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case, justice dictates that general damages of TZS 20,000,000 (Twenty

million shillings) is enough to mitigate the sufferings. Consequently, the suit

of the Plaintiff in the counterclaim is partly allowed to the extent

hereinabove.

For the foregoing, to be more precise and specific, the defendant in

the main suit is ordered the following;

i. To pay the plaintiff USD 60,735 the outstanding balance of the first

and second shipment.

ii. Based on the findings in the two suits, each part has to bear its

costs.

As a result of the findings, the defendant in the counterclaim is ordered to

pay the Plaintiff in the counterclaim the following;

i. The defendant is ordered to pay the plaintiff USD 12,240 as

demurrage charges.

ii. The defendant is ordered to pay the plaintiff Tshs. 91849,859 as

the storage charges.

iii. The defendant is ordered to pay the plaintiff General damages of

Tshs. 20,000,000/=
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 iii. Based on the findings in the two suits, each part has to bear its

costs.

It is so ordered, accordingly.

H. R. MWANGA

JUDGE

16/02/2024

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